[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6360 Introduced in House (IH)]

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115th CONGRESS
  2d Session
                                H. R. 6360

  To amend the Endangered Species Act of 1973 to provide for greater 
  certainty and improved planning for incidental take permit holders.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 12, 2018

 Mr. Norman (for himself, Mr. Abraham, Mr. Biggs, Mr. Bishop of Utah, 
 Mr. Cramer, Mr. Duncan of South Carolina, Mr. Gosar, Mr. Luetkemeyer, 
Mr. Marshall, Mr. Tipton, Mr. Banks of Indiana, Mr. Stewart, Mrs. Noem, 
Mr. McClintock, Mr. Estes of Kansas, Mr. Gohmert, Mr. Newhouse, and Mr. 
   Walden) introduced the following bill; which was referred to the 
                     Committee on Natural Resources

_______________________________________________________________________

                                 A BILL


 
  To amend the Endangered Species Act of 1973 to provide for greater 
  certainty and improved planning for incidental take permit holders.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Permit Reassurances Enabling Direct 
Improvements for Conservation, Tenants, and Species Act of 2018'' or 
the ``PREDICTS Act of 2018''.

SEC. 2. CODIFICATION OF THE ``NO SURPRISES'' REGULATIONS.

    (a) Definitions.--Section 3 of the Endangered Species Act of 1973 
(16 U.S.C. 1532) is amended as follows:
            (1) By inserting after paragraph (1) the following:
            ``(_) Changed circumstances.--The term `changed 
        circumstances'--
                    ``(A) means changes in circumstances affecting a 
                species or geographic area covered by a covered plan or 
                agreement that can reasonably be anticipated by 
                developers of such plan or agreement, respectively, and 
                the Secretary, and that can reasonably be planned for; 
                and
                    ``(B) includes--
                            ``(i) additions of species to lists 
                        published under section 4(c); and
                            ``(ii) a fire or other natural catastrophic 
                        event in an area prone to such an event.''.
            (2) By inserting after paragraph (3) the following:
            ``(_) Covered plan or agreement.--The term `covered plan or 
        agreement' means a conservation plan required under section 
        10(a)(2)(A) or a candidate conservation agreement with 
        assurances under section 10(k), respectively.''.
            (3) By inserting after paragraph (5) the following:
            ``(_) Conserved habitat areas.--The term `conserved habitat 
        areas' means areas explicitly designated for habitat 
        restoration, acquisition, protection, or other conservation 
        purposes under a covered plan or agreement.''.
            (4) By inserting after paragraph (13) the following:
            ``(_) Operating conservation program.--The term `operating 
        conservation program' means those conservation management 
        activities that are expressly described in a covered plan or 
        agreement and that are to be undertaken for the affected 
        species when implementing the plan or agreement, respectively, 
        including measures to respond to changed circumstances.''.
            (5) By inserting after paragraph (24) the following:
            ``(_) Unforeseen circumstances.--The term `unforeseen 
        circumstances' means changes in circumstances affecting a 
        species or geographic area covered by a covered plan or 
        agreement that could not reasonably have been anticipated by 
        plan developers and the Secretary at the time of the 
        development of such plan or agreement, respectively, and that 
        result in a substantial and adverse change in the status of the 
        covered species.''.
            (6) By redesignating the paragraphs of such section as 
        paragraphs (1) through (25), respectively.
    (b) Conforming Amendment.--Section 7(n) of such Act (16 U.S.C. 
1536(n)) is amended by striking ``section 3(13)'' and inserting 
``section 3(16)''.
    (c) Assurances Governing Permit, Plan, Candidate Conservation 
Agreement With Assurances, and Safe Harbor Agreement Issuance, 
Modification, and Revocation.--Section 10 of such Act (16 U.S.C. 1539) 
is amended as follows:
            (1) Subsection (a)(2)(B) is amended in the matter following 
        clause (v) by adding at the end the following: ``In addition, 
        each permit issued under paragraph (1)(B), each candidate 
        conservation agreement with assurances entered into under 
        subsection (k), and each safe harbor agreement entered into 
        under subsection (l) shall contain the assurances governing 
        permit revocation, changed circumstances, and unforeseen 
        circumstances set forth in subparagraph (2)(C) and paragraph 
        (3) of this subsection.''.
            (2) Subsection (a)(2)(C) is amended by inserting ``(i)'' 
        before the text, and by adding at the end the following:
    ``(ii) The Secretary may not revoke a permit issued under paragraph 
(1)(B) other than as required in clause (i), and may not terminate any 
candidate conservation agreement with assurances under subsection (k) 
or safe harbor agreement entered into under subsection (l), unless the 
Secretary finds that--
            ``(I) continuation of the permitted activity or activity 
        authorized under such an agreement, respectively, would be 
        inconsistent with any of the criteria set forth in subparagraph 
        (B); and
            ``(II) the inconsistency has not been remedied in a timely 
        fashion.''.
            (3) Subsection (a) is amended by adding at the end the 
        following:
    ``(3) Each permit issued by the Secretary under paragraph (1)(B), 
each candidate conservation agreement with assurances entered into 
under subsection (k), and each safe harbor agreement entered into under 
subsection (l) shall be subject to the following assurances addressing 
changed circumstances and unforeseen circumstances:
            ``(A) If additional conservation and mitigation measures 
        are deemed necessary to respond to changed circumstances and 
        are specified in the operating conservation program of the 
        conservation plan for the permit or in such agreement, 
        respectively, the permittee shall implement such measures.
            ``(B) If additional conservation and mitigation measures 
        are deemed necessary to respond to changed circumstances and 
        are not specified in the operating conservation program of the 
        conservation plan for the permit or in such agreement, 
        respectively, the Secretary may not require any conservation 
        and mitigation measures in addition to those specified in the 
        plan or agreement, respectively, without the consent of the 
        permittee.
            ``(C)(i) In negotiating unforeseen circumstances, the 
        Secretary may not require the commitment of additional land, 
        water, or financial compensation or additional restrictions on 
        the use of land, water, or other natural resources beyond the 
        level otherwise agreed upon for the species covered by the 
        conservation plan or by such agreement, respectively, without 
        the consent of the permittee.
            ``(ii) If additional conservation and mitigation measures 
        are deemed necessary to respond to unforeseen circumstances, 
        the Secretary may require additional measures of the permittee 
        where the conservation plan or agreement, respectively, is 
        being properly implemented, but only if such measures--
                    ``(I) are limited to modifications within conserved 
                habitat areas, if any, or to the conservation plan's or 
                agreement's operating conservation program for the 
                affected species;
                    ``(II) maintain the original terms and structures 
                of the conservation plan or agreement to the maximum 
                extent possible; and
                    ``(III) will not involve the commitment of 
                additional land, water, or financial compensation or 
                additional restrictions on the use of land, water, or 
                other natural resources otherwise available for 
                development or use under the original terms of the 
                conservation plan or agreement, without the consent of 
                the permittee.
            ``(iii) The Secretary shall have the burden of 
        demonstrating that unforeseen circumstances exist, using the 
        best scientific and commercial data available. The Secretary 
        shall clearly document any finding that unforeseen 
        circumstances exist, and shall base such finding on reliable 
        technical information regarding the status and habitat 
        requirements of the affected species. In making such finding, 
        the Secretary will consider, among other matters, the following 
        factors:
                    ``(I) The size of the current range of the affected 
                species.
                    ``(II) The percentage of such range adversely 
                affected by the conservation plan or agreement.
                    ``(III) The percentage of such range conserved by 
                the conservation plan or agreement.
                    ``(IV) The ecological significance of that portion 
                of the range affected by the conservation plan or 
                agreement.
                    ``(V) The level of knowledge about the affected 
                species and the degree of specificity of the species' 
                conservation program under the conservation plan or 
                agreement.
                    ``(VI) Whether failure to adopt additional 
                conservation measures would appreciably reduce the 
                likelihood of survival and recovery of the affected 
                species in the wild.
            ``(iv) The Secretary shall--
                    ``(I) present a record of the analyses of the 
                status of unforeseen circumstances to the permittee 
                before requiring any additional conservation or 
                mitigation measures of the permittee or agreement party 
                under clause (ii); and
                    ``(II) include in the record a qualitative and 
                quantitative analysis of each of the factors specified 
                in subclauses (I) through (VI) of clause (iii).''.

SEC. 3. CANDIDATE CONSERVATION AGREEMENTS WITH ASSURANCES.

    (a) Permits.--Section 10(a)(1) of the Endangered Species Act of 
1973 (16 U.S.C. 1539(a)(1)) is amended--
            (1) by striking ``or'' at the end of subparagraph (A);
            (2) by striking the period at the end of subparagraph (B) 
        and inserting ``; or''; and
            (3) by adding at the end the following:
                    ``(C) any taking incidental to, and not the purpose 
                of, the carrying out of an otherwise lawful activity 
                pursuant to a candidate conservation agreement with 
                assurances entered into under subsection (k) or a safe 
                harbor agreement entered into under subsection (l).''.
    (b) Agreements.--Section 10 of such Act (16 U.S.C. 1539) is amended 
by adding at the end the following:
    ``(k) Candidate Conservation Agreements.--
            ``(1) In general.--At the request of any non-Federal 
        person, the Secretary may enter into a candidate conservation 
        agreement with assurances with the person for a species that 
        has been proposed for listing under section 4(c)(1), is a 
        candidate species, or is likely to be considered for listing in 
        the near future on areas where the person has a fee simple, 
        leasehold, or other property interest (including water or other 
        natural resources) sufficient to carry out the proposed 
        management activities, including on lands or waters under 
        Federal ownership or control.
            ``(2) Review by the secretary.--
                    ``(A) Submission to the secretary.--A non-Federal 
                person may submit a candidate conservation agreement 
                with assurances developed under paragraph (1) to the 
                Secretary for review at any time prior to the listing 
                described in section 4(c)(1) of a species that is the 
                subject of the agreement.
                    ``(B) Criteria for approval.--The Secretary may 
                approve an agreement and issue a permit under 
                subsection (a)(1)(C) for the agreement if, after notice 
                and opportunity for public comment, the Secretary finds 
                that--
                            ``(i) for species proposed for listing, 
                        candidates for listing, or are likely to be 
                        considered for listing in the near future, that 
                        are included in the agreement, the actions 
                        taken under the agreement, would provide a 
                        beneficial contribution to the conservation of 
                        the species or its habitat during the duration 
                        of the agreement;
                            ``(ii) the actions taken under the 
                        agreement will not appreciably reduce the 
                        likelihood of survival and recovery of an 
                        endangered species or a threatened species; and
                            ``(iii) the agreement includes such 
                        monitoring and reporting requirements as 
                        reasonably necessary for determining whether 
                        the terms and conditions of the agreement are 
                        being complied with.
            ``(3) Effective date of permit.--A permit issued under 
        subsection (a)(1)(C) shall take effect at the time the species 
        is listed pursuant to section 4(c), if the permittee is in full 
        compliance with the terms and conditions of the agreement.
            ``(4) Assurances.--A person who has entered into a 
        candidate conservation agreement under this subsection, and is 
        in compliance with the agreement, may not be required to 
        undertake any additional measures for species covered by such 
        agreement if the measures would require the payment of 
        additional money, or the adoption of additional use, 
        development, or management restrictions on any land, waters, or 
        water-related rights that would otherwise be available under 
        the terms of the agreement without the consent of the person 
        entering into the agreement. The Secretary and the person 
        entering into a candidate conservation agreement, by the terms 
        of the agreement, shall identify--
                    ``(A) other modifications to the agreement; or
                    ``(B) other additional measures;
        if any, that the Secretary may require under extraordinary 
        circumstances.''.

SEC. 4. SAFE HARBOR AGREEMENTS.

    Section 10 of the Endangered Species Act of 1973 (16 U.S.C. 1539) 
(as amended by section 3) is further amended by adding at the end the 
following:
    ``(l) Safe Harbor Agreements.--
            ``(1) Agreements.--
                    ``(A) In general.--The Secretary may enter into 
                agreements with non-Federal persons to benefit the 
                conservation of endangered species or threatened 
                species by creating, restoring, or improving areas as 
                habitat or by maintaining currently unoccupied habitat 
                for endangered species or threatened species. Under an 
                agreement, the Secretary shall permit the person to 
                take endangered species or threatened species included 
                under the agreement on lands or waters that are subject 
                to the agreement if the taking is incidental to, and 
                not the purpose of, carrying out of an otherwise lawful 
                activity, except that the Secretary may not permit 
                through an agreement any incidental taking below the 
                baseline requirement specified pursuant to subparagraph 
                (B).
                    ``(B) Baseline.--For each agreement under this 
                subsection, the Secretary shall establish a baseline 
                requirement that is mutually agreed on by the applicant 
                and the Secretary at the time of the agreement that 
                will, at a minimum, maintain existing conditions for 
                the species covered by the agreement on lands and 
                waters that are subject to the agreement. The baseline 
                may be expressed in terms of the abundance or 
                distribution of endangered or threatened species, 
                quantity or quality of habitat, or such other 
                indicators as appropriate.
            ``(2) Criteria for approval.--The Secretary may approve an 
        agreement and issue a permit under subsection (a)(1)(C) for the 
        agreement if, after notice and opportunity for public comment, 
        the Secretary finds that--
                    ``(A) the implementation of the terms of the 
                agreement is reasonably expected to provide a 
                beneficial contribution to the recovery of the species 
                during the duration of the agreement;
                    ``(B) the take will be incidental to an otherwise 
                lawful activity and will be in accordance with the 
                terms of the agreement;
                    ``(C) the actions taken under the agreement will 
                not appreciably reduce the likelihood of survival and 
                recovery of an endangered species or threatened 
                species; and
                    ``(D) the agreement includes such monitoring and 
                reporting requirements as reasonably necessary for 
                determining whether the terms and conditions of the 
                agreement are being complied with.
            ``(3) Effective date of the permit.--A permit issued under 
        subsection (a)(1)(C) shall take effect on the day of issuance 
        for species covered by the agreement.''.

SEC. 5. FINANCIAL ASSISTANCE.

    Section 10 of the Endangered Species Act of 1973 (16 U.S.C. 1539) 
(as amended by section (4)) is further amended by adding at the end the 
following:
    ``(m) Financial Assistance.--
            ``(1) In general.--In cooperation with the States and 
        subject to the availability of appropriations, the Secretary 
        may provide a grant of up to $10,000 to any individual private 
        landowner to assist the landowner in carrying out a candidate 
        conservation agreement with assurances or safe harbor agreement 
        under this subsection.
            ``(2) Prohibition on assistance for required activities.--
        The Secretary may not provide assistance under this paragraph 
        for any action that is required by a permit, candidate 
        conservation agreement with assurances, or safe harbor 
        agreement under this Act or that is otherwise required under 
        this Act or other Federal law.
            ``(3) Other payments.--A grant provided to an individual 
        private landowner under this paragraph shall be in addition to, 
        and not affect, the total amount of payments that the landowner 
        is otherwise eligible to receive under Federal law.''.
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