II 110th CONGRESS 1st Session S. 658 IN THE SENATE OF THE UNITED STATES February 16, 2007 Mr. Thomas (for himself, Mr. Enzi, Mr. Allard, Mr. Craig, and Mr. Hagel) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the Endangered Species Act of 1973 to improve the processes for listing, recovery planning, and delisting, and for other purposes.

1.

Short title

This Act may be cited as the Endangered Species Reform Act of 2007.

2.

Listing process reforms

(a)

Best Scientific and Commercial Data Available

(1)

In general

Section 3 of the Endangered Species Act of 1973 (16 U.S.C. 1532) is amended— (A)by striking the section heading and inserting the following:

3.

Definitions and general provisions

; (B)by striking For the purposes of this Act— and inserting the following: (a)

Definitions

In this Act: ; and (C)by adding at the end the following: (b)

General Provisions

In any case in which this Act requires the Secretary to use the best scientific and commercial data available, the Secretary shall obtain and use scientific or commercial data that are empirical or have been field-tested or peer-reviewed. . (2)

Conforming amendment

The table of contents in the first section of the Endangered Species Act of 1973 (16 U.S.C. prec. 1531) is amended by striking the item relating to section 3 and inserting the following: Sec. 3. Definitions and general provisions. . (b)

Finding of Sufficient Biological Information To Support Recovery Planning

Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)) is amended— (1)in paragraph (1)(A)— (A)by striking “shall make” and inserting the following: “shall— (i)make ; (B)by striking the period at the end and inserting ; and; and (C)by adding at the end the following: (ii)determine that a species is an endangered species or a threatened species only if the Secretary finds that there is sufficient biological information to support recovery planning for the species under subsection (f). ; and (2)in the first sentence of paragraph (3)(A), by inserting before the period at the end the following: and as to whether the petition presents sufficient biological information to support recovery planning for the species under subsection (f). (c)

Petition Process

Section 4(b)(3) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)(3)) is amended by adding at the end the following: (E)

Listing petition information

In the case of a petition to add a species to a list published under subsection (c), a finding that the petition presents the information described in subparagraph (A) shall not be made unless the petition provides— (i)documentation from a published scientific source that the fish, wildlife, or plant that is the subject of the petition is a species; (ii)(I)a description of the available data on the historical and current range and distribution of the species; (II)an explanation of the methodology used to collect the data; and (III)identification of the location where the data can be reviewed; (iii)an appraisal of the available data on the status and trends of all extant populations of the species; (iv)an appraisal of the available data on the threats to the species; (v)an identification of the information contained or referred to in the petition that has been peer-reviewed or field-tested; and (vi)a description of at least 1 study or credible expert opinion, from a person not affiliated with the petitioner, to support the action requested in the petition. (F)

Notification to states

(i)

Petitioned actions

If a petition is found to present information described in subparagraph (A), the Secretary shall— (I)notify and provide a copy of the petition to the State agency of each State in which the species is believed to occur; and (II)solicit the assessment of the agency as to whether the petitioned action is warranted, which assessment shall be submitted to the Secretary during a comment period ending 90 days after the date of the notification. (ii)

Other actions

If the Secretary has not received a petition to add a species to a list published under subsection (c) and the Secretary is considering proposing to list the species as an endangered species or a threatened species under subsection (a), the Secretary shall— (I)notify the State agency of each State in which the species is believed to occur; and (II)solicit the assessment of the agency as to whether the listing would be in accordance with subsection (a), which assessment shall be submitted to the Secretary during a comment period ending 90 days after the date of the notification. (iii)

Consideration of state assessments

Before publication of a finding described in subparagraph (A) that a petitioned action is warranted, the Secretary shall consider any assessments submitted with respect to the species within the comment period established under clause (i) or (ii). . (d)

Improvement of Public Hearings in the Listing Process

(1)

In general

Section 4(b)(5) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)(5)) is amended by striking subparagraph (E) and inserting the following: (E)promptly hold at least 2 hearings in each State in which the species proposed for determination as an endangered species or a threatened species is located (including at least 1 hearing in an affected rural area if 1 or more rural areas within the State are affected by the determination), except that the Secretary may not be required to hold more than 10 hearings under this subparagraph with respect to the proposed regulation. . (2)

Definition of rural area

Section 3(a) of the Endangered Species Act of 1973 (16 U.S.C. 1532(a)) (as amended by subsection (a)(1)(B)) is amended— (A)by redesignating paragraphs (12) through (14) as paragraphs (11) through (13), respectively; and (B)by inserting before paragraph (15) the following: (14)

Rural area

The term rural area means a county or unincorporated area that has no city or town with a population of more than 10,000 individuals. . (3)

Conforming amendment

Section 7(n) of the Endangered Species Act of 1973 (16 U.S.C. 1536(n)) is amended in the first sentence by striking , as defined by section 3(13) of this Act,. (e)

Emergency Listing

Section 4(b)(7) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)(7)) is amended in the first sentence by striking posing a significant risk to the well-being and inserting that poses an imminent threat to the continued existence. (f)

Other Listing Reforms

Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)) is amended by adding at the end the following: (9)

Availability of listing data

(A)

In general

Subject to subparagraph (B), upon publication of a proposed regulation determining that a species is an endangered species or a threatened species, the Secretary shall make publicly available— (i)all information on which the determination is based, including all scientific studies and data underlying the studies; and (ii)all information relating to the species that the Secretary possesses and that does not support the determination. (B)

Limitation

Subparagraph (A) does not require disclosure of any information that— (i)is not required to be made available under section 552 of title 5, United States Code (commonly known as the Freedom of Information Act); or (ii)is prohibited from being disclosed under section 552a of title 5, United States Code (commonly known as the Privacy Act). (10)

Establishment of criteria for scientific studies to support listing

Not later than 1 year after the date of enactment of this paragraph, the Secretary shall promulgate regulations that establish criteria that must be met for scientific and commercial data to be used as the basis of a determination under this section that a species is an endangered species or a threatened species. (11)

Field data

(A)

Requirement

The Secretary may not determine that a species is an endangered species or a threatened species unless the determination is supported by data obtained by observation of the species in the field. (B)

Data from landowners

The Secretary shall— (i)accept and acknowledge receipt of data regarding the status of a species that is collected by an owner of land through observation of the species on the land; and (ii)include the data in the rulemaking record compiled for any determination that the species is an endangered species or a threatened species. .

3.

Deadline for development of recovery plans

Section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)) is amended by adding at the end the following: (6)

Deadline for development of recovery plans

The Secretary shall— (A)begin developing a recovery plan required for a species under paragraph (1) on the date of promulgation of the proposed regulation to implement a determination under subsection (a)(1) with respect to the species; and (B)issue a recovery plan in final form not later than the date of promulgation of the final regulation to implement the determination. .

4.

Delisting

Section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)) (as amended by section 3) is amended by adding at the end the following: (7)

Effect of fulfillment of recovery plan criteria

(A)

Change in status

If the Secretary finds that the criteria of a recovery plan have been met for a change in status of the species covered by the recovery plan from an endangered species to a threatened species, or from a threatened species to an endangered species, the Secretary shall promptly publish in the Federal Register a notice of the change in status of the species. (B)

Removal from listing

If the Secretary finds that the criteria of a recovery plan have been met for the removal of the species covered by the recovery plan from a list published under subsection (c), the Secretary shall promptly publish in the Federal Register a notice of an intent to remove the species from the list. .