[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.

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