[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3824 Engrossed in House (EH)]


109th CONGRESS

  1st Session

                               H. R. 3824

_______________________________________________________________________

                                 AN ACT

To amend and reauthorize the Endangered Species Act of 1973 to provide 
greater results conserving and recovering listed species, and for other 
                               purposes.
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
109th CONGRESS
  1st Session
                                H. R. 3824

_______________________________________________________________________

                                 AN ACT


 
To amend and reauthorize the Endangered Species Act of 1973 to provide 
greater results conserving and recovering listed species, and for other 
                               purposes.

    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 ``Threatened and 
Endangered Species Recovery Act of 2005''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1.  Short title; table of contents.
Sec. 2.  Amendment references.
Sec. 3.  Definitions.
Sec. 4.  Determinations of endangered species and threatened species.
Sec. 5.  Repeal of critical habitat requirements.
Sec. 6.  Petitions and procedures for determinations and revisions.
Sec. 7.  Reviews of listings and determinations.
Sec. 8.  Secretarial guidelines; State comments.
Sec. 9.  Recovery plans and land acquisitions.
Sec. 10. Cooperation with States and Indian tribes.
Sec. 11. Interagency cooperation and consultation.
Sec. 12. Exceptions to prohibitions.
Sec. 13. Private property conservation.
Sec. 14. Public accessibility and accountability.
Sec. 15. Annual cost analyses.
Sec. 16. Reimbursement for depredation of livestock by reintroduced 
                            species.
Sec. 17. Authorization of appropriations.
Sec. 18. Miscellaneous technical corrections.
Sec. 19. Clerical amendment to table of contents.
Sec. 20. Certain actions deemed in compliance.
Sec. 21. Consolidation of programs.
Sec. 22. Review of protective regulations.
Sec. 23. Provision of information regarding compliance costs of Federal 
                            power administrations.
Sec. 24. Survey of BLM lands and Forest Service lands for management 
                            for recovery of listed species.
Sec. 25. Relationship between section 7 consultation and incident take 
                            authorization under Marine Mammal 
                            Protection Act of 1972.

SEC. 2. AMENDMENT REFERENCES.

    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. DEFINITIONS.

    (a) Best Available Scientific Data.--Section 3 (16 U.S.C. 1532) is 
amended by redesignating paragraphs (2) through (21) in order as 
paragraphs (3), (4), (5), (6), (7), (8), (9), (10), (11), (13), (14), 
(15), (16), (17), (18), (19), (20), (21), and (22), respectively, and 
by inserting before paragraph (3), as so redesignated, the following:
    ``(2)(A) The term `best available scientific data' means scientific 
data, regardless of source, that are available to the Secretary at the 
time of a decision or action for which such data are required by this 
Act and that the Secretary determines are the most accurate, reliable, 
and relevant for use in that decision or action.
    ``(B) Not later than one year after the date of the enactment of 
the Threatened and Endangered Species Recovery Act of 2005, the 
Secretary shall issue regulations that establish criteria that must be 
met to determine which data constitute the best available scientific 
data for purposes of subparagraph (A).
    ``(C) In carrying out subparagraph (B), the Secretary shall 
undertake necessary measures to assure--
            ``(i) compliance with guidance issued under section 515 of 
        the Treasury and General Government Appropriations Act of 2001 
        (Public Law 106-554; 114 Stat. 2763A-171) by the Director of 
        the Office of Management and Budget and the Secretary;
            ``(ii) data consists of empirical data; or
            ``(iii) data is found in sources that have been subject to 
        peer review by qualified individuals recommended by the 
        National Academy of Sciences to serve as independent reviewers 
        for a covered action in a generally acceptable manner.''.
    (b) Permit or License Applicant.--Section 3 (16 U.S.C. 1532) is 
further amended by amending paragraph (13), as so redesignated, to read 
as follows:
    ``(13) The term `permit or license applicant' means, when used with 
respect to an action of a Federal agency that is subject to section 
7(a) or (b), any person that has applied to such agency for a permit or 
license or for formal legal approval to perform an act.''.
    (c) Conforming Amendment.--Section 7(n) (16 U.S.C. 1536(n)) is 
amended by striking ``section 3(13)'' and inserting ``section 3(14)''.
    (d) Conforming Amendment.--Section 3 (16 U.S.C. 1532) is further 
amended in paragraph (18), as redesignated by subsection (a) of this 
section, by striking ``Trust Territory of the Pacific Islands'' and 
inserting ``Commonwealth of the Northern Mariana Islands''.

SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND THREATENED SPECIES.

    (a) Requirement to Make Determinations.--Section 4 (16 U.S.C. 1533) 
is amended by striking so much as precedes subsection (a)(3) and 
inserting the following:

      ``determination of endangered species and threatened species

    ``Sec. 4. (a) In General.--(1) The Secretary shall by regulation 
promulgated in accordance with subsection (b) determine whether any 
species is an endangered species or a threatened species because of any 
of the following factors:
            ``(A) The present or threatened destruction, modification, 
        or curtailment of its habitat or range by human activities, 
        competition from other species, drought, fire, or other 
        catastrophic natural causes.
            ``(B) Overutilization for commercial, recreational, 
        scientific, or educational purposes.
            ``(C) Disease or predation.
            ``(D) The inadequacy of existing regulatory mechanisms, 
        including any efforts identified pursuant to subsection (b)(1).
            ``(E) Other natural or manmade factors affecting its 
        continued existence.
    ``(2) The Secretary shall use the authority provided by paragraph 
(1) to determine any distinct population of any species of vertebrate 
fish or wildlife to be an endangered species or a threatened species 
only sparingly.''.
    (b) Basis for Determination.--Section 4(b)(1)(A) (16 U.S.C. 
1533(b)(1)(A)) is amended--
            (1) by striking ``best scientific and commercial data 
        available to him'' and inserting ``best available scientific 
        data''; and
            (2) by inserting ``Federal agency, any'' after ``being made 
        by any''.
    (c) Lists.--Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to 
read as follows:
    ``(2)(A) The Secretary shall--
                    ``(i) conduct, at least once every 5 years, based 
                on the information collected for the biennial reports 
                to the Congress required by paragraph (3) of subsection 
                (f), a review of all species included in a list that is 
                published pursuant to paragraph (1) and that is in 
                effect at the time of such review; and
                    ``(ii) determine on the basis of such review and 
                any other information the Secretary considers relevant 
                whether any such species should--
                            ``(I) be removed from such list;
                            ``(II) be changed in status from an 
                        endangered species to a threatened species; or
                            ``(III) be changed in status from a 
                        threatened species to an endangered species.
            ``(B) Each determination under subparagraph (A)(ii) shall 
        be made in accordance with subsections (a) and (b).''.
    (d) Analysis of Impacts and Benefits.--Section 4(a) (16 U.S.C. 
1533(a)), as amended by section 4(a) of this Act, is further amended by 
striking paragraph (3) and inserting the following:
    ``(4)(A) The Secretary shall, concurrently with making a 
determination under paragraph (1) that a species is an endangered 
species or a threatened species, prepare an analysis of--
            ``(i) the economic impact and benefit of that 
        determination;
            ``(ii) the impact and benefit on national security of that 
        determination; and
            ``(iii) any other relevant impact and benefit of that 
        determination.
    ``(B) Nothing in this paragraph shall delay the Secretary's 
decision or change the criteria used in making determinations under 
paragraph (1).''.

SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS.

    (a) Repeal of Requirement.--Section 4(a) (16 U.S.C. 1533(a)) is 
amended by striking paragraph (3), and redesignating paragraph (4) (as 
added by section 4(d) of this Act) as paragraph (3).
    (b) Conforming Amendments.--
            (1) Section 3 (16 U.S.C. 1532), as amended by section 3 of 
        this Act, is further amended by striking paragraph (6) and by 
        redesignating paragraphs (7) through (22) in order as 
        paragraphs (6) through (21).
            (2) Section 4(b) (16 U.S.C. 1533(b)), as otherwise amended 
        by this Act, is further amended by striking paragraph (2), and 
        by redesignating paragraphs (3) through (8) in order as 
        paragraphs (2) through (7), respectively.
            (3) Section 4(b) (16 U.S.C. 1533(b)) is further amended in 
        paragraph (2), as redesignated by paragraph (2) of this 
        subsection, by striking subparagraph (D).
            (4) Section 4(b) (16 U.S.C. 1533(b)) is further amended in 
        paragraph (4), as redesignated by paragraph (2) of this 
        subsection, by striking ``determination, designation, or 
        revision referred to in subsection (a)(1) or (3)'' and 
        inserting ``determination referred to in subsection (a)(1)''.
            (5) Section 4(b) (16 U.S.C. 1533(b)) is further amended in 
        paragraph (7), as redesignated by paragraph (2) of this 
        subsection, by striking ``; and if such regulation'' and all 
        that follows through the end of the sentence and inserting a 
        period.
            (6) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended--
                    (A) in the second sentence--
                            (i) by inserting ``and'' after ``if any''; 
                        and
                            (ii) by striking ``, and specify any'' and 
                        all that follows through the end of the 
                        sentence and inserting a period; and
                    (B) in the third sentence by striking ``, 
                designations,''.
            (7) Section 5 (16 U.S.C. 1534), as amended by section 
        9(a)(3) of this Act, is further amended in subsection (j)(2) by 
        striking ``section 4(b)(7)'' and inserting ``section 4(b)(6)''.
            (8) Section 6(c) (16 U.S.C. 1535(c)), as amended by section 
        10(1) of this Act, is further amended in paragraph (3) by 
        striking ``section 4(b)(3)(B)(iii)'' each place it appears and 
        inserting ``section 4(b)(2)(B)(iii)''.
            (9) Section 7 (16 U.S.C. 1536) is amended--
                    (A) in subsection (a)(2) in the first sentence by 
                striking ``or result in the destruction or adverse 
                modification of any habitat of such species'' and all 
                that follows through the end of the sentence and 
                inserting a period;
                    (B) in subsection (a)(4) in the first sentence by 
                striking ``or result'' and all that follows through the 
                end of the sentence and inserting a period; and
                    (C) in subsection (b)(3)(A) by striking ``or its 
                critical habitat''.
            (10) Section 10(j)(2)(C)) (16 U.S.C. 1539(j)(2)(C)), as 
        amended by section 12(c) of this Act, is further amended--
                    (A) by striking ``that--'' and all that follows 
                through ``(i) solely'' and inserting ``that solely''; 
                and
                    (B) by striking ``; and'' and all that follows 
                through the end of the sentence and inserting a period.

SEC. 6. PETITIONS AND PROCEDURES FOR DETERMINATIONS AND REVISIONS.

    (a) Treatment of Petitions.--Section 4(b) (16 U.S.C. 1533(b)) is 
amended in paragraph (2), as redesignated by section 5(b)(2) of this 
Act, by adding at the end of subparagraph (A) the following: ``The 
Secretary shall not make a finding that the petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted unless the petitioner provides to 
the Secretary a copy of all information cited in the petition.''.
    (b) Implementing Regulations.--
            (1) Proposed regulations.--Section 4(b) (16 U.S.C. 1533(b)) 
        is amended--
                    (A) in paragraph (4)(A), as redesignated by section 
                5(b)(2) of this Act--
                            (i) in clause (i) by striking ``, and'' and 
                        inserting a semicolon;
                            (ii) in clause (ii) by striking ``to the 
                        State agency in'' and inserting ``to the 
                        Governor of, and the State agency in,'';
                            (iii) in clause (ii) by striking ``such 
                        agency'' and inserting ``such Governor or 
                        agency'';
                            (iv) in clause (ii) by inserting ``and'' 
                        after the semicolon at the end; and
                            (v) by adding at the end the following:
            ``(iii) maintain, and shall make available, a complete 
        record of all information concerning the determination or 
        revision in the possession of the Secretary, on a publicly 
        accessible website on the Internet, including an index to such 
        information.''; and
                    (B) by adding at the end the following:
            ``(8)(A) Information maintained and made available under 
        paragraph (5)(A)(iii) shall include any status review, all 
        information cited in such a status review, all information 
        referred to in the proposed regulation and the preamble to the 
        proposed regulation, and all information submitted to the 
        Secretary by third parties.
            ``(B) The Secretary shall withhold from public review under 
        paragraph (5)(A)(iii) any information that may be withheld 
        under 552 of title 5, United States Code.''.
            (2) Final regulations.--Paragraph (5) of section 4(b) (16 
        U.S.C. 1533(b)), as amended by section 5(b)(2) of this Act, is 
        further amended--
                    (A) in subparagraph (A) by striking clauses (i) and 
                (ii) and inserting the following:
            ``(i) a final regulation to implement such a determination 
        of whether a species is an endangered species or a threatened 
        species;
            ``(ii) notice that such one-year period is being extended 
        under subparagraph (B)(i); or
            ``(iii) notice that the proposed regulation is being 
        withdrawn under subparagraph (B)(ii), together with the finding 
        on which such withdrawal is based.'';
                    (B) in subparagraph (B)(i) by striking 
                ``subparagraph (A)(i)'' and inserting ``subparagraph 
                (A)'';
                    (C) in subparagraph (B)(ii) by striking 
                ``subparagraph (A)(i)'' and inserting ``subparagraph 
                (A)''; and
                    (D) by striking subparagraph (C).
            (3) Emergency determinations.--Paragraph (6) of section 
        4(b) (16 U.S.C. 1533(b)), as redesignated by section 5(b)(2) of 
        this Act, is further amended--
                    (A) in the matter preceding subparagraph (A), by 
                inserting ``with respect to a determination of a 
                species to be an endangered species or a threatened 
                species'' after ``any regulation''; and
                    (B) in subparagraph (B), by striking ``the State 
                agency in'' and inserting ``the Governor of, and State 
                agency in,''.

SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS.

    Section 4(c) (16 U.S.C. 1533(c)) is amended by inserting at the end 
the following:
    ``(3) Each determination under paragraph (2)(B) shall consider one 
of the following:
            ``(A) Except as provided in subparagraph (B) of this 
        paragraph, the criteria in the recovery plan for the species 
        required by section 5(c)(1)(A) or (B).
            ``(B) If the recovery plan is issued before the criteria 
        required under section 5(c)(1)(A) and (B) are established or if 
        no recovery plan exists for the species, the factors for 
        determination that a species is an endangered species or a 
        threatened species set forth in subsections (a)(1) and (b)(1).
            ``(C) A finding of fundamental error in the determination 
        that the species is an endangered species, a threatened 
        species, or extinct.
            ``(D) A determination that the species is no longer an 
        endangered species or threatened species or in danger of 
        extinction, based on an analysis of the factors that are the 
        basis for listing under section 4(a)(1).''.

SEC. 8. SECRETARIAL GUIDELINES; STATE COMMENTS.

    Section 4 (16 U.S.C. 1533) is amended--
            (1) by striking subsections (f) and (g) and redesignating 
        subsections (h) and (i) as subsections (f) and (g), 
        respectively;
            (2) in subsection (f), as redesignated by paragraph (1) of 
        this subsection--
                    (A) in the heading by striking ``Agency'' and 
                inserting ``Secretarial'';
                    (B) in the matter preceding paragraph (1), by 
                striking ``the purposes of this section are achieved'' 
                and inserting ``this section is implemented'';
                    (C) by redesignating paragraph (4) as paragraph 
                (5);
                    (D) in paragraph (3) by striking ``and'' after the 
                semicolon at the end, and by inserting after paragraph 
                (3) the following:
            ``(4) the criteria for determining best available 
        scientific data pursuant to section 3(2); and''; and
                    (E) in paragraph (5), as redesignated by 
                subparagraph (C) of this paragraph, by striking 
                ``subsection (f) of this section'' and inserting 
                ``section 5'';
            (3) in subsection (g), as redesignated by paragraph (1) of 
        this section--
                    (A) by inserting ``Comments.--'' before the first 
                sentence;
                    (B) by striking ``a State agency'' the first place 
                it appears and inserting ``a Governor, State agency, 
                county (or equivalent jurisdiction), or unit of local 
                government'';
                    (C) by striking ``a State agency'' the second place 
                it appears and inserting ``a Governor, State agency, 
                county (or equivalent jurisdiction), or unit of local 
                government'';
                    (D) by striking ``the State agency'' and inserting 
                ``the Governor, State agency, county (or equivalent 
                jurisdiction), or unit of local government, 
                respectively''; and
                    (E) by striking ``agency's''.

SEC. 9. RECOVERY PLANS AND LAND ACQUISITIONS.

    (a) In General.--Section 5 (16 U.S.C. 1534) is amended--
            (1) by redesignating subsections (a) and (b) as subsections 
        (k) and (l), respectively;
            (2) in subsection (l), as redesignated by paragraph (1) of 
        this section, by striking ``subsection (a) of this section'' 
        and inserting ``subsection (k)''; and
            (3) by striking so much as precedes subsection (k), as 
        redesignated by paragraph (1) of this section, and inserting 
        the following:

                 ``recovery plans and land acquisition

    ``Sec. 5. (a) Recovery Plans.--The Secretary shall, in accordance 
with this section, develop and implement a plan (in this subsection 
referred to as a `recovery plan') for the species determined under 
section 4(a)(1) to be an endangered species or a threatened species, 
unless the Secretary finds that such a plan will not promote the 
conservation and survival of the species.
    ``(b) Development of Recovery Plans.--(1) Subject to paragraphs (2) 
and (3), the Secretary, in developing recovery plans, shall, to the 
maximum extent practicable, give priority to those endangered species 
or threatened species, without regard to taxonomic classification, that 
are most likely to benefit from such plans, particularly those species 
that are, or may be, in conflict with construction or other development 
projects or other forms of economic activity.
    ``(2)(A) In the case of any species determined to be an endangered 
species or threatened species after the date of the enactment of the 
Threatened and Endangered Species Recovery Act of 2005, the Secretary 
shall publish a final recovery plan for a species within 2 years after 
the date the species is listed under section 4(c).
    ``(B) Nothing in this paragraph shall be construed to affect the 
authority of the Secretary to issue any emergency regulation pursuant 
to section 4(b)(6).
    ``(3)(A) For those species that are listed under section 4(c) on 
the date of enactment of the Threatened and Endangered Species Recovery 
Act of 2005 and are described in subparagraph (B) of this paragraph, 
the Secretary, after providing for public notice and comment, shall--
            ``(i) not later than 1 year after such date, publish in the 
        Federal Register a priority ranking system for preparing or 
        revising such recovery plans that is consistent with paragraph 
        (1) and takes into consideration the scientifically based needs 
        of the species; and
            ``(ii) not later than 18 months after such date, publish in 
        the Federal Register a list of such species ranked in 
        accordance with the priority ranking system published under 
        clause (i) for which such recovery plans will be developed or 
        revised, and a tentative schedule for such development or 
        revision.
    ``(B) A species is described in this subparagraph if--
            ``(i) a recovery plan for the species is not published 
        under this Act before the date of enactment of the Threatened 
        and Endangered Species Recovery Act of 2005 and the Secretary 
        finds such a plan would promote the conservation and survival 
        of the species; or
            ``(ii) a recovery plan for the species is published under 
        this Act before such date of enactment and the Secretary finds 
        revision of such plan is warranted.
    ``(C)(i) The Secretary shall, to the maximum extent practicable, 
adhere to the list and tentative schedule published under subparagraph 
(A)(ii) in developing or revising recovery plans pursuant to this 
paragraph.
    ``(ii) The Secretary shall provide the reasons for any deviation 
from the list and tentative schedule published under subparagraph 
(A)(ii), in each report to the Congress under subsection (e).
    ``(4) The Secretary, using the priority ranking system required 
under paragraph (3), shall prepare or revise such plans within 10 years 
after the date of the enactment of the Threatened and Endangered 
Species Recovery Act of 2005.
    ``(c) Plan Contents.--(1)(A) Except as provided in subparagraph 
(E), a recovery plan shall be based on the best available scientific 
data and shall include the following:
            ``(i) Objective, measurable criteria that, when met, would 
        result in a determination, in accordance with this section, 
        that the species to which the recovery plan applies be removed 
        from the lists published under section 4(c) or be reclassified 
        from an endangered species to a threatened species.
            ``(ii) A description of such site-specific or other 
        measures that would achieve the criteria established under 
        clause (i), including such intermediate measures as are 
        warranted to effect progress toward achievement of the 
        criteria.
            ``(iii) Estimates of the time required and the costs, 
        including direct, indirect and cumulative costs, to carry out 
        those measures described under clause (ii), including, to the 
        extent practicable, estimated costs for any recommendations, by 
        the recovery team, or by the Secretary if no recovery team is 
        selected, that any of the areas identified under clause (iv) be 
        acquired on a willing seller basis.
            ``(iv) An identification of those specific areas that are 
        of special value to the conservation of the species.
    ``(B) Those members of any recovery team appointed pursuant to 
subsection (d) with relevant scientific expertise, or the Secretary if 
no recovery team is appointed, shall, based solely on the best 
available scientific data, establish the objective, measurable criteria 
required under subparagraph (A)(i).
    ``(C)(i) If the recovery team, or the Secretary if no recovery team 
is appointed, determines in the recovery plan that insufficient best 
available scientific data exist to determine criteria or measures under 
subparagraph (A) that could achieve a determination to remove the 
species from the lists published under section 4(c), the recovery plan 
shall contain interim criteria and measures that are likely to improve 
the status of the species.
    ``(ii) If a recovery plan does not contain the criteria and 
measures provided for by clause (i) of subparagraph (A), the recovery 
team for the plan, or the Secretary if no recovery team is appointed, 
shall review the plan at intervals of no greater than 5 years and 
determine if the plan can be revised to contain the criteria and 
measures required under subparagraph (A).
    ``(iii) If the recovery team or the Secretary, respectively, 
determines under clause (ii) that a recovery plan can be revised to add 
the criteria and measures provided for under subparagraph (A), the 
recovery team or the Secretary, as applicable, shall revise the 
recovery plan to add such criteria and measures within 2 years after 
the date of the determination.
    ``(D) In specifying measures in a recovery plan under subparagraph 
(A), a recovery team or the Secretary, as applicable, shall--
            ``(i) whenever possible include alternative measures; and
            ``(ii) in developing such alternative measures, the 
        Secretary shall seek to identify, among such alternative 
        measures of comparable expected efficacy, the alternative 
        measures that are least costly.
    ``(E) Estimates of time and costs pursuant to subparagraph 
(A)(iii), and identification of the least costly alternatives pursuant 
to subparagraph (D)(ii), are not required to be based on the best 
available scientific data.
    ``(2) Any area that, immediately before the enactment of the 
Threatened and Endangered Species Recovery Act of 2005, is designated 
as critical habitat of an endangered species or threatened species 
shall be treated as an area described in subparagraph (A)(iv) until a 
recovery plan for the species is developed or the existing recovery 
plan for the species is revised pursuant to subsection (b)(3).
    ``(d) Recovery Teams.--(1) The Secretary shall promulgate 
regulations that provide for the establishment of recovery teams for 
development of recovery plans under this section.
    ``(2) Such regulations shall--
            ``(A) establish criteria and the process for selecting the 
        members of recovery teams, and the process for preparing 
        recovery plans, that ensure that each team--
                    ``(i) is of a size and composition to enable timely 
                completion of the recovery plan; and
                    ``(ii) includes sufficient representation from 
                constituencies with a demonstrated direct interest in 
                the species and its conservation or in the economic and 
                social impacts of its conservation to ensure that the 
                views of such constituencies will be considered in the 
                development of the plan;
            ``(B) include provisions regarding operating procedures of 
        and recordkeeping by recovery teams;
            ``(C) ensure that recovery plans are scientifically 
        rigorous and that the evaluation of costs required by 
        paragraphs (1)(A)(iii) and (1)(D) of subsection (c) are 
        economically rigorous; and
            ``(D) provide guidelines for circumstances in which the 
        Secretary may determine that appointment of a recovery team is 
        not necessary or advisable to develop a recovery plan for a 
        specific species, including procedures to solicit public 
        comment on any such determination.
    ``(3) The Federal Advisory Committee Act (5 App. U.S.C.) shall not 
apply to recovery teams appointed in accordance with regulations issued 
by the Secretary under this subsection.
    ``(e) Reports to Congress.--(1) The Secretary shall report every 
two years to the Committee on Resources of the House of Representatives 
and the Committee on Environment and Public Works of the Senate on the 
status of all domestic endangered species and threatened species and 
the status of efforts to develop and implement recovery plans for all 
domestic endangered species and threatened species.
    ``(2) In reporting on the status of such species since the time of 
its listing, the Secretary shall include--
            ``(A) an assessment of any significant change in the well-
        being of each such species, including--
                    ``(i) changes in population, range, or threats; and
                    ``(ii) the basis for that assessment; and
            ``(B) for each species, a measurement of the degree of 
        confidence in the reported status of such species, based upon a 
        quantifiable parameter developed for such purposes.
    ``(f) Public Notice and Comment.--The Secretary shall, prior to 
final approval of a new or revised recovery plan, provide public notice 
and an opportunity for public review and comment on such plan. The 
Secretary shall consider all information presented during the public 
comment period prior to approval of the plan.
    ``(g) State Comment.--The Secretary shall, prior to final approval 
of a new or revised recovery plan, provide a draft of such plan and an 
opportunity to comment on such draft to the Governor of, and State 
agency in, any State to which such draft would apply. The Secretary 
shall include in the final recovery plan the Secretary's response to 
the comments of the Governor and the State agency.
    ``(h) Consultation.--(1) The Secretary shall, prior to final 
approval of a new or revised recovery plan, consult with any pertinent 
State, Indian tribe, or regional or local land use agency or its 
designee.
    ``(2) For purposes of this Act, the term `Indian tribe' means--
    ``(A) with respect to the 48 contiguous States, any federally 
recognized Indian tribe, organized band, pueblo, or community; and
    ``(B) with respect to Alaska, the Metlakatla Indian Community.
    ``(i) Use of Plans.--(1) Each Federal agency shall consider any 
relevant best available scientific data contained in a recovery plan in 
any analysis conducted under section 102 of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332).
    ``(2)(A)(i) The head of any Federal agency may enter into an 
agreement with the Secretary specifying the measures the agency will 
carry out to implement a recovery plan.
    ``(ii) Each such agreement shall be published in draft form with 
notice and an opportunity for public comment.
    ``(iii) Each such final agreement shall be published, with 
responses by the head of the Federal agency to any public comments 
submitted on the draft agreement.
    ``(B) Nothing in a recovery plan shall be construed to establish 
regulatory requirements.
    ``(j) Monitoring.--(1) The Secretary shall implement a system in 
cooperation with the States to monitor effectively for not less than 
five years the status of all species that have recovered to the point 
at which the measures provided pursuant to this Act are no longer 
necessary and that, in accordance with this section, have been removed 
from the lists published under section 4(c).
    ``(2) The Secretary shall make prompt use of the authority under 
section 4(b)(7) to prevent a significant risk to the well-being of any 
such recovered species.''.
    (b) Recovery Plans for Species Occupying More Than One State.--
Section 6 (16 U.S.C. 1535) is amended by adding at the end the 
following:
    ``(j) Recovery Plans for Species Occupying More Than One State.--
Any recovery plan under section 5 for an endangered species or a 
threatened species that occupies more than one State shall identify 
criteria and actions pursuant to subsection (c)(1) of section 5 for 
each State that are necessary so that the State may pursue a 
determination that the portion of the species found in that State may 
be removed from lists published under section 4(c).''.
    (c) Threatened and Endangered Species Incentives Program.--
            (1) Agreements authorized.--Section 5 (16 U.S.C. 1534) is 
        further amended by adding at the end the following:
    ``(m) Threatened and Endangered Species Incentives Program.--(1) 
The Secretary may enter into species recovery agreements pursuant to 
paragraph (2) and species conservation contract agreements pursuant to 
paragraph (3) with persons, other than agencies or departments of the 
Federal Government or State governments, under which the Secretary is 
obligated, subject to the availability of appropriations, to make 
annual payments or provide other compensation to the persons to 
implement the agreements.
    ``(2)(A) The Secretary and persons who own or control the use of 
private land may enter into species recovery agreements with a term of 
not less than 5 years that meet the criteria set forth in subparagraph 
(B) and are in accordance with the priority established in subparagraph 
(C).
    ``(B) A species recovery agreement entered into under this 
paragraph by the Secretary with a person--
            ``(i) shall require that the person shall carry out, on the 
        land owned or controlled by the person, activities that--
                    ``(I) protect and restore habitat for covered 
                species that are species determined to be endangered 
                species or threatened species pursuant to section 
                4(a)(1);
                    ``(II) contribute to the conservation of one or 
                more covered species; and
                    ``(III) specify and implement a management plan for 
                the covered species;
            ``(ii) shall specify such a management plan that includes--
                    ``(I) identification of the covered species;
                    ``(II) a description of the land to which the 
                agreement applies; and
                    ``(III) a description of, and a schedule to carry 
                out, the activities under clause (i);
            ``(iii) shall provide sufficient documentation to establish 
        ownership or control by the person of the land to which the 
        agreement applies;
            ``(iv) shall include the amounts of the annual payments or 
        other compensation to be provided by the Secretary to the 
        person under the agreement from funds appropriated under 
        section 18(a)(1), and the terms under which such payments or 
        compensation shall be provided; and
            ``(v) shall include--
                    ``(I) the duties of the person;
                    ``(II) the duties of the Secretary;
                    ``(III) the terms and conditions under which the 
                person and the Secretary mutually agree the agreement 
                may be modified or terminated; and
                    ``(IV) acts or omissions by the person or the 
                Secretary that shall be considered violations of the 
                agreement, and procedures under which notice of and an 
                opportunity to remedy any violation by the person or 
                the Secretary shall be given.
    ``(C) In entering into species recovery agreements under this 
paragraph, the Secretary shall accord priority to agreements that apply 
to any areas that are identified in recovery plans pursuant to 
subsection (c)(1)(A)(iv).
    ``(3)(A) The Secretary and persons who own private land may enter 
into species conservation contract agreements with terms of 30 years, 
20 years, or 10 years that meet the criteria set forth in subparagraph 
(B) and standards set forth in subparagraph (D) and are in accordance 
with the priorities established in subparagraph (C).
    ``(B) A species conservation contract agreement entered into under 
this paragraph by the Secretary with a person--
            ``(i) shall provide that the person shall, on the land 
        owned by the person--
                    ``(I) carry out conservation practices to meet one 
                or more of the goals set forth in clauses (i) through 
                (iii) of subparagraph (C) for one or more covered 
                species, that are species that are determined to be 
                endangered species or threatened species pursuant to 
                section 4(a)(1), species determined to be candidate 
                species pursuant to section 4(b)(3)(B)(iii), or species 
                subject to comparable designations under State law; and
                    ``(II) specify and implement a management plan for 
                the covered species;
            ``(ii) shall specify such a management plan that includes--
                    ``(I) identification of the covered species;
                    ``(II) a description in detail of the conservation 
                practices for the covered species that the person shall 
                undertake;
                    ``(III) a description of the land to which the 
                agreement applies; and
                    ``(IV) a schedule of approximate deadlines, whether 
                one-time or periodic, for undertaking the conservation 
                practices described pursuant to subclause (II);
                    ``(V) a description of existing or future economic 
                activities on the land to which the agreement applies 
                that are compatible with the conservation practices 
                described pursuant to subclause (II) and generally with 
                conservation of the covered species;
            ``(iii) shall specify the term of the agreement; and
            ``(iv) shall include--
                    ``(I) the duties of the person;
                    ``(II) the duties of the Secretary;
                    ``(III) the terms and conditions under which the 
                person and the Secretary mutually agree the agreement 
                may be modified or terminated;
                    ``(IV) acts or omissions by the person or the 
                Secretary that shall be considered violations of the 
                agreement, and procedures under which notice of and an 
                opportunity to remedy any violation by the person or 
                the Secretary shall be given; and
                    ``(V) terms and conditions for early termination of 
                the agreement by the person before the management plan 
                is fully implemented or termination of the agreement by 
                the Secretary in the case of a violation by the person 
                that is not remedied under subclause (IV), including 
                any requirement for the person to refund all or part of 
                any payments received under subparagraph (E) and any 
                interest thereon.
    ``(C) The Secretary shall establish priorities for the selection of 
species conservation contract agreements, or groups of such agreements 
for adjacent or proximate lands, to be entered into under this 
paragraph that address the following factors:
            ``(i) The potential of the land to which the agreement or 
        agreements apply to contribute significantly to the 
        conservation of an endangered species or threatened species or 
        a species with a comparable designation under State law.
            ``(ii) The potential of such land to contribute 
        significantly to the improvement of the status of a candidate 
        species or a species with a comparable designation under State 
        law.
            ``(iii) The amount of acreage of such land.
            ``(iv) The number of covered species in the agreement or 
        agreements.
            ``(v) The degree of urgency for the covered species to 
        implement the conservation practices in the management plan or 
        plans under the agreement or agreements.
            ``(vi) Land in close proximity to military test and 
        training ranges, installations, and associated airspace that is 
        affected by a covered species.
    ``(D) The Secretary shall enter into a species conservation 
contract agreement submitted by a person, if the Secretary finds that 
the person owns such land or has sufficient control over the use of 
such land to ensure implementation of the management plan under the 
agreement.
    ``(E)(i) Upon entering into a species conservation contract 
agreement with the Secretary pursuant to this paragraph, a person shall 
receive the financial assistance provided for in this subparagraph.
    ``(ii) If the person is implementing fully the agreement, the 
person shall receive from the Secretary--
            ``(I) in the case of a 30-year agreement, an annual 
        contract payment in an amount equal to 100 percent of the 
        person's actual costs to implement the conservation practices 
        described in the management plan under the terms of the 
        agreement;
            ``(II) in the case of a 20-year agreement, an annual 
        contract payment in an amount equal to 80 percent of the 
        person's actual costs to implement the conservation practices 
        described in the management plan under the terms of the 
        agreement; and
            ``(III) in the case of a 10-year agreement, an annual 
        contract payment in an amount equal to 60 percent of the 
        person's actual costs to implement the conservation practices 
        described in the management plan under the terms of the 
        agreement.
    ``(iii)(I) If the person receiving contract payments pursuant to 
clause (ii) receives any other State or Federal funds to defray the 
cost of any conservation practice, the cost of such practice shall not 
be eligible for such contract payments.
    ``(II) Contributions of agencies or organizations to any 
conservation practice other than the funds described in subclause (I) 
shall not be considered as costs of the person for purposes of the 
contract payments pursuant to clause (iii).
    ``(F) A species conservation contract agreement may list other 
Federal program payments that incidentally contribute to conservation 
of a listed species. The head of a Federal agency shall not use the 
payments for the purposes of implementing the species conservation 
contract agreement.
    ``(4)(A) Upon request of a person seeking to enter into an 
agreement pursuant to this subsection, the Secretary may provide to 
such person technical assistance in the preparation, and management 
training for the implementation, of the management plan for the 
agreement.
    ``(B) Any State agency, local government, nonprofit organization, 
or federally recognized Indian tribe may provide assistance to a person 
in the preparation of a management plan, or participate in the 
implementation of a management plan, including identifying and making 
available certified fisheries or wildlife biologists with expertise in 
the conservation of species for purposes of the preparation or review 
and approval of management plans for species conservation contract 
agreements under paragraph (3)(D)(iii).
    ``(5) Upon any conveyance or other transfer of interest in land 
that is subject to an agreement under this subsection--
            ``(A) the agreement shall terminate if the agreement does 
        not continue in effect under subparagraph (B);
            ``(B) the agreement shall continue in effect with respect 
        to such land, with the same terms and conditions, if the person 
        to whom the land or interest is conveyed or otherwise 
        transferred notifies the Secretary of the person's election to 
        continue the agreement by no later than 30 days after the date 
        of the conveyance or other transfer and the person is 
        determined by the Secretary to qualify to enter into an 
        agreement under this subsection; or
            ``(C) the person to whom the land or interest is conveyed 
        or otherwise transferred may seek a new agreement under this 
        subsection.
    ``(6) An agreement under this subsection may be renewed with the 
mutual consent of the Secretary and the person who entered into the 
agreement or to whom the agreement has been transferred under paragraph 
(5).
    ``(7) The Secretary shall make annual payments under this 
subsection as soon as possible after December 31 of each calendar year.
    ``(8) An agreement under this subsection that applies to an 
endangered species or threatened species shall, for the purpose of 
section 10(a)(4), be deemed to be a permit to enhance the propagation 
or survival of such species under section 10(a)(1), and a person in 
full compliance with the agreement shall be afforded the protection of 
section 10(a)(4).
    ``(9) The Secretary, or any other Federal official, may not require 
a person to enter into an agreement under this subsection as a term or 
condition of any right, privilege, or benefit, or of any action or 
refraining from any action, under this Act.''.
            (2) Subsection (e)(2) of section 7 (16 U.S.C. 1536) (as 
        redesignated by section 11(d)(2) of this Act) is amended by 
        inserting ``or in an agreement under section 5(m)'' after 
        ``section''.
    (d) Conforming Amendments.--
            (1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by 
        striking ``section 4(g)'' and inserting ``section 5(j)''.
            (2) The Marine Mammal Protection Act of 1972 is amended--
                    (A) in section 104(c)(4)(A)(ii) (16 U.S.C. 
                1374(c)(4)(A)(ii)) by striking ``section 4(f)'' and 
                inserting ``section 5''; and
                    (B) in section 115(b)(2) (16 U.S.C. 1383b(b)(2)) by 
                striking ``section 4(f) of the Endangered Species Act 
                of 1973 (16 U.S.C. 1533(f))'' and inserting ``section 5 
                of the Endangered Species Act of 1973''.

SEC. 10. COOPERATION WITH STATES AND INDIAN TRIBES.

    Section 6 (16 U.S.C. 1535) is further amended--
            (1) in subsection (c), by adding at the end the following:
    ``(3)(A) Any cooperative agreement entered into by the Secretary 
under this subsection may also provide for development of a program for 
conservation of species determined to be candidate species pursuant to 
section 4(b)(3)(B)(iii) or any other species that the State and the 
Secretary agree is at risk of being determined to be an endangered 
species or threatened species under section 4(a)(1) in that State. Upon 
completion of consultation on the agreement pursuant to subsection 
(e)(2), any incidental take statement issued on the agreement shall 
apply to any such species, and to the State and any landowners enrolled 
in any program under the agreement, without further consultation 
(except any additional consultation pursuant to subsection (e)(2)) if 
the species is subsequently determined to be an endangered species or a 
threatened species and the agreement remains an adequate and active 
program for the conservation of endangered species and threatened 
species.
    ``(B) Any cooperative agreement entered into by the Secretary under 
this subsection may also provide for monitoring or assistance in 
monitoring the status of candidate species pursuant to section 
4(b)(3)(C)(iii) or recovered species pursuant to section 5(j).
    ``(C) The Secretary shall periodically review each cooperative 
agreement under this subsection and seek to make changes the Secretary 
considers necessary for the conservation of endangered species and 
threatened species to which the agreement applies.
    ``(4) Any cooperative agreement entered into by the Secretary under 
this subsection that provides for the enrollment of private lands or 
water rights in any program established by the agreement shall ensure 
that the decision to enroll is voluntary for each owner of such lands 
or water rights.
    ``(5)(A) The Secretary may enter into a cooperative agreement under 
this subsection with an Indian tribe in substantially the same manner 
in which the Secretary may enter into a cooperative agreement with a 
State.
    ``(B) For the purposes of this paragraph, the term `Indian tribe' 
means--
            ``(i) with respect to the 48 contiguous States, any 
        federally recognized Indian tribe, organized band, pueblo, or 
        community; and
            ``(ii) with respect to Alaska, the Metlakatla Indian 
        Community.'';
            (2) in subsection (d)(1)--
                    (A) by striking ``pursuant to subsection (c) of 
                this section'';
                    (B) by striking ``or to assist'' and all that 
                follows through ``section 5(j)'' and inserting 
                ``pursuant to subsection (c)(1) and (2) or to address 
                candidate species or other species at risk and 
                recovered species pursuant to subsection (c)(3)''; and
                    (C) in subparagraph (F), by striking ``monitoring 
                the status of candidate species'' and inserting 
                ``developing a conservation program for, or monitoring 
                the status of, candidate species or other species 
                determined to be at risk pursuant to subsection 
                (c)(3)''; and
            (3) in subsection (e)--
                    (A) by inserting ``(1)'' before the first sentence;
                    (B) in paragraph (1), as designated by subparagraph 
                (A) of this paragraph, by striking ``at no greater than 
                annual intervals'' and inserting ``every 3 years''; and
                    (C) by adding at the end the following:
    ``(2) Any cooperative agreement entered into by the Secretary under 
subsection (c) shall be subject to section 7(a)(2) through (d) and 
regulations implementing such provisions only before--
            ``(A) the Secretary enters into the agreement; and
            ``(B) the Secretary approves any renewal of, or amendment 
        to, the agreement that--
                    ``(i) addresses or affects species that are 
                determined to be endangered species or threatened 
                species and the species were not addressed or the 
                effects were not considered previously in the 
                agreement; or
                    ``(ii) new information about any species addressed 
                in the agreement that the Secretary determines--
                            ``(I) constitutes the best available 
                        scientific data; and
                            ``(II) indicates that the agreement may 
                        have adverse effects on the species that had 
                        not been considered previously when the 
                        agreement was entered into or during any 
                        revision thereof or amendment thereto.
    ``(3) The Secretary may suspend any cooperative agreement 
established pursuant to subsection (c), after consultation with the 
Governor of the affected State, if the Secretary finds during the 
periodic review required by paragraph (1) of this subsection that the 
agreement no longer constitutes an adequate and active program for the 
conservation of endangered species and threatened species.
    ``(4) The Secretary may terminate any cooperative agreement entered 
into by the Secretary under subsection (c), after consultation with the 
Governor of the affected State, if--
            ``(A) as result of the procedures of section 7(a)(2) 
        through (d) undertaken pursuant to paragraph (2) of this 
        subsection, the Secretary determines that continued 
        implementation of the cooperative agreement is likely to 
        jeopardize the continued existence of endangered species or 
        threatened species, and the cooperative agreement is not 
        amended or revised to incorporate a reasonable and prudent 
        alternative offered by the Secretary pursuant to section 
        7(b)(3); or
            ``(B) the cooperative agreement has been suspended under 
        paragraph (3) of this subsection and has not been amended or 
        revised and found by the Secretary to constitute an adequate 
        and active program for the conservation of endangered species 
        and threatened species within 180 days after the date of the 
        suspension.''.

SEC. 11. INTERAGENCY COOPERATION AND CONSULTATION.

    (a) Consultation Requirement.--Section 7(a) (16 U.S.C. 1536(a)) is 
amended--
            (1) in paragraph (1) in the second sentence, by striking 
        ``endangered species'' and all that follows through the end of 
        the sentence and inserting ``species determined to be 
        endangered species and threatened species under section 4.'';
            (2) in paragraph (2)--
                    (A) in the first sentence by striking ``action'' 
                the first place it appears and all that follows through 
                ``is not'' and inserting ``agency action authorized, 
                funded, or carried out by such agency is not'';
                    (B) in the first sentence by striking ``, unless'' 
                and all that follows through the end of the sentence 
                and inserting a period;
                    (C) in the second sentence, by striking ``best 
                scientific and commercial data available'' and 
                inserting ``best available scientific data''; and
                    (D) by inserting ``(A)'' before the first sentence, 
                and by adding at the end the following:
    ``(B) The Secretary may identify specific agency actions or 
categories of agency actions that may be determined to meet the 
standards of this paragraph by alternative procedures to the procedures 
set forth in this subsection and subsections (b) through (d), except 
that subsections (b)(4) and (e) may apply only to an action that the 
Secretary finds, or concurs, does meet such standards, and the 
Secretary shall suggest, or concur in any suggested, reasonable and 
prudent alternatives described in subsection (b)(3) for any action 
determined not to meet such standards. Any such agency action or 
category of agency actions shall be identified, and any such 
alternative procedures shall be established, by regulation promulgated 
prior or subsequent to the date of the enactment of this Act.'';
            (3) in paragraph (4)--
                    (A) by striking ``listed under section 4'' and 
                inserting ``an endangered species or a threatened 
                species''; and
                    (B) by inserting ``determined'' after ``such 
                species''; and
            (4) by adding at the end the following:
    ``(5) Any Federal agency or the Secretary, in conducting any 
analysis pursuant to paragraph (2), shall consider only the effects of 
any agency action that are distinct from a baseline of all effects upon 
the relevant species that have occurred or are occurring prior to the 
action.
    ``(6) This subsection shall not apply to any agency action that may 
affect any species for which a permit is issued under section 10 for 
other than scientific purposes, if the action implements or is 
consistent with any conservation plan or agreement incorporated by 
reference in the permit.''.
    (b) Opinion of Secretary.--Section 7(b) (16 U.S.C. 1536(b)) is 
amended--
            (1) in paragraph (1)(B)(i) by inserting ``permit or 
        license'' before ``applicant'';
            (2) in paragraph (2) by inserting ``permit or license'' 
        before ``applicant'';
            (3) in paragraph (3)(A)--
                    (A) in the first sentence--
                            (i) by striking ``Promptly after'' and 
                        inserting ``Before'';
                            (ii) by inserting ``permit or license'' 
                        before ``applicant''; and
                            (iii) by inserting ``proposed'' before 
                        ``written statement''; and
                    (B) by striking all after the first sentence and 
                inserting the following: ``The Secretary shall consider 
                any comment from the Federal agency and the permit or 
                license applicant, if any, prior to issuance of the 
                final written statement of the Secretary's opinion. The 
                Secretary shall issue the final written statement of 
                the Secretary's opinion by providing the written 
                statement to the Federal agency and the permit or 
                license applicant, if any, and publishing notice of the 
                written statement in the Federal Register. If jeopardy 
                is found, the Secretary shall suggest in the final 
                written statement those reasonable and prudent 
                alternatives, if any, that the Secretary believes would 
                not violate subsection (a)(2) and can be taken by the 
                Federal agency or applicant in implementing the agency 
                action. The Secretary shall cooperate with the Federal 
                agency and any permit or license applicant in the 
                preparation of any suggested reasonable and prudent 
                alternatives.'';
            (4) in paragraph (4)--
                    (A) by redesignating subparagraphs (A), (B), and 
                (C) as clauses (i), (ii), and (iii), respectively;
                    (B) by inserting ``(A)'' after ``(4)'';
                    (C) by striking ``the Secretary shall provide'' and 
                all that follows through ``with a written statement 
                that--'' and inserting the following: ``the Secretary 
                shall include in the written statement under paragraph 
                (3), a statement described in subparagraph (B) of this 
                paragraph.
    ``(B) A statement described in this subparagraph--''; and
            (5) by adding at the end the following:
    ``(5)(A) Any terms and conditions set forth pursuant to paragraph 
(4)(B)(iv) shall be roughly proportional to the impact of the 
incidental taking identified pursuant to paragraph (4) in the written 
statement prepared under paragraph (3).
    ``(B) If various terms and conditions are available to comply with 
paragraph (4)(B)(iv), the terms and conditions set forth pursuant to 
that paragraph--
            ``(i) must be capable of successful implementation; and
            ``(ii) must be consistent with the objectives of the 
        Federal agency and the permit or license applicant, if any, to 
        the greatest extent possible.''.
    (c) Biological Assessments.--Section 7(c) (16 U.S.C. 1536(c)) is 
amended--
            (1) by striking ``(1)'';
            (2) by striking paragraph (2);
            (3) in the first sentence, by striking ``which is listed'' 
        and all that follows through the end of the sentence and 
        inserting ``that is determined to be an endangered species or a 
        threatened species, or for which such a determination is 
        proposed pursuant to section 4, may be present in the area of 
        such proposed action.''; and
            (4) in the second sentence, by striking ``best scientific 
        and commercial data available'' and inserting ``best available 
        scientific data''.
    (d) Elimination of Endangered Species Committee Process.--Section 7 
(16 U.S.C. 1536) is amended--
            (1) by repealing subsections (e), (f), (g), (h), (i), (j), 
        (k), (l), (m), and (n);
            (2) by redesignating subsections (o) and (p) as subsections 
        (e) and (f), respectively;
            (3) in subsection (e), as redesignated by paragraph (2) of 
        this subsection--
                    (A) in the heading, by striking ``Exemption as 
                Providing''; and
                    (B) by striking ``such section'' and all that 
                follows through ``(2)'' and inserting ``such 
                section,''; and
            (4) in subsection (f), as redesignated by paragraph (2) of 
        this subsection--
                    (A) in the first sentence, by striking ``is 
                authorized'' and all that follows through ``of this 
                section'' and inserting ``may exempt an agency action 
                from compliance with the requirements of subsections 
                (a) through (d) of this section before the initiation 
                of such agency action,''; and
                    (B) by striking the second sentence.

SEC. 12. EXCEPTIONS TO PROHIBITIONS.

    (a) Incidental Take Permits.--Section 10(a)(2) (16 U.S.C. 
1539(a)(2)) is amended--
            (1) in subparagraph (A) by striking ``and'' after the 
        semicolon at the end of clause (iii), by redesignating clause 
        (iv) as clause (vii), and by inserting after clause (iii) the 
        following:
            ``(iv) objective, measurable biological goals to be 
        achieved for species covered by the plan and specific measures 
        for achieving such goals consistent with the requirements of 
        subparagraph (B);
            ``(v) measures the applicant will take to monitor impacts 
        of the plan on covered species and the effectiveness of the 
        plan's measures in achieving the plan's biological goals;
            ``(vi) adaptive management provisions necessary to respond 
        to all reasonably foreseeable changes in circumstances that 
        could appreciably reduce the likelihood of the survival and 
        recovery of any species covered by the plan; and'';
            (2) in subparagraph (B) by striking ``and'' after the 
        semicolon at the end of clause (iv), by redesignating clause 
        (v) as clause (vi), and by inserting after clause (iv) the 
        following:
            ``(v) the term of the permit is reasonable, taking into 
        consideration--
                    ``(I) the period in which the applicant can be 
                expected to diligently complete the principal actions 
                covered by the plan;
                    ``(II) the extent to which the plan will enhance 
                the conservation of covered species;
                    ``(III) the adequacy of information underlying the 
                plan;
                    ``(IV) the length of time necessary to implement 
                and achieve the benefits of the plan; and
                    ``(V) the scope of the plan's adaptive management 
                strategy; and''; and
            (3) by striking subparagraph (C) and inserting the 
        following:
    ``(3) Any terms and conditions required to reduce or offset the 
impacts of incidental taking or otherwise comply with the requirements 
of paragraph (2)(B) shall be roughly proportional in extent to the 
impact of the incidental taking specified in the conservation plan 
pursuant to in paragraph (2)(A)(i). This paragraph shall not be 
construed to limit the authority of the Secretary to require greater 
than acre-for-acre mitigation where necessary to address the extent of 
such impacts. In any case in which various terms and conditions are 
available, the terms and conditions shall be capable of successful 
implementation and shall be consistent with the objective of the 
applicant to the greatest extent possible.
    ``(4)(A) If the holder of a permit issued under this subsection for 
other than scientific purposes is in compliance with the terms and 
conditions of the permit, and any conservation plan or agreement 
incorporated by reference therein, the Secretary may not require the 
holder, without the consent of the holder, to adopt any new 
minimization, mitigation, or other measure with respect to any species 
adequately covered by the permit during the term of the permit, except 
as provided in subparagraphs (B) and (C) to meet circumstances that 
have changed subsequent to the issuance of the permit.
    ``(B) For any circumstance identified in the permit or incorporated 
document that has changed, the Secretary may, in the absence of consent 
of the permit holder, require only such additional minimization, 
mitigation, or other measures as are already provided in the permit or 
incorporated document for such changed circumstance.
    ``(C) For any changed circumstance not identified in the permit or 
incorporated document, the Secretary may, in the absence of consent of 
the permit holder, require only such additional minimization, 
mitigation, or other measures to address such changed circumstance that 
do not involve the commitment of any additional land, water, or 
financial compensation not otherwise committed, or the imposition of 
additional restrictions on the use of any land, water or other natural 
resources otherwise available for development or use, under the 
original terms and conditions of the permit or incorporated document.
    ``(D) The Secretary shall have the burden of proof in demonstrating 
and documenting, with the best available scientific data, the 
occurrence of any changed circumstances for purposes of this paragraph.
    ``(E) All permits issued under this subsection on or after the date 
of the enactment of the Threatened and Endangered Species Recovery Act 
of 2005, other than permits for scientific purposes, shall contain the 
assurances contained in subparagraphs (B) through (D) of this paragraph 
and paragraph (5)(A) and (B). Permits issued under this subsection on 
or after March 25, 1998, and before the date of the enactment of the 
Threatened and Endangered Species Recovery Act of 2005, other than 
permits for scientific purposes, shall be governed by the applicable 
sections of parts 17.22(b), (c), and (d), and 17.32(b), (c), and (d) of 
title 50, Code of Federal Regulations, as the same exist on the date of 
the enactment of the Threatened and Endangered Species Act of 2005.
    ``(5)(A) The Secretary shall revoke a permit issued under paragraph 
(2) if the Secretary finds that the permittee is not complying with the 
terms and conditions of the permit.
    ``(B) Any permit subject to paragraph (4)(A) may be revoked due to 
changed circumstances only if--
            ``(i) the Secretary determines that continuation of the 
        activities to which the permit applies would be inconsistent 
        with the criteria in paragraph (2)(B)(iv);
            ``(ii) the Secretary provides 60 days notice of revocation 
        to the permittee; and
            ``(iii) the Secretary is unable to, and the permittee 
        chooses not to, remedy the condition causing such 
        inconsistency.''.
    (b) Extension of Period for Public Review and Comment on 
Applications.--Section 10(c) (16 U.S.C. 1539(c)) is amended in the 
second sentence by striking ``thirty'' each place it appears and 
inserting ``45''.
    (c) Experimental Populations.--Section 10(j) (16 U.S.C. 1539(j)) is 
amended--
            (1) in paragraph (1), by striking ``For purposes'' and all 
        that follows through the end of the paragraph and inserting the 
        following: ``For purposes of this subsection, the term 
        `experimental population' means any population (including any 
        offspring arising therefrom) authorized by the Secretary for 
        release under paragraph (2), but only when such population is 
        in the area designated for it by the Secretary, and such area 
        is, at the time of release, wholly separate geographically from 
        areas occupied by nonexperimental populations of the same 
        species. For purposes of this subsection, the term `areas 
        occupied by nonexperimental populations' means areas 
        characterized by the sustained and predictable presence of more 
        than negligible numbers of successfully reproducing individuals 
        over a period of many years.'';
            (2) in paragraph (2)(B), by striking ``information'' and 
        inserting ``scientific data''; and
            (3) in paragraph (2)(C)(i), by striking ``listed'' and 
        inserting ``determined to be an endangered species or a 
        threatened species''.
    (d) Written Determination of Compliance.--Section 10 (16 U.S.C. 
1539) is amended by adding at the end the following:
    ``(k) Written Determination of Compliance.--(1) A property owner 
(in this subsection referred to as a `requestor') may request the 
Secretary to make a written determination that a proposed use of the 
owner's property that is lawful under State and local law will comply 
with section 9(a), by submitting a written description of the proposed 
action to the Secretary by certified mail.
    ``(2) A written description of a proposed use is deemed to be 
sufficient for consideration by the Secretary under paragraph (1) if 
the description includes--
            ``(A) the nature, the specific location, the lawfulness 
        under State and local law, and the anticipated schedule and 
        duration of the proposed use, and a demonstration that the 
        property owner has the means to undertake the proposed use; and
            ``(B) any anticipated adverse impact to a species that is 
        included on a list published under 4(c)(1) that the requestor 
        reasonably expects to occur as a result of the proposed use.
    ``(3) The Secretary may request and the requestor may supply any 
other information that either believes will assist the Secretary to 
make a determination under paragraph (1).
    ``(4) If the Secretary does not make a determination pursuant to a 
request under this subsection because of the omission from the request 
of any information described in paragraph (2), the requestor may submit 
a subsequent request under this subsection for the same proposed use.
    ``(5)(A) Subject to subparagraph (B), the Secretary shall provide 
to the requestor a written determination of whether the proposed use, 
as proposed by the requestor, will comply with section 9(a), by not 
later than expiration of the 180-day period beginning on the date of 
the submission of the request.
    ``(B) The Secretary may request, and the requestor may grant, a 
written extension of the period under subparagraph (A).
    ``(6) If the Secretary fails to provide a written determination 
before the expiration of the period under paragraph (5)(A) (or any 
extension thereof under paragraph (5)(B)), the Secretary is deemed to 
have determined that the proposed use complies with section 9(a).
    ``(7) This subsection shall not apply with respect to agency 
actions that are subject to consultation under section 7.
    ``(8) Any use or action taken by the property owner in reasonable 
reliance on a written determination of compliance under paragraph (5) 
or on the application of paragraph (6) shall not be treated as a 
violation of section 9(a).
    ``(9) Any determination of compliance under this subsection shall 
remain effective--
            ``(A) in the case of a written determination provided under 
        paragraph (5)(A), for the 10-year period beginning on the date 
        the written determination is provided; or
            ``(B) in the case of a determination that under paragraph 
        (6) the Secretary is deemed to have made, the 5-year period 
        beginning on the first date the Secretary is deemed to have 
        made the determination.
    ``(10) The Secretary may withdraw a determination of compliance 
under this section only if the Secretary determines that, because of 
unforeseen changed circumstances, the continuation of the use to which 
the determination applies would preclude conservation measures 
essential to the survival of any endangered species or threatened 
species. Such a withdrawal shall take effect 5 days after the date the 
requestor receives from the Secretary, by certified mail, notice of the 
withdrawal.
    ``(11) The Secretary may extend the period that applies under 
paragraph (5) by up to 180 days if seasonal or biological 
considerations make a determination impossible within the period that 
would otherwise apply.''.
    (e) National Security Exemption.--Section 10 (16 U.S.C. 1539) is 
further amended by adding at the end the following:
    ``(l) National Security.--The President, after consultation with 
the appropriate Federal agency, may exempt any act or omission from the 
provisions of this Act if such exemption is necessary for national 
security.''.
    (f) Disaster Declaration and Protection.--Section 10 (16 U.S.C. 
1539) is further amended by adding at the end the following:
    ``(m) Disaster Declaration and Protection.--(1) The President may 
suspend the application of any provision of this Act in any area for 
which a major disaster is declared under the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
    ``(2) The Secretary shall, within one year after the date of the 
enactment of the Threatened and Endangered Species Recovery Act of 
2005, promulgate regulations regarding application of this Act in the 
event of an emergency (including circumstances other than a major 
disaster referred to in paragraph (1)) involving a threat to human 
health or safety or to property, including regulations--
            ``(A) determining what constitutes an emergency for 
        purposes of this paragraph; and
            ``(B) to address imminent threats through expedited 
        consideration under or waiver of any provision of this Act.''.
    (g) Exemption From Liability for Take of Listed Aquatic Species.--
Section 10 (16 U.S.C. 1539) is amended by adding at the end the 
following:
    ``(n) Exemption From Liability for Take of Listed Aquatic 
Species.--The operator of a water storage reservoir, water diversion 
structure, canal, or other artificial water delivery facility shall not 
be in violation of section 9(a) by reason of any take of any aquatic 
species listed under section 4(c) that results from predation, 
competition, or other adverse effects attributable to recreational 
fishing programs managed by a State Agency in a river basin in which 
the water storage reservoir, water diversion structure, canal, or other 
artificial water delivery facility is located.''.

SEC. 13. PRIVATE PROPERTY CONSERVATION.

    Section 13 (consisting of amendments to other laws, which have 
executed) is amended to read as follows:

                    ``private property conservation

    ``Sec. 13. (a) In General.--The Secretary may provide conservation 
grants (in this section referred to as `grants') to promote the 
voluntary conservation of endangered species and threatened species by 
owners of private property and shall provide financial conservation aid 
(in this section referred to as `aid') to alleviate the burden of 
conservation measures imposed upon private property owners by this Act. 
The Secretary may provide technical assistance when requested to 
enhance the conservation effects of grants or aid.
    ``(b) Awarding of Grants and Aid.--Grants to promote conservation 
of endangered species and threatened species on private property--
            ``(1) may not be used to fund litigation, general 
        education, general outreach, lobbying, or solicitation;
            ``(2) may not be used to acquire leases or easements of 
        more than 50 years duration or fee title to private property;
            ``(3) must be designed to directly contribute to the 
        conservation of an endangered species or threatened species by 
        increasing the species' numbers or distribution; and
            ``(4) must be supported by any private property owners on 
        whose property any grant funded activities are carried out.
    ``(c) Priority.--Priority shall be accorded among grant requests in 
the following order:
            ``(1) Grants that promote conservation of endangered 
        species or threatened species on private property while making 
        economically beneficial and productive use of the private 
        property on which the conservation activities are conducted.
            ``(2) Grants that develop, promote, or use techniques to 
        increase the distribution or population of an endangered 
        species or threatened species on private property.
            ``(3) Other grants that promote voluntary conservation of 
        endangered species or threatened species on private property.
    ``(d) Eligibility for Aid.--(1) The Secretary shall award aid to 
private property owners who--
            ``(A) received a written determination under section 10(k) 
        finding that the proposed use of private property would not 
        comply with section 9(a); or
            ``(B) receive notice under section 10(k)(10) that a written 
        determination has been withdrawn.
    ``(2) Aid shall be in an amount no less than the fair market value 
of the use that was proposed by the property owner if--
            ``(A) the owner has foregone the proposed use;
            ``(B) the owner has requested financial aid--
                    ``(i) within 180 days of the Secretary's issuance 
                of a written determination that the proposed use would 
                not comply with section 9(a); or
                    ``(ii) within 180 days after the property owner is 
                notified of a withdrawal under section 10(k)(10); and
            ``(C) the foregone use would be lawful under State and 
        local law and the property owner has demonstrated that the 
        property owner has the means to undertake the proposed use.
    ``(e) Distribution of Grants and Aid.--(1) The Secretary shall pay 
eligible aid--
            ``(A) within 270 days after receipt of a request for aid 
        unless there are unresolved questions regarding the fair market 
        value; or
            ``(B) at the resolution of any questions concerning the 
        fair market value established under subsection (g).
    ``(2) All grants provided under this section shall be paid on the 
last day of the fiscal year. Aid shall be paid based on the date of the 
initial request.
    ``(f) Documentation of the Foregone Use.--Within 30 days of the 
request for aid, the Secretary shall enter into negotiations with the 
property owner regarding the documentation of the foregone proposed use 
through such mechanisms that would benefit the species such as contract 
terms, lease terms, deed restrictions, easement terms, or transfer of 
title. If the Secretary and the property owner are unable to reach an 
agreement, then, within 60 days of the request for aid, the Secretary 
shall determine how the property owner's foregone use shall be 
documented to benefit the species with the least impact on the 
ownership interests of the property owner necessary to document the 
foregone use, which shall not include transfer of title.
    ``(g) Fair Market Value.--For purposes of this section, the fair 
market value of the foregone use of the affected portion of the private 
property, including business losses, is what a willing buyer would pay 
to a willing seller in an open market. Fair market value shall take 
into account the likelihood that the foregone use would be approved 
under State and local law. The fair market value shall be determined 
within 180 days of the documentation of the foregone use. The fair 
market value shall be determined jointly by 2 licensed independent 
appraisers, one selected by the Secretary and one selected by the 
property owner. If the 2 appraisers fail to agree on fair market value, 
the Secretary and the property owner shall jointly select a third 
licensed appraiser whose appraisal within an additional 90 days shall 
be the best and final offer by the Secretary. Within one year after the 
date of enactment of the Threatened and Endangered Species Recovery Act 
of 2005, the Secretary shall promulgate regulations regarding selection 
of the jointly selected appraisers under this subsection.
    ``(h) Limitation on Aid Availability.--Any person receiving aid 
under this section may not receive additional aid under this section 
for essentially the same foregone use of the same property and for the 
same period of time.
    ``(i) Annual Reporting.--The Secretary shall by January 15 of each 
year provide a report of all aid and grants awarded under this section 
to the Committee on Resources of the House of Representatives and the 
Environment and Public Works Committee of the Senate and make such 
report electronically available to the general public on the website 
required under section 14.''.

SEC. 14. PUBLIC ACCESSIBILITY AND ACCOUNTABILITY.

    Section 14 (relating to repeals of other laws, which have executed) 
is amended to read as follows:

               ``public accessibility and accountability

    ``Sec. 14. The Secretary shall make available on a publicly 
accessible website on the Internet--
            ``(1) each list published under section 4(c)(1);
            ``(2) all final and proposed regulations and determinations 
        under section 4;
            ``(3) the results of all 5-year reviews conducted under 
        section 4(c)(2)(A);
            ``(4) all draft and final recovery plans issued under 
        section 5(a), and all final recovery plans issued and in effect 
        under section 4(f)(1) of this Act as in effect immediately 
        before the enactment of the Threatened and Endangered Species 
        Recovery Act of 2005;
            ``(5) all reports required under sections 5(e) and 16, and 
        all reports required under sections 4(f)(3) and 18 of this Act 
        as in effect immediately before the enactment of the Threatened 
        and Endangered Species Recovery Act of 2005; and
            ``(6) data contained in the reports referred to in 
        paragraph (5) of this section, and that were produced after the 
        date of enactment of the Threatened and Endangered Species 
        Recovery Act of 2005, in the form of databases that may be 
        searched by the variables included in the reports.''.

SEC. 15. ANNUAL COST ANALYSES.

    (a) Annual Cost Analyses.--Section 18 (16 U.S.C. 1544) is amended 
to read as follows:

   ``annual cost analysis by united states fish and wildlife service

    ``Sec. 18. (a) In General.--On or before January 15 of each year, 
the Secretary shall submit to the Congress an annual report covering 
the preceding fiscal year that contains an accounting of all reasonably 
identifiable expenditures made primarily for the conservation of 
species included on lists published and in effect under section 4(c).
    ``(b) Specification of Expenditures.--Each report under this 
section shall specify--
            ``(1) expenditures of Federal funds on a species-by-species 
        basis, and expenditures of Federal funds that are not 
        attributable to a specific species;
            ``(2) expenditures by States for the fiscal year covered by 
        the report on a species-by-species basis, and expenditures by 
        States that are not attributable to a specific species; and
            ``(3) based on data submitted pursuant to subsection (c), 
        expenditures voluntarily reported by local governmental 
        entities on a species-by-species basis, and such expenditures 
        that are not attributable to a specific species.
    ``(c) Encouragement of Voluntary Submission of Data by Local 
Governments.--The Secretary shall provide a means by which local 
governmental entities may--
            ``(1) voluntarily submit electronic data regarding their 
        expenditures for conservation of species listed under section 
        4(c); and
            ``(2) attest to the accuracy of such data.''.
    (b) Eligibility of States for Financial Assistance.--Section 6(d) 
(16 U.S.C. 1535(d)) is amended by adding at the end the following:
    ``(3) A State shall not be eligible for financial assistance under 
this section for a fiscal year unless the State has provided to the 
Secretary for the preceding fiscal year information regarding the 
expenditures referred to in section 16(b)(2).''.

SEC. 16. REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED 
              SPECIES.

    The Endangered Species Act of 1973 is further amended--
            (1) by striking sections 15 and 16;
            (2) by redesignating sections 17 and 18 as sections 15 and 
        16, respectively; and
            (3) by adding after section 16, as so redesignated, the 
        following:

  ``reimbursement for depredation of livestock by reintroduced species

    ``Sec. 17. (a) In General.--The Secretary of the Interior, acting 
through the Director of the United States Fish and Wildlife Service, 
may reimburse the owner of livestock for any loss of livestock 
resulting from depredation by any population of a species if the 
population is listed under section 4(c) and includes or derives from 
members of the species that were reintroduced into the wild.
    ``(b) Eligibility for and Amount.--Eligibility for, and the amount 
of, reimbursement under this section shall not be conditioned on the 
presentation of the body of any animal for which reimbursement is 
sought.
    ``(c) Limitation on Requirement to Present Body.--The Secretary may 
not require the owner of livestock to present the body of individual 
livestock as a condition of payment of reimbursement under this 
section.
    ``(d) Authorization of Appropriations.--Payments under this section 
are subject to appropriations.''.

SEC. 17. AUTHORIZATION OF APPROPRIATIONS.

    (a) Authorization.--The Endangered Species Act of 1973 is further 
amended by adding at the end the following:

                   ``authorization of appropriations

    ``Sec. 18. (a) In General.--There are authorized to be appropriated 
to carry out this Act, other than section 8A(e)--
            ``(1) to the Secretary of the Interior to carry out 
        functions and responsibilities of the Department of the 
        Interior under this Act, such sums as are necessary for fiscal 
        years 2006 through 2010; and
            ``(2) to the Secretary of Agriculture to carry out 
        functions and responsibilities of the Department of the 
        Interior with respect to the enforcement of this Act and the 
        convention which pertain the importation of plants, such sums 
        as are necessary for fiscal year 2006 through 2010.
    ``(b) Convention Implementation.--There is authorized to be 
appropriated to the Secretary of the Interior to carry out section 
8A(e) such sums as are necessary for fiscal years 2006 through 2010.''.
    (b) Conforming Amendment.--Section 8(a) (16 U.S.C. 1537(a)) is 
amended by striking ``section 15'' and inserting ``section 18''.

SEC. 18. MISCELLANEOUS TECHNICAL CORRECTIONS.

    (a) International Cooperation.--Section 8 (16 U.S.C. 1537) is 
amended--
            (1) in subsection (a) in the first sentence by striking 
        ``any endangered species or threatened species listed'' and 
        inserting ``any species determined to be an endangered species 
        or a threatened species''; and
            (2) in subsection (b) in paragraph (1), by striking 
        ``endangered species and threatened species listed'' and 
        inserting ``species determined to be endangered species and 
        threatened species''.
    (b) Management Authority and Scientific Authority.--Section 8A (16 
U.S.C. 1537a)) is amended--
            (1) in subsection (a), by striking ``of the Interior 
        (hereinafter in this section referred to as the `Secretary')'';
            (2) in subsection (d), by striking ``Merchant Marine and 
        Fisheries'' and inserting ``Resources''; and
            (3) in subsection (e)--
                    (A) in paragraph (1), by striking ``of the Interior 
                (hereinafter in this subsection referred to as the 
                `Secretary')''; and
                    (B) by striking paragraph (3) and redesignating 
                paragraph (4) as paragraph (3).
    (c) Prohibited Acts.--Section 9 (16 U.S.C. 1538) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1), in the matter preceding 
                subparagraph (A), by striking ``of this Act, with 
                respect to any endangered species of fish or wildlife 
                listed pursuant to section 4 of this Act'' and 
                inserting ``, with respect to any species of fish or 
                wildlife determined to be an endangered species under 
                section 4'';
                    (B) in paragraph (1)(G), by striking ``threatened 
                species of fish or wildlife listed pursuant to section 
                4 of this Act'' and inserting ``species of fish or 
                wildlife determined to be a threatened species under 
                section 4'';
                    (C) in paragraph (2), in the matter preceding 
                subparagraph (A) by striking ``of this Act, with 
                respect to any endangered species of plants listed 
                pursuant to section 4 of this Act'' and inserting ``, 
                with respect to any species of plants determined to be 
                an endangered species under section 4''; and
                    (D) in paragraph (2)(E), by striking ``listed 
                pursuant to section 4 of this Act'' and inserting 
                ``determined to be a threatened species under section 
                4'';
            (2) in subsection (b)--
                    (A) by striking ``(1)'' before ``Species'' and 
                inserting ``(1)'' before the first sentence;
                    (B) in paragraph (1), in the first sentence, by 
                striking ``adding such'' and all that follows through 
                ``: Provided, That'' and inserting ``determining such 
                fish or wildlife species to be an endangered species or 
                a threatened species under section 4, if''; and
                    (C) in paragraph (1), in the second sentence, by 
                striking ``adding such'' and all that follows through 
                ``this Act'' and inserting ``determining such fish or 
                wildlife species to be an endangered species or a 
                threatened species under section 4'';
            (3) in subsection (c)(2)(A), by striking ``an endangered 
        species listed'' and inserting ``a species determined to be an 
        endangered species'';
            (4) in subsection (d)(1)(A), by striking clause (i) and 
        inserting the following: ``(i) are not determined to be 
        endangered species or threatened species under section 4, 
        and'';
            (5) in subsection (e), by striking clause (1) and inserting 
        the following: ``(1) are not determined to be endangered 
        species or threatened species under section 4, and''; and
            (6) in subsection (f)--
                    (A) in paragraph (1), in the first sentence, by 
                striking clause (A) and inserting the following: ``(A) 
                are not determined to be endangered species or 
                threatened species under section 4, and''; and
                    (B) by striking ``Secretary of the Interior'' each 
                place it appears and inserting ``Secretary''.
    (d) Hardship Exemptions.--Section 10(b) (16 U.S.C. 1539(b)) is 
amended--
            (1) in paragraph (1)--
                    (A) by striking ``an endangered species'' and all 
                that follows through ``section 4 of this Act'' and 
                inserting ``an endangered species or a threatened 
                species and the subsequent determination that the 
                species is an endangered species or a threatened 
                species under section 4'';
                    (B) by striking ``section 9(a) of this Act'' and 
                inserting ``section 9(a)''; and
                    (C) by striking ``fish or wildlife listed by the 
                Secretary as endangered'' and inserting ``fish or 
                wildlife determined to be an endangered species or 
                threatened species by the Secretary''; and
            (2) in paragraph (2)--
                    (A) by inserting ``or a threatened species'' after 
                ``endangered species'' each place it appears; and
                    (B) in subparagraph (B), by striking ``listed 
                species'' and inserting ``endangered species or 
                threatened species''.
    (e) Permit and Exemption Policy.--Section 10(d) (16 U.S.C. 1539(d)) 
is amended--
            (1) by inserting ``or threatened species'' after 
        ``endangered species''; and
            (2) by striking ``of this Act''.
    (f) Pre-Act Parts and Scrimshaw.--Section 10(f) (16 U.S.C. 1539(f)) 
is amended--
            (1) by inserting after ``(f)'' the following: ``Pre-Act 
        Parts and Scrimshaw.--''; and
            (2) in paragraph (2), by striking ``of this Act'' each 
        place it appears.
    (g) Burden of Proof in Seeking Exemption or Permit.--Section 10(g) 
(16 U.S.C. 1539(g)) is amended by inserting after ``(g)'' the 
following: ``Burden of Proof in Seeking Exemption or Permit.--''.
    (h) Antique Articles.--Section 10(h)(1)(B) (16 U.S.C. 
1539(h)(1)(B)) is amended by striking ``endangered species or 
threatened species listed'' and inserting ``species determined to be an 
endangered species or a threatened species''.
    (i) Penalties and Enforcement.--Section 11 (16 U.S.C. 1540) is 
amended in subsection (e)(3), in the second sentence, by striking 
``Such persons'' and inserting ``Such a person''.
    (j) Substitution of Gender-Neutral References.--
            (1) ``Secretary'' for ``he''.--The following provisions are 
        amended by striking ``he'' each place it appears and inserting 
        ``the Secretary'':
                    (A) Paragraph (4)(C) of section 4(b), as 
                redesignated by section 5(b)(2) of this Act.
                    (B) Paragraph (5)(B)(ii) of section 4(b), as 
                redesignated by section 5(b)(2) of this Act.
                    (C) Section 4(b)(7) (16 U.S.C. 1533(b)(7)), in the 
                matter following subparagraph (B).
                    (D) Section 6 (16 U.S.C. 1535).
                    (E) Section 8(d) (16 U.S.C. 1537(d)).
                    (F) Section 9(f) (16 U.S.C. 1538(f)).
                    (G) Section 10(a) (16 U.S.C. 1539(a)).
                    (H) Section 10(b)(3) (16 U.S.C. 1539(b)(3)).
                    (I) Section 10(d) (16 U.S.C. 1539(d)).
                    (J) Section 10(e)(4) (16 U.S.C. 1539(e)(4)).
                    (K) Section 10(f)(4), (5), and (8)(B) (16 U.S.C. 
                1599(f)(4), (5), (8)(B)).
                    (L) Section 11(e)(5) (16 U.S.C. 1540(e)(5)).
            (2) ``President'' for ``he''.--Section 8(a) (16 U.S.C. 
        1537(a)) is amended in the second sentence by striking ``he'' 
        and inserting ``the President''.
            (3) ``Secretary of the interior'' for ``he''.--Section 
        8(b)(3) (16 U.S.C. 1537(b)(3)) is amended by striking ``he'' 
        and inserting ``the Secretary of the Interior''.
            (4) ``Person'' for ``he''.--The following provisions are 
        amended by striking ``he'' each place it appears and inserting 
        ``the person'':
                    (A) Section 10(f)(3) (16 U.S.C. 1539(f)(3)).
                    (B) Section 11(e)(3) (16 U.S.C. 1540(e)(3)).
            (5) ``Defendant'' for ``he''.--The following provisions are 
        amended by striking ``he'' each place it appears and inserting 
        ``the defendant''.
                    (A) Section 11(a)(3) (16 U.S.C. 1540(a)(3)).
                    (B) Section 11(b)(3) (16 U.S.C. 1540(b)(3)).
            (6) References to ``him''.--
                    (A) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is 
                amended by striking ``him or the Secretary of 
                Commerce'' each place it appears and inserting ``the 
                Secretary''.
                    (B) Paragraph (6) of section 4(b) (16 U.S.C. 
                1533(b)), as redesignated by section 5(b)(2) of this 
                Act, is further amended in the matter following 
                subparagraph (B) by striking ``him'' and inserting 
                ``the Secretary''.
                    (C) Section 5(k)(2), as redesignated by section 
                9(a)(1) of this Act, is amended by striking ``him'' and 
                inserting ``the Secretary''.
                    (D) Section 7(a)(1) (16 U.S.C. 1536(a)(1)) is 
                amended in the first sentence by striking ``him'' and 
                inserting ``the Secretary''.
                    (E) Section 8A(c)(2) (16 U.S.C. 1537a(c)(2)) is 
                amended by striking ``him'' and inserting ``the 
                Secretary''.
                    (F) Section 9(d)(2)(A) (16 U.S.C. 1538(d)(2)(A)) is 
                amended by striking ``him'' each place it appears and 
                inserting ``such person''.
                    (G) Section 10(b)(1) (16 U.S.C. 1539(b)(1)) is 
                amended by striking ``him'' and inserting ``the 
                Secretary''.
            (7) References to ``himself or herself''.--Section 11 (16 
        U.S.C. 1540) is amended in subsections (a)(3) and (b)(3) by 
        striking ``himself or herself'' each place it appears and 
        inserting ``the defendant''.
            (8) References to ``his''.--
                    (A) Section 4(g)(1), as redesignated by section 
                8(1) of this Act, is amended by striking ``his'' and 
                inserting ``the''.
                    (B) Section 6 (16 U.S.C. 1535) is amended--
                            (i) in subsection (d)(2) in the matter 
                        following clause (ii) by striking ``his'' and 
                        inserting ``the Secretary's''; and
                            (ii) in subsection (e)(1), as designated by 
                        section 10(3)(A) of this Act, by striking ``his 
                        periodic review'' and inserting ``periodic 
                        review by the Secretary''.
                    (C) Section 7(a)(3) (16 U.S.C. 1536(a)(3)) is 
                amended by striking ``his'' and inserting ``the 
                applicant's''.
                    (D) Section 8(c)(1) (16 U.S.C. 1537(c)(1)) is 
                amended by striking ``his'' and inserting ``the 
                Secretary's''.
                    (E) Section 9 (16 U.S.C. 1538) is amended in 
                subsection (d)(2)(B) and subsection (f) by striking 
                ``his'' each place it appears and inserting ``such 
                person's''.
                    (F) Section 10(b)(3) (16 U.S.C. 1539(b)(3)) is 
                amended by striking ``his'' and inserting ``the 
                Secretary's''.
                    (G) Section 10(d) (16 U.S.C. 1539(d)) is amended by 
                striking ``his'' and inserting ``the''.
                    (H) Section 11 (16 U.S.C. 1540) is amended--
                            (i) in subsection (a)(1) by striking 
                        ``his'' and inserting ``the Secretary's'';
                            (ii) in subsections (a)(3) and (b)(3) by 
                        striking ``his or her'' each place it appears 
                        and inserting ``the defendant's'';
                            (iii) in subsection (d) by striking ``his'' 
                        and inserting ``the officer's or employee's'';
                            (iv) in subsection (e)(3) in the second 
                        sentence by striking ``his'' and inserting 
                        ``the person's''; and
                            (v) in subsection (g)(1) by striking 
                        ``his'' and inserting ``the person's''.

SEC. 19. CLERICAL AMENDMENT TO TABLE OF CONTENTS.

    The table of contents in the first section is amended--
            (1) by striking the item relating to section 5 and 
        inserting the following:

``Sec. 5. Recovery plans and land acquisition.'';
        and
            (2) by striking the items relating to sections 13 through 
        17 and inserting the following:

``Sec. 13. Private property conservation.
``Sec. 14. Public accessibility and accountability.
``Sec. 15. Marine Mammal Protection Act of 1972.
``Sec. 16. Annual cost analysis by United States Fish and Wildlife 
                            Service.
``Sec. 17. Reimbursement for depredation of livestock by reintroduced 
                            species.
``Sec. 18. Authorization of appropriations.''.

SEC. 20. CERTAIN ACTIONS DEEMED IN COMPLIANCE.

    (a) Actions Deemed in Compliance.--During the period beginning on 
the date of the enactment of this Act and ending on the date described 
in subsection (b), any action that is taken by a Federal agency, State 
agency, or other person and that complies with the Federal Insecticide, 
Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.) is deemed to 
comply with sections 7(a)(2) and 9(a)(1)(B) of the Endangered Species 
Act of 1973 (16 U.S.C. 1536(a)(2), 1538(a)(1)(B)) (as amended by this 
Act) and regulations issued under section 4(d) of such Act (16 U.S.C. 
1533(d)).
    (b) Termination Date.--The date referred to in subsection (a) is 
the earlier of--
            (1) the date that is 5 years after the date of the 
        enactment of this Act; and
            (2) the date of the completion of any procedure required 
        under subpart D of part 402 of title 50, Code of Federal 
        Regulations, with respect to the action referred to in 
        subsection (a).
    (c) Limitation on Application.--This section shall not affect any 
procedure pursuant to part 402 of title 50, Code of Federal 
Regulations, that is required by any court order issued before the date 
of the enactment of this Act.

SEC. 21. CONSOLIDATION OF PROGRAMS.

    (a) Transfer.--The President shall, by not later than one year 
after the date of enactment of this Act, transfer to the Secretary of 
the Interior all duties, resources, and responsibilities of the 
Secretary of Commerce under the Endangered Species Act of 1973 existing 
immediately before the enactment of this Act.
    (b) Conforming Amendment.--
            (1) Amendment.--Section 3 (16 U.S.C. 1532) is further 
        amended in paragraph (15) (relating to the definition of 
        ``Secretary'') by striking ``or the Secretary of Commerce as 
        program responsibilities are vested pursuant to the provisions 
        of Reorganization Plan Numbered 4 of 1970''.
            (2) Effective date.--The amendment made by paragraph (1) 
        shall take effect one year after the date of the enactment of 
        this Act.
    (c) Report.--No later than 180 days after the date of enactment of 
this Act, the Secretary of the Interior and the Secretary of Commerce 
shall jointly submit to the Committee on Resources and the Committee on 
Appropriations of the House of Representatives, and the Committee on 
Environment and Public Works and the Committee on Appropriations of the 
Senate, a detailed description of the process by which the transfer of 
functions under the amendment made by subsection (a) shall be 
implemented.
    (d) Prior Determinations and Actions not Affected.--This section 
shall not affect any determination or action by the Secretary of 
Commerce made or taken, respectively, under the Endangered Species Act 
of 1973 before the date of the enactment of this Act, except that such 
determinations and actions shall be treated as determinations and 
actions, respectively, of the Secretary of the Interior.

SEC. 22. REVIEW OF PROTECTIVE REGULATIONS.

    The Secretary of the Interior shall--
            (1) review regulations issued before the date of the 
        enactment of this Act pursuant to section 4(d) of the 
        Endangered Species Act of 1973, in order to determine whether 
        revision of such regulations would be desirable in order to 
        facilitate and improve cooperation with the States pursuant to 
        section 6 of such Act; and
            (2) report to the Committee on Resources of the House of 
        Representatives and the Committee on Environment and Public 
        Works of the Senate regarding the findings of such review.

SEC. 23. PROVISION OF INFORMATION REGARDING COMPLIANCE COSTS OF FEDERAL 
              POWER ADMINISTRATIONS.

    (a) Customer Billings.--The Administrator of the Bonneville Power 
Administration, the Western Area Power Administration, the Southwestern 
Power Administration, and the Southeastern Power Administration shall 
each include in monthly firm power customer billings sent to each 
customer information identifying and reporting such customer's share of 
the Federal power marketing and generating agencies' direct and 
indirect costs incurred by such administration related to compliance 
with the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) and 
activities related to such Act.
    (b) Direct Costs.--In identifying and reporting direct costs, each 
Administrator shall include Federal agency obligations related to 
study-related costs, capital, operation, maintenance, and replacement 
costs, and staffing costs.
    (c) Indirect Costs.--In identifying and reporting indirect costs, 
each Administrator shall include foregone generation and replacement 
power costs.
    (d) Coordination.--Each Administrator shall coordinate 
identification of costs under this subsection with the appropriate 
Federal power generating agencies.

SEC. 24. SURVEY OF BLM LANDS AND FOREST SERVICE LANDS FOR MANAGEMENT 
              FOR RECOVERY OF LISTED SPECIES.

    (a) In General.--Not later than 2 years after the date of the 
enactment of this Act, the Secretary of the Interior shall--
            (1) survey all lands under the administrative jurisdiction 
        of the Bureau of Land Management and all lands under the 
        administrative jurisdiction Forest Service immediately before 
        the enactment of this Act, for the purpose of assessing the 
        value of such lands for management for the recovery of any 
        species included in a list published under section 4(c) of the 
        Endangered Species Act of 1973 and for addition to the National 
        Wildlife Refuge System; and
            (2) make recommendations to the Congress for managing any 
        such lands as are appropriate as part of the National Wildlife 
        Refuge System.
    (b) Limitation on Transfers.--The Secretary of the Interior may not 
transfer administrative jurisdiction pursuant to any recommendation 
under subsection (a)(2) except as authorized by a statute enacted after 
the date of the enactment of this Act.

SEC. 25. RELATIONSHIP BETWEEN SECTION 7 CONSULTATION AND INCIDENT TAKE 
              AUTHORIZATION UNDER MARINE MAMMAL PROTECTION ACT OF 1972.

    Consultation under section 7 of the Endangered Species Act of 1973 
(16 U.S.C. 1536) is equivalent to a section 101 incidental take 
authorization required under the Marine Mammal Protection Act of 1972 
(16 U.S.C. 1631 et seq.) for receiving dock building permits.

            Passed the House of Representatives September 29, 2005.

            Attest:

                                                                 Clerk.