[Congressional Record Volume 143, Number 123 (Tuesday, September 16, 1997)]
[Senate]
[Pages S9411-S9428]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. D'AMATO (for himself and Mr. Sarbanes) (by request):
S. 1179. A bill to amend the National Flood Insurance Act of 1968 to
reauthorize the National Flood Insurance Program; to the Committee on
Banking, Housing, and Urban Affairs.
THE NATIONAL FLOOD INSURANCE REAUTHORIZATION ACT OF 1997
Mr. D'AMATO. Mr. President, I rise today to introduce the National
Flood Insurance Reauthorization Act of 1997 (NFIRA). This legislation
provides for a simple and straightforward 5-year extension of the
National Flood Insurance Program (NFIP) which is scheduled to expire on
September 30, 1997. This legislation will ensure that this important
program is placed on a steady and secure foundation to continue the
invaluable protection it provides to flood insurance policyholders and
the Federal taxpayers. I am pleased that my colleague, Senator
Sarbanes, the distinguished ranking member of the Banking Committee,
has cosponsored this measure.
The National Flood Insurance Program, which is administered by the
Federal Emergency Management Agency [FEMA], enables over 3.5 million
American families to insure their homes and possessions. In my home
State of New York, 85,000 families participate in the NFIP. The NFIP
allows these families, on Long Island and along the Great Lakes and the
State's many rivers, to purchase adequate insurance coverage to protect
their homes in the event of a catastrophic flood.
The NFIP employs a comprehensive approach to alleviating the risks
posed by catastrophic floods. Floodplain communities participate in
FEMA's Community Rating System and are offered incentives to adopt and
enforce measures to reduce the risk of flood damage and improve flood
prevention building criteria. To avoid the danger of repetitive losses,
the program provides stringent building standards, including increased
elevation, designed to reduce the risk of future damage. These flood
protection standards must be met before any structure which suffers
substantial damage may be rebuilt. In addition, persons who receive
disaster assistance and fail to subsequently purchase flood insurance
are barred from receiving future assistance.
Mr. President, the NFIP plays a critical role in reducing the costs
of Federal disaster relief. Current NFIP policyholders pay
approximately $1.3 billion annually into the NFIP fund. Without this
premium income, the Federal Government would likely pay spiraling costs
in disaster relief. The NFIP has the added benefits of improving State
and community planning and Federal support for locally driven disaster
prevention and mitigation activities.
Reauthorizing the NFIP is an important step forward in reaffirming
the commitment of the Federal Government to help American families
protect their homes and to protect the Federal taxpayer from the risks
of catastrophic floods. Clearly, we must do more. Lenders and private
insurers who participate in the NFIP must do more to ensure compliance.
States and local communities must improve their disaster planning,
prevention, and response activities. FEMA must redouble its efforts to
increase participation in the program to improve the safety and
soundness of the NFIP fund. Also, the Federal Government must do more
to prevent and mitigate against the losses which will inevitably occur
from future floods.
Mr. President, I note that this bill is supported by the
administration. I urge my colleagues to support the adoption of this
legislation and I look forward to working with the members of the
Banking Committee to ensure a swift and speedy passage.
______
By Mr. KEMPTHORNE (for himself, Mr. Chafee, Mr. Baucus, and Mr.
Reid):
S. 1180. A bill to reauthorize the Endangered Species Act; to the
Committee on Environment and Public Works.
THE ENDANGERED SPECIES RECOVERY ACT OF 1997
Mr. KEMPTHORNE. Mr. President, 2 years ago, in Lewiston, ID, as
chairman of the Drinking Water Fisheries and Wildlife Subcommittee, I
held a hearing to review the current Endangered Species Act and to
identify ways to improve the act. It was clear from the testimony we
heard that the current law simply is not working. It isn't working for
species and it isn't working for people. That message was loud and
clear. Senator Chafee was there with us at that meeting.
We must do a better job of protecting species without jeopardizing
our communities. The legislation that I am introducing today with
Senator Chafee, Senator Baucus, and Senator Reid will do just that. It
will bring real and fundamental reform to the Endangered Species Act,
and it will minimize the social and economic impact of the ESA on the
lives of ordinary citizens, and it will benefit species. That is the
critical point.
I want to thank Senators Chafee, Baucus, and Reid, who have worked
diligently with me as we have crafted this legislation, which brings
about balance and a bipartisan approach to a very sensitive issue.
There are over 1,000 species on the endangered species list today but
fewer than half of them have ever had a recovery plan written for them.
The best evidence that the current law isn't working may be the fact
that not a single species has recovered as a result of a recovery plan.
It is as if you have a recovery room filled with patients and one by
one these patients are brought in, given an examination by the doctor,
and at the conclusion of the examination the doctor says, ``Yes, you
are critical. Next.'' ``What do you mean, next, doctor? What is the
prescription? What is the recovery for this critical condition?"
The emphasis has not been on recovery. It has been on continuing to
list, list, list, without the emphasis on recovery.
[[Page S9412]]
But the law must also have balance. It must recognize the rights of
people, too.
During our hearings, we heard many compelling stories from people who
have had to live with the real life impact of the Endangered Species
Act. We heard from families in Owyhee County, ID, who cannot get bank
loans for their homes because the listing of a tiny snail--the Bruneau
Hot Springs snail--has caused their property value to plummet.
We heard from a woman in Laramie, WY, who told us that the mosquito
control program in their community had been suspended because of the
ESA, causing severe health risks for the citizens of Laramie, including
her son who contracted encephalitis from a mosquito.
We heard from a rancher in Joseph, OR, who described how Federal
regulators, under the threat of lawsuit from environmentalists, tried
to stop all grazing on forest lands up in the mountains because salmon
were spawning in streams that ran through the private land below, but
in his words, ``The cows were up in the high country as far from the
spawning habitat as you could get.''
And we heard from mill workers who lost their jobs when the ESA all
but shut down logging in certain national forests. I think that Ray
Brady from Grangeville, ID, may have captured best the underlying
feeling of frustration and anxieties:
We had a choice of moving, of going someplace else. Why
should we? I chose to live in a small community like
Grangeville. I chose to work there. I worked there for 28
years and somebody else in a different part of the country
makes a decision that has cost me my job and occupation and
28 years worth of experience. Now I am having to start all
over again. I don't have any income. I don't have any
insurance for my family or myself; and I attribute it
directly to this Endangered Species Act. Somebody has to do
something about it. I mean, not in the future, I mean now.
Ray Brady is right. We need to improve the way that the ESA works,
and we need to do it right now. We need an ESA that will make advocates
out of adversaries. As it's administered today, it separates people
from their environment. It invites Federal regulators to become land
use managers over some of the best stewards of our environment--our
farmers and our ranchers and our landowners. And we need their help if
we are truly going to save species. Just remember, well over half of
our endangered species depend on private property.
The ESA must provide more incentives to encourage property owners to
become partners in the conservation of a rare and unique species.
The bill we are introducing today will achieve those goals. It will
make the law work better. It will reduce unnecessary bureaucracy; it
will enhance the recovery of species; and it will treat property owners
fairly.
Let me highlight just a few of the significant improvements that we
have included in this legislation.
The bill will put new emphasis on the need to use good science in
everything from the listing process through recovery. The Secretary
will be required to use the best available science in all of his
decisions and to give greater preference to information that is
empirical and peer reviewed. In addition, all listing and delisting
decisions will be subject to independent peer review. That means that
we can all have greater confidence in the decisions made under the ESA.
The bill will add teeth to the recovery planning process so that
we're no longer just running an endangered species emergency room
without also providing the prescription for recovery. For the first
time, we will set deadlines for the development of recovery plans for
every listed species. Each recovery plan will be developed by a
recovery team that includes scientists, economists, and representatives
of the communities that are affected by the listing of the species. And
we establish new substantive requirements for each recovery plan,
including recovery measures, benchmarks to measure progress, and a
biological recovery goal that will trigger delisting when it is met.
We'll know that the law is working well when species are no longer just
being listed, but when they're also being delisted as a result of a
successful recovery plan.
The bill recognizes that we can reduce bureaucracy and unnecessary
Federal interference with land management decisions without harming
species. In the consultation process, for example, the fact is that
people spend too much time trying to comply with too many regulations
from too many Federal agencies. That cannot only significantly increase
the cost of a project, in some cases, it can be deadly.
In 1996, in Yuba County, CA, for example, the Corps of Engineers was
prevented from repairing levees south of the city of Marysville because
of the impact that the repairs might have on the hibernating garter
snake. The work wasn't done and on January 2, a levee failed in
Olivehurst, CA, killing three people and flooding 500 homes.
Under our bill, the Federal action agency, in that case the Corps of
Engineers, will have the authority to make the initial determination
that its repairs would not be likely to adversely affect the species.
The levee repair could then proceed, unless the Fish and Wildlife
Service objected to the initial determination within 60 days. This
simple procedural fix will allow projects to be completed on time
without jeopardizing endangered species.
Perhaps most important, the bill includes a number of incentives for
property owners so that they can become partners in saving species.
The key is maximum flexibility and our bill provides that. For
example, if you're an individual who wants to clear a few acres of land
to build your vacation home in red cockaded woodpecker territory, our
new low effect conservation plan may be just what you need. On the
other hand, a county planning its development needs for the next 50
years might choose to enter into a multiple species conservation plan
to preserve habitat for all of its rare and unique species. State and
local governments can even enter into conservation plans to protect
unlisted species.
All of the conservation plans are backed by a no-surprises provision
that gives landowners certainty that their obligations will be defined
by the plan. They won't be required to pay additional money for
conservation measures or to further restrict their activities on the
land covered by the plan.
In addition to conservation plans, the bill offers landowners the
option of entering into separate agreements to manage land for the
benefit of species. A small timber company whose lands are suitable
habitat for spotted owls might enter into a safe harbor agreement to
let the trees grow to attract the owls with the understanding that at
the end of some agreed-upon period of time, it can harvest the trees.
And a farmer might agree to set aside buffer strips for a species in
return for compensation under a habitat reserve agreement.
Finally, the bill limits the ability of the Federal Government and
environmental groups to restrict otherwise legal activities on private
lands. Under the law today, the Government and environmental groups
have used the take prohibition to try to prohibit logging and
development on private lands and a city's pumping of an aquifer for
drinking water, even where there was no scientific evidence that the
activity would in fact harm an endangered species. Our bill will change
that, reaffirming that the Federal Government, or an environmental
group, has the burden of demonstrating that an activity will actually
harm a species and they must meet that burden using real science, not
just assumptions or speculation.
When we started this process just over 2 years ago, we asked
ourselves the question: Should we make a concerted effort to save
species? The answer was yes.
But could we do it without putting people and communities at risk?
Today, I think that we've demonstrated that we can. We can save
species with less bureaucracy, using good science, incentives, and
where necessary, public financial resources.
Charles Mann and Christopher Plummer wrote in their book ``Noah's
Choice,'' ``If we truly want to improve the lot of endangered species,
we should stop shooting for the stars, because the arrows will fall
back to our feet. By aiming a little closer, we might shoot farther in
the desired direction.''
And I will add, and hit the target more often. This bill hits the
target.
I would like to use my prerogative to just thank my staff for their
efforts on this--Buzz Fawcett, Ann Klee, Jim
[[Page S9413]]
Tate, and other members of my staff. I know the other Senators feel as
I do about my staff, that they do a tremendous job. As we stand here
with results of 18 months of hard effort, we know of the many hours
they have contributed as well in making this a success.
Mr. President, we now have a bill that is bipartisan. We have a bill
that is scheduled for a hearing 1 week from today and for markup in
committee where amendments will be considered 2 weeks from today. It is
our full expectation that we will be able to bring this bill to the
floor of the Senate for debate and for a vote sometime near the middle
of October. It has been many months, if not years, in the making, to
create this legislation which improves the Endangered Species Act, so
that we can, again, save species and do it without putting people and
communities at risk.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1180
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Endangered
Species Recovery Act of 1997''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Listing and delisting species.
Sec. 3. Enhanced recovery planning.
Sec. 4. Interagency consultation and cooperation.
Sec. 5. Conservation plans.
Sec. 6. Enforcement.
Sec. 7. Education and technical assistance.
Sec. 8. Authorization of appropriations.
Sec. 9. Other amendments.
(c) References to Endangered Species Act.--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 that section or provision
of the Endangered Species Act (16 U.S.C. 1531 et seq.).
SEC. 2. LISTING AND DELISTING SPECIES.
(a) Best Scientific and Commercial Data Available.--Section
3 of the Act (16 U.S.C. 1532) is amended--
(1) by striking the title and inserting the following:
``DEFINITIONS AND GENERAL PROVISIONS'';
(2) by striking ``For the purposes of this Act--'' and
inserting the following:
``(a) Definitions.--For purposes of this Act--''; and
(3) by adding at the end the following new subsection:
``(b) General Provisions.--
``(1) Best scientific and commercial data available.--Where
this Act requires the Secretary to use the best scientific
and commercial data available, the Secretary shall when
evaluating comparable data give greater weight to scientific
or commercial data that is empirical, field-tested or peer-
reviewed.''.
(b) Conforming Amendment.--The table of contents in the
first section (16 U.S.C. 1531) is amended by striking the
item relating to section 3 and inserting the following:
``Sec. 3. Definitions and general provisions.''.
(c) Listing and Delisting.--
(1) Factors considered for listing.--Section 4(a)(1) is
amended--
(A) in subparagraph (C) by inserting ``introduced species,
competition,'' prior to ``disease or predation''; and
(B) in subparagraph (D) by inserting ``Federal, State and
local government and international'' prior to ``regulatory
mechanisms''.
(2) Critical habitat.--Section 4(a) is amended by striking
paragraph (3).
(3) Delisting.--Section 4(b)(2) is amended to read as
follows:
``(2) Delisting.--The Secretary shall, in accordance with
section 5 and upon a determination that the goals of the
recovery plan for a species have been met, initiate the
procedures for determining, in accordance with subsection
(a)(1), whether to remove a species form a list published
under subsection (c).''
(4) Response to Petitions.--Section 4(b)(3) is amended to
read as follows:
``(3) Response to Petitions.--
``(A) Action may be warranted.--
``(i) In general.--To the maximum extent practicable,
within 90 days after receiving the petition of an interested
person under section 553(e) of title 5, United States Code,
to--
``(I) add a species to,
``(II) remove a species from, or
``(III) change a species status from a previous
determination with respect to
either of the lists published under subsection (c), the
Secretary shall make a finding as to whether the petition
presents substantial scientific or commercial information
indicating that the petitioned action may be warranted. If a
petition is found to present such information, the Secretary
shall promptly commence a review of the status of the species
concerned the Secretary shall promptly publish each finding
made under this subparagraph in the Federal Register.
``(ii) Minimum documentation.--A finding that the petition
presents the information described in clause (i) shall not be
made unless the petition provides--
``(I) documentation that the fish, wildlife, or plant that
is the subject of the petition is a species as defined in
section 3;
``(II) a description of the available data on the
historical and current range and distribution of the species;
``(III) an appraisal of the available data on the status
and trends of populations of the species;
``(IV) an appraisal of the available data on the threats to
the species; and
``(V) an identification of the information contained or
referred to in the petition that has been peer-reviewed or
field-tested.
``(iii) Notification to the states.--
``(I) Petitioned actions.--If the petition is found to
present the information described in clause (i), the
Secretary shall notify and provide a copy of the petition to
the State agency in each State in which the species is
believed to occur and solicit the assessment of the agency,
to be submitted to the Secretary within 90 days of
notification, as to whether the petitioned action is
warranted.
``(II) Other actions.--If the Secretary has not received a
petition for a species and the Secretary is considering
proposing to list such species as either threatened or
endangered under subsection (a), the Secretary shall notify
the State agency in each State in which the species is
believed to occur and solicit the assessment of the agency,
to be submitted to the Secretary within 90 days of the
notification, as to whether the listing would be in
accordance with the provisions of subsection (a).
``(III) Consideration of state assessments.--Prior to
publication of a determination that a petitioned action is
warranted or a proposed regulation, the Secretary shall
consider any State assessments submitted within the comment
period established by subclause (I) or (II).
``(B) Petition to change status or delist.--A petition may
be submitted to the Secretary under subparagraph (A) to
change the status of or to remove a species from either of
the lists published under subsection (c) in accordance with
subsection (a)(1), if--
``(i) the current listing is no longer appropriate because
of a change in the factors identified in subsection (a)(1);
or
``(ii) with respect to a petition to remove a species from
either of the lists--
``(I) new data or a reinterpretation of prior data
indicates that removal is appropriate;
``(II) the species is extinct; or
``(III) the recovery goals established for the species in a
recovery plan approved under section 5(h) have been achieved.
``(C) Determination.--Within 12 months after receiving a
petition that is found under subparagraph (A)(i) to present
substantial information indicating that the petitioned action
may be warranted, the Secretary shall make one of the
following findings:
``(i) Not warranted.--The petitioned action is not
warranted, in which case the Secretary shall promptly publish
the finding in the Federal Register.
``(ii) Warranted.--The petitioned action is warranted, in
which case the Secretary shall promptly publish in the
Federal Register a general notice and the complete text of a
proposed regulation to implement the action in accordance
with paragraph (5).
``(iii) Warranted but precluded.--The petitioned action is
warranted, but that--
``(I) the immediate proposal and timely promulgation of a
final regulation implementing the petitioned action in
accordance with paragraphs (5) and (6) is precluded by
pending proposals to determine whether any species is an
endangered species or a threatened species; and
``(II) expeditious progress is being made to add qualified
species to either of the lists published under subsection (c)
and to remove from the lists species for which the
protections of the Act are no longer necessary,
in which case the Secretary shall promptly publish the
finding in the Federal Register, together with a
description and evaluation of the reasons and data on
which the finding is based.
``(D) Subsequent determination.--A petition with respect to
which a finding is made under subparagraph (C)(iii) shall be
treated as a petition that is resubmitted to the Secretary
under subparagraph (A) on the date of such finding and that
presents substantial scientific or commercial information
that the petitioned action may be warranted.
``(E) Judicial review.--Any negative finding described in
subparagraph (A)(i) and any finding described in subparagraph
(C)(i) or (iii) shall be subject to judicial review.
``(F) Monitoring and emergency listing.--The Secretary
shall implement a system to monitor effectively the status of
all species with respect to which a finding is made under
subparagraph (C)(iii) and shall make prompt use of the
authority under paragraph (7) to prevent a significant risk
to the well-being of any such species.''.
(5) Proposed regulations.--Section 4(b)(5) is amended by--
(A) striking ``(5) With respect to any regulation'' and
inserting the following:
``(5) Proposed regulations and review.--With respect to any
regulation'';
(B) striking ``a determination, designation, or revision''
and inserting ``a determination or change in status'';
(C) striking ``(a)(1) or (3),'' and inserting ``(a)(1),'';
[[Page S9414]]
(D) striking ``in the Federal Register,'' and inserting
``in the Federal Register as provided by paragraph (8),'';
and
(E) striking subparagraph (E) and inserting the following:
``(E) at the request of any person within 45 days after the
date of publication of general notice, promptly hold at least
1 public hearing in each State that would be affected by the
proposed regulation (including at least 1 hearing in an
affected rural area, if any) except that the Secretary may
not be required to hold more than 5 hearings under this
clause.''.
(7) Final regulations.--
(A) Schedule.--Section 4(b)(6)(A) is amended to read as
follows:
``(A) In general.--Within the 1-year period beginning on
the date on which general notice is published in accordance
with paragraph (5)(A)(i) regarding a proposed regulation, the
Secretary shall publish in the Federal Register--
``(i) a final regulation to implement the determination,
``(ii) notice that the 1-year period is being extended
under subparagraph (B)(i), or
``(iii) notice that the proposed regulation is being
withdrawn under subparagraph (B)(ii), together with the
finding on which such withdrawal is based.''.
(B) Conforming amendments.--Section 4(b)(6) is amended--
(i) in subparagraph (B)(i) by striking ``or revision'';
(ii) in subparagraph (B)(iii), by striking ``or revision
concerned, a finding that the revision should not be made,'';
and
(iii) by striking subparagraph (C).
(8) Publication of data and information.--Section 4(b)(8)
is amended by--
(A) striking ``a summary by the Secretary of the data'' and
inserting ``a summary by the Secretary of the best scientific
and commercial data available'';
(B) striking ``is based and shall'' and inserting ``is
based, shall''; and
(C) striking ``regulation; and if such regulation
designates or revises critical habitat, such summary shall,
to the maximum extent practicable, also include a brief
description and evaluation of those activities (whether
public or private) which, in the opinion of the Secretary, if
undertaken may adversely modify such habitat, or may be
affected by such designation.'' and inserting ``regulation,
and shall provide, to the degree that it is relevant and
available, information regarding the status of the affected
species, including current population, population trends,
current habitat, food sources, predators, breeding habits,
captive breeding efforts, governmental and non-governmental
conservation efforts, or other pertinent information.''.
(9) Sound science.--Section 4(b) is amended by adding at
the end the following:
``(9) Additional data.--
``(A) In general.--The Secretary shall identify and publish
in the Federal Register with the notice of a proposed
regulation pursuant to paragraph (5)(A)(i) a description of
additional scientific and commercial data that would assist
in the preparation of a recovery plan and--
``(i) invite any person to submit the data to the
Secretary; and
``(ii) describe the steps that the Secretary plans to take
for acquiring additional data.
``(B) Recovery planning.--Data identified and obtained
under subparagraph (A) shall be considered by the recovery
team and the Secretary in the preparation of the recovery
plan in accordance with section 5.
``(C) No delay authorized.--Nothing in this paragraph shall
be deemed to waive or extend any deadline for publishing a
final rule to implement a determination (except for the
extension provided in paragraph (6)(B)(i)) or any deadline
under section 5.
``(10) Independent scientific review.--
``(A) In general.--In the case of a regulation proposed by
the Secretary to implement a determination under subsection
(a)(1) that any species is an endangered species or a
threatened species or that any species currently listed as
an endangered species or a threatened species should be
removed from any list published pursuant to subsection
(c), the Secretary shall provide for independent
scientific peer review by--
``(i) selecting independent referees pursuant to
subparagraph (B);
``(ii) requesting the referees to conduct the review,
considering all relevant information, and make a
recommendation to the Secretary in accordance with this
paragraph not later than 150 days after the general notice is
published pursuant to paragraph (5)(A)(i).
``(B) Selection of referees.--For each independent
scientific review to be conducted pursuant to subparagraph
(A), the Secretary shall select 3 independent referees from a
list provided by the National Academy of Sciences, who--
``(i) through publication of peer-reviewed scientific
literature or other means, have demonstrated scientific
expertise on the species or a similar species or other
scientific expertise relevant to the decision of the
Secretary under subsection (a);
``(ii) do not have, or represent any person with, a
conflict of interest with respect to the determination that
is the subject of the review; and
``(iii) are not participants in a petition to list, change
the status of, or remove the species under paragraph
(3)(A)(i), the assessment of a State for the species under
paragraph (3)(A)(iii), or the proposed or final determination
of the Secretary.
``(C) Final determination.--The Secretary shall take one of
the actions under paragraph (6)(A) of this subsection not
later than 1 year after the date of publication of the
general notice of the proposed determination. If the referees
have made a recommendation in accordance with clause (ii) of
subparagraph (A), the Secretary shall evaluate and consider
the information that results from the independent scientific
review and include in the final determination--
``(i) a summary of the results of the independent
scientific review; and
``(ii) in cases where the recommendation of a majority of
the referees who conducted the independent scientific review
under subparagraph (A) are not followed, an explanation as to
why the recommendation was not followed.
``(D) Federal advisory committee act.--The referees
selected pursuant to this paragraph shall not be subject to
the Federal Advisory Committee Act (5 U.S.C. App.).''.
(10) List.--Section 4(c) is amended by--
(A) inserting ``designated'' before ``critical habitat'';
and
(B) striking ``determinations, designations and revisions''
and inserting ``determinations''.
(11) Protective regulation.--Section 4(d) is amended by--
(A) striking ``Whenever any species is listed'' and
inserting the following:
``(1) In general.--Whenever any species is listed''; and
(B) adding at the end the following:
``(2) New listings.--With respect to each species listed as
a threatened species after the date of enactment of the
Endangered Species Recovery Act of 1997, regulations
applicable under paragraph (1) to the species shall be
specific to that species by the date on which the Secretary
is required to approve a recovery plan for the species
pursuant to section 5(c) and may be subsequently revised.''.
(12) Recovery plans.--Section 4 is amended by striking
subsection (f) and redesignating subsections (g) through (i)
as subsections (f) through (h), respectively.
(13) Conforming amendment.--Section 4(g) (as redesignated
by paragraph (12)) is amended in paragraph (4) by striking
``subsection (f) of this section'' and inserting ``section
5''.
(d) Public Availability of Data.--Section 3(b), as amended
by subsection (a), is amended by adding at the end the
following:
``(2) Freedom of Information Act Exemption.--The Secretary,
and the head of any other Federal agency upon the
recommendation of the Secretary, may withhold or limit the
availability of data requested to be released pursuant to
section 552 of title 5, United States Code, if the data
describes or identifies the location of an endangered
species, a threatened species, or a species that has been
proposed to be listed as threatened or endangered, and
release of the data would be likely to result in increased
take of the species.''.
SEC. 3. ENHANCED RECOVERY PLANNING.
(a) Redesignation.--Section 5 of the Act is redesignated as
section 5A.
(b) Recovery Plans.--The Act is amended by inserting prior
to section 5A (as redesignated by subsection (a)) the
following:
``RECOVERY PLANS
``Sec. 5. (a) In General.--The Secretary, in cooperation
with the States, and on the basis of the best scientific and
commercial data available, shall develop and implement plans
(referred to in this Act as ``recovery plans'') for the
conservation and recovery of endangered species and
threatened species that are indigenous to the United States
or in waters under the jurisdiction of the United States in
accordance with the requirements and schedules described in
this section, unless the Secretary finds, after notice and
opportunity for public comment, that a plan will not promote
the conservation of the species or because an existing plan
or strategy to conserve the species already serves as the
functional equivalent to a recovery plan. The Secretary may
authorize a State agency to develop recovery plans pursuant
to subsection (m).
``(b) Priorities.--To the maximum extent practicable, the
Secretary, in developing recovery plans, shall give priority,
without regard to taxonomic classification, to recovery plans
that--
``(1) address significant and immediate threats to the
survival of an endangered species or a threatened species,
have the greatest likelihood of achieving recovery of the
endangered species or the threatened species, and will
benefit species that are more taxonomically distinct;
``(2) address multiple species including (A) endangered
species, (B) threatened species, or (C) species that the
Secretary has identified as candidates or proposed for
listing under section 4 and that are dependent on the same
habitat as the endangered species or threatened species
covered by the plan;
``(3) reduce conflicts with construction, development
projects, jobs or other economic activities; and
``(4) reduce conflicts with military training and
operations.
``(c) Schedule.--For each species determined to be an
endangered species or a threatened species after the date of
enactment of the Endangered Species Recovery Act of 1997 for
which the Secretary is required to develop a recovery plan
under subsection (a), the Secretary shall publish--
``(1) not later than 18 months after the date of the
publication under section 4 of the final regulation
containing the listing determination, a draft recovery plan;
and
[[Page S9415]]
``(2) not later than 30 months after the date of
publication under section 4 of the final regulation
containing the listing determination, a final recovery plan.
``(d) Appointment and Role of Recovery Team.--
``(1) In general.--Not later than 60 days after the date of
the publication under section 4 of the final regulation
containing the listing determination for a species, the
Secretary, in cooperation with the affected States, shall
either appoint a recovery team to develop a recovery plan for
the species or publish a notice pursuant to paragraph (3)
that a recovery team shall not be appointed. Recovery teams
shall include the Secretary and at least one representative
from the State agency of each of the affected States choosing
to participate and be broadly representative of the
constituencies with an interest in the species and its
recovery and in the economic or social impacts of recovery
including representatives of Federal agencies, tribal
governments, local governments, academic institutions,
private individuals and organizations, and commercial
enterprises. The recovery team members shall be selected for
their knowledge of the species or for their expertise in the
elements of the recovery plan or its implementation.
``(2) Duties of the recovery team.--Each recovery team
shall prepare and submit to the Secretary the draft recovery
plan that shall include the team's recommended recovery
measures and alternatives, if any, to meet the recovery goal
under subsection (e)(1). The recovery team may also be called
upon by the Secretary to assist in the implementation, review
and revision of recovery plans. The recovery team shall also
advise the Secretary concerning the designation of critical
habitat, if any.
``(3) Exception.--
``(A) In general.--Notwithstanding paragraph (1), the
Secretary may, after notice and opportunity for public
comment, establish criteria to identify species for which the
appointment of a recovery team would not be required under
this subsection, taking into account the availability
of resources for recovery planning, the extent and
complexity of the expected recovery activities and the
degree of scientific uncertainty associated with the
threats to the species.
``(B) State option.--If the Secretary elects not to appoint
a recovery team, the Secretary shall provide notice to each
affected State and shall provide the affected States the
opportunity to appoint a recovery team and develop a recovery
plan, in accordance with the requirements and procedures set
out in subsection (m).
``(C) Secretarial duty.--In the event that a recovery team
is not appointed, the Secretary shall perform all duties of
the recovery team required by this section.
``(4) Travel expenses.--The Secretary is authorized to
provide travel expenses (including per diem in lieu of
subsistence at the same level as authorized by section 5703
of title 5, United States Code) to recovery team members.
``(5) Federal advisory committee act.--The Federal Advisory
Committee Act (5 U.S.C. App.) shall not apply to the
selection or activities of a recovery team appointed pursuant
to this subsection or subsection (m).
``(e) Contents of Recovery Plans.--Each recovery plan shall
contain:
``(1) Biological recovery goal.--
``(A) In general.--Not later than 6 months after the
appointment of a recovery team under this section, those
members of the recovery team with relevant scientific
expertise shall establish and submit to the Secretary of
recommended biological recovery goal to conserve and recover
the species that, when met, would result in the
determination, in accordance with the provisions of section
4, that the species be removed from the list. The goal shall
be based solely on the best scientific and commercial data
available. The recovery goal shall be expressed as objective
and measurable biological criteria. When the goal is met, the
Secretary shall be required to initiate the procedures for
determining whether, in accordance with section 4(a)(1), to
remove the species from the list.
``(B) Peer review.--The recovery team shall promptly obtain
independent scientific review of the recommended biological
recovery goal.
``(2) Recovery measures.--The recovery plan shall
incorporate recovery measures that will meet the recovery
goal.
``(A) Measures.--The recovery measures may incorporate
general and site-specific measures for the conservation and
recovery of the species such as--
``(i) actions to protect and restore habitat;
``(ii) research;
``(iii) establishment of refugia, captive breeding,
releases of experimental populations;
``(iv) actions that may be taken by Federal agencies,
including actions that use, to the maximum extent
practicable, Federal lands; and
``(v) opportunities to cooperate with State and local
governments and other persons to recover species, including
through the development and implementation of conservation
plans under section 10.
``(B) Draft recovery plans.--
``(i) In general.--In developing a draft recovery plan, the
recovery team or, if there is no recovery team, the
Secretary, shall consider alternative measures and recommend
measures to meet the recovery goal including the benchmarks.
The recovery measures shall achieve an appropriate balance
among the following factors--
``(I) the effectiveness of the measures in meeting the
recovery goal;
``(II) the period of time in which the recovery goal is
likely to be achieved, provided that the time period within
which the recovery goal is to be achieved will not pose a
significant risk to recovery of the species; and
``(III) the social and economic impacts (both quantitative
and qualitative) of the measures and their distribution
across regions and industries.
``(ii) Description of alternatives.--The draft plan shall
include a description of any alternative recovery measures
considered, but not included in the recommended measures, and
an explanation of how any such measures considered were
assessed and the reasons for their selection or rejection.
``(iii) Description of economic effects.--If the
recommended recovery measures identified in clause (i) would
impose significant costs on a municipality, county, region or
industry, the recovery team shall prepare a description of
the overall economic effects on the public and private
sections including, as appropriate, effects on employment
public revenues, and value of property as a result of the
implementation of the recovery plan.
``(3) Benchmarks.--The recovery plan shall include
objective, measurable benchmarks expected to be achieved over
the course of the recovery plan to determine whether progress
is being made towards the recovery goal.
``(4) Federal agencies.--Each recovery plan for an
endangered species or a threatened species shall identify
Federal agencies that authorize, fund, or carry out actions
that are likely to have a significant impact on the prospects
for recovering the species.
``(f) Public Notice and Comment.--
``(1) In general.--If the Secretary makes a preliminary
determination that the draft recovery plan meets the
requirements of this section, the Secretary shall publish in
the Federal Register and a newspaper of general circulation
in each affected State a notice of availability and a summary
of, and a request for public comment on, the draft recovery
plan including a description of the economic effects prepared
under subsection (e)(2)(B)(iii) and the recommendations of
the independent referees on the recovery goal.
``(2) Hearings.--At the request of any person, the
Secretary shall hold at least 1 public hearing on each draft
recovery plan in each State to which the plan would apply
(including at least 1 hearing in an affected rural area, if
any), except that the Secretary may not be required to hold
more than 5 hearings under this paragraph.
``(g) Procurement Authority.--The Secretary, in developing
and implementing recovery plans, may procure the services of
appropriate public and private agencies and institutions and
other qualified persons.
``(h) Review and Selection by the Secretary.--
``(1) Review and approval.--The Secretary shall review each
plan submitted by a recovery team, including a recovery team
appointed by a State pursuant to the authority of subsection
(m), to determine whether the plan was developed in
accordance with the requirements of this section. If the
Secretary determines that the plan does not satisfy such
requirements, the Secretary shall notify the recovery team
and give the team an opportunity to address the concerns of
the Secretary and resubmit a plan that satisfies the
requirements of this section. After notice and opportunity
for public comment on the recommendations of the recovery
team, the Secretary shall adopt a final recovery plan that is
consistent with the requirements of this section.
``(2) Section of recovery measures.--In each final plan the
Secretary shall select recovery measures that meet the
recovery goal and the benchmarks. The recovery measures shall
achieve an appropriate balance among the factors in
subclauses (I) through (III) of subsection (e)(2)(B)(i).
``(3) Measures recommended by recovery team.--If the
Secretary selects measures other than those recommended by
the recovery team, the Secretary shall publish with the final
plan an explanation of why the measures recommended by the
recovery team were not selected for the final recovery plan.
``(4) Publication of notice on final plans.--The Secretary
shall publish in the Federal Register a notice of
availability, and a summary, of the final recovery plan, and
include in the final recovery plan a response to significant
comments that the Secretary received on the draft recovery
plan.
``(i) Review.--
``(1) Existing plans--Not later than 5 years after date of
enactment of Endangered Species recovery Act of 1997, the
Secretary shall review recovery plans published prior to such
date.
1``(2) Subsequent plans.--The Secretary shall review each
recovery plan first approved or revised under this section
subsequent to the enactment of the Endangered Species
Recovery Act of 1997, not later than 10 years after the date
of approval or revision of the plan and every 10 years
thereafter.
``(j) Revision of Recovery Plans.--Notwithstanding any
other provisions of this section,the Secretary shall revise a
recovery plan if the Secretary finds that substantial new
information, that may include the failure to meet the
benchmarks included in the plan, based upon the best
scientific and commercial data available, indicates that the
recovery goals contained in the recovery plan will not
achieve the conservation and recovery of the endangered
species or threatened species covered by the plan. The
Secretary
[[Page S9416]]
shall convene a recovery team to develop the revisions
required by this subsection, unless the Secretary has
established an exception for the species pursuant to
subsection (d)(3).
``(k) Existing Plans.--Nothing in this section shall be
interpreted to require the modification of--
``(1) a recovery plan approved, or
``(2) a recovery plan on which public notice and comment
has been initiated,
prior to the date of enactment of the Endangered Species
Recovery Act of 1997 until revised by the Secretary in
accordance with this section.
``(l) Implementation of Recovery Plans.--
``(1) Implementation agreements.--The Secretary is
authorized to enter into agreements with Federal agencies,
affected States, Indian tribes, local governments, private
landowners and organizations to implement specified
conservation measures identified by an approved recovery plan
that promote the recovery of the species on lands or waters
owned by, or within the jurisdiction of, each such party. The
Secretary may enter into such agreements, if the Secretary,
after notice and opportunity for public comment, determines
that--
``(A) each party to the agreement has the legal authority
and capability to carry out the agreement;
``(B) the agreement shall be reviewed and revised as
necessary on a regular basis by the parties to the agreement
to ensure that it meets the requirements of this section; and
(C) the agreement establishes a mechanism for the Secretary
to monitor and evaluate implementation of the agreement.
``(2) Duty of federal agencies.--Each Federal agency
identified under subsection (e)(4) shall enter into an
implementation agreement with the Secretary not later than 2
years after the date on which the Secretary approves the
recovery plan for the species. For purposes of satisfying
this section, the substantive provisions of the agreement
shall be within the sole discretion of the Secretary and the
head of the Federal agency entering into the agreement.
``(3) Other requirements.--
``(A) Agency actions.--Any action authorized, funded or
carried out by a Federal agency that is specified in a
recovery plan implementation agreement between the Federal
agency and the Secretary to promote the recovery of the
species and for which the agreement provides sufficient
information on the nature, scope and duration of the action
to determine the effect of the action on any endangered
species, threatened species, or critical habitat shall not be
subject to the requirements of section 7(a)(2) for that
species, provided the action is to be carried out during the
term of such agreement and the Federal agency is in
compliance with the agreement.
``(B) Comprehensive agreements.--If a non-Federal person
proposes to include in an implementation agreement a site-
specific action that the Secretary determines meets the
requirements of subparagraph (A) and that action would
require authorization or funding by one or more Federal
agencies, the agencies authorizing or funding the action
shall participate in the development of the agreement and
shall identify, at that time, all measures for the species
that would be required under this Act as a condition of the
authorization or funding.
``(4) Financial assistance--
``(A) In general.--In cooperation with the States and
subject to the availability of appropriations under section
13(f), the Secretary may provide a grant of up to $25,000 to
any individual private landowner to assist the landowner in
carrying out a recovery plan implementation agreement under
this subsection.
``(B) Prohibition on assistance for required activities.--
The Secretary may not provide assistance under this paragraph
for any action that is required by a permit issued under this
Act or that is otherwise required under this Act or other
Federal law.
``(C) Other payments.--Grants provided to an individual
private landowner under this paragraph shall be in addition
to, and not affect, the total amount of payments the
landowner is otherwise eligible to receive under the
Conservation Reserve Program (16 U.S.C. 3831 et seq.), the
Wetlands Reserve Program (16 U.S.C. 3837 et seq.), or the
Wildlife Habitat Incentives Program (16 U.S.C. 3836a).
``(m) State Authority for Recovery Planning.--
``(1) In general.--At the request of the Governor of a
State, or the Governors of several States in cooperation, the
Secretary may authorize the respective State agency to
develop the recovery plan for an endangered species or a
threatened species in accordance with the requirements and
schedules of subsections (c), (d)(1), (d)(2), and (e) and
this subsection if the Secretary finds that--
``(A) the State or States have entered into a cooperative
agreement with the Secretary pursuant to section 6(c); and
``(B) the State agency has submitted a statement to the
Secretary demonstrating adequate authority and capability to
carry out the requirements and schedules of subsections (c),
(d)(1), (d)(2), and (e) of this subsection.
``(2) Standards and guidelines.--The Secretary, in
cooperation with the States, shall publish standards and
guidelines for the development of recovery plans by a State
agency under this subsection, including standards and
guidelines for interstate cooperation and for the grant and
withdrawal of authorization under this subsection by the
Secretary.
``(3) Members and duties of recovery team.--Each recovery
team appointed by a State agency under this subsection shall
include the Secretary. The recovery team shall prepare a
draft recovery plan in accordance with the requirements of
this section and shall transmit the draft plan to the
Secretary through the State agency authorized to develop the
recovery plan.
``(4) Review of draft plans.--Prior to publication of a
notice of availability of a draft recovery plan, the
Secretary shall review each draft recovery plan developed
pursuant to this subsection to determine whether it meets the
requirements of this section. If the Secretary determines
that the plan does not meet such requirements, the Secretary
shall notify the State agency and, in cooperation with such
State agency, develop a recovery plan in accordance with the
requirements of this section.
``(5) Review and approval of final plans.--Upon receipt of
a draft recovery plan transmitted by a State agency, the
Secretary shall review and approve the plan in accordance
with subsection (h).
``(6) Withdrawal of authority.--
``(A) In general.--The Secretary may withdraw the authority
from a State that has been authorized to develop a recovery
plan pursuant to this subsection if the actions of the State
agency are not in accordance with the substantive and
procedural requirements of subsections (c), (d)(1), (d)(2),
and (e) of this subsection. The Secretary shall give the
State agency an opportunity to correct any deficiencies
identified by the Secretary and shall withdraw the authority
from the State unless the State agency within 60 days has
corrected the deficiencies identified by the Secretary. Upon
withdrawal of State authority pursuant to this subsection,
the Secretary shall have an additional 18 months to publish a
draft recovery plan and an additional 12 months to publish a
final recovery plan under subsection 5(c).
``(B) Petitions to withdraw.--Any person may submit a
petition requesting the Secretary to withdraw the authority
from a State on the basis that the actions of the State
agency are not in accordance with the substantive and
procedural requirements identified in subparagraph (A). If
the Secretary has not acted on the petition pursuant to
subparagraph (A) within 90 days, the petition shall be deemed
denied and the denial shall be a final agency action for the
purposes of judicial review.
``(7) State agency.--For purposes of this subsection, the
term `State agency' includes--
``(A) State agencies (as defined in section 3) of the
several States submitting a cooperative request under
paragraph (1); and
``(B) for fish and wildlife, including related spawning
grounds and habitat, on the Columbia River and its
tributaries, the Pacific Northwest Electric Power and
Conservation Planning Council established under the Pacific
Northwest Electric Power Planning and Conservation Act (16
U.S.C. 839 et seq.).
``(n) Critical Habitat Designation.--
``(1) Recommendation of the recovery team.--Not later than
9 months after the date of publication under section 4 of a
final regulation containing a listing determination for a
species, the recovery team appointed for the species shall
provide the Secretary with a description of any habitat of
the species that is recommended for designation as critical
habitat pursuant to this subsection and any recommendations
for special management considerations or protection that are
specific to such habitat.
``(2) Designation by the secretary.--The Secretary, to the
maximum extent prudent and determinable, shall be regulation
designate any habitat of an endangered species or a
threatened species that is indigenous to the United States or
waters under the jurisdiction of the United States that is
considered to be critical habitat.
``(A) Designation.--
``(i) Proposal.--Not later than 18 months after the date on
which a final listing determination is made under section 4
for a species, the Secretary, after consultation and in
cooperation with the recovery team, shall publish in the
Federal Register a proposed regulation designating critical
habitat for the species.
``(ii) Promulgation.--The Secretary shall, after
consultation and in cooperation with the recovery team,
publish a final regulation designating critical habitat for a
species not later than 30 months after the date on which a
final listing determination is made under section 4 for the
species.
``(B) Other designations.--If a recovery plan is not
developed under this section for an endangered species or a
threatened species, the Secretary shall publish a final
critical habitat determination for that endangered species or
threatened species within 36 months after making a
determination that the species is an endangered species or a
threatened species.
``(C) Additional authority.--The Secretary may publish a
regulation designating critical habitat for an endangered
species or a threatened species concurrently with the final
regulation implementing the determination that the species is
endangered or threatened if the Secretary determines that
designation of such habitat at the time of listing is
essential to avoid the imminent extinction of the species.
``(3) Factors to be considered.--The designation of
critical habitat shall be made on
[[Page S9417]]
the basis of the best scientific and commercial data
available and after taking into consideration the economic
impact, impacts to military training and operations, and any
other relevant impact, of specifying any particular area as
critical habitat. The Secretary shall describe the economic
impacts and other relevant impacts that are to be considered
under this subsection in the publication of any proposed
regulation designating critical habitat.
``(4) Exclusions.--The Secretary may exclude any area from
critical habitat for a species if the Secretary determines
that the benefits of the exclusion outweigh the benefits of
designating the area as part of the critical habitat, unless
the Secretary determines that the failure to designate the
area as critical habitat will result in the extinction of the
species.
``(5) Revisions.--The Secretary may, from time-to-time and
as appropriate, revise a designation. Each area designated as
critical habitat before the date of enactment of the
Endangered Species Recovery Act of 1997 shall continue to be
considered so designated, until the designation is revised in
accordance with this subsection.
``(6) Petitions.--
``(A) Determination that revision may be warranted.--To the
maximum extent practicable, within 90 days after receiving
the petition of an interested person under section 553(e) of
title 5, United States Code, to revise a critical habitat
designation, the Secretary shall make a finding as to whether
the petition presents substantial scientific or commercial
information indicating that the revision may be warranted.
The Secretary shall promptly publish such finding in the
Federal Register.
``(B) Notice of proposed action.--Within 12 months after
receiving a petition that is found under subparagraph (A) to
present substantial information indicating that the requested
revision may be warranted, the Secretary shall determine how
to proceed with the requested revision, and shall promptly
publish notice of such intention in the Federal Register.
``(7) Proposed and final regulations.--Any regulation to
designate critical habitat or implement a requested revision
shall be proposed and promulgated in accordance with
paragraphs (4), (5) and (6) of section 4(b) in the same
manner as a regulation to implement a determination with
respect to listing a species.
``(o) Reports.--The Secretary shall report every two years
to the Committee on Environment and Public Works of the
Senate and the Committee on Resources of the House of
Representatives on the status of efforts to develop and
implement recovery plans for all species listed pursuant to
section 4 and on the status of all species for which such
plans have been developed.''.
(c) Citizen Suits.--Section 11(g)(1)(C) of the Act (16
U.S.C. 1540(g)(1)(C)) is amended by inserting ``or section
5'' after ``section 4''.
(d) Conforming Amendments for Recovery Planning.--
(1) Section 6(d)(1) is amended by striking ``section 4(g)''
and inserting ``section 4(f)''.
(2) Section 10(f)(5) is amended by striking the last
sentence.
(3) Sections 104(c)(4)(A)(ii)(I), 115(b)(2), and 118(f)(11)
of the Marine Mammal Protection Act are amended by striking
``section 4(f)'' each place it occurs and inserting ``section
5''
(4) The table of contents in the first section (16 U.S.C.
1531) is amended by striking the item related to section 5
and inserting the following:
``Sec. 5. Recovery plans.
Sec. 5A. Land acquisition.''.
(e) Plans for Previously Listed Species.--In the case of
species included in the list published under section 4(c)
before the date of enactment of this Act, and for which no
recovery plan was developed before that date, the Secretary
shall develop a final recovery plan in accordance with the
requirements of section 5 (including the priorities of
section 5(b)) of the Endangered Species Act (16 U.S.C. 1531
et seq.), as amended by this Act, for not less than one-half
of the species not later than 36 months after the date of
enactment of this Act and for all species not later than 60
months after such date.
SEC. 4. INTERAGENCY CONSULTATION AND COOPERATION.
(A) Reasonable and Prudent Alternatives.--Section 3 (16
U.S.C. 1532) is amended by redesignating paragraphs (15)
through (21) as paragraphs (16) through (22), respectively,
and inserting the following new paragraph after paragraph
(14):
``(15) Reasonable and prudent alternatives.--The term
`reasonable and prudent alternatives' means alternative
actions identified during consultation that can be
implemented in a manner consistent with the intended purpose
of the action, that can be implemented consistent with the
scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically
feasible, and that the Secretary believes would avoid the
likelihood of jeopardizing the continued existence of listed
species or resulting in the destruction or adverse
modification of critical habitat.''.
(b) Inventory of Species on Federal Lands.--Section
7(a)(1)(16 U.S.C. 1536(a)(1)) is amended by--
(1) inserting ``(A)'' after ``(1)''; and
(2) adding the following at the end thereof:
``(B) Inventory of species on federal lands.--The head of
each Federal agency that is responsible for the management of
lands and waters--
``(i) shall by not later than December 31, 2003, prepare
and provide to the Secretary an inventory of the presence or
occurrence of endangered species, threatened species, species
that have been proposed for listing, and species that the
Secretary has identified as candidates for listing under
section(4), that are located on lands or waters owned or
under control of the agency; and
``(ii) shall at least once every 5 years thereafter update
the inventory required by clause (1) including newly listed,
proposed and candidate species.''.
(c) Consultation.--Section 7(a)(3) (16 U.S.C. 1536(a)(3))
is amended to read as follows:
``(3) Consultation.--
``(A) Notification of actions.--Prior to commencing any
action, each Federal agency shall notify the Secretary if the
agency determines that the action may affect an endangered
species or a threatened species or critical habitat.
(B) Agency determination.--
``(i) In general.--Each Federal agency shall consult with
the Secretary as required by paragraph (2) on each action for
which notification is required under subparagraph (A)
unless--
``(I) the Federal agency makes a determination based on the
opinion of a qualified biologist that the action is not
likely to adversely affect an endangered species, a
threatened species or critical habitat;
``(II) the Federal agency notifies the Secretary that it
has determined that the action is not likely to adversely
affect any listed species or critical habitat and provides
the Secretary, along with the notice, a copy of the
information on which the agency based the determination; and
``(III) the Secretary does not object in writing to the
agency's determination within 60 days from the date such
notice is received.
``(ii) Actions excluded.--The Secretary may by regulation
identify categories of actions with respect to
specific endangered species or threatened species that the
Secretary determines are likely to have an adverse effect
on the species or its critical habitat and, for which, the
procedures of clause (i) shall not apply.
``(iii) Basis for objection.--The Secretary shall object to
a determination made by a Federal agency pursuant to clause
(i), if--
``(I) the Secretary determines that the action may have an
adverse effect on an endangered species, a threatened species
or critical habitat; or
``(II) the Secretary finds that there is insufficient
information in the documentation accompanying the
determination to evaluate the impact of the proposed action
on endangered species, threatened species, or critical
habitat; or
``(III) the Secretary finds that, because of the nature of
the action and its potential impact on an endangered species,
a threatened species or critical habitat, review cannot be
completed in 60 days.
``(iv) NAS review.--Not later than 3 years after the date
of enactment of this clause, the Secretary shall enter into
appropriate arrangements with the National Academy of
Sciences to conduct a review of and prepare a report on the
determinations made by Federal agencies pursuant to clause
(i). The report shall be transmitted to the Congress not
later than 5 years after the date of enactment of this
clause.
``(v) Reports.--The Secretary shall report to the Congress
not less often than bienally with respect to the
implementation of this subparagraph including in the report
information on the circumstances that resulted in the
Secretary making any objection to a determination made by a
Federal agency under clause (i) and the availability of
resources to carry out the requirements of this section.
``(C) Consultation at request of applicant.--Subject to
such guidelines as the Secretary may establish, a Federal
agency shall consult with the Secretary on any prospective
agency action at the request of, and in cooperation with, the
prospective permit or license applicant if the applicant has
reason to believe that an endangered species or a threatened
species may be present in the area affected by the
applicant's project and that implementation of the action
will likely affect the species.''.
(d) GAO Report.--The Comptroller General of the United
States shall report to the Committee on Environment and
Public Works of the Senate and to the Committee on Resources
of the House of Representatives not later than 3 years after
the date of enactment of this Act, and 2 years thereafter, on
the cost of formal consultation to Federal agencies and other
persons carrying out actions subject to the requirements of
section 7 of the Endangered Species Act (16 U.S.C. 1536),
including the cost of reasonable and prudent measures
imposed.
(e) New Listings.--Section 7(a) (16 U.S.C. 1536(a)) is
amended by adding at the end the following:
``(5) Effect of listing on existing plans.--
``(A) Actions.--For the purposes of paragraph (2), the term
`action' includes land use plans under the Federal Land
Policy and Management Act (43 U.S.C. 1701 et seq.) and
resource management plans under the Forest and Rangeland
Renewable Resources Planning Act (16 U.S.C. 1600 et seq.), as
amended by the National Forest Management Act (16 U.S.C. 1600
et. seq.).
``(B) Re-initiation of consultation.--Whenever a
determination to list a species as
[[Page S9418]]
an endangered species or a threatened species or designation
of critical habitat requires re-initiation of consultation
under section 7(a)(2) on an already approved action as
defined under subparagraph (A), the consultation shall
commence promptly, but no later than 90 days after the date
of the determination or designation, and be completed within
12 months of the date on which the consultation is commenced.
``(C) Site-specific actions during consultation.--
Notwithstanding subsection (d), the Federal agency
implementing the land use plan or resource management plan
under subparagraph (B) may authorize, fund, or carry out a
site-specific ongoing or previously scheduled action with the
scope of the plan on such lands prior to
completing consultation on the plan under subparagraph (B)
pursuant to the consultation procedures of this section
and related regulations, if--
``(i) no consultation on the action is required; or
``(ii) consultation on the action is required and the
Secretary issues a biological opinion and the action
satisfies the requirements of this section.''.
(f) Improved Federal Agency Coordination.--Section 7(a) (16
U.S.C. 1536(a)) is amended by adding at the end the
following:
``(6) Consolidation of Consultation and Conferencing.--
``(A) Consultation with a single agency.--Consultation and
conferencing under this subsection between the Secretary and
a Federal agency may, with the approval of the Secretary,
encompass a number of related or similar actions by the
agency to be carried out within a particular geographic area.
``(B) Consultation with several agencies.--The Secretary
may consolidate requests for consultation or conferencing
from various Federal agencies the proposed actions of which
may affect the same endangered species, threatened species,
or species that have been proposed for listing under section
4, within a particular geographic area.''.
(g) Use of Information Provided by States.--Section 7(b)(1)
(16 U.S.C. 1536(b)(1)) is amended by adding at the end the
following:
``(C) Use of State Information.--In conducting a
consultation under subsection (a)(2), the Secretary shall
actively solicit and consider information from the State
agency in each affected State.''.
(h) Opportunity to Participate in Consultations.--Section
7(b)(1) (16 U.S.C. 1536(b)(1)) (as amended by subsection (g))
is further amended by adding at the end the following:
``(D) Opportunity To Participate in Consultations.--
``(i) In general.--In conducting a consultation under
subsection (a)(2), the Secretary shall provide any person who
has sought authorization or funding for an action from a
Federal agency and that authorization or funding is the
subject of the consultation, the opportunity to--
``(I) prior to the development of a draft biological
opinion, submit and discuss with the Secretary and the
Federal agency information relevant to the effect of the
proposed action on the species and the availability of
reasonable and prudent alternatives (if a jeopardy opinion is
to be issued) that the Federal agency and the person can take
to avoid violation of section 7(a)(2);
``(II) receive information, upon request subject to the
exemptions of the Freedom of Information Act (5 U.S.C.
552(b)) on the status of the species, threats to the species,
and conservation measures, used by the Secretary to develop
the draft biological opinion and the final biological
opinion, including the associated incidental take statements;
and
``(III) received a copy of the draft biological opinion
from the Federal agency and, prior to issuance of the final
biological opinion, submit comments on the draft biological
opinion and discuss with the Secretary and the Federal agency
the basis for any finding in the draft biological opinion.
``(ii) Explanation.--If reasonable and prudent alternatives
are proposed by a person under clause (i) and the Secretary
does not include the alternatives in the final biological
opinion, the Secretary shall explain to such person why those
alternatives were not included in the opinion.''.
(i) Incidental Taking Standards for Federal Agencies.--
Section 7(b)(4) (16 U.S.C. 1536 (b)(4)) is amended--
(1) in clause (ii), by inserting ``and mitigate'' after
``to minimize''; and
(2) by adding at the end the following: ``For purposes of
this subsection, reasonable and prudent measures shall be
related both in nature and extent to the effect of the
proposed activity that is the subject of the consultation.''.
(j) Revision of Regulations.--Not later than 1 year after
the date of enactment of the Endangered Species Recovery Act
of 1997, the Secretary shall promulgate modifications to part
402 of title 50, Code of Federal Regulations, to implement
the provisions of this section.
SEC. 5. CONSERVATION PLANS.
(a) Permit for Take on the High Seas.--Section 10(a)(1)(B)
(16 U.S.C. 1539(a)(1)(B)) is amended by striking ``section
9(a)(1)(B)'' and inserting in lieu thereof ``subparagraph (B)
or (C) of section 9(a)(1)''.
(b) Monitoring.--Section 10(a)(2)(B) (16 U.S.C.
1539(a)(2)(B)) is amended by striking ``reporting''
and inserting in lieu thereof ``monitoring and
reporting''.
(c) Other Plans.--Section 10(a) (16 U.S.C. 1539(a)) is
amended by striking paragraph (2)(C) and inserting the
following new paragraphs:
``(3) Multiple Species Conservation Plans.--
``(A) In general.--In addition to one or more listed
species, a conservation plan developed under paragraph (2)
may, at the request of the applicant, include species
proposed for listing under section 4(c), candidate species,
or other species found on lands or waters owned or within the
jurisdiction of the applicant covered by the plan.
``(B) Approval criteria.--The Secretary shall approve an
application for a permit under paragraph (1)(B) that includes
species other than species listed as endangered species or
threatened species if, after notice and opportunity for
public comment, the Secretary finds that the permit
application and the related conservation plan satisfy the
criteria of paragraphs (2)(A) and (2)(B) with respect to
listed species, and that the permit application and the
related conservation plan with respect to other species
satisfy the following requirements:
``(i) The impact on non-listed species included in the plan
will be incidental;
``(ii) The applicant will, to the maximum extent
practicable, minimize and mitigate such impacts;
``(iii) The actions taken by the applicant with respect to
species proposed for listing or candidates for listing
included in the plan, if undertaken by all similarly situated
persons within the range of such species, are likely to
eliminate the need to list the species as an endangered
species or a threatened species for the duration of the
agreement as a result of the activities conducted by those
persons;
``(iv) The actions taken by the applicant with respect to
other non-listed species included in the plan, if undertaken
by all similarly situated persons within the range of such
species, would not be likely to contribute to a determination
to list the species as an endangered species or a threatened
species for the duration of the agreement;
``(v) The criteria of paragraphs (2)(A)(iv), (2)(B)(iii)
and (2)(B)(v); and
the Secretary has received such other assurances as the
Secretary may require that the plan will be implemented. The
permit shall contain such terms and conditions as the
Secretary deems necessary or appropriate to carry out the
purposes of this paragraph, including, but not limited to,
such monitoring and reporting requirements as the Secretary
deems necessary for determining whether such terms and
conditions are being complied with.
``(C) Technical assistance and guidance.--To the maximum
extent practicable, the Secretary and the heads of other
Federal agencies, in cooperation with the States, are
authorized and encouraged to provide technical assistance or
guidance to any State or person that is developing a multiple
species conservation plan under this paragraph. In providing
technical assistance or guidance, priority shall be given to
landowners that might otherwise encounter difficulty in
developing such a plan.
``(D) Deadlines.--A conservation plan developed pursuant to
this paragraph shall be reviewed and approved or disapproved
not later than 1 year after the date of submission, or within
such other period of time as is mutually agreeable to the
Secretary and the applicant.
``(E) State and local law.--
``(i) Other species.--Nothing in this paragraph shall limit
the authority of a State or local government with respect to
fish, wildlife or plants that have not been listed as an
endangered species or a threatened species under section 4.
``(ii) Compliance.--An action by the Secretary, the
Attorney General, or a person under section 11(g) to ensure
compliance with a multiple species conservation plan and
permit under this paragraph may only be brought against a
permittee or the Secretary.
``(F) Effective date of permit for non-listed species.--For
any species not listed as an endangered species or a
threatened species, but covered by an approved multiple
species conservation plan, the permit issued under paragraph
(1)(B) shall take effect without further action by the
Secretary at the time the species is listed pursuant to
section 4(c), and to the extent that the taking is otherwise
prohibited by subparagraphs (B) or (C) of section 9(a)(1).
``(4) Low Effect Activities.--
``(A) In general.--Notwithstanding paragraph (2)(A), the
Secretary may issue a permit for a low effect activity
authorizing any taking referred to in paragraph (1)(B), if
the Secretary determines that the activity will have no
more than a negligible effect, both individually and
cumulatively, on the species, any taking associated with
the activity will be incidental, and the taking will not
appreciably reduce the likelihood of the survival and
recovery of the species in the wild. The permit shall
require, to the extent appropriate, actions to be taken by
the permittee to offset the effects of the activity on the
species.
``(B) Applications.--The Secretary shall minimize the costs
of permitting to the applicant by developing, in cooperation
with the States, model permit applications that would
constitute conservation plans for low effect activities.
``(C) Public comment; effective date.--Upon receipt of a
permit application for an activity that meets the
requirements of subparagraph (A), the Secretary shall provide
[[Page S9419]]
notice in a newspaper of general circulation in the area of
the activity not later than 30 days after receipt and an
opportunity for comment on the permit. If the Secretary does
not receive significant adverse comment within 30 days of the
notice, the permit shall take effect without further action
by the Secretary 45 days after the notice is published.
``(5) No surprises.--
``(A) In general.--Each conservation plan developed under
this subsection shall include a no surprises provision, as
described in this paragraph.
``(B) No surprises.--A person who has entered into, and is
in compliance with, a conservation plan under this subsection
may not be required to undertake any additional mitigation
measures for species covered by such plan if such 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 plan
without the consent of the permittee. The Secretary and the
applicant, by the terms of the conservation plan, shall
identify--
``(i) other modifications to the plan; or
``(ii) other additional measures,
if any, that the Secretary may require under extraordinary
circumstances.
``(6) Permit revocation.--After notice and an opportunity
for correction, as appropriate, the Secretary shall revoke a
permit issued under this subsection if the Secretary finds
that the permittee is not complying with the terms and
conditions of the permit or the conservation plan.''.
(d) Candidate Conservation Agreements.--
(1) Permits.--Section 10(a)(1) (16 U.S.C. 1539(a)(1)) is
amended by--
(A) deleting ``or'' at the end of subparagraph (A);
(B) striking the period at the end of subparagraph (B) and
inserting ``; or''; and
(C) adding the following subparagraph at the end--
``(C) any taking incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity pursuant to a
candidate conservation agreement.''.
(2) Agreements.--Section 10 (16 U.S.C. 1539) is amended by
adding at the end thereof 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 that person for a species that has been
proposed for listing under section 4(c)(1), is a candidate
species, or is likely to become a candidate species in the
near future on property owned or under the jurisdiction of
the person requesting such an agreement.
``(2) Review by the secretary.--
``(A) Submission to the secretary.--A non-Federal person
may submit a candidate conservation agreement 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 species that are likely to become a candidate
species in the near future, that are included in the
agreement, the actions taken under the agreement, if
undertaken by all similarly situated persons, would produce a
conservation benefit that would be likely to eliminate the
need to list the species under section 4(c) as a result of
the activities of those persons during the duration of the
agreement;
``(ii) the actions taken under the agreement will not
adversely affect an endangered species or a threatened
species;
``(iii) the agreement contains such other measures that the
Secretary may require as being necessary or appropriate for
the purposes of the agreement;
``(iv) the person will ensure adequate funding to implement
the agreement; and
``(v) the agreement includes such monitoring and reporting
requirements as the Secretary deems 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), provided that 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 such 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 agreements; or
``(B) other additional measures,
if any, that the Secretary may require under extraordinary
circumstance.
(e) Public Notice.--Section 10(c) (16 U.S.C. 1539(c)) is
amended by--
(1) striking ``thirty'' each place that it appears and
inserting in lieu thereof ``60''; and
(2) inserting before the final sentence the following:
``The Secretary may, with approval of the applicant, provide
an opportunity, as early as practicable, for public
participation in the development of a multiple species
conservation plan and permit application. If a multiple
species conservation plan and permit application has been
developed without the opportunity for public participation,
the Secretary shall extend the public comment period for an
additional 30 days for interested parties to submit written
data, views, or arguments on the plan and application.''.
(f) Safe Harbor Agreements.--Section 10 (16 U.S.C. 1539) is
amended by adding at the end thereof the following new
subsection:
``(1) Safe Harbor Agreements.--
``(1) Agreements.--
``(A) In general.--The Secretary may enter into agreements
with non-Federal persons to benefit the conservation of
endangered species or threatened species by creating,
restoring, or improving habitat or by maintaining currently
unoccupied habitat for endangered species or threatened
species. Under an agreement, the Secretary shall permit the
person to take endangered species or threatened species
included under the agreement on lands or waters that are
subject to the agreement if the taking is incidental to, and
not the purpose of, carrying out of an otherwise lawful
activity, provided that the Secretary may not permit through
such agreements any incidental take 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 upon by the applicant and the Secretary at
the time of the agreement that will, at a minimum, maintain
existing conditions for the species covered by the agreement
on lands and waters that are subject to the agreement. The
baseline 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) Standards and guidelines.--the Secretary shall issue
standards and guidelines for the development and approval of
safe harbor agreements in accordance with this subsection.
``(3) Financial assistance.--
``(A) In general.--In cooperation with the States and
subject to the availability of appropriations under section
15(d), the Secretary may provide a grant of up to $10,000 to
any individual private landowner to assist the landowner in
carrying out a safe harbor agreement under this subsection.
``(B) Prohibition on assistance for required activities.--
The Secretary may not provide assistance under this paragraph
for any action that is required by a permit issued under
this Act or that is otherwise required under this Act or
other Federal law.
``(C) Other payments.--Grants 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 the
Conservation Reserve Program (16 U.S.C. 3831 et seq.), the
Wetlands Reserve Program (16 U.S.C. 3837 et seq.), or the
Wildlife Habitat Incentives Program (16 U.S.C. 3836a).''.
(g) Habitat Reserve Agreements.--Section 10 (16 U.S.C.
1539) is amended by adding at the end thereof the following
new subsection:
``(m) Habitat Reserve Agreements.--
``(1) Program.--The Secretary shall establish a habitat
reserve program to be implemented through contracts or
easements of a mutually agreed upon duration to assist non-
Federal property owners to preserve and mange suitable
habitat for endangered species and threatened species.
``(2) Agreements.--The Secretary may enter into a habitat
reserve agreement with a non-Federal property owner to
protect, manage or enhance suitable habitat on private
property for the benefit of endangered species or threatened
species. Under an agreement, the Secretary shall make
payments in an agreed upon amount to the property owner for
carrying out the terms of the habitat reserve agreement,
provided that the activities undertaken pursuant to the
agreement are not otherwise required by this Act.
``(3) Standards and guidelines.--The Secretary shall issue
standards and guidelines for the development and approval of
habitat reserve agreements in accordance with this
subsection. Agreements shall, at a minimum, specify the
management measures, if any, that the property owner will
implement for the benefit of endangered species or threatened
species, the conditions under which the property may be used,
the nature and schedule for any payments agreed upon by the
parties to the agreement, and the duration of the agreement.
``(4) Payments.--Any payment received by a property owner
under a habitat reserve agreement shall be in addition to and
shall not affect the total amount of payments that the
property owner is otherwise entitled to receive under the
Agricultural Act of 1949 (7 U.S.C. 1421 et seq.), as amended
by the Federal Agriculture Improvement and Reform Act of
1996.
[[Page S9420]]
``(5) Authorization of appropriations.--There are
authorized to be appropriated to the Secretary of Interior
$10,000,000 and the Secretary of Commerce $5,000,000 for each
of fiscal years 1998 through 2003 to assist non-Federal
property owners to carry out the terms of habitat reserve
programs under this subsection.''.
(h) Habitat Conservation Planning Fund.--Section 10(a) (16
U.S.C. 1539(a)) is further amended by adding at the end
thereof the following new paragraph:
``(7) Habitat Conservation Planning Fund.--
``(A) Establishment.--There is established in the Treasury
of the United States a revolving fund, to be known as the
`Habitat Conservation Planning Fund', to be used in carrying
out this subsection (referred to in this paragraph as the
`Fund'), consisting of--
``(i) amounts made available under section 15(f);
``(ii) repayments of advances from the Fund under
subparagraph (C); and
``(iii) any interest earned on investment of amounts in the
Fund under subparagraph (D).
``(B) Expenditures from fund.--
``(i) In general.--On request by the Secretary, the
Secretary of the Treasury shall transfer from the Fund to the
Secretary such amounts as the Secretary determines necessary
to make interest-fire advances under clause (ii).
``(ii) Authority to make grants and advances.--The
Secretary may make an interest-free advance from the Fund to
any State, county, municipality, or other political
subdivision of a State to assist in the development of a
conservation plan under this subsection. The amount of the
advance under this clause may not exceed the total financial
contribution of the other parties participating in the
development of the plan.
``(iii) Criteria for advances.--In determining whether to
make an advance from the Fund, the Secretary shall consider--
``(I) the number of species covered by the plan;
``(II) the extent to which there is a commitment to
participate in the planning process from a diversity of
interests (including local governmental, business,
environmental, and landowner interests);
``(III) the likely benefits of the plan;
``(IV) such other factors as the Secretary considers
appropriate.
``(C) Repayments of advances from the fund.--
``(i) In general.--Except as provided in clause (ii)
amounts advanced from the Fund shall be repaid not later than
10 years after the date of the advance.
``(ii) Accelerated repayment.--Amounts advanced from the
Fund shall be repaid--
``(I) not later than 4 years after the date of the advance
if no conservation plan is developed within 3 years of the
date of the advance; or
``(II) not later than 5 years after the date of the advance
if no permit is issued under paragraph (1)(B) with respect to
the conservation plan within 4 years of the date of the
advance.
``(iii) Crediting of repayments.--Amounts received by the
United States as repayment of advances from the Fund shall be
credited to the Fund and made available for further advances
in accordance with this paragraph without further
appropriation.
``(D) Investment of fund balance.--
``(i) In general.--The Secretary of the Treasury shall
invest such portion of the Fund as is not, in the judgment of
the Secretary, required to meet current withdrawals.
Investments may be made only in interest-bearing obligations
of the United States.
``(ii) Acquisition of obligations.--For the purpose of
investments under clause (i), obligations may be acquired--
``(I) on original issue at the issue price; or
``(II) by purchase of outstanding obligations at the market
price.
``(iii) Sale of obligations.--Any obligation acquired by
the Fund may be sold by the Secretary of the Treasury at
market price.
``(iv) Credits to the fund.--The interest on, and the
proceeds from the sale or redemption of, any obligations held
in the Fund shall be credited to and form a part of the Fund.
``(E) Transfers of amounts.--
``(i) In general.--The amounts required to be transferred
to the Fund under this paragraph shall be transferred at
least monthly from the general fund of the Treasury to the
Fund on the basis of estimates made by the Secretary of the
Treasury.
``(ii) Adjustments.--Proper adjustments shall be made in
amounts subsequently transferred to the extent prior
estimates were in excess of or less than the amounts required
to be transferred.''.
(i) Effect on Permits and Proposed Plans.--No amendment
made by this section shall be interpreted to require the
modification of--
(1) a permit issued under section 10 of the Endangered
Species Act (16 U.S.C. 1539); or
(2) a conservation plan submitted for approval pursuant to
such section
prior to the date of enactment of this Act.
(j) Rule-making.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall, after
consultation with the States and notice and opportunity for
public comment, publish final regulations implementing the
provisions of section 10(a) of the Endangered Species Act (16
U.S.C. 1539(a)), as amended by this section.
(k) NAS Report.--Not later than 2 years after the date of
enactment of this Act, the Secretary shall enter into
appropriate arrangements with the National Academy of
Sciences to conduct a review of and prepare a report on the
development and implementation of conservation plans under
section 10(a) of the Endangered Species Act (16 U.S.C. 1531
et seq.). The report shall assess the extent to which those
plans comply with the requirements of that Act, the role of
multiple species conservation plans in preventing the need to
list species covered by those plans, and the relationship of
conservation plans for listed species to implementation of
recovery plans. The report shall be transmitted to the
Congress not later than 5 years after the date of enactment
of this Act.
SEC. 6. ENFORCEMENT.
(a) Enforcement for Incidental Take.--Section 11 (16 U.S.C.
1540) is amended by adding after subsection (g) the following
new subsection and redesignating the subsequent subsection
accordingly:
``(h) Incidental Take.--In any action under subsection (a),
(b), or (e)(6) of this section against any person for an
alleged take incidental to the carrying out of an otherwise
lawful activity, the Secretary or the Attorney General must
establish, using scientifically valid principles, that the
acts of such person have caused, or will cause, the take,
of--
``(1) an endangered species, or
``(2) a threatened species the take of which is prohibited
pursuant to a regulation under section 4(d).''.
(b) Citizen Suit for Incidental Take.--Section 11(g) (16
U.S.C. 1540(g)) is amended by adding the following new
paragraph after paragraph (2) and redesignating the
subsequent paragraphs accordingly:
``(3) Incidental take.--In any suit under this subsection
against any person for an alleged take incidental to the
carrying out of an otherwise lawful activity, the person
commencing the suit must establish, using scientifically
valid principles, that the acts of the person alleged to be
in violation of section 9(a)(1) have caused, or will cause,
the take, of--
``(1) an endangered species, or
``(2) a threatened species the take of which is prohibited
pursuant to a regulation under section 4(d).''.
SEC. 7. EDUCATION AND TECHNICAL ASSISTANCE.
(a) In General.--Section 13 (16 U.S.C. 1542) is amended to
read as follows:
``property owners education and technical assistance program
``Sec. 13. (a) In General.--In cooperation with the States,
the Secretary shall develop and implement a private
landowners education and technical assistance program to--
``(1) inform the public about this Act;
``(2) respond to requests for technical assistance from
property owners interested in conserving species listed or
proposed for listing under section 4(c)(1) and candidate
species on the land of the landowners; and
``(3) recognize exemplary efforts to conserve species on
private land.
``(b) Elements of the Program.--Under the program, the
Secretary shall--
``(1) publish educational materials and conduct workshops
for property owners and other members of the public on the
role of this Act in conserving endangered species and
threatened species, the principal mechanisms of this Act for
achieving species recovery, and potential sources of
technical and financial assistance;
``(2) assist field offices in providing timely advice to
property owners on how to comply with this Act;
``(3) provide technical assistance to State and local
governments and property owners interested in developing and
implementing recovery plan implementation agreements,
conservation plans, and safe harbor agreements;
``(4) serve as a focal point for questions, requests, and
suggestions from property owners and local governments
concerning policies and actions of the Secretary in the
implementation of this Act;
``(5) provide training for Federal personnel responsible
for implementing this Act on concerns of property owners, to
avoid unnecessary conflicts, and improving implementation of
this Act on private land; and
``(6) nominate for national recognition by the Secretary
property owners that are exemplary managers of land for the
benefit of species listed or proposed for listing under
section 4(c)(1) or candidate species.''.
(b) Conforming Amendment.--The table of contents in the
first section is amended by striking the item related to
section 13 and inserting the following:
``Sec. 13. Private landowners education and technical assistance
program.''.
(c) Effect on Prior Amendments.--Nothing in this section or
the amendments made by this section affects the amendments
made by section 13 of the Endangered Species Act of 1973 (87
State. 902), as in effect on the day before the date of
enactment of this Act.
SEC. 8. AUTHORIZATION OF APPROPRIATIONS.
(A) In General.--Section 15(a) (16 U.S.C. 1542(a)) is
amended--
(1) in paragraph (1), by striking ``and $41,500,000 for
fiscal year 1992'' and inserting ``$41,500,000 for fiscal
year 1992, $135,000,000 for fiscal year 1998, $150,000,000
for fiscal year 1999, and $165,000,000 for each of fiscal
years 2000 through 2003'';
[[Page S9421]]
(2) in paragraph (2), by striking ``and $6,750,000'' and
inserting ``$6,750,000''; and inserting ``,$50,000,000 for
fiscal year 1998, $60,000,000 for fiscal year 1999, and
$70,000,000 for each of fiscal years 2000 through 2003''
after ``and 1992''; and
(3) in paragraph (3), by striking ``and $2,600,000'' and
inserting $2,600,000''; and inserting ``, and $4,000,000 for
each of fiscal years 1998 through 2003'' after ``and 1992''.
(b) Exemptions From Act.--Section 15(b) (16 U.S.C. 1542(b))
is amended by inserting ``and $625,000 for each of fiscal
years 1998 through 2003'' after ``and 1992''.
(c) Convention Implementation.--Section 15(c) (16 U.S.C.
1542(c)) is amended by striking ``and $500,000'' and
inserting $500,000,'' and by inserting ``and $1,000,000 for
each fiscal year 1998 through 2003'' after ``and 1992,''.
(d) Additional Authorizations.--Section 15 (16 U.S.C. 1542)
is further amended by adding the following at the end:
``(d) Financial Assistance for Safe Harbor Agreements.--
There are authorized to be appropriated to the Secretary of
the Interior $10,000,000 and the Secretary of Commerce
$5,000,000 for each of fiscal years 1998 through 2003 to
carry out section 10(l).
``(e) Habitat Conservation Planning Fund.--There are
authorized to be appropriated to the Habitat Conservation
Planning Fund established by section 10(a)(7) $10,000,000 for
each of fiscal years 1998 through 2000 and $5,000,000 for
each of fiscal years 2001 and 2002 to assist in the
development of conservation plans.
``(f) Financial Assistance for Recovery Plan
Implementation.--There are authorized to be appropriated to
the Secretary of Interior $30,000,000 and the Secretary of
Commerce $15,000,000 for each of the fiscal years 1998
through 2003 to carry out section 5(l)(4).
``(g) Availability.--Amounts made available under this
section shall remain available until expended.
``(h) Limitation on Use of Funds.--Of the funds made
available to carry out section 5 for any fiscal year, not
less than $32,000,000 shall be available to the Secretary of
Interior and not less than $13,500,000 to the Secretary of
Commerce to implement actions to recover listed species. Of
the funds made available to the Secretary of Interior and the
Secretary of Commerce in each fiscal year to list species,
the Secretary of Interior and the Secretary of Commerce shall
use not less than 10% of those funds in each fiscal year for
delisting species. If any of the funds made available by the
previous sentence are not needed in that fiscal year for
delisting eligible species, those funds shall be available
for listing.''.
(e) Assistance to States for Conservation Activities.--
Section 6(i) (16 U.S.C. 1535(i)) is amended by adding at the
end the following:
``(3) Assistance to States for Conservation Activities.--
There are authorized to be appropriated to the Secretary such
sums as are necessary for each of fiscal years 1998 through
2003 to provide financial assistance to State agencies to
carry out conservation activities under other sections of
this Act, including the provision of technical assistance for
the development and implementation of recovery plans.''.
SEC. 9. OTHER AMENDMENTS.
(a) Definitions.--
(1) Candidate species.--Section 3 is amended by inserting
the following paragraph after paragraph (1) and redesignating
the subsequent paragraphs accordingly:
``(2) Candidate species.--The term `candidate species'
means a species for which the Secretary has on file
sufficient information on biological vulnerability and
threats to support a proposal to list the species as an
endangered species or a threatened species, but for which
listing is precluded because of pending proposals to list
species that are of a higher priority. This definition shall
not apply to any species defined as a `candidate species' by
the Secretary of Commerce prior to the date of enactment of
the Endangered Species Recovery Act of 1997.''.
(2) In cooperation with the states.--Section 3 (16 U.S.C.
1532) is amended by inserting the following paragraph after
paragraph (11) (as redesignated by this subsection):
``(12) In cooperation with the states.--The term `in
cooperation with the States' means a process in which--
``(A) the State agency in each of the affected States, or
the State agency's representative, is given an opportunity to
participate in a meaningful and timely manner in the
development of the standards, guidelines, and regulations to
implement the applicable provisions of this Act; and
``(B) the Secretary carefully considers all substantive
concerns raised by the State agency, or the State agency's
representative, and, to the maximum extent practicable
consistent with this Act, incorporates their suggestions and
recommendations, while retaining final decision making
authority.''.
(3) Rural area.--Section 3(16 U.S.C. 1532) is amended by
inserting the following new paragraph after paragraph (16)
(redesignated by this subsection and section 4(a)) and
redesignating the subsequent paragraphs accordingly:
``(17) Rural area.--The term `rural area' means a county or
unincorporated area that has no city or town that has a
population of more than 10,000 inhabitants.''.
(4) Commonwealth of the northern mariana islands.--Section
3(20) (16 U.S.C. 1532(18)) (as redesignated by this
subsection and section 4(a)) is amended by striking ``Trust
Territories of the Pacific Islands'' and inserting
``Commonwealth of the Northern Mariana Islands''.
(b) Findings, Purposes, and Policy.--Section 2(a)(3) (16
U.S.C. 1531(a)(3)) is amended by inserting ``commercial,''
after ``recreational,''.
(c) No Take Agreements.--Section 9 (16 U.S.C. 1538) is
amended by adding at the end thereof the following new
subsection:
``(h) No Take Agreements.--The Secretary and a non-Federal
property owner may, at the request of the property owner,
enter into an agreement identifying activities of the
property owner that will not result in a violation of the
prohibitions of paragraphs (1)(B), (1)(C), and (2)(B) of
section 9(a). The Secretary shall respond to a request for an
agreement submitted by a property owner within 90 days of
receipt.''.
(d) Conforming Amendments.--
(1) Title.--The title of section 10 (16 U.S.C. 1539) is
amended to read as follows: ``conservation measures and
exceptions''.
(2) Table of Contents.--The table of contents in the first
section of the Act is amended with respect to the item
relating to section 10 to read as follows:
``Sec. 10. Conservation measures and exceptions.''.
Mr. CHAFEE. Mr. President, I am proud to sponsor, along with Senators
Kempthorne, Baucus, and Reid, the Endangered Species Recovery Act of
1997, which reauthorizes the Endangered Species Act, and makes some
significant improvements to the act which are long overdue. The
Endangered Species Act was enacted into law in 1973 to conserve
threatened and endangered species, and the ecosystems upon which they
depend. The ESA is our most important law to protect our Nation's
natural resources and biological diversity, and has often been referred
to as the ``crown jewel'' of environmental laws.
The ESA has been instrumental in saving some of our country's most
treasured species. The bald eagle and the grizzly bear have both
rebounded from precariously small populations, and the Pacific grey
whale and American alligator have both recovered and have been
delisted. All told, almost half of the species that fall under the
act's protection are either stabilized or improving.
One can understand better the vital need for the ESA when one
realizes what we are up against: of somewhere between 10 and 100
million species on this planet, we have discovered only some 1.4
million. Despite this bounty, loss of biological diversity is taking
place at a faster rate than ever before. In 1973, Congress offered this
poignant observation: ``as we homogenize the habitats in which these
plants and animals evolved . . . we threaten their--and our own--
genetic heritage. The value of this genetic heritage, is quite
literally, incalculable.'' It was principally for this reason that
Congress passed the ESA in 1973.
Controversy has surrounded the law, however, since its passage. In
the mid-1970's, the law became ensnarled in a bitter fight over the
construction of the $900 million Tellico Dam and the dam's impacts on
the hapless snail darter. The criticism has grown significantly since
1992, when the most recent authorization of the ESA expired.
Since then, funding for implementing the law has been provided
through annual appropriations, which has left the future of the law on
uncertain terms, and left the current working of the law subject to
numerous appropriations riders, including a moratorium on the listing
of species, that resulted in more than a year delay in affording
protection to hundreds of species endangered with extinction.
The bill we introduce today includes many reforms. The last major
amendment to the ESA was in 1988, almost 10 years ago. Since then, we
have developed a greater knowledge of the science of biodiversity, a
greater understanding of the problems in implementing the law on
private lands, and in this era of shrinking government, a greater need
for improved coordination among all levels of government. Our bill
takes all this into account by focusing on several key areas:
emphasizing recovery as the ultimate goal; seeking to prevent further
listings; improving the scientific foundation for decisions; increasing
public participation and the role of States; facilitating compliance
by, and providing incentives for, private landowners; and streamlining
coordination among government agencies. In making these changes, our
bill addresses the criticisms leveled against the ESA in recent years.
[[Page S9422]]
These criticisms have come from all directions. The environmental
community believes that the law has failed in its fundamental mission
to recover species to full health, but rather leaves species teetering
on the razor's edge of survival. Statistics bear this out: of the
approximately 1,000 species currently listed, 41 percent are either
improving in status or stabilized, but only 8 percent are actually
improving. Furthermore, less than half of the listed species have
approved recovery plans.
Private landowners, on the other hand, believe that the ESA is
fundamentally flawed in its implementation, with inflexible
regulations, heavy-handed enforcement, closed-door science, and no
consideration of economic costs. This, too, is largely borne out by the
facts: the ESA has very few tools, other than enforcement of certain
prohibitions against taking listed species, with which to protect
species on private lands. This weakness in the law is heightened by the
fact that more than one-third of all listed species reside entirely on
private lands. Furthermore, species on private lands are faring worse
than on public lands.
If the ESA is to succeed in its ultimate goal of recovering species,
these problems must be addressed. Our bill does just that. Most
importantly, it completely overhauls the recovery planning and
implementation requirements of the ESA. Previously, recovery plans were
required to be prepared, but with no deadline for doing so. Once
prepared, they generally sat on the shelves with no requirement or
incentive to implement them. Furthermore, the scientific findings in
the plans were often compromised by political and economic
considerations, nor was there any requirement to actually take cost of
implementation into account.
This bill requires that recovery plans be completed within a specific
deadline. The recovery goal must be developed by scientists, using only
the best science available. While economic costs and social impacts
must be taken into account, they are considered only in choosing the
best method to achieve the biologically based recovery goals.
Specifically, measure to achieve the recovery goal must strike an
``appropriate balance'' among three factors: The effectiveness in
meeting the goal; the period of time needed to reach the goal; and the
social and economic impacts.
For the first time, the bill provides a requirement that Federal
agencies enter into recovery implementation agreements, and also
provides incentives for private persons to enter into similar
agreements. These incentives include a waiver of consultation normally
required under section 7 for actions that are described in sufficient
detail. They also include a requirement that Federal agencies
participate in the development of an agreement upon the request of a
private person, so that the person will know up-front all relevant
requirements in undertaking conservation actions.
The bill also improves significantly the law's ability to work on
private lands. Under the current law, the permit process has generally
been inflexible, cumbersome, and consequently rarely used. The Clinton
administration recently instituted a number of policies to encourage
landowners to apply for permits in order to conduct economic activities
that take listed species on their lands. As a result, the number of
permits issued by the administration has increased from 14 in 1992 to
more than 200 in 1997, with an additional 250 being developed. Our bill
validates and expands those policies.
The bill authorizes permits for multiple species, including both
listed and nonlisted species, that depend on the same habitat. New
biological standards for nonlisted species ensure that permitted
activities do not contribute to the need to list those species in the
future. In order to address the needs of small landowners, a more
streamlined, less expensive permit process is established for low
effect activities. Under this process,the permit can take effect
automatically within a certain period, provided that there are no
significant adverse comments.
In addition, the bill authorizes several policies and incentives to
further encourage landowners to work with the Federal Government. These
policies include a no-surprises guarantee that the Government will not
seek additional mitigation over time; a safe harbor policy to encourage
landowners to protect lands valuable to species without risking
additional liability; and a candidate conservation policy, which
encourages landowners to undertake protections for species before they
become endangered or threatened. The bill also establishes several new
funding mechanisms for incentive-based programs, including a habitat
reserve program, and a habitat conservation planning fund, which acts
as a revolving loan fund. A program to provide technical assistance to
landowners is also created.
The bill also makes important changes to the consultation process
among Federal agencies. It encourages consultations to be consolidated
if they involve related actions by one agency, or they involve several
agencies affecting the same species. The consultation process is
streamlined by allowing the Federal agency undertaking an action to
make the initial determination whether its action affects listed
species, and providing an opportunity for the Fish and Wildlife
Service, or, for marine species, the National Marine Fisheries Service,
to comment on this determination. The Service has 60 days to object,
and require a more detailed analysis that it would prepare. This
process is similar to the current practice that is used by the
agencies.
The bill also addresses the relationship between site-specific and
programmatic Federal land management actions. Several recent lawsuits
enjoined numerous site-specific actions pending completion of the
consultation on the overarching programmatic action. The bill
explicitly recognizes that consultation is appropriate and required at
both levels of decisionmaking, but ensures an orderly process for
completing those consultations. In addition, the bill affords greater
participation in the consultation process for any person who has sought
authorization or funding from a Federal agency.
The bill goes a long way in improving the scientific basis on which
decisions are made. The greatest lack of knowledge is in the status and
distribution of rare and declining species. This bill requires an
inventory of species on Federal lands to fill this critical data gap.
Listing decisions must be peer-reviewed, and petitions to list are
subject to certain minimum information requirements. Enforcement
actions must use scientifically valid principles to establish whether
the action caused an unlawful taking of a species. In evaluating
comparable data, the Secretary would be required to use peer reviewed,
field tested or empirical data.
As you can see, Mr. President, this bill not only reauthorizes the
ESA, but it also significantly improves the ESA, in order to embrace
needed reforms in the law. Numerous attempts to reauthorize the ESA
have been made in recent years. The long and arduous effort culminating
in today's bill began more than 18 months ago, as a bipartisan process
to address the problems with the current law. When discussions stalled,
Senator Kempthorne and I spurred the process forward by releasing a
discussion draft, which generated hundreds of comments. Since then, we
have negotiated with Senators Baucus and Reid, and the Clinton
administration, to reach agreement on a bipartisan bill.
Just as the original ESA was passed by a Democratic Congress and
signed into law by a Republican President, this bill to reauthorize the
ESA is also a bipartisan product between a Republican Senate and a
Democratic administration. To quote one of the foremost
conservationists of our country, President Teddy Roosevelt, the
conservation of natural resources is a question ``upon which men of all
parties and all shades of opinion may be united for the common good.''
The need for a healthy environment, one large enough for all species
that inhabit this planet with us, is a need that transcends politics,
and I firmly believe that the bill we introduce today fulfills that
need, as embodied in the original passage of the ESA.
I would like to thank my distinguished colleagues, Senators
Kempthorne, Baucus, and Reid, for their tireless work over the months
on this important legislation, and I would like to thank the Secretary
of the Interior, Bruce Babbitt, as well as his very accomplished staff,
led by Jaimie Clark, Director of the Fish and Wildlife Service, and Don
Barry, Acting Assistant Secretary for Fish, Wildlife and
[[Page S9423]]
Parks, for their willingness to work with us in negotiating a bill that
they can support.
Mr. BAUCUS. Mr. President, today, it is a real pleasure for me to
join my colleagues on the Senate Environment and Public Works, Senators
Chafee, Reid, and Kempthorne in introducing the Endangered Species
Recovery Act of 1997. The bill we are introducing today represents a
real victory for bi-partisan, commonsense improvements to the
Endangered Species Act.
The Endangered Species Act has been an important tool in our fight to
conserve ecosystems and to prevent the extinction of species. But over
the years, experience has shown that the act can be improved, both for
the species it is designed to protect and for ranchers, farmers, and
other private landowners.
Senators Chafee, Reid, Kempthorne, and I have been working, along
with the administration, for the better part of 2 years to find
agreement on changes that will improve the ESA on the ground, where it
really counts.
The bill we are introducing today incorporates several major
improvements to ESA. Let me just reiterate a few that I think are
particularly noteworthy.
First, it improves the use of good science in our decisions on
listing species. It's important that we elevate the role of scientific
information in our decisions on whether to put species on the
endangered list. An error at this stage in the process can mean
extinction for a species.
Second, the bill really turns the focus of the ESA to conserving and
recovering species. It puts real deadlines on development of recovery
plans and gives States a greater role in developing those plans. And it
insists that we have benchmarks for measuring progress toward
recovering the species.
Third, the bill opens up the process to the public. More public
hearings will be held on critical issues, such as whether to list a
species and what actions should be taken to recover the species. And,
most important, these hearings can't be just in Washington. They must
also be in the States most affected by the issue.
Fourth, the bill takes important strides in cooperating with
landowners to conserve species. It encourages landowners to take
voluntary steps to improve habitat and protect species on their
property. And it seeks to conserve species before they become
endangered, thereby avoiding the need to list them.
The bill also provides landowners with something they have never had
before, technical assistance and financial aid for the new conservation
agreements that are created by the bill.
These are the kind of improvements that will make the ESA work
better. That will better protect species and that will help landowners.
It's been a long, hard road to reach this agreement. And I want to
again thank Senator Chafee, Senator Reid, Senator Kempthorne and
Secretary Babbitt for their persistence throughout this process.
I look forward to taking this bill to the committee and to the Senate
floor.
______
By Mr. KEMPTHORNE:
S. 1181. A bill to amend the Internal Revenue Code of 1986 to provide
Federal tax incentives to owners of environmentally sensitive lands to
enter into conservation easements for the protection of endangered
species habitat, to allow a deduction from the gross estate of a
decedent in an amount equal to the value of real property subject to an
endangered species conservation agreement, and for other purposes; to
the Committee on Finance.
the endangered species habitat protection act of 1997
Mr. KEMPTHORNE. Mr. President, I am introducing legislation today
which is intended to provide private property owners additional tools
in their dealings with the Endangered Species Act. For both those who
wish to participate in the conservation of land for the preservation of
endangered, threatened, and other species and those whose participation
is involuntary, this legislation will add to the already substantial
means provided to property owners in the Endangered Species Recovery
Act of 1997.
For too long the Federal Government has used its enforcement
procedures and it regulatory authority to dictate conservation in aid
of endangered and threatened species. This method has failed to produce
the kind of results we want. The Endangered Species Act as currently
written is almost all stick and no carrot. I would like to begin to
change that today.
For 18 months I have negotiated a bill to reauthorize the Endangered
Species Act with the Democrats and the administration. Those
negotiations have been successfully completed. We have introduced a
bill that will provide a variety of incentives to property owners to
preserve habitat through conservation agreements and plans, prelisting
agreements and other preservation tools. I also have a number of ideas
on how to provide tax incentives to private property owners to preserve
habitat.
Let me emphasize that inclusion of these new tax incentives will
truly benefit both species and people. I have met with many property
owners who have said, ``we would be happy to step forward and preserve
habitat for species and we would grant a conservation easement if there
was an incentive.'' Well with adoption of the ideas included in this
bill there will be.
I have had critics that have said that we should not provide these
kinds of incentives to private property owners because we will have too
many people coming forward and saying, ``I have an endangered species
on my land.'' What is wrong with that? To my mind, that would be a
welcome reversal from the current prevailing attitude that some have
about the presence of an endangered species on their property. Right
now you have a situation that some land owners believe that if they do
have an endangered species, or if it's suggested that they might,
they're just as likely to try to remove the habitat to avoid a problem
down the road. We need to change that attitude if we're going to
recover endangered species.
We are currently at the crossroads of two systems. One where you have
Government overregulation that tells people what they can and cannot do
on their land, and the other a system that encourages property owners
to step forward and do something good for species because it's good for
them too.
We can depend on our property owners to do what's right and what is
good for species. I know that our farmers and ranchers know how to be
innovative and creative. They know how to help species. And they know
how to manage land.
The right system is one where we encourage active involvement of
landowners through incentives. Certainly, I know that if I were an
endangered species, I would much rather have a friendly and willing
landlord--one that viewed me as an asset--than a reluctant one who
viewed me as a threat and a liability because of some bureaucrats and
regulations handed down from Washington, DC.
That is what this legislation will do. It is going to make the people
active partners.
The legislation I am introducing also includes a provision designed
to safeguard the property rights of individuals. The Endangered Species
Recovery Act of 1997 will do much to improve and enhance the rights of
property owners. The bill limits the ability of the Federal Government
and environmental groups to restrict otherwise legal activities on
private lands. Under the law today, the Government and environmental
groups have used the take prohibition to try to prohibit logging and
development on private lands and a city's pumping of an aquifer for
drinking water, even where there was no scientific evidence that the
activity would in fact harm an endangered species. Our bill will change
that, reaffirming that the Federal Government, or an environmental
group, has the burden of demonstrating that an activity will actually
harm a species and they must meet that burden using real science, not
just assumptions or speculation.
ESRA '97 will protect the rights of property owners by making them a
part of the process--a process that has excluded them for years. Now
citizens, business people and State and local government
representatives will be at the table for the development of recovery
plans. Furthermore, the recovery plans developed will analyze the cost
on the public and private sectors and the impact on jobs and property
values for any recovery plan selected.
[[Page S9424]]
Under ERSA '97 we will substantially reduce the number of
consultations under section 7 of the act. But if a consultation is
necessary under the act, property owners will have both a seat at the
table and the information they need to meaningfully participate in the
consultation.
Throughout ERSA '97 we have kept our bond with the property owners of
Idaho and America. But there is always more that should be done.
The Endangered Species Habitat Protection Act contains strong
property rights language. That language was developed in conjunction
with some of the best minds in the property rights movement. Private
property rights is a cornerstone of our democracy. As such it is
incumbent on this Congress to address the issue in this Congress. The
Endangered Species Habitat Protection Act contains my contribution to
the effort.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1181
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Endangered
Species Habitat Protection Act of 1997''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Nonrefundable credit for the agreement to manage land to
preserve endangered species.
Sec. 4. Enhanced deduction for the donation of a conservation easement.
Sec. 5. Additional deduction for certain State and local real property
taxes imposed with respect to property subject to an
endangered species conservation agreement.
Sec. 6. Exclusion from estate for real property subject to endangered
species conservation agreement.
Sec. 7. Exclusion of 75 percent of gain on sales of land to certain
persons for the protection of habitat.
Sec. 8. Right to compensation.
SEC. 2. FINDINGS.
The Senate finds and declares the following:
(1) The majority of American property owners recognize the
importance of protecting the environment, including the
habitats upon which endangered and threatened species depend.
(2) Current Federal tax laws discourage placement of
privately held lands into endangered and threatened species
conservation agreements.
(3) The Federal Government should assist landowners in the
goal of conserving endangered and threatened species and
their habitat.
(4) If the environment is to be protected and preserved,
existing Federal tax laws must be modified or changed to
provide tax incentives to landowners to attain the goal of
conservation of endangered and threatened species and the
habitats on which they depend.
SEC. 3. NONREFUNDABLE CREDIT FOR THE AGREEMENT TO MANAGE LAND
TO PRESERVE ENDANGERED SPECIES.
(a) In General.--Subpart A of part IV of subchapter A of
chapter 1 of the Internal Revenue Code of 1986 (relating to
nonrefundable personal credits) is amended by inserting after
section 25A the following new section:
``SEC. 25B. CREDIT FOR AGREEMENT TO MANAGE LAND TO PRESERVE
ENDANGERED SPECIES.
``(a) Allowance of Credit.--There shall be allowed as a
credit against the tax imposed by this chapter for the
taxable year an amount equal to the lesser of--
``(1) the applicable acreage rate of the qualified acreage,
or
``(2) $50,000.
``(b) Applicable Acreage Rate.--For purposes of subsection
(a), the applicable acreage rate is the rate established by
the Secretary of the Interior for the taxable year utilizing
rates comparable to rental payments under the conservation
reserve program under section 1234 of the Food Security Act
of 1985 (16 U.S.C. 3834).
``(c) Qualified Acreage.--For purposes of this section, the
term `qualified acreage' means any acreage--
``(1) which is subject to an endangered species
conservation agreement under the Endangered Species Act (16
U.S.C. 1531 et seq.) and accepted into the expanded
conservation reserve program pursuant to section 1231(d)(2)
of the Food Security Act of 1985 (16 U.S.C. 3831(d)(2)),
``(2) which is owned by one or more individuals directly or
indirectly through a partnership or S corporation that is
held entirely by individuals, and
``(3) subject to a perpetual restriction that is valued
pursuant to section 170(h)(7).
``(d) Credit Recapture.--If, during the period of the
endangered species conservation agreement, the taxpayer
transfers the qualified acreage without also transferring the
taxpayer's obligations under the expanded conservation
reserve program under subchapter B of chapter 1 of subtitle D
of the Food Security Act of 1985 (16 U.S.C. 3831 et seq.) and
the endangered species conservation agreement, then the
taxpayer's tax under this chapter for the taxable year shall
be increased by the amount of the credit received under this
section during all prior years by such taxpayer, plus
interest at the overpayment rate established under section
6621 on such amount for each prior taxable year for the
period beginning on the due date for filing the return for
the prior taxable year involved. No deduction shall be
allowed under this chapter for interest described in the
preceding sentence, and any increase in tax under the
preceding sentence shall not be treated as a tax imposed by
this chapter for purposes of determining the amount of any
credit under subpart A, B, D, or G of this part.
``(e) Joint Owners.--For purposes of this section, the
amount of credit under this section that any joint owner is
entitled to constitutes the total credit allowable under this
section with respect to the qualified acreage multiplied by
the individual's percentage ownership in the qualified
acreage. Each joint owner shall include on the return of tax
in which the credit is claimed the names and taxpayer
identification numbers of all other joint owners in the
property.
``(f) Regulatory Authority.--
``(1) Treasury department.--The Secretary shall promulgate
regulations to ensure that a taxpayer cannot subdivide
property to determine such taxpayer's qualified acreage
unless all of the acreage such taxpayer owns within a
significant region is submitted to the expanded conservation
reserve program, whether or not such acreage is eligible for
a credit under this section.
``(2) Secretary of the interior.--As necessary, the
Secretary of the Interior shall determine the applicable
acreage rate for regions within the United States based on
rates comparable to those under the expanded conservation
reserve program. Once a rate is prescribed under an
endangered species conservation agreement, however, such rate
shall remain in effect for the duration of that agreement.''
(b) Conforming Amendments.--Subchapter B of chapter 1 of
subtitle D of the Food Security Act of 1985 (16 U.S.C. 3831
et seq.) is amended--
(1) in section 1231(b)--
(A) by striking the period at the end and inserting ``;
or''; and
(B) by adding at the end the following new paragraph:
``(5) lands with respect to which the owner or operator and
the Secretary of the Interior or the Secretary of Commerce
have entered into an endangered species conservation
agreement.'';
(2) in section 1231(d), by striking ``(d)'' and inserting
``(d)(1)'' and by adding at the end the following new
paragraph:
``(2) The Secretary of the Interior and the Secretary of
Commerce shall enter into endangered species conservation
agreements under this section to enroll acreage, in addition
to the 38,000,000 acres authorized by paragraph (1), into the
expanded conservation reserve, for which no payment is due
under section 3834, totaling 5,000,000 acres during calendar
years [1997 through 2002]. In enrolling such acres, the
Secretary of the Interior and the Secretary of Commerce shall
reserve 1,000,000 acres for enrollment under this section in
calendar year [1997].'';
(3) in section 1232, by adding at the end the following new
subsection:
``(f) This section shall not apply to owners and operators
subject to endangered species conservation agreements.'';
(4) in section 1234, by adding at the end the following new
subsection:
``(i) This section shall not apply to owners and operators
subject to endangered species conservation agreements.''; and
(5) by inserting after section 1234 the following new
section:
``SEC. 1234A. NO PAYMENTS TO PROPERTIES FOR WHICH AN INCOME
TAX CREDIT OR DEDUCTION IS TAKEN.
``The Secretary shall ensure that no payment be made under
this subchapter to any owner if that owner has indicated an
intention to claim an income tax credit (under section 25B of
the Internal Revenue Code of 1986) for participation in this
program, or an income tax deduction (under section
170(h)(4)(A)(iii) of such Code).''
(c) Clerical Amendment.--The table of sections for subpart
A of part IV of subchapter A of chapter 1 of the Internal
Revenue Code of 1986 is amended by inserting after the item
relating to section 25A the following new item:
``Sec. 25B. Credit for agreement to manage land to preserve endangered
species.''
(d) Effective Dates.--
(1) Credit.--The amendments made by subsections (a) and (c)
shall apply to taxable years beginning after December 31,
[1995].
(2) Conforming amendments.--The amendments made by
subsection (b) shall take effect on the date of enactment of
the Endangered Species Habitat Protection Act of 1997.
SEC. 4. ENHANCED DEDUCTION FOR THE DONATION OF A CONSERVATION
EASEMENT.
(a) In General.--Subparagraph (A) of section 170(h)(4) of
the Internal Revenue Code of
[[Page S9425]]
1986 (defining conservation purpose) is amended by striking
``or'' at the end of clause (iii), by striking the period at
the end of clause (iv) and inserting ``, or'', and by adding
at the end the following new clause:
``(v) the protection of a species designated endangered by
the Secretary of the Interior or the Secretary of Commerce.''
(b) Enhanced Valuation.--Section 170(h) of the Internal
Revenue Code of 1986 (defining qualified conservation
contribution) is amended by adding at the end the following
new paragraph:
``(7) Enhanced valuation of property with endangered
species.--For purposes of this section, the valuation of a
perpetual restriction granted to the Secretary of the
Interior or the Secretary of Commerce or to a State agency
implementing an endangered species program for the purpose
described in paragraph (4)(A)(iii) shall be made by comparing
the value of the property after the restriction is granted
with the value of that same property without either the
encumbrance of such restriction or any of the restrictions
placed on such property by the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).''
(c) Effective Date.--The amendments made by this section
shall apply to contributions made after the date of the
enactment of this Act.
SEC. 5. ADDITIONAL DEDUCTION FOR CERTAIN STATE AND LOCAL REAL
PROPERTY TAXES IMPOSED WITH RESPECT TO PROPERTY
SUBJECT TO AN ENDANGERED SPECIES CONSERVATION
AGREEMENT.
(a) In General.--Section 164 of the Internal Revenue Code
of 1986 (relating to deductions for taxes) is amended by
redesignating subsection (g) as subsection (h) and by
inserting after subsection (f) the following new subsection:
``(g) Additional Deduction for Certain State and Local Real
Property Taxes Imposed With Respect to Property Subject to an
Endangered Species Conservation Agreement.--
``(1) General rule.--Except as provided in paragraph (3),
in the case of property--
``(A) which, on the last day of the taxable year, is
described in section 25B(c)(1), and
``(B) with respect to which no recapture event described in
section 25B(d) has occurred, a deduction in the amount
determined under paragraph (2) shall be allowed for all State
and local real property taxes paid or accrued with respect to
such property during such year. The deduction allowed by this
subsection shall be in addition to any other deduction
allowed by this section.
``(2) Amount of additional deduction.--The deduction
allowed by this subsection shall equal 25 percent of the
amount of State and local real property taxes that are
otherwise deductible under this section without regard to
this subsection.
``(3) Deduction not allowed.--No deduction shall be allowed
under this subsection for taxes imposed upon real property--
``(A) with respect to which a credit under section 25B is
allowable, or
``(B) subject to a perpetual restriction that is valued
pursuant to section 170(h)(7).''
(b) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
[1995].
SEC. 6. EXCLUSION FROM ESTATE FOR REAL PROPERTY SUBJECT TO
ENDANGERED SPECIES CONSERVATION AGREEMENT.
(a) In General.--Part IV of subchapter A of chapter 11 of
the Internal Revenue Code of 1986 (relating to taxable
estate) is amended by adding at the end the following new
section:
``SEC. 2057. CERTAIN REAL PROPERTY SUBJECT TO ENDANGERED
SPECIES CONSERVATION AGREEMENT.
``(a) General Rule.--For purposes of the tax imposed by
section 2001, the value of the taxable estate shall be
determined by deducting from the value of the gross estate an
amount equal to the adjusted value of real property included
in the gross estate which is subject to an endangered species
conservation agreement.
``(b) Property Subject to an Endangered Species
Conservation Agreement.--For purposes of this section--
``(1) In general.--Real property shall be treated as
subject to an endangered species conservation agreement if--
``(A) each person who has an interest in such property
(whether or not in possession) has entered into--
``(i) an endangered species conservation agreement with
respect to such property, and
``(ii) a written agreement with the Secretary consenting to
the application of subsection (d), and
``(B) the executor of the decedent's estate--
``(i) elects the application of this section, and
``(ii) files with the Secretary such endangered species
conservation agreement.
``(2) Adjusted value.--The adjusted value of any real
property shall be its value for purposes of this chapter,
reduced by any amount deductible under section 2053(a)(4) or
2055(f) with respect to the property.
``(c) Endangered Species Conservation Agreement.--For
purposes of this section--
``(1) In general.--The term `endangered species
conservation agreement' means a written agreement entered
into with the Secretary of the Interior or the Secretary of
Commerce--
``(A) which commits each person who signed such agreement
to carry out on the real property activities or practices not
otherwise required by law or to refrain from carrying out on
such property activities or practices that could otherwise be
lawfully carried out,
``(B) which is certified by such Secretary as assisting in
the conservation of any species which is--
``(i) designated by such Secretary as an endangered or
threatened species under the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.),
``(ii) proposed for such designation, or
``(iii) officially identified by such Secretary as a
candidate for possible future protection as an endangered or
threatened species, and
``(C) which applies to at least one-half of the total area
of the property.
``(2) Annual certification to the secretary by the
secretary of the interior or the secretary of commerce of the
status of endangered species conservation agreements.--If the
executor elects the application of this section, the executor
shall promptly give written notice of such election to the
Secretary of the Interior or the Secretary of Commerce. The
Secretary of the Interior or the Secretary of Commerce shall
thereafter annually certify to the Secretary that the
endangered species conservation agreement applicable to any
property for which such election has been made remains in
effect and is being satisfactorily complied with.
``(d) Recapture of Tax Benefit in Certain Cases.--
``(1) Disposition of interest or material breach.--
``(A) In general.--Except as provided in subparagraph (C),
an additional tax in the amount determined under subparagraph
(B) shall be imposed on any person on the earlier of--
``(i) the disposition by such person of any interest in
property subject to an endangered species conservation
agreement (other than a disposition described in subparagraph
(C)),
``(ii) the failure by such person to comply with the terms
of the endangered species conservation agreement, or
``(iii) the termination of the endangered species
conservation agreement.
``(B) Amount of additional tax.--The amount of the
additional tax imposed by subparagraph (A) shall be an amount
that bears the same ratio to the fair market value of the
real property at the time of the event described in
subparagraph (A) as the ratio of the amount by which the
estate tax liability was reduced by virtue of this section
bore to the fair market value of such property at the time
the executor filed the agreement under subsection (b)(1). For
purposes of this subparagraph, the term `estate tax
liability' means the tax imposed by section 2001 reduced by
the credits allowable against such tax.
``(C) Exception if transferee assumes obligations of
transferor.--Subparagraph (A)(i) shall not apply if the
transferor and the transferee of the property enter into a
written agreement pursuant to which the transferee agrees--
``(i) to assume the obligations imposed on the transferor
under the endangered species conservation agreement,
``(ii) to assume personal liability for any tax imposed
under subparagraph (A) with respect to any future event
described in subparagraph (A), and
``(iii) to notify the Secretary of the Treasury and the
Secretary of the Interior or the Secretary of Commerce that
the transferee has assumed such obligations and liability.
If a transferee enters into an agreement described in clauses
(i), (ii), and (iii), such transferee shall be treated as
signatory to the endangered species conservation agreement
the transferor entered into.
``(2) Due date of additional tax.--The additional tax
imposed by paragraph (1) shall become due and payable on the
day that is 6 months after the date of the disposition
referred to in paragraph (1)(A)(i) or, in the case of an
event described in clause (ii) or (iii) of paragraph (1)(A),
on April 15 of the calendar year following any year in which
the Secretary of the Interior or the Secretary of Commerce
fails to provide the certification required under subsection
(c)(2).
``(e) Statute of Limitations.--If a taxpayer incurs a tax
liability pursuant to subsection (d)(1)(A), then--
``(1) the statutory period for the assessment of any
additional tax imposed by subsection (d)(1)(A) shall not
expire before the expiration of 3 years from the date the
Secretary is notified (in such manner as the Secretary may by
regulation prescribe) of the incurring of such tax liability,
and
``(2) such additional tax may be assessed before the
expiration of such 3-year period notwithstanding the
provisions of any other law or rule of law that would
otherwise prevent such assessment.
``(f) Election and Filing of Agreement.--The election under
this section shall be made on the return of the tax imposed
by section 2001. Such election, and the filing under
subsection (a) of an endangered species conservation
agreement, shall be made in such manner as the Secretary
shall by regulation provide.
``(g) Application of This Section to Interests in
Partnerships, Corporations, and Trusts.--The Secretary shall
prescribe regulations setting forth the application of this
section in the case of an interest in a partnership,
corporation, or trust which, with respect to a decedent, is
an interest in
[[Page S9426]]
a closely held business (within the meaning of paragraph (1)
of section 6166(b)). For purposes of the preceding sentence,
an interest in a discretionary trust all the beneficiaries of
which are heirs of the decedent shall be treated as a present
interest.''
(b) Carryover Basis.--Section 1014(a)(4) of the Internal
Revenue Code of 1986 (relating to basis of property acquired
from a decedent) is amended by inserting ``or 2057'' after
``section 2031(c)''.
(c) Clerical Amendment.--The table of sections for part IV
of subchapter A of chapter 11 of the Internal Revenue Code of
1986 is amended by adding at the end the following new item:
``Sec. 2057. Certain real property subject to endangered species
conservation agreement.''
(d) Effective Date.--The amendments made by this section
shall apply to estates of decedents dying after the date of
the enactment of this Act.
SEC. 7. EXCLUSION OF 75 PERCENT OF GAIN ON SALES OF LAND TO
CERTAIN PERSONS FOR THE PROTECTION OF HABITAT.
(a) In General.--Part I of subchapter P of chapter 1 of the
Internal Revenue Code of 1986 (relating to treatment of
capital gains) is amended by adding at the end the following
new section:
``SEC. 1203. 75 PERCENT EXCLUSION FOR GAIN ON SALES OF LAND
TO CERTAIN PERSONS FOR THE PROTECTION OF
HABITAT.
``(a) Exclusion.--Gross income shall not include 75 percent
of any gain from the sale of any land to a conservation
purchaser if--
``(1) such land was owned by the taxpayer or a member of
the taxpayer's family (as defined in section 2032A(e)(2)) at
all times during the 3-year period ending on the date of the
sale, and
``(2) such land is being acquired by a conservation
purchaser for the purpose of protecting the habitat of any
species listed by the Secretary of the Interior or the
Secretary of Commerce under the Endangered Species Act as
endangered or threatened, proposed for listing as endangered
or threatened, or which is a candidate for such listing.
``(b) Conservation Purchaser.--For purposes of this
section--
``(1) Conservation purchaser.--The term `conservation
purchaser' means--
``(A) any agency of the United States or of any State or
local government, and
``(B) any qualified organization.
``(2) Qualified organization.--The term `qualified
organization' has the meaning given such term by section
170(h)(3) (determined without regard to section
170(b)(1)(A)(v)).''
(b) Clerical Amendment.--The table of sections for part I
of subchapter P of chapter 1 of the Internal Revenue Code of
1986 is amended by adding at the end the following new item:
``Sec. 1203. 75-percent exclusion for gain on sales of land to certain
persons for the protection of habitat.''
(c) Effective Date.--The amendments made by this section
shall apply to sales after December 31, [1997].
SEC. 8. RIGHT TO COMPENSATION.
(a) Prohibition.--No agency action affecting privately
owned property under this section shall result in the
diminishment of the value of any portion of that property by
30 percent or more unless compensation is offered in
accordance with this section.
(b) Compensation for Diminishment.--Any agency that takes
an action the economic impact of which exceeds the amount
provided in subsection (a)--
(1) shall compensate the property owner for the diminution
in value of the portion of that property resulting from the
action; or
(2) if the diminution in value of a portion of that
property is greater than 50 percent, at the option of the
owner, such agency shall buy that portion of the property and
shall pay fair market value based on the value of the
property before the diminution.
(c) Request of Owner.--A property owner seeking
compensation under this section shall make a written request
for compensation to the agency whose action would limit the
otherwise lawful use of property. The request shall, at a
minimum, identify the affected portion of the property, the
nature of the diminution, and the amount of compensation
claimed.
(d) Choice of Remedies.--If the parties have not reached an
agreement on compensation within 180 days after the written
request is made, the owner may elect binding arbitration
through alternative dispute resolution or seek compensation
due under this section in a civil action. The parties may by
mutual agreement extend the period of negotiation on
compensation beyond the 180-day period without loss of remedy
to the owner under this section. In the event the extension
period lapses the owner may elect binding arbitration through
alternative dispute resolution or seek compensation due under
this section in a civil action.
(e) Alternative Dispute Resolution.--
(1) In general.--In the administration of this section--
(A) arbitration procedures shall be in accordance with the
alternative dispute resolution procedures established by the
American Arbitration Association; and
(B) in no event shall arbitration be a condition precedent
or an administrative procedure to be exhausted before the
filing of a civil action under this section.
(2) Review of arbitration.--
(A) Appeal of decision.--Appeal from arbitration decisions
shall be to the United States District Court for the district
in which the property is located or the United States Court
of Federal Claims in the manner prescribed by law for the
claim under this section.
(B) Rules of enforcement of award.--The provisions of title
9, United States Code (relating to arbitration), shall apply
to enforcement of awards rendered under this section.
(f) Civil Action.--An owner who prevails in a civil action
against any agency pursuant to this section shall be entitled
to, and such agency shall be liable for, just compensation,
plus reasonable attorney's fees and other litigation costs,
including appraisal fees.
(g) Source of Payments.--Any payment made under this
section shall be paid from the responsible agency's annual
appropriation supporting the agency's activities giving rise
to the claim for compensation. If insufficient funds are
available to the agency in the fiscal year in which the award
becomes final the agency shall pay the award from
appropriations available in the next fiscal year.
(h) Definitions.--For the purposes of this section--
(1) the term ``agency'' has the meaning given that term in
section 551 of title 5, United States Code;
(2) the term ``agency action'' means any action or decision
taken by any agency that at the time of such action or
decision adversely affects private property rights;
(3) the term ``fair market value'' means the likely price
at which property would change hands, in a competitive and
open market under all conditions requisite to fair sale,
between a willing buyer and willing seller, neither being
under any compulsion to buy or sell and both having
reasonable knowledge of relevant facts, prior to occurrence
of the agency action;
(4) the term ``just compensation''--
(A) means compensation equal to the full extent of a
property owner's loss, including the fair market value of the
private property taken, whether the taking is by physical
occupation or through regulation, exaction, or other means;
and
(B) shall include compounded interest calculated from the
date of the taking until the date the United States tenders
payment;
(5) the term ``owner'' means the owner or possessor of
property or rights in property at the time the taking occurs,
including when--
(A) the statute, regulation, rule, order, guideline,
policy, or action is passed or promulgated; or
(B) the permit, license, authorization, or governmental
permission is denied or suspended;
(6) the term ``property'' means land, an interest in land,
proprietary water rights, and any personal property that is
subject to use by the Federal Government or to a restriction
on use;
(7) the term ``private property'' or ``property'' means all
interests constituting real property, as defined by Federal
or State law, protected under the fifth amendment to the
United States Constitution, any applicable Federal or State
law, or this section, and more specifically constituting--
(A) real property, whether vested or unvested, including--
(i) estates in fee, life estates, estates for years, or
otherwise;
(ii) inchoate interests in real property such as remainders
and future interests;
(iii) personalty that is affixed to or appurtenant to real
property;
(iv) easements;
(v) leaseholds;
(vi) recorded liens; and
(vii) contracts or other security interests in, or related
to, real property;
(B) the right to use water or the right to receive water,
including any recorded liens on such water right; or
(C) rents, issues, and profits of land, including minerals,
timber, fodder, crops, oil and gas, coal, or geothermal
energy.
______
By Ms. SNOWE (for herself, Mr. Abraham and Mr. Gramm):
S. 1182. A bill to amend the Congressional Budget and Impoundment
Control Act of 1974 to limit consideration of nonemergency matters in
emergency legislation and permit matter that is extraneous to
emergencies to be stricken as provided in the Byrd rule; to the
Committee on the Budget and the Committee on Governmental Affairs,
jointly, pursuant to the order of of August 4, 1977, as modified by the
order of April 11, 1986, with instructions that if one committee
reports, the other committee have 30 days to report or be discharged.
THE EMERGENCY SPENDING CONTROL ACT
Ms. SNOWE. Mr. President, I rise today to introduce legislation that
will end a common abuse of the budget process in the Congress: the
attachment of nonemergency provisions to emergency spending bills.
Senator Abraham and Senator Gramm are also original sponsors of this
legislation.
At a time when Congress and the President have come together and
agreed on a plan to balance the budget by the year 2002, I believe it
is appropriate that we now seek to ensure that
[[Page S9427]]
all future spending decisions be fully weighed and considered before
the tax dollars of hard-working Americans are spent. We must ensure
that the costs and benefits of a proposal are thoroughly reviewed
through our carefully structured budget process--not allowed to be
pushed through the Congress with minimal debate and consideration. The
legislation I am introducing today would address one of the ways in
which spending programs are pushed through Congress with minimal budget
scrutiny: the attachment of nonemergency provisions to emergency
spending bills.
Mr. President, as my colleagues know, emergency spending bills have
been afforded special treatment because of the unique problems they
address. While the annual budget and appropriations process typically
takes months to complete, emergency spending legislation often receives
special, accelerated consideration that can lead to its adoption in
days or weeks. This expedited treatment is understandable: When a
flood, earthquake, or other natural disaster imperils the lives and
safety of the American people, Congress and the President should be
ready and able to respond quickly.
We have even made special exceptions for emergency spending bills
within our budgetary rules to ensure that disasters and other
emergencies are quickly addressed. While we generally require that new
spending be offset to ensure the deficit is not increased, we allow
this requirement to be waived if the moneys are being spent on an
emergency item. In addition, we waive our annual budgetary spending
caps if the moneys are being spent to address an emergency or disaster.
Because of their expedited treatment and budgetary exceptions,
emergency spending bills have become a magnet for nonemergency items.
Rather than subject a proposal to the regular budget and appropriations
process, provisions are often attached to emergency spending bills that
are moving through Congress on a virtual fast track.
Although nonemergency items in an emergency spending bill are still
subject to the annual spending caps, no offset is required if such
spending would be below the annual limit. Furthermore, even if a
nonemergency item is offset in an emergency spending bill, the
expedited consideration of that legislation often does not allow for a
thorough analysis in the broader context of the budget. Rather than
subjecting the nonemergency spending provision to the same scrutiny as
other programs in the budget and weighing its merits accordingly,
Congress is forced to make a rapid decision. Delaying the process and
carefully weighing these nonemergency items would also mean risking the
timely delivery of assistance to those who have been affected by an
emergency or disaster. Such a delay is simply not acceptable.
Mr. President, the bill I am introducing today would eliminate this
problem and this practice by ensuring that all nonemergency spending
items are subject to the same budget scrutiny and same budgetary rules.
If my legislation is adopted, emergency spending bills would no longer
be a convenient vehicle for spending money on nonemergency items.
Rather, emergency spending bills would be just that: emergency spending
bills--not Christmas trees with other goodies and presents tucked
beneath them.
Under my bill, nonemergency provisions in an emergency or disaster
spending bill would be subject to a new three-fifths majority point of
order. If a nonemergency item is included in an emergency spending bill
or related conference report--or is contained in an amendment that is
being offered to such a bill--this new point of order could be raised
by any Member, and a three-fifths majority vote would be required to
waive it.
I believe the Members of this body are familiar with the Byrd rule
and its impact on the reconciliation process, and my new provision
would be administered in much the same way. The only difference would
be that while the Byrd rule applies to budget reconciliation bills,
this rule would apply to emergency spending bills.
Mr. President, we must no longer allow nonemergency items to be
attached to emergency spending bills. We have created an expedited
process for considering emergency spending bills for very sound
reasons--but providing a vehicle for nonemergency items to be rushed
through Congress was not one of them.
As we work toward a balanced budget in the year 2002, I would urge
that Congress and the President carefully weigh the merits of every
spending program and make priorities accordingly. My legislation would
help us achieve this objective by ensuring that nonemergency items are
not rushed through Congress while riding on the back of emergency
spending bills. I urge that my colleagues join me in this effort and
support this legislation.
ADDITIONAL COSPONSORS
S. 474
At the request of Mr. Kyl, the name of the Senator from Nevada [Mr.
Reid] was added as a cosponsor of S. 474, a bill to amend sections 1081
and 1084 of title 18, United States Code.
S. 617
At the request of Mr. Johnson, the names of the Senator from Idaho
[Mr. Kempthorne], the Senator from North Dakota [Mr. Conrad], and the
Senator from Colorado [Mr. Campbell] were added as cosponsors of S.
617, a bill to amend the Federal Meat Inspection Act to require that
imported meat, and meat food products containing imported meat, bear a
label identifying the country of origin.
S. 766
At the request of Ms. Snowe, the name of the Senator from New York
[Mr. Moynihan] was added as a cosponsor of S. 766, a bill to require
equitable coverage of prescription contraceptive drugs and devices, and
contraceptive services under health plans.
S. 834
At the request of Mr. Harkin, the name of the Senator from California
[Mrs. Boxer] was added as a cosponsor of S. 834, a bill to amend the
Public Health Service Act to ensure adequate research and education
regarding the drug DES.
S. 852
At the request of Mr. Lott, the names of the Senator from New Mexico
[Mr. Bingaman] and the Senator from Vermont [Mr. Jeffords] were added
as cosponsors of S. 852, a bill to establish nationally uniform
requirements regarding the titling and registration of salvage,
nonrepairable, and rebuilt vehicles.
S. 1141
At the request of Mr. Johnson, the name of the Senator from Missouri
[Mr. Ashcroft] was added as a cosponsor of S. 1141, a bill to amend the
Energy Policy Act of 1992 to take into account newly developed
renewable energy-based fuels and to equalize alternative fuel vehicle
acquisition incentives to increase the flexibility of controlled fleet
owners and operators, and for other purposes.
S. 1173
At the request of Mr. Warner, the name of the Senator from Colorado
[Mr. Campbell] was added as a cosponsor of S. 1173, a bill to authorize
funds for construction of highways, for highway safety programs, and
for mass transit programs, and for other purposes.
S. 1178
At the request of Mr. Akaka, his name was added as a cosponsor of S.
1178, a bill to amend the Immigration and Nationality Act to extend the
visa waiver pilot program, and for other purposes.
Senate Resolution 116
At the request of Mr. Levin, the names of the Senator from Hawaii
[Mr. Inouye] and the Senator from Indiana [Mr. Lugar] were added as
cosponsors of Senate Resolution 116, a resolution designating November
15, 1997, and November 15, 1998, as ``America Recycles Day.''
Senate Resolution 121
At the request of Mr. Specter, the names of the Senator from Arkansas
[Mr. Hutchinson], the Senator from Missouri [Mr. Ashcroft], the Senator
from Alabama [Mr. Shelby], the Senator from New York [Mr. D'Amato], the
Senator from Ohio [Mr. DeWine], the Senator from Oklahoma [Mr. Inhofe],
and the Senator from Kentucky [Mr. Ford] were added as cosponsors of
Senate Resolution 121, a resolution urging the discontinuance of
financial assistance to the Palestinian Authority unles and until the
Palestinian Authority demonstrates a 100-percent maximum effort to
curtail terrorism.
[[Page S9428]]
____________________