[Congressional Record Volume 151, Number 124 (Thursday, September 29, 2005)]
[House]
[Pages H8546-H8584]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THREATENED AND ENDANGERED SPECIES RECOVERY ACT OF 2005
The Committee resumed its sitting.
Mr. POMBO. Mr. Chairman, I yield 2 minutes to the gentlewoman from
Wyoming (Mrs. Cubin).
Mrs. CUBIN. Mr. Chairman, would the chairman of the Committee on
Resources agree to enter into a colloquy?
Mr. POMBO. Yes, Mr. Chairman.
Mrs. CUBIN. Mr. Chairman, it has come to my attention that certain
Federal agencies with permitting, licensing, and leasing authority are
requiring some of my constituents to agree to stipulations in their
coal leases that go beyond protecting threatened or endangered species.
For example, before the Bureau of Land Management will issue a lease,
they require the lessee to agree to potential modifications in the
lease. These modifications can be based not only on species that are
threatened or endangered, but also on species that are proposed to be
listed, candidate species, and distinct population segments.
Section 10 of the bill authorizes cooperative agreements between
Federal agencies and States that cover candidate species and any other
species that the State and the Secretary agree is at risk of being
listed as an endangered or threatened species. Is the intent of the
legislation to broaden the scope of the ESA by allowing the government
to regulate species that are not yet threatened or endangered by
imposing new potential regulatory requirements, withholding of permits
and licenses, or requiring special stipulations on Federal leases?
Mr. POMBO. Mr. Chairman, will the gentlewoman yield?
Mrs. CUBIN. I yield to the gentleman from California.
Mr. POMBO. No, Mr. Chairman. It is not in there.
Mrs. CUBIN. Mr. Chairman, reclaiming my time, I thank the chairman
for his answer. That was the way that I read the bill too, and I wanted
the congressional intent to be on the record.
Mr. RAHALL. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, Psalms 104, verses 25, 30: ``In wisdom You made them
all, the earth is full of Your creatures. There is the sea, vast and
spacious, teeming with creatures beyond number, living things both
large and small . . . When You send Your spirit, they are created and
You renew the earth.''
Such is the appropriate Biblical quote, I say to my colleagues, that
should guide our deliberations today on this particular legislation.
Species keep people alive. In the earlier comment, I stated that
there are numerous Members of this body, perhaps to the person, who
could tell of horror stories involved with the administration of the
current Endangered Species Act. And while some of those stories are
probably valid and have their good points, the current regime, as I
also previously stated, has not been working. It has not been working
because it has not been adequately funded nor administered by the
current administration. Funding is a problem. Funding perhaps would
have solved many of these horror stories to which Members of this body
refer.
But this particular legislation, as we have heard throughout the
debate on this general debate and we will hear more during the
amendment process, is an expensive proposition. If we could not fund
the regime that exists today that implements the ESA, how, I ask, are
we going to fund an even more expensive regime that is set up by the
pending legislation? A compensation program to property owners that
truly is going to cause us to go further into deficit spending. The
legislation would increase direct spending by requiring the Secretary
of the Interior to pay aid to private landowners who are prohibited
from using their property under certain circumstances. That means
money, I say to my colleagues. That means appropriations from this
body's Committee on Appropriations, at a time when we are finding
tremendous costs being imposed upon the taxpayers that was unexpected 2
or 3 months ago.
At a time when we are already cutting Bureau of Reclamation projects,
western water projects, Indian programs, our national parks. Indeed,
there are some in this administration that would sell our national
parks and other public lands in order to address our ever-mounting
deficit. This legislation will only exacerbate our deficit problems.
And as I have said and referred to in earlier responses, why should
we care about critters? Those who criticize this Act refer to the
supporters of the Act as being more concerned about critters than human
beings. I will tell them why we should be concerned about critters, why
we should care about the Endangered Species Act.
Nowhere should that care be more evident than in the world of
medicine. Anytime we allow a species to go extinct, we lose enormous
potential to understand and improve our world. Nearly 50 percent of all
our medical prescriptions, for example, dispensed annually in our
country, are derived from nature or modified to mimic natural
substances. Yet we have only investigated about 2 percent of the more
than 250,000 known plant species for their possible medical
breakthroughs. The extinction of a single species may mean the loss of
the next effective treatment for cancer, for AIDS, or for heart
disease. Mold fungus led to the development of Penicillin over 50 years
ago. Mold fungus, it has saved countless lives in recent generations,
and it continues to do so every day. Morphine and codeine, both made
from poppy plants, are among the most widely used medications in the
world today. Venoms from snakes have led to important medications,
including an important drug to control blood pressure.
Even insects have their value in medicine. We now know that the genes
that turn out to form a heart in a fruit fly are actually the same
genes that form hearts in higher animals and people.
Again, quoting from the Bible, from Ecclesiastes: ``Man's fate is
like that of the animals; the same fate awaits them both: As one dies,
so dies the other. All have the same breath.''
Mr. Chairman, at the appropriate time, I will be speaking on the
manager's amendment and I will also be speaking in support of the
substitute amendment that will be offered. As I said in my opening
comments, I introduced these negotiations in good faith with the
gentleman from California (Mr. Pombo), my chairman, because I thought
there was not adequate funding to enforce the current endangered
species law, and those negotiations were conducted in good faith, and
we came quite close, and he will say probably that 90 percent of the
current bill is a bill upon which I agree.
But at the same time, in the manager's amendment that will be coming
up, there were changes made in literally the last minute that came very
close to violating the good-faith negotiations that were ongoing on
this legislation. I will speak to that at the proper time.
But I will say at this point that this legislation needs to be
defeated, the substitute that will be offered needs to be supported,
and we need to look very seriously at how we can enforce better the
endangered species laws on the books today rather than the overhaul
that exists in the pending legislation, and I urge defeat of the
legislation.
Mr. Chairman, I yield back the balance of my time.
Mr. POMBO. Mr. Chairman, I yield 2 minutes to the gentleman from
Missouri (Mr. Graves).
Mr. GRAVES. Mr. Chairman, I thank the chairman for yielding me this
time to speak on an issue that is very important to me and my
constituents.
The Endangered Species Act plays a prominent role in my State of
Missouri with over 25 endangered and threatened species located within
the borders and nine in my district.
Mr. Chairman, the ESA is broken and needs to be fixed. Over the last
30 years, less than 1 percent of all listed species have been removed,
and most of them have been removed because of poor data. I thought the
intent of the ESA was to recover species and not leave them on the list
indefinitely. Also, landowners seem to be getting cheated when species
are identified on their property resulting in lower property values,
less production and limited use. These unintended adverse impacts have
resulted in a law that is
[[Page H8547]]
hurting landowners while not recovering any species.
This is why I introduced H.R. 3300, the Endangered Species Recovery
Act. I want to thank the chairman and staff for working with me to
develop and incorporate this bill into the overall ESA bill. The
language in section 10 of the bill creates ``species recovery
agreements.'' Basically, it is an all-inclusive incentive program that
will compensate landowners for their conservation efforts. It is my
hope that this provision will foster a better working relationship with
landowners and the Federal Government resulting in recovery of more
species. My underlying goal is to protect landowners while keeping
intact the spirit of the ESA.
As part of the farming community, I have heard stories of farmers
afraid to report an endangered species on their land because of the
implication it would have on their property and their farming
operation. ``Shoot, shovel, and shut up'' was often the case when a
species was identified on their property. My point is that the ESA was
more of a burden on landowners, and without the cooperation of
landowners, species recovery, I do not think, will ever be successful.
Another reason why I chose to get involved in this debate is because
of the implication this Act has on the management of the Missouri
River. The Missouri River is a vital waterway for Midwest farmers,
providing cheaper and more efficient transportation for their grain.
The Flood Control Act of 1944 authorized the Army Corps of Engineers to
maintain flood control and navigation along the river. Then came the
Endangered Species Act and this all changed. The ESA seems to supersede
the Flood Control Act, and now transportation along the river is
unreliable. Ultimately, I would like to see the provisions in this bill
fix the situation so navigation becomes more reliable.
Again, I commend the chairman on his efforts and look forward to
working with him on this bill and getting it passed this afternoon.
Mr. CARDOZA. Mr. Chairman, I yield myself the balance of my time.
I want to conclude by saying I thank the gentleman from West Virginia
(Mr. Rahall) for his offering of working on this piece of legislation,
and we do so in the spirit of cooperation.
I also have to say, though, that in this Chamber where we have seen
lofty rhetoric for a number of years, I personally having witnessed it
for 26 since I was first an intern here, I have frankly never seen the
rhetoric not coincide with the reality more than in this case
oftentimes.
This bill does not eviscerate the Endangered Species Act. This bill
does several positive things. It establishes recovery plans based on
biology. It establishes recovery habitat based on those recovery plans.
It encourages landowners to cooperate with biologists in the Fish and
Wildlife Service. It lets landowners get answers to their biological
questions, and it compensates landowners whose land is confiscated
under the original Endangered Species Act.
I ask Members for their ``aye'' vote.
Mr. POMBO. Mr. Chairman, I yield the balance of my time to the
gentleman from Oregon (Mr. Walden).
Mr. WALDEN of Oregon. Mr. Chairman, we heard about Theodore
Roosevelt. Indeed, 100 years ago this year, Theodore Roosevelt created
the Great Forest Reserves. He also created the Klamath Wildlife Refuge.
He created the forest reserves for both the future home building needs
of the country and for water, if we read his statements, and, of
course, for nature as well.
{time} 1445
He created the wildlife refuge in the Klamath Basin to ensure that we
would have healthy wildlife populations for generations to come; and,
indeed, the wildlife refuge is home to the greatest concentration of
bald eagles in the United States, in the lower 48.
Ninety-six years after he created that refuge, this Federal
Government made a decision to shut the water off to 1,200 farm families
in that basin based on the Endangered Species Act and interpreted by
the government scientists without peer review, without peer review.
When the National Academy of Sciences reviewed the decisions, they said
the agency made mistakes in the outcome under the Endangered Species
Act; and further they went on to say that those decisions put in
jeopardy potentially those very species, the sucker fish in the Upper
Klamath Lake and the Coho Salmon in the Klamath River. It potentially
could have damaged both of those.
This act changes that. This act changes that, because we put into law
for the first time really clear criteria and guidance about science.
And unlike the substitute that will be offered soon, we allow a full
public process, a 1-year timeline for the Secretary to further define
the criteria of the science. We do not define it in the statute; we
give guidance and then there will be a full public process. We require
empirical data and peer review and the Secretary to have that
opportunity, and peer review is certainly important. The other
alternative does not do that. It sets it in standard. It is politicians
writing it. Science is critical.
Let me talk about the private property rights. I believe in them.
When the government says it is going to build a highway across your
property, the Constitution says the government has to pay you for it.
The ESA is the environmental highway across your property.
But it does not open the door as a blank check to developers to go
out and pick the most sensitive wildlife habitat area in the country
and say, I am going to build a $50 million hotel and casino here. Not
at all.
Let us go to the law that we are proposing. Page 15, open your
manuals, sub (C): ``The foregone use would be lawful under State and
local law and the property owner has demonstrated the property owner
has the means to undertake the proposed use.''
It eliminates the speculative things that people were concerned
about. We heard that. This is an improvement. This clearly says that.
And there is no double-dipping. This section says you cannot come
back and get a second bite at the same apple, so you have to follow
State and local zoning ordinances and laws, you have to prove you are
financially capable of undertaking the activity, and the government has
to give you an answer when you propose to do something on your private,
private, property here.
That is one of the great things about this country. We can talk about
the bald eagle, and I am a big fan of them, but one of the
underpinnings of our great democracy is our private property rights. In
the case of the Klamath Basin, in many respects they were taken away
when their water was cut off and 1,200 farm families were left
destitute.
I believe in recovery, I believe in species, and I think what we are
changing in this bill will build new partnerships that will bring
landowners and the government together like never before, that respects
the rights of private owners of property, and will actually result in
increased recovery of species and habitat.
Mr. Chairman, I urge approval of the underlying bill.
Mr. ADERHOLT. Mr. Chairman, I ask unanimous consent to revise and
extend my remarks.
Mr. Chairman, the Endangered Species Act is a well-intentioned law
that has failed in its implementation. Originally billed as a way to
recover and rehabilitate endangered species, it has failed at that
goal.
As it has been pointed out, less than 1 percent of species listed
have recovered in the entire history of the act. Almost 3 times that
many still listed are believed to already be extinct. Many species that
were listed in error, yet because of flaws in the act, they are still
listed. This bill today will greatly improve the recovery process so
that species may be restored and removed from the list.
Mr. Chairman, one of those species is the Alabama sturgeon. It was
listed years ago even though it was never proven to be genetically
distinct from any other sturgeon.
It's simply a regular sturgeon living in Alabama. The economic cost
of its listing has been estimated at $1.5 billion.
Mr. Chairman, I and the rest of the Alabama delegation worked
directly with the gentleman from California to ensure that the bill is
helpful to landowners in Alabama and Southeast. The Endangered Species
Act today creates an adversarial relationship between landowners and
the government.
Landowners have little incentive to conserve species on their
property. However, this bill will create cooperative conservation
agreements between landowners and the government. It will also provide
long overdue compensation to landowners whose property has been
``taken'' by the Endangered Species Act.
[[Page H8548]]
I encourage all of my colleagues to support this bill.
Mr. MENENDEZ. Mr. Chairman, I rise today in strong opposition to this
bill, H.R. 3824, which would substantially weaken the essential
protections we have in place for endangered plants and animals. Since
being signed into law over 30 years ago, the Endangered Species Act has
protected over twelve hundred species from extinction. Only nine
species listed under the act have gone extinct, and five of them were
later determined to be extinct by the time they were listed. Meanwhile,
thanks largely to the act's protections, we have fully recovered such
species as the American alligator, grey whale, and peregrine falcon,
and stabilized the populations of bald eagles, sea turtles, manatees,
and hundreds more. And some species, such as the California condor and
red wolf, would probably be extinct without the protections of the act.
From looking at the record of the Endangered Species Act, I would say
that it has been a success. A study by the Congressional Research
Service has shown that 41 percent of listed species have improved their
status after being listed. The act certainly has not brought every
endangered or threatened species to full recovery, but many of these
have only been listed a few years. Rebuilding a species takes time. The
U.S. Fish and Wildlife Service reported that only 4 percent of species
listed for less than 5 years have recovered by any appreciable amount.
But that number jumps to 36 percent for species listed for over 10
years. The fact that so many species have yet to be fully recovered is
a call for more endangered species protections, not less.
And yet less protection is exactly what this bill is giving us. It
eliminates the designation of critical habitat, which is one of the
most important provisions in the Endangered Species Act. A recent study
showed that species with defined critical habitat are far more likely
to be recovering than species without such habitat. The bill includes a
number of other unfortunate provisions, but perhaps none are more
unfortunate, or more mind-boggling, than the proposal to pay off
developers for what they should be doing anyway--obeying the law. This
bill says that if a developer wants to build something but can't do it
because of the Endangered Species Act, the government must pay them for
the loss of the income they would have received from the development,
even when the development is economically unfeasible.
Think about this for a second. First of all, we are saying that the
government will pay you for obeying the law. A power plant that doesn't
install pollution control devices will be more profitable than one that
does, but we don't pay off the cleaner power plant for obeying the
Clean Air Act. And we certainly don't pay someone for not robbing a
bank, even though it would be very profitable for them to do so. This
has nothing to do with the government providing compensation for taking
private land. This is about developers being encouraged to come up with
incredible schemes, and then getting paid by the American taxpayer to
not build them, because doing so would drive an endangered species to
extinction. This is insane, and would ensure that all the money in the
endangered species program would go to developer payoffs, and not
species protection.
There are a number of reasons why we need to focus our resources on
protecting endangered species. Wildlife means millions of dollars to
local economies, both through tourism and outdoor recreation. Just in
two counties in southern New Jersey alone, red knot watchers spend over
$4 million a year. Nationally, sportsmen and wildlife enthusiasts spend
an estimated $100 billion each year on outdoor activities. But
preserving species is about more than just economic value and being
good stewards of the Earth. It is also about our health. A recent study
by the National Cancer Institute showed that in the past 20 years, 78
percent of new antibiotics and 74 percent of new anticancer drugs were
linked to natural products. Every species that goes extinct decreases
our chances of finding the next miracle drug to fight infection,
Alzheimer's, cancer, or AIDS.
The substitute amendment being offered by Mr. Miller, Mr. Boehlert,
and others is a considerable improvement on the underlying bill. It
eliminates payoffs to developers, puts more teeth into recovery plans,
and ensures that scientific standards don't get watered down. It is not
an ideal substitute, but it will certainly do much more for truly
protecting endangered species than H.R. 3824.
The Endangered Species Act is something we should be proud of, and
something we should look to tweak to improve species recovery, not gut
to give egregious and unwarranted payouts to developers. I urge my
colleagues to join me in defeating H.R. 3824.
Mr. ENGEL. Mr. Chairman, there is an old saying ``The South will rise
again!'' Well, the bill before us today is proof the ``Era of Big
Government has come again!'' Let no mistake be made, those who support
this bill cannot claim to be dedicated to fiscal responsibility and
smaller government. This bill blows another hole in the Federal
deficit.
I oppose this sham overhaul of the Endangered Species Act. Enacted in
1973, this landmark legislation has been hugely successful in saving
many species from becoming extinct and has been an important
conservation tool. The Endangered Species Act must be strengthened not
decimated.
Of the more than 1,800 plants and animals protected by the act, only
9 percent have been declared extinct. Those species that have survived
continue to grow and flourish. Newly named, the Threatened and
Endangered Species Recovery Act ignores this success and carves out
loopholes in the Act that will allow developers and others to avoid the
law's protections. This legislation eliminates extremely critical
habitat designations, giving many species no opportunity to survive.
It is a travesty that the leadership in this House, is yet again
giving business the upper hand over sensible and effective
environmental protection law. Private landowners will now have no
incentive to protect their land. In fact, the Federal Government will
now pay landowners for merely abiding the law!
Mr. Chairman, this Act does not ``modernize'' or ``reform'' the
Endangered Species Act, it guts it and should be called the landowner
and developer welfare act.
Mr. THOMPSON of California. Mr. Chairman, I agree with Chairman Pombo
that the Endangered Species Act is in need of reform, and the way in
which critical habitat is currently administered is one of the glaring
problems with the act today.
=========================== NOTE ===========================
September 29, 2005--On Page H8548 the following appeared: Mr.
Thompson. Mr. Chairman, I agree with Chairman POMBO that the
Endangered Species Act is in need of reform, and.
The online version should be corrected to read: Mr. Thompson of
California. Mr. Chairman, I agree with Chairman POMBO that the
Endangered Species Act is in need of reform, and.
========================= END NOTE =========================
For instance, in my district the Fish and Wildlife Service recently
issued a critical habitat map for an endangered species which
encompasses 74,000 acres including downtowns, streets and existing
apartment complexes.
However, there are aspects with this bill in its current form that
concern me and unfortunately, I cannot support it at this time.
I am very concerned with section 3 of H.R. 3824 which transfers all
the responsibilities for implementation of the Endangered Species Act
to the Secretary of Interior. I question the agency's existing level of
expertise on fishery issues and its fiscal and technical capacity to
take on such a task.
I raise this as a concern also because their past actions have proven
to me that they don't have the capability or understanding needed to
protect listed salmon.
In 2002, the Department did not listen to warnings from NOAA
Fisheries--the agency that currently manages and protects threatened
and endangered salmon--and State biologists who warned months ahead of
time that due to a drought and the existing management practices by the
Department of Interior, there could be a fish kill on the Klamath
River. Unfortunately, the Department did not listen to these warnings,
and that September some 80,000 adult fish died. This fish kill had, and
continues to have a catastrophic impact on my district and the fishing
related communities from the Washington/Oregon border--to south of San
Francisco. The immediate result was obvious, but commercial fishing
season was cut in half this year due to poor salmon returns caused by
the fish kill, and fishery biologists expect the fishing season
throughout this region to be cut like this for years to come.
Finally, I am concerned with how quickly this bill has moved through
the House. I believe the process to make these important decisions
regarding the existence of a species and our livelihood needs to be
open, transparent and inclusive. In 1994, Representative Cardoza and I
helped pass revisions to the California Environmental Quality Act. As
you can imagine, Mr. Chairman, this process was long and difficult.
However, we formed a working group which included mainstream
environmental, sportsmen, agriculture and industry organizations. In
the end, all parties supported this bill. Unfortunately, the reforms we
are voting on today do not have that same level of endorsement.
However, I strongly believe that if the process was more transparent
and inclusive, we could find a balance that would be more agreeable to
all parties.
In closing, I believe that the Endangered Species Act must be
reformed and hope to work with you in reforming it to make it work
better. However, for the reasons stated, I unfortunately cannot support
this bill in its current form.
Mr. EVERETT. Mr. Chairman, I rise today as a cosponsor of H.R. 3824,
the Threatened and Endangered Species Recovery Act. Alabama ranks in
the top five States in the number of listed species, and passage of
this legislation will move us closer to achieving the goal of
protecting and recovering the Nation's threatened and endangered
species by adding a layer of common sense.
The Endangered Species Act, ESA, although enacted with honorable
intentions, has strayed from its original purpose of conserving plants
and wildlife. Currently, there are nearly 1,300 domestic species listed
as threatened or
[[Page H8549]]
endangered. Since the enactment of the ESA, only 10 species, less than
1 percent of those listed as endangered, have been recovered. This is
just one of the numerous reasons why this legislation needs updating.
Most importantly, the manager's amendment includes a significant
provision that requires the Fish and Wildlife Service to consider the
economic and national security impact of listing a species. This impact
analysis is an important tool that provides vital information to
Congress, federal agencies, states, and landowners about the potential
effects of the ESA within those geographic areas deemed to be essential
for the species' survival and recovery. Private property owners ought
to have this information at the time a species is proposed for listing.
Such timely notice serves to let everyone know whether they should be
interested in the listing process and, ideally, brings them to the
table to participate. I would like to thank Chairman Pombo for all his
hard work on crafting this important piece of legislation, and I am
very appreciative of his efforts to include this provision in his
manager's amendment.
By enhancing the rights of private property owners and improving the
impact analysis of the listing process, the ESA will actually work to
protect endangered species. I urge all of my colleagues to support this
measure.
Mr. UDALL of Colorado. Mr. Chairman, I cannot vote for this bill as
it stands.
I support much of the thrust of the original bill. I support putting
more emphasis on recovery plans and on steps to provide incentives for
landowners and other private parties to help with recovering species.
And the Resources Committee did make improvements in the original bill.
Unfortunately, though, other needed amendments were not approved--and
as a result I concluded that the bill's defects were still so numerous
and so serious that it should not be approved without further changes.
That was why I supported the bipartisan substitute. Had it been
adopted, we would have kept the best parts of the bill as reported--
including the authorization for reimbursement for livestock losses that
I supported in the Resources Committee--and made the further
improvements that were needed for it to deserve approval by the full
House of Representatives.
Unfortunately, that did not occur, so we are left with a bill that
does not include those improvements.
Proponents of the reported bill say the Endangered Species Act has
led to too many lawsuits. But according to the Bush Administration's
analysis of the bill as reported, ``the new definition of jeopardy in
the bill, as well as various statutory deadlines, may generate new
litigation and further divert agency resources from conservation
purposes.'' The substitute did not have the same problems.
Similarly, the substitute did not include the reported bill's vague
provisions that would set up a new entitlement program--a program
without clear boundaries that would increase federal spending to an
extent that cannot be easily calculated.
Those provisions worry the Bush Administration, which has told us
that they ``provide little discretion to Federal agencies and could
result in a significant budgetary impact.''
And after reviewing the bill as reported, the nonpartisan budget
watchdog group, Taxpayers for Common Sense, concluded that ``This
legislation is rife with loopholes and vague wording that have the
potential to cost taxpayers billions of dollars, and must be revised.''
I supported the bipartisan substitute because it would have made the
revisions necessary to close those loopholes.
Nonetheless, while I cannot support the bill today, I am hopeful that
it will be further improved as the legislative process continues and
that the result will be legislation to revise the Endangered Species
Act that I can support and that will deserve the support of every
Member of Congress.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Chairman, I rise today to
request that my name be removed as a cosponsor of H.R. 3824, the
Threatened and Endangered Species Recovery Act of 2005 (TESRA).
Species conservation is an essential tenet in the effort to promote
and maintain a healthy environment. Although I agree with Congressman
Pombo's initiative in principle, after reviewing the legislation
closely I came to the conclusion that this bill would jeopardize
critical habitat protections that endangered plants and animals need to
survive and recover their populations, and it would do little to
protect the planet's most threatened wildlife.
As a Senior Member of the House Science Committee, I also have
serious reservations that in its current form, H.R. 3824 attempts to
substitute politics for sound science in decisions involving endangered
species, letting expediency and profit motives influence what should be
scientific decisions.
Mr. HEFLEY. Mr. Chairman, I rise in support of the legislation
offered by the gentleman from California (Mr. Pombo) and would like to
give you an example of why this bill is needed.
Seven years ago, the Fish and Wildlife Service contacted my office to
state they were going to list the Preble's meadow jumping mouse as a
threatened species.
It wasn't even a surprise. State and local authorities had known the
mouse might be listed for years. And, at first, it didn't even seem
like it would be that much of a problem. The mouse was a nocturnal
animal that dwelt within a hundred feet of either side of streambeds.
The Front Range of the Rockies could also claim at least three
government reservations--the U.S. Air Force Academy, Rocky Flats and
Warren AFB in Wyoming--which offered the mouse almost untrammeled range
in which to roam.
But over the course of the next seven years, the lines moved. Now the
mouse's range extended beyond the stream beds, sometimes by miles.
Habitat had to be protected, not only where the mouse had been found
but also where it might be found if indeed a three-inch-long rodent
could travel several miles to get there.
Over the past seven years, the State of Colorado spent approximately
$8 million to preserve the mouse. Counties up and down the Front Range
spent even more money to acquire open space and to develop habitat
conservation plans, few of which, to my knowledge, were ever completed
or even begun. This is not even counting the impact to private property
owners, not knowing whether they could use or develop their property.
And after all this, all the money spent, all the needless planning
and contention, it turned out the Fish and Wildlife Service was wrong.
The Preble's meadow jumping mouse was not threatened. It wasn't even a
separate subspecies. A scientist at the Denver Museum of Nature and
Science stated this and the scientist whose 1954 work led to the
original listing, agreed with the new data.
And so the delisting process started. Hopefully, we'll see it
completed sometime in the near future though there is some evidence
that Fish and Wildlife is taking its time in doing so. But meanwhile,
the states of Wyoming and Colorado and its Front Range counties and
cities and residents are out at least $8 million and probably more for
no good reason.
After all this time and expense, nothing has been produced. That is
why this bill is needed. If we are going to undertake these massive
land-planning schemes, then the Feds ought to be sure of their facts.
If they are going to mandate conservation planning and land set-asides,
then maybe they ought to send the money along to do that. The states,
counties and cities have other things they could spend their tax
dollars on.
The ESA, as it currently stands, does nothing but keep attorneys and
interest groups busy and needs reformed. So I say, let's try this
approach. I urge your support of H.R. 3824.
Mr. ETHERIDGE. Mr. Chairman, today I rise in opposition to H.R 3824,
the Threatened and Endangered Species Recovery Act. Under the
Constitution, we are charged with securing this country's blessings not
only for ourselves, but for our posterity. This bill turns its back on
our posterity.
The Endangered Species Act has been a model for the protection and
preservation of endangered species since 1973. When this legislation
was first passed, many species in this country were on the brink of
extinction, and many more were in severe decline. ESA is essential to
safeguard our natural resources and ensure the biodiversity that is
critical to a healthy environment for all species, including human
beings. ESA is a great American success story that should only be
altered with the greatest of care.
In the thirty years since the passage of the Endangered Species Act,
we have seen an amazing turnaround in both the population numbers of
species that were in decline, as well as in the significant
environmental improvements that have fostered their recovery.
I acknowledge the concerns of landowners and farmers about the
current law, and I agree that the current law needs to be reformed.
This is why I support the Miller-Boehlert substitute bill. The
substitute helps small landowners by dedicating funding for technical
assistance for private property owners, and it provides conservation
grants for landowners who help conserve endangered species on their
property. Finally, it provides assurances that private citizens will
get timely answers from the Fish & Wildlife Service regarding the
status of endangered species requirements on their land. The Miller-
Boehlert Substitute provides positive changes to the current ESA
without reversing the progress that has been made over the past thirty
years. The bipartisan substitute is not perfect legislation, but it is
far superior to H.R. 3824.
H.R. 3824 was introduced just last week and was marked up without any
public hearings, yet this legislation would most certainly rank as the
most sweeping and significant
[[Page H8550]]
change of environmental law in the past three decades.
I have grave concerns about provisions in the bill that give
political appointees the power to remove species from the endangered
list based on political decisions rather than on sound science. Habitat
degradation is the leading cause of species decline, and this bill
proposes to eliminate critical habitat designations. I do not
understand how eliminating protected areas can result in greater
protection of endangered specIes.
The Endangered Species Act needs an update, but we must not reverse
course on significant progress and results for endangered species. We
have a solemn obligation to maintain responsible stewardship of
America's bounty, and this legislation would abandon that
responsibility. I urge my colleagues to vote against H.R. 3824, and to
vote in favor of the balanced, bipartisan substitute legislation for
ESA reform.
Mr. STARK. Mr. Chairman, I rise today in opposition to H.R. 3824, the
Threatened and Endangered Species Recovery Act.
The Republican majority has already dismantled nearly every
Government program for people, and now it appears they're moving on to
other species. They constantly preach that God's creations are
precious, yet once again they are showing their hypocrisy that they
would be so careless with the lives of God's creatures. Perhaps if some
of these endangered species were in a persistent vegetative state,
Republicans would come rushing to their aid. Perhaps if scientists
would concede these same plants and animals were fashioned during the
week of God's creating the world, the right wing would be willing to
help.
The Republicans want us to believe that this bill represents a fair
and balanced way to protect endangered species without infringing on
property rights. Not true. This bill grants unprecedented and
immeasurable subsidies to land owners rather than ensuring their fair
costs are covered; so much so in fact, that the nonpartisan
Congressional Budget Office cannot estimate the potential impact to the
Federal budget.
This bill is nothing more than an assault on our environment. I urge
my colleagues to join me, and every environmental organization on God's
green Earth, in opposing this bill.
Mr. PAYNE. Mr. Chairman, I rise today to oppose the unwise, unsound,
and unsubstantiated policy changes contained in H.R. 3824--misleadingly
named the Threatened and Endangered Species Recovery Act of 2005.
I am deeply concerned about the elimination of all critical habitat
provisions of the Endangered Species Act without any mechanism to
protect habitat needed for species recovery. I am troubled by the
removal of protections for ``threatened'' species and the weakening of
endangered species recovery teams.
Moreover, I believe that sound science produces accurate data from
which sound policy decisions can be made. When we choose not to respect
the role of science in our regulatory decisions, we are cheating
ourselves out of valuable information and we run the risk of making
poor or erroneous judgments about crucial conservation decisions. By
allowing a political appointee to develop a definition of ``best
available science'' and increasing barriers to access to scientific
data, I believe that this bill needlessly politicizes scientific
decision-making, and I fear that we are setting ourselves up for many
unsound policy choices as a result.
I am not only motivated by the harms this bill will have on the plant
and animal species, but by the threat to the health and well-being of
the human species as well. The pesticide provisions of this bill seem
to indicate a willingness to endanger the lives of migrant and seasonal
farmworkers, their families, and their children. This weakening of
pesticide standards poses a serious threat to public health, and I
cannot support any bill that does not take seriously the health and
safety of the American public.
We also do a disservice to the American people when we are not wise
stewards of their taxpayer dollars. Using those dollars to pay
developers for complying with the ESA's regulations is a clear
violation of the fiduciary duty with which we are all endowed.
Mr. Chairman, I would like to again voice my opposition to H.R. 3824,
and I encourage all of my colleagues who care about conservation to do
so as well.
Ms. DeLAURO. Mr. Chairman, I rise in strong opposition to this bill.
The legislation before us today turns back the clock on 35 years of
progress in responsible environmental stewardship by gutting the
current Endangered Species Act and replacing it with little to preserve
endangered wildlife for future generations.
Over 99 percent of the species that have been listed as threatened or
endangered under current law have been saved from extinction. But had
this bill been the law of the land over the last 30 years, the Fish and
Wildlife Service points out that the Bald Eagle--an icon of American
freedom--would exist only in our memones.
Any law that is 35 years old should be looked at with a fresh eye,
and so I am supportive of attempts to update and improve the Endangered
Species Act. Indeed, in my home state of Connecticut, we are concerned
that oysters, a key aquaculture product, may be unnecessarily
characterized as an endangered species. And so we should be willing to
consider smart changes to the law.
But that is not the intent of the underlying bill. Rather, the
purpose of this legislation is to remove obstacles inconvenient to
special interests with whom the Republican leadership is in
partnership. For this majority and their supporters--developers, the
oil and gas industry--laws protecting the air and water are not a
priority--they are a nuisance. As such, this legislation would
eliminate conservation measures on tens of millions of acres of land
around the country, the ``critical habitat'' of endangered species, and
prevent such conservation activities in the future.
It also reveals the majority's clear disdain for sound science.
Current law requires a review of all scientific and commercial data by
a panel of outside scientists. This, Mr. Chairman, ensures that the
peer-review process--a central tenet of sound scientific research--
guides the process, not ideology and politics. Instead, this bill would
allow the Secretary of the Interior to make a determination about
whether a species is endangered based on ``all available
information''--that is to say, information that opens the door for
phony science supporting special interests.
Finally, Mr. Chairman, the bill fails the fiscal responsibility test.
By allowing for payments to land owners who do not develop land that is
home to protected species, it actually creates a system where people
and businesses--mostly big oil and gas companies--are paid for
following the law. If only we were all so fortunate.
This bill is nothing more than yet another entitlement program for
special interests--as always, with this majority, at the expense of the
taxpayer. Little wonder that even conservative groups like Taxpayers
For Common Sense have expressed their grave concerns regarding this
legislation.
Mr. Chairman, the Endangered Species Act is a statement of our
priorities as Americans. It is an affirmation of our belief that, just
as we desire better economic opportunity for our children and future
generations, so too do we hope to leave them a healthier environment.
Unfortunately, the underlying bill will accomplish neither. This is
simply the continuation of a decade-long assault by the majority on our
clean air, our clean water and our environment. And it should be
rejected.
Mr. BISHOP of New York. Mr. Chairman, I rise in support of this
bipartisan substitute and in unwavering opposition to the underlying
Threatened and Endangered Species Act of 2005, which does not defend
endangered species as it purports, but rather protects the special
interests of private industry and landowners.
I am concerned about the environmental and fiscal health of our great
nation and the path chosen by many of America's leaders whose policies
are painfully lacking in promoting conservation. Although Americans may
debate the need to update the Endangered Species Act of 1973, TESRA is
absolutely not the answer. In fact, TESRA is a step back, furthering
the degradation of species and compounding man's conflict with the
environment.
What exactly is the urgency by which the majority has brought this
issue at this time? America is still in mourning as we enter the early
stages of rebuilding the Gulf Coast and fighting a war in Iraq and
Afghanistan costing our nation hundreds upon hundreds of billions of
taxpayer dollars.
Particularly egregious is that TESRA will cost nearly $3 billion in
new spending in just the next 4 years, which will be used not to
protect threatened and endangered species, but rather the interests of
private landowners.
Taxpayers should be outraged by the fiscal irresponsibility of this
Congress. If we have $3 billion to give away, let's give it to families
in need by renewing TANF or to expand rather than cut Pell grants so
that students who wish to attend college can meet the financial
demands.
In my district, hardworking families are struggling to absorb the
high costs of fuel into their budget while putting food on their tables
and sending their children to college.
Mr. Chairman, the narrow-vision and short-term policy decisions made
by this Congress do not reflect middle-class values. At what point will
a clean environment and healthy future for our children and
grandchildren become a priority?
The American public deserves a future that includes true protection
of our endangered species and the development of fuel sources that are
clean, renewable and promote conservation and energy independence.
Mr. Chairman, I urge my colleagues to reject the underlying
legislation to reform the ESA and support the bipartisan substitute.
[[Page H8551]]
Mr. HOLT. Mr. Chairman, I rise today to express my strong opposition
to the Threatened and Endangered Species Recovery Act of 2005. Despite
the deceptive title of this bill, it is a measure designed to weaken
the protections secured under the landmark Endangered Species Act
(ESA).
While scientists are uncertain about the exact rate of extinction,
they estimate that it is probably thousands of times greater than the
rate prior to human civilization. In 1973 Congress enacted the ESA to
address this problem of species extinction. The ESA is a comprehensive
legal measure that is used to identify and protect species that are
determined to be the most at risk. Under this law, once a species is
designated as either ``endangered'' or ``threatened,'' powerful legal
tools are available to aid in the recovery of the species and to
protect its habitat. Without these strong federal protections hundreds
of species including the bald eagle, grizzly bear, Florida panther, and
the manatee would all be extinct.
The bill we are debating today is flawed in many ways, but I am
particularly concerned with its removal of habitat protection from the
Endangered Species Act. Habitat destruction, degradation, and
fragmentation is the most significant cause of species extinction. This
legislation blatantly ignores the integral role habitat plays in the
survival of a species by eliminating the designation of ``critical
habitat.'' Without this special designation, our government's ability
to recover species will be severely undermined.
It is disconcerting that some of my colleagues do not value saving
our unique natural treasures, but it is appalling that they refuse to
acknowledge that the Endangered Species Act is about much more than
saving a unique species. It is undeniable that the world in which we
live is an intricately connected environment that is suffering from
human abuse and neglect. The loss of a species interrupts the life
cycle of the ecosystem it was part of and alters our environment in
ways far beyond this isolated event. The Endangered Species Act is a
vital tool in preventing and reversing these life cycle disruptions
before they ripple out and cause further damage to our natural
communities.
We all agree that this law should be revisited and improvements to
the law should be implemented. I understand the concerns of my
colleagues that this law has been abused at the detriment of their
constituents' rights. However, I believe there are ways to balance the
needs of development and property rights with the need to protect the
health of the environment which we all share. Instead of working
towards a true compromise, we are considering legislation that is based
on the fallacious premise that environmental protection requires a
trade-off with private interests. It takes a very short-sighted, short
term view of our world and our economy. It ignores the long term damage
catering to these private interests will have on our future.
The Threatened and Endangered Species Recovery Act of 2005 severely
hampers the effectiveness of the Endangered Species Act. I urge my
colleagues to oppose this legislation that will result in far reaching
and detrimental impacts.
Mr. HONDA. Mr. Speaker, the Endangered Species Act is a safety net
for wildlife, plants and fish that are on the brink of extinction. Over
its 32-year history, the Endangered Species Act has been 99 percent
successful in saving species from extinction, with only 7 out of over
1,200 species having gone extinct after being listed under the Act. The
number of species that have fully recovered is not as high, however,
and at this point there is a recognition that the current critical
habitat arrangement doesn't work, for a whole host of reasons.
I believe that any legislation amending the Endangered Species Act
should include a number of critical principles. It should not weaken
existing law, nor should changes be adopted that would alter the
original intent of the Endangered Species Act. The Act was written to
protect all plants and animals in the United States from extinction and
to restore them to stable populations. Limiting protections for
imperiled species now would serve only to make protection and recovery
much more difficult and expensive in the future.
I also believe that habitat protections for threatened and endangered
species should not be weakened. The loss of habitat is widely
considered by scientists to be the primary cause of species extinction
and endangerment. Preservation of habitat is an essential element to
any and all efforts to protect and recover endangered species.
Additionally, any amendments should maintain the mandate for the
Endangered Species Act to work towards recovery. The Endangered Species
Act requires not only that we protect species from extinction but also
that we recover species to the point where protection is no longer
needed. Merely maintaining the survival of a species contradicts the
spirit and letter of the law, which is why we need to hold federal
actions to the standard of recovering species.
Citizen input and oversight are vital to good Endangered Species Act
decisions and management, so any changes to the Act should avoid
unnecessary hurdles to public participation. It is also important to
uphold the scientific process behind Endangered Species Act decisions.
The scientific review of matters relating to the Endangered Species Act
is already sufficiently rigorous. Adding another layer of bureaucracy
would serve only to slow the process, to the detriment of both the
species in question and affected citizens. Finally, I believe that
while vigilant Congressional oversight is critical to the success of
any law, putting an arbitrary expiration date on the Endangered Species
Act would place the protection of species at the mercy of the
legislative calendar.
Mr. Chairman, white I realize that the Endangered Species Act is not
perfect, I believe that the version of the bill that is before us today
will eliminate critical habitat without including other mechanisms to
protect species' homes. Unless substantial amendments to address this
and other shortcomings are passed on the floor today, I will not
support H.R. 3824. I applaud the efforts of a bipartisan group of my
colleagues, including Mr. Miller, Mr. Boehlert, and the original author
of ESA, Representative Dingell, who have worked hard to develop an
alternative bill that I am happy to support.
Mr. SMITH of Texas. Mr. Chairman, I rise in support of H.R. 3824.
Reform of the Endangered Species Act is much needed. The law has
adversely affected thousands of farmers, ranchers and homeowners whose
private property has been taken without compensation.
Over 90 percent of endangered plant and animal species are found on
private property. There should be a balance between the rights of
property owners and conservation.
H.R. 3824 will allow the Secretary of Interior to compensate private
property owners for the fair market value of the loss of use of their
property when the Secretary concludes that the use of the property
would be a taking. The compensation will be made available as aid and
through a grant program. This is a fair and long-overdue process that
will actually promote preservation and conservation of endangered
species and at the same time protect private property rights.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I rise today in opposition to
H.R. 3824. I strongly believe that this is a very sensitive issue and
should be looked at very carefully. While it is important to protect
and save the many precious animals of this earth, it is also important
not to take the property of the many Americans who have worked hard to
obtain their homes and land. This issue needs to be looked at from a
bipartisan perspective and because of this I am in support of the
substitute amendment offered by Mr. Miller of California.
The Miller substitute is a responsible alternative to the Pombo bill.
The amendment not only addresses the current problems in the Pombo
bill, but also improves the current law. Congressmen Miller and
Boehlert have presented Congress with a creative, workable solution
that promises better results for recovering endangered species and
reducing burdens for landowners. Among other things, the substitute
protects habitat for species recovery by maintaining habitat
protections and puts the primary obligation for recovery on federal
agencies by clearly defining ``jeopardy.'' It also makes clear that any
federal agency action that impairs species recovery will jeopardize the
continued existence of the species and, therefore, is prohibited.
Furthermore, the substitute guarantees that federal agencies consult
with the Fish and Wildlife Service to ensure that their actions do not
jeopardize threatened and endangered wildlife. Additionally, it ensures
that all newly listed species have recovery plans within 3 years and
species already on the list have recovery plans within 10 years.
Recovery plans will identify all areas necessary for the conservation
of listed species. Prior to the development of recovery plans, the
Miller substitute encourages the development of guidance that
identifies particular types of activities that could negatively impact
recovery. One of the most important aspects of the Miller substitute is
that it provides real landowner incentives for conservation through
cost sharing and technical assistance. Finally, it enhances the role of
the states in helping conserve endangered species through improved
cooperative agreements and greater federal-state consultation. Because
of these factors, I support the Miller substitute.
The CHAIRMAN. All time for general debate has expired.
In lieu of the amendment printed in the bill, it shall be in order to
consider as an original bill for the purpose of amendment under the 5-
minute rule an amendment in the nature of a substitute consisting of
the text of the Resources Committee Print dated September 26, 2005. The
amendment in the
[[Page H8552]]
nature of a substitute shall be considered read.
The text of the amendment in the nature of a substitute is as
follows:
H.R. 3824
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Threatened
and Endangered Species Recovery Act of 2005''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendment references.
Sec. 3. Definitions.
Sec. 4. Determinations of endangered species and threatened species.
Sec. 5. Repeal of critical habitat requirements.
Sec. 6. Petitions and procedures for determinations and revisions.
Sec. 7. Reviews of listings and determinations.
Sec. 8. Secretarial guidelines; State comments.
Sec. 9. Recovery plans and land acquisitions.
Sec. 10. Cooperation with States and Indian tribes.
Sec. 11. Interagency cooperation and consultation.
Sec. 12. Exceptions to prohibitions.
Sec. 13. Private property conservation.
Sec. 14. Public accessibility and accountability.
Sec. 15. Annual cost analyses.
Sec. 16. Reimbursement for depredation of livestock by reintroduced
species.
Sec. 17. Authorization of appropriations.
Sec. 18. Miscellaneous technical corrections.
Sec. 19. Clerical amendment to table of contents.
Sec. 20. Certain actions deemed in compliance.
SEC. 2. AMENDMENT REFERENCES.
Except as otherwise expressly provided, whenever in this
Act an amendment or repeal is expressed in terms of an
amendment to, or repeal of, a section or other provision, the
reference shall be considered to be made to such section or
other provision of the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
SEC. 3. DEFINITIONS.
(a) Best Available Scientific Data.--Section 3 (16 U.S.C.
1532) is amended by redesignating paragraphs (2) through (21)
in order as paragraphs (3), (4), (5), (6), (7), (8), (9),
(10), (11), (13), (14), (15), (16), (17), (18), (19), (20),
(21), and (22), respectively, and by inserting before
paragraph (3), as so redesignated, the following:
``(2)(A) The term `best available scientific data' means
scientific data, regardless of source, that are available to
the Secretary at the time of a decision or action for which
such data are required by this Act and that the Secretary
determines are the most accurate, reliable, and relevant for
use in that decision or action.
``(B) Not later than one year after the date of the
enactment of the Threatened and Endangered Species Recovery
Act of 2005, the Secretary shall issue regulations that
establish criteria that must be met to determine which data
constitute the best available scientific data for purposes of
subparagraph (A).
``(C) If the Secretary determines that data for a decision
or action do not comply with the criteria established by the
regulations issued under subparagraph (B), do not comply with
guidance issued under section 515 of the Treasury and General
Government Appropriations Act, 2001 (Public Law 106-554; 114
Stat. 2763A-171) by the Director of the Office of Management
and Budget and the Secretary, do not consist of any empirical
data, or are found in sources that have not been subject to
peer review in a generally acceptable manner--
``(i) the Secretary shall undertake the necessary measures
to assure compliance with such criteria or guidance; and
``(ii) the Secretary may--
``(I) secure such empirical data;
``(II) seek appropriate peer review; and
``(III) reconsider the decision or action based on any
supplemental or different data provided or any peer review
conducted pursuant to this subparagraph.''.
(b) Permit or License Applicant.--Section 3 (16 U.S.C.
1532) is further amended by amending paragraph (13), as so
redesignated, to read as follows:
``(13) The term `permit or license applicant' means, when
used with respect to an action of a Federal agency that is
subject to section 7(a) or (b), any person that has applied
to such agency for a permit or license or for formal legal
approval to perform an act.''.
(c) Jeopardize the Continued Existence.--Section 3 (16
U.S.C. 1532) is further amended by inserting after paragraph
(11) the following:
``(12) The term `jeopardize the continued existence' means,
with respect to an agency action (as that term is defined in
section 7(a)(2)), that the action reasonably would be
expected to significantly impede, directly or indirectly, the
conservation in the long-term of the species in the wild.''.
(d) Conforming Amendment.--Section 7(n) (16 U.S.C. 1536(n))
is amended by striking ``section 3(13)'' and inserting
``section 3(14)''.
SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND THREATENED
SPECIES.
(a) Requirement to Make Determinations.--Section 4 (16
U.S.C. 1533) is amended by striking so much as precedes
subsection (a)(3) and inserting the following:
``Determination of endangered species and threatened species
``Sec. 4. (a) In General.--(1) The Secretary shall by
regulation promulgated in accordance with subsection (b)
determine whether any species is an endangered species or a
threatened species because of any of the following factors:
``(A) The present or threatened destruction, modification,
or curtailment of its habitat or range by human activities,
competition from other species, drought, fire, or other
catastrophic natural causes.
``(B) Overutilization for commercial, recreational,
scientific, or educational purposes.
``(C) Disease or predation.
``(D) The inadequacy of existing regulatory mechanisms,
including any efforts identified pursuant to subsection
(b)(1).
``(E) Other natural or manmade factors affecting its
continued existence.
``(2) The Secretary shall use the authority provided by
paragraph (1) to determine any distinct population of any
species of vertebrate fish or wildlife to be an endangered
species or a threatened species only sparingly.''.
(b) Basis for Determination.--Section 4(b)(1)(A) (16 U.S.C.
1533(b)(1)(A)) is amended--
(1) by striking ``best scientific and commercial data
available to him'' and inserting ``best available scientific
data''; and
(2) by inserting ``Federal agency, any'' after ``being made
by any''.
(c) Lists.--Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is
amended to read as follows:
``(2)(A) The Secretary shall--
``(i) conduct, at least once every 5 years, based on the
information collected for the biennial reports to the
Congress required by paragraph (3) of subsection (f), a
review of all species included in a list that is published
pursuant to paragraph (1) and that is in effect at the time
of such review; and
``(ii) determine on the basis of such review and any other
information the Secretary considers relevant whether any such
species should--
``(I) be removed from such list;
``(II) be changed in status from an endangered species to a
threatened species; or
``(III) be changed in status from a threatened species to
an endangered species.
``(B) Each determination under subparagraph (A)(ii) shall
be made in accordance with subsections (a) and (b).''.
SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS.
(a) Repeal of Requirement.--Section 4(a) (16 U.S.C.
1533(a)) is amended by striking paragraph (3).
(b) Conforming Amendments.--
(1) Section 3 (16 U.S.C. 1532), as amended by section 3 of
this Act, is further amended by striking paragraph (6) and by
redesignating paragraphs (7) through (22) in order as
paragraphs (6) through (21).
(2) Section 4(b) (16 U.S.C. 1533(b)), as otherwise amended
by this Act, is further amended by striking paragraph (2),
and by redesignating paragraphs (3) through (8) in order as
paragraphs (2) through (7), respectively.
(3) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (2), as redesignated by paragraph (2) of this
subsection, by striking subparagraph (D).
(4) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (4), as redesignated by paragraph (2) of this
subsection, by striking ``determination, designation, or
revision referred to in subsection (a)(1) or (3)'' and
inserting ``determination referred to in subsection (a)(1)''.
(5) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (7), as redesignated by paragraph (2) of this
subsection, by striking ``; and if such regulation'' and all
that follows through the end of the sentence and inserting a
period.
(6) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended--
(A) in the second sentence--
(i) by inserting ``and'' after ``if any''; and
(ii) by striking ``, and specify any'' and all that follows
through the end of the sentence and inserting a period; and
(B) in the third sentence by striking ``, designations,''.
(7) Section 5 (16 U.S.C. 1534), as amended by section
9(a)(3) of this Act, is further amended in subsection (j)(2)
by striking ``section 4(b)(7)'' and inserting ``section
4(b)(6)''.
(8) Section 6(c) (16 U.S.C. 1535(c)), as amended by section
10(1) of this Act, is further amended in paragraph (3) by
striking ``section 4(b)(3)(B)(iii)'' each place it appears
and inserting ``section 4(b)(2)(B)(iii)''.
(9) Section 7 (16 U.S.C. 1536) is amended--
(A) in subsection (a)(2) in the first sentence by striking
``or result in the destruction or adverse modification of any
habitat of such species'' and all that follows through the
end of the sentence and inserting a period;
(B) in subsection (a)(4) in the first sentence by striking
``or result'' and all that follows through the end of the
sentence and inserting a period; and
(C) in subsection (b)(3)(A) by striking ``or its critical
habitat''.
(10) Section 10(j)(2)(C)) (16 U.S.C. 1539(j)(2)(C)), as
amended by section 12(c) of this Act, is further amended--
(A) by striking ``that--'' and all that follows through
``(i) solely'' and inserting ``that solely''; and
[[Page H8553]]
(B) by striking ``; and'' and all that follows through the
end of the sentence and inserting a period.
SEC. 6. PETITIONS AND PROCEDURES FOR DETERMINATIONS AND
REVISIONS.
(a) Treatment of Petitions.--Section 4(b) (16 U.S.C.
1533(b)) is amended in paragraph (2), as redesignated by
section 5(b)(2) of this Act, by adding at the end of
subparagraph (A) the following: ``The Secretary shall not
make a finding that the petition presents substantial
scientific or commercial information indicating that the
petitioned action may be warranted unless the petitioner
provides to the Secretary a copy of all information cited in
the petition.''.
(b) Implementing Regulations.--
(1) Proposed regulations.--Section 4(b) (16 U.S.C. 1533(b))
is amended--
(A) in paragraph (4)(A), as redesignated by section 5(b)(2)
of this Act--
(i) in clause (i) by striking ``, and'' and inserting a
semicolon;
(ii) in clause (ii) by striking ``to the State agency in''
and inserting ``to the Governor of, and the State agency
in,'';
(iii) in clause (ii) by striking ``such agency'' and
inserting ``such Governor or agency'';
(iv) in clause (ii) by inserting ``and'' after the
semicolon at the end; and
(v) by adding at the end the following:
``(iii) maintain, and shall make available, a complete
record of all information concerning the determination or
revision in the possession of the Secretary, on a publicly
accessible website on the Internet, including an index to
such information.''; and
(B) by adding at the end the following:
``(8)(A) Information maintained and made available under
paragraph (5)(A)(iii) shall include any status review, all
information cited in such a status review, all information
referred to in the proposed regulation and the preamble to
the proposed regulation, and all information submitted to the
Secretary by third parties.
``(B) The Secretary shall withhold from public review under
paragraph (5)(A)(iii) any information that may be withheld
under 552 of title 5, United States Code.''.
(2) Final regulations.--Paragraph (5) of section 4(b) (16
U.S.C. 1533(b)), as amended by section 5(b)(2) of this Act,
is further amended--
(A) in subparagraph (A) by striking clauses (i) and (ii)
and inserting the following:
``(i) a final regulation to implement such a determination
of whether a species is an endangered species or a threatened
species;
``(ii) notice that such one-year period is being extended
under subparagraph (B)(i); or
``(iii) notice that the proposed regulation is being
withdrawn under subparagraph (B)(ii), together with the
finding on which such withdrawal is based.'';
(B) in subparagraph (B)(i) by striking ``subparagraph
(A)(i)'' and inserting ``subparagraph (A)'';
(C) in subparagraph (B)(ii) by striking ``subparagraph
(A)(i)'' and inserting ``subparagraph (A)''; and
(D) by striking subparagraph (C).
(3) Emergency determinations.--Paragraph (6) of section
4(b) (16 U.S.C. 1533(b)), as redesignated by section 5(b)(2)
of this Act, is further amended--
(A) in the matter preceding subparagraph (A), by inserting
``with respect to a determination of a species to be an
endangered species or a threatened species'' after ``any
regulation''; and
(B) in subparagraph (B), by striking ``the State agency
in'' and inserting ``the Governor of, and State agency in,''.
SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS.
Section 4(c) (16 U.S.C. 1533(c)) is amended by inserting at
the end the following:
``(3) Each determination under paragraph (2)(B) shall
consider one of the following:
``(A) Except as provided in subparagraph (B) of this
paragraph, the criteria in the recovery plan for the species
required by section 5(c)(1)(A) or (B).
``(B) If the recovery plan is issued before the criteria
required under section 5(c)(1)(A) and (B) are established or
if no recovery plan exists for the species, the factors for
determination that a species is an endangered species or a
threatened species set forth in subsections (a)(1) and
(b)(1).
``(C) A finding of fundamental error in the determination
that the species is an endangered species, a threatened
species, or extinct.
``(D) A determination that the species is no longer an
endangered species or threatened species or in danger of
extinction, based on an analysis of the factors that are the
basis for listing under section 4(a)(1).''.
SEC. 8. SECRETARIAL GUIDELINES; STATE COMMENTS.
Section 4 (16 U.S.C. 1533) is amended--
(1) by striking subsections (f) and (g) and redesignating
subsections (h) and (i) as subsections (f) and (g),
respectively;
(2) in subsection (f), as redesignated by paragraph (1) of
this subsection--
(A) in the heading by striking ``Agency'' and inserting
``Secretarial'';
(B) in the matter preceding paragraph (1), by striking
``the purposes of this section are achieved'' and inserting
``this section is implemented'';
(C) by redesignating paragraph (4) as paragraph (5);
(D) in paragraph (3) by striking ``and'' after the
semicolon at the end, and by inserting after paragraph (3)
the following:
``(4) the criteria for determining best available
scientific data pursuant to section 3(2); and''; and
(E) in paragraph (5), as redesignated by subparagraph (C)
of this paragraph, by striking ``subsection (f) of this
section'' and inserting ``section 5''; and
(3) in subsection (g), as redesignated by paragraph (1) of
this section--
(A) by inserting ``Comments.--'' before the first sentence;
(B) by striking ``a State agency'' the first place it
appears and inserting ``a Governor, State agency, county (or
equivalent jurisdiction), or unit of local government'';
(C) by striking ``a State agency'' the second place it
appears and inserting ``a Governor, State agency, county (or
equivalent jurisdiction), or unit of local government'';
(D) by striking ``the State agency'' and inserting ``the
Governor, State agency, county (or equivalent jurisdiction),
or unit of local government, respectively''; and
(E) by striking ``agency's''.
SEC. 9. RECOVERY PLANS AND LAND ACQUISITIONS.
(a) In General.--Section 5 (16 U.S.C. 1534) is amended--
(1) by redesignating subsections (a) and (b) as subsections
(k) and (l), respectively;
(2) in subsection (l), as redesignated by paragraph (1) of
this section, by striking ``subsection (a) of this section''
and inserting ``subsection (k)''; and
(3) by striking so much as precedes subsection (k), as
redesignated by paragraph (1) of this section, and inserting
the following:
``Recovery plans and land acquisition
``Sec. 5. (a) Recovery Plans.--The Secretary shall, in
accordance with this section, develop and implement a plan
(in this subsection referred to as a `recovery plan') for the
species determined under section 4(a)(1) to be an endangered
species or a threatened species, unless the Secretary finds
that such a plan will not promote the conservation and
survival of the species.
``(b) Development of Recovery Plans.--(1) Subject to
paragraphs (2) and (3), the Secretary, in developing recovery
plans, shall, to the maximum extent practicable, give
priority to those endangered species or threatened species,
without regard to taxonomic classification, that are most
likely to benefit from such plans, particularly those species
that are, or may be, in conflict with construction or other
development projects or other forms of economic activity.
``(2) In the case of any species determined to be an
endangered species or threatened species after the date of
the enactment of the Threatened and Endangered Species
Recovery Act of 2005, the Secretary shall publish a final
recovery plan for a species within 2 years after the date the
species is listed under section 4(c).
``(3)(A) For those species that are listed under section
4(c) on the date of enactment of the Threatened and
Endangered Species Recovery Act of 2005 and are described in
subparagraph (B) of this paragraph, the Secretary, after
providing for public notice and comment, shall--
``(i) not later than 1 year after such date, publish in the
Federal Register a priority ranking system for preparing or
revising such recovery plans that is consistent with
paragraph (1) and takes into consideration the scientifically
based needs of the species; and
``(ii) not later than 18 months after such date, publish in
the Federal Register a list of such species ranked in
accordance with the priority ranking system published under
clause (i) for which such recovery plans will be developed or
revised, and a tentative schedule for such development or
revision.
``(B) A species is described in this subparagraph if--
``(i) a recovery plan for the species is not published
under this Act before the date of enactment of the Threatened
and Endangered Species Recovery Act of 2005 and the Secretary
finds such a plan would promote the conservation and survival
of the species; or
``(ii) a recovery plan for the species is published under
this Act before such date of enactment and the Secretary
finds revision of such plan is warranted.
``(C)(i) The Secretary shall, to the maximum extent
practicable, adhere to the list and tentative schedule
published under subparagraph (A)(ii) in developing or
revising recovery plans pursuant to this paragraph.
``(ii) The Secretary shall provide the reasons for any
deviation from the list and tentative schedule published
under subparagraph (A)(ii), in each report to the Congress
under subsection (e).
``(4) The Secretary, using the priority ranking system
required under paragraph (3), shall prepare or revise such
plans within 10 years after the date of the enactment of the
Threatened and Endangered Species Recovery Act of 2005.
``(c) Plan Contents.--(1)(A) Except as provided in
subparagraph (E), a recovery plan shall be based on the best
available scientific data and shall include the following:
``(i) Objective, measurable criteria that, when met, would
result in a determination, in accordance with this section,
that the species to which the recovery plan applies be
removed from the lists published under section 4(c) or be
reclassified from an endangered species to a threatened
species.
``(ii) A description of such site-specific or other
measures that would achieve the criteria established under
clause (i), including
[[Page H8554]]
such intermediate measures as are warranted to effect
progress toward achievement of the criteria.
``(iii) Estimates of the time required and the costs to
carry out those measures described under clause (ii),
including, to the extent practicable, estimated costs for any
recommendations, by the recovery team, or by the Secretary if
no recovery team is selected, that any of the areas
identified under clause (iv) be acquired on a willing seller
basis.
``(iv) An identification of those specific areas that are
of special value to the conservation of the species.
``(B) Those members of any recovery team appointed pursuant
to subsection (d) with relevant scientific expertise, or the
Secretary if no recovery team is appointed, shall, based
solely on the best available scientific data, establish the
objective, measurable criteria required under subparagraph
(A)(i).
``(C)(i) If the recovery team, or the Secretary if no
recovery team is appointed, determines in the recovery plan
that insufficient best available scientific data exist to
determine criteria or measures under subparagraph (A) that
could achieve a determination to remove the species from the
lists published under section 4(c), the recovery plan shall
contain interim criteria and measures that are likely to
improve the status of the species.
``(ii) If a recovery plan does not contain the criteria and
measures provided for by clause (i) of subparagraph (A), the
recovery team for the plan, or by the Secretary if no
recovery team is appointed, shall review the plan at
intervals of no greater than 5 years and determine if the
plan can be revised to contain the criteria and measures
required under subparagraph (A).
``(iii) If the recovery team or the Secretary,
respectively, determines under clause (ii) that a recovery
plan can be revised to add the criteria and measures provided
for under subparagraph (A), the recovery team or the
Secretary, as applicable, shall revise the recovery plan to
add such criteria and measures within 2 years after the date
of the determination.
``(D) In specifying measures in a recovery plan under
subparagraph (A), a recovery team or the Secretary, as
applicable, shall--
``(i) whenever possible include alternative measures; and
``(ii) in developing such alternative measures, the
Secretary shall seek to identify, among such alternative
measures of comparable expected efficacy, the alternative
measures that are least costly.
``(E) Estimates of time and costs pursuant to subparagraph
(A)(iii), and identification of the least costly alternatives
pursuant to subparagraph (D)(ii), are not required to be
based on the best available scientific data.
``(2) Any area that, immediately before the enactment of
the Threatened and Endangered Species Recovery Act of 2005,
is designated as critical habitat of an endangered species or
threatened species shall be treated as an area described in
subparagraph (A)(iv) until a recovery plan for the species is
developed or the existing recovery plan for the species is
revised pursuant to subsection (b)(3).
``(d) Recovery Teams.--(1) The Secretary shall promulgate
regulations that provide for the establishment of recovery
teams for development of recovery plans under this section.
``(2) Such regulations shall--
``(A) establish criteria and the process for selecting the
members of recovery teams, and the process for preparing
recovery plans, that ensure that each team--
``(i) is of a size and composition to enable timely
completion of the recovery plan; and
``(ii) includes sufficient representation from
constituencies with a demonstrated direct interest in the
species and its conservation or in the economic and social
impacts of its conservation to ensure that the views of such
constituencies will be considered in the development of the
plan;
``(B) include provisions regarding operating procedures of
and recordkeeping by recovery teams;
``(C) ensure that recovery plans are scientifically
rigorous and that the evaluation of costs required by
paragraphs (1)(A)(iii) and (1)(D) of subsection (c) are
economically rigorous; and
``(D) provide guidelines for circumstances in which the
Secretary may determine that appointment of a recovery team
is not necessary or advisable to develop a recovery plan for
a specific species, including procedures to solicit public
comment on any such determination.
``(3) The Federal Advisory Committee Act (5 App. U.S.C.)
shall not apply to recovery teams appointed in accordance
with regulations issued by the Secretary under this
subsection.
``(e) Reports to Congress.--(1) The Secretary shall report
every two years to the Committee on Resources of the House of
Representatives and the Committee on Environment and Public
Works of the Senate on the status of all domestic endangered
species and threatened species and the status of efforts to
develop and implement recovery plans for all domestic
endangered species and threatened species.
``(2) In reporting on the status of such species since the
time of its listing, the Secretary shall include--
``(A) an assessment of any significant change in the well-
being of each such species, including--
``(i) changes in population, range, or threats; and
``(ii) the basis for that assessment; and
``(B) for each species, a measurement of the degree of
confidence in the reported status of such species, based upon
a quantifiable parameter developed for such purposes.
``(f) Public Notice and Comment.--The Secretary shall,
prior to final approval of a new or revised recovery plan,
provide public notice and an opportunity for public review
and comment on such plan. The Secretary shall consider all
information presented during the public comment period prior
to approval of the plan.
``(g) State Comment.--The Secretary shall, prior to final
approval of a new or revised recovery plan, provide a draft
of such plan and an opportunity to comment on such draft to
the Governor of, and State agency in, any State to which such
draft would apply. The Secretary shall include in the final
recovery plan the Secretary's response to the comments of the
Governor and the State agency.
``(h) Consultation to Ensure Consistency With Development
Plan.--(1) The Secretary shall, prior to final approval of a
new or revised recovery plan, consult with any pertinent
State, Indian tribe, or regional or local land use agency or
its designee.
``(2) For purposes of this Act, the term `Indian tribe'
means--
``(A) with respect to the 48 contiguous States, any
federally recognized Indian tribe, organized band, pueblo, or
community; and
``(B) with respect to Alaska, the Metlakatla Indian
Community.
``(i) Use of Plans.--(1) Each Federal agency shall consider
any relevant best available scientific data contained in a
recovery plan in any analysis conducted under section 102 of
the National Environmental Policy Act of 1969 (42 U.S.C.
4332).
``(2)(A)(i) The head of any Federal agency may enter into
an agreement with the Secretary specifying the measures the
agency will carry out to implement a recovery plan.
``(ii) Each such agreement shall be published in draft form
with notice and an opportunity for public comment.
``(iii) Each such final agreement shall be published, with
responses by the head of the Federal agency to any public
comments submitted on the draft agreement.
``(B) Nothing in a recovery plan shall be construed to
establish regulatory requirements.
``(j) Monitoring.--(1) The Secretary shall implement a
system in cooperation with the States to monitor effectively
for not less than five years the status of all species that
have recovered to the point at which the measures provided
pursuant to this Act are no longer necessary and that, in
accordance with this section, have been removed from the
lists published under section 4(c).
``(2) The Secretary shall make prompt use of the authority
under section 4(b)(7) to prevent a significant risk to the
well-being of any such recovered species.''.
(b) Recovery Plans for Species Occupying More Than One
State.--Section 6 (16 U.S.C. 1535) is amended by adding at
the end the following:
``(j) Recovery Plans for Species Occupying More Than One
State.--Any recovery plan under section 5 for an endangered
species or a threatened species that occupies more than one
State shall identify criteria and actions pursuant to
subsection (c)(1) of section 5 for each State that are
necessary so that the State may pursue a determination that
the portion of the species found in that State may be removed
from lists published under section 4(c).''.
(c) Threatened and Endangered Species Incentives Program.--
(1) Agreements authorized.--Section 5 (16 U.S.C. 1534) is
further amended by adding at the end the following:
``(m) Threatened and Endangered Species Incentives
Program.--(1) The Secretary may enter into species recovery
agreements pursuant to paragraph (2) and species conservation
contract agreements pursuant to paragraph (3) with persons,
other than agencies or departments of the Federal Government
or State governments, under which the Secretary is obligated,
subject to the availability of appropriations, to make annual
payments or provide other compensation to the persons to
implement the agreements.
``(2)(A) The Secretary and persons who own or control the
use of private land may enter into species recovery
agreements with a term of not less than 5 years that meet the
criteria set forth in subparagraph (B) and are in accordance
with the priority established in subparagraph (C).
``(B) A species recovery agreement entered into under this
paragraph by the Secretary with a person--
``(i) shall require that the person shall carry out, on the
land owned or controlled by the person, activities that--
``(I) protect and restore habitat for covered species that
are species determined to be endangered species or threatened
species pursuant to section 4(a)(1);
``(II) contribute to the conservation of one or more
covered species; and
``(III) specify and implement a management plan for the
covered species;
``(ii) shall specify such a management plan that includes--
``(I) identification of the covered species;
``(II) a description of the land to which the agreement
applies; and
``(III) a description of, and a schedule to carry out, the
activities under clause (i);
``(iii) shall provide sufficient documentation to establish
ownership or control by the
[[Page H8555]]
person of the land to which the agreement applies;
``(iv) shall include the amounts of the annual payments or
other compensation to be provided by the Secretary to the
person under the agreement, and the terms under which such
payments or compensation shall be provided; and
``(v) shall include--
``(I) the duties of the person;
``(II) the duties of the Secretary;
``(III) the terms and conditions under which the person and
the Secretary mutually agree the agreement may be modified or
terminated; and
``(IV) acts or omissions by the person or the Secretary
that shall be considered violations of the agreement, and
procedures under which notice of and an opportunity to remedy
any violation by the person or the Secretary shall be given.
``(C) In entering into species recovery agreements under
this paragraph, the Secretary shall accord priority to
agreements that apply to any areas that are identified in
recovery plans pursuant to subsection (c)(1)(A)(iv).
``(3)(A) The Secretary and persons who own private land may
enter into species conservation contract agreements with
terms of 30 years, 20 years, or 10 years that meet the
criteria set forth in subparagraph (B) and standards set
forth in subparagraph (D) and are in accordance with the
priorities established in subparagraph (C).
``(B) A species conservation contract agreement entered
into under this paragraph by the Secretary with a person--
``(i) shall provide that the person shall, on the land
owned by the person--
``(I) carry out conservation practices to meet one or more
of the goals set forth in clauses (i) through (iii) of
subparagraph (C) for one or more covered species, that are
species that are determined to be endangered species or
threatened species pursuant to section 4(a)(1), species
determined to be candidate species pursuant to section
4(b)(3)(B)(iii), or species subject to comparable
designations under State law; and
``(II) specify and implement a management plan for the
covered species;
``(ii) shall specify such a management plan that includes--
``(I) identification of the covered species;
``(II) a description in detail of the conservation
practices for the covered species that the person shall
undertake;
``(III) a description of the land to which the agreement
applies; and
``(IV) a schedule of approximate deadlines, whether one-
time or periodic, for undertaking the conservation practices
described pursuant to subclause (II);
``(V) a description of existing or future economic
activities on the land to which the agreement applies that
are compatible with the conservation practices described
pursuant to subclause (II) and generally with conservation of
the covered species;
``(iii) shall specify the term of the agreement; and
``(iv) shall include--
``(I) the duties of the person;
``(II) the duties of the Secretary;
``(III) the terms and conditions under which the person and
the Secretary mutually agree the agreement may be modified or
terminated;
``(IV) acts or omissions by the person or the Secretary
that shall be considered violations of the agreement, and
procedures under which notice of and an opportunity to remedy
any violation by the person or the Secretary shall be given;
and
``(V) terms and conditions for early termination of the
agreement by the person before the management plan is fully
implemented or termination of the agreement by the Secretary
in the case of a violation by the person that is not remedied
under subclause (IV), including any requirement for the
person to refund all or part of any payments received under
subparagraph (E) and any interest thereon.
``(C) The Secretary shall establish priorities for the
selection of species conservation contract agreements, or
groups of such agreements for adjacent or proximate lands, to
be entered into under this paragraph that address the
following factors:
``(i) The potential of the land to which the agreement or
agreements apply to contribute significantly to the
conservation of an endangered species or threatened species
or a species with a comparable designation under State law.
``(ii) The potential of such land to contribute
significantly to the improvement of the status of a candidate
species or a species with a comparable designation under
State law.
``(iii) The amount of acreage of such land.
``(iv) The number of covered species in the agreement or
agreements.
``(v) The degree of urgency for the covered species to
implement the conservation practices in the management plan
or plans under the agreement or agreements.
``(vi) Land in close proximity to military test and
training ranges, installations, and associated airspace that
is affected by a covered species.
``(D) The Secretary shall enter into a species conservation
contract agreement submitted by a person, if the Secretary
finds that the person owns such land or has sufficient
control over the use of such land to ensure implementation of
the management plan under the agreement.
``(E)(i) Upon entering into a species conservation contract
agreement with the Secretary pursuant to this paragraph, a
person shall receive the financial assistance provided for in
this subparagraph.
``(ii) If the person is implementing fully the agreement,
the person shall receive from the Secretary--
``(I) in the case of a 30-year agreement, an annual
contract payment in an amount equal to 100 percent of the
person's actual costs to implement the conservation practices
described in the management plan under the terms of the
agreement;
``(II) in the case of a 20-year agreement, an annual
contract payment in an amount equal to 80 percent of the
person's actual costs to implement the conservation practices
described in the management plan under the terms of the
agreement; and
``(III) in the case of a 10-year agreement, an annual
contract payment in an amount equal to 60 percent of the
person's actual costs to implement the conservation practices
described in the management plan under the terms of the
agreement.
``(iii)(I) If the person receiving contract payments
pursuant to clause (ii) receives any other State or Federal
funds to defray the cost of any conservation practice, the
cost of such practice shall not be eligible for such contract
payments.
``(II) Contributions of agencies or organizations to any
conservation practice other than the funds described in
subclause (I) shall not be considered as costs of the person
for purposes of the contract payments pursuant to clause
(iii).
``(4)(A) Upon request of a person seeking to enter into an
agreement pursuant to this subsection, the Secretary may
provide to such person technical assistance in the
preparation, and management training for the implementation,
of the management plan for the agreement.
``(B) Any State agency, local government, nonprofit
organization, or federally recognized Indian tribe may
provide assistance to a person in the preparation of a
management plan, or participate in the implementation of a
management plan, including identifying and making available
certified fisheries or wildlife biologists with expertise in
the conservation of species for purposes of the preparation
or review and approval of management plans for species
conservation contract agreements under paragraph (3)(D)(iii).
``(5) Upon any conveyance or other transfer of interest in
land that is subject to an agreement under this subsection--
``(A) the agreement shall terminate if the agreement does
not continue in effect under subparagraph (B);
``(B) the agreement shall continue in effect with respect
to such land, with the same terms and conditions, if the
person to whom the land or interest is conveyed or otherwise
transferred notifies the Secretary of the person's election
to continue the agreement by no later than 30 days after the
date of the conveyance or other transfer and the person is
determined by the Secretary to qualify to enter into an
agreement under this subsection; or
``(C) the person to whom the land or interest is conveyed
or otherwise transferred may seek a new agreement under this
subsection.
``(6) An agreement under this subsection may be renewed
with the mutual consent of the Secretary and the person who
entered into the agreement or to whom the agreement has been
transferred under paragraph (5).
``(7) The Secretary shall make annual payments under this
subsection as soon as possible after December 31 of each
calendar year.
``(8) An agreement under this subsection that applies to an
endangered species or threatened species shall, for the
purpose of section 10(a)(4), be deemed to be a permit to
enhance the propagation or survival of such species under
section 10(a)(1), and a person in full compliance with the
agreement shall be afforded the protection of section
10(a)(4).
``(9) The Secretary, or any other Federal official, may not
require a person to enter into an agreement under this
subsection as a term or condition of any right, privilege, or
benefit, or of any action or refraining from any action,
under this Act.''.
(2) Subsection (e)(2) of section 7 (16 U.S.C. 1536) (as
redesignated by section 11(d)(2) of this Act) is amended by
inserting ``or in an agreement under section 5(m)'' after
``section''.
(d) Conforming Amendments.--
(1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by
striking ``section 4(g)'' and inserting ``section 5(j)''.
(2) The Marine Mammal Protection Act of 1972 is amended--
(A) in section 104(c)(4)(A)(ii) (16 U.S.C.
1374(c)(4)(A)(ii)) by striking ``section 4(f)'' and inserting
``section 5''; and
(B) in section 115(b)(2) (16 U.S.C. 1383b(b)(2)) by
striking ``section 4(f) of the Endangered Species Act of 1973
(16 U.S.C. 1533(f))'' and inserting ``section 5 of the
Endangered Species Act of 1973''.
SEC. 10. COOPERATION WITH STATES AND INDIAN TRIBES.
Section 6 (16 U.S.C. 1535) is further amended--
(1) in subsection (c), by adding at the end the following:
``(3)(A) Any cooperative agreement entered into by the
Secretary under this subsection may also provide for
development of a program for conservation of species
determined to be candidate species pursuant to section
4(b)(3)(B)(iii) or any other species that the State and the
Secretary agree is at risk of being determined to be an
endangered species or threatened species under section
[[Page H8556]]
4(a)(1) in that State. Upon completion of consultation on the
agreement pursuant to subsection (e)(2), any incidental take
statement issued on the agreement shall apply to any such
species, and to the State and any landowners enrolled in any
program under the agreement, without further consultation
(except any additional consultation pursuant to subsection
(e)(2)) if the species is subsequently determined to be an
endangered species or a threatened species and the agreement
remains an adequate and active program for the conservation
of endangered species and threatened species.
``(B) Any cooperative agreement entered into by the
Secretary under this subsection may also provide for
monitoring or assistance in monitoring the status of
candidate species pursuant to section 4(b)(3)(C)(iii) or
recovered species pursuant to section 5(j).
``(C) The Secretary shall periodically review each
cooperative agreement under this subsection and seek to make
changes the Secretary considers necessary for the
conservation of endangered species and threatened species to
which the agreement applies.
``(4) Any cooperative agreement entered into by the
Secretary under this subsection that provides for the
enrollment of private lands or water rights in any program
established by the agreement shall ensure that the decision
to enroll is voluntary for each owner of such lands or water
rights.
``(5)(A) The Secretary may enter into a cooperative
agreement under this subsection with an Indian tribe in
substantially the same manner in which the Secretary may
enter into a cooperative agreement with a State.
``(B) For the purposes of this paragraph, the term `Indian
tribe' means--
``(i) with respect to the 48 contiguous States, any
federally recognized Indian tribe, organized band, pueblo, or
community; and
``(ii) with respect to Alaska, the Metlakatla Indian
Community.'';
(2) in subsection (d)(1)--
(A) by striking ``pursuant to subsection (c) of this
section'';
(B) by striking ``or to assist'' and all that follows
through ``section 5(j)'' and inserting ``pursuant to
subsection (c)(1) and (2) or to address candidate species or
other species at risk and recovered species pursuant to
subsection (c)(3)''; and
(C) in subparagraph (F), by striking ``monitoring the
status of candidate species'' and inserting ``developing a
conservation program for, or monitoring the status of,
candidate species or other species determined to be at risk
pursuant to subsection (c)(3)''; and
(3) in subsection (e)--
(A) by inserting ``(1)'' before the first sentence;
(B) in paragraph (1), as designated by subparagraph (A) of
this paragraph, by striking ``at no greater than annual
intervals'' and inserting ``every 3 years''; and
(C) by adding at the end the following:
``(2) Any cooperative agreement entered into by the
Secretary under subsection (c) shall be subject to section
7(a)(2) through (d) and regulations implementing such
provisions only before--
``(A) the Secretary enters into the agreement; and
``(B) the Secretary approves any renewal of, or amendment
to, the agreement that--
``(i) addresses species that are determined to be
endangered species or threatened species, are not addressed
in the agreement, and may be affected by the agreement; or
``(ii) new information about any species addressed in the
agreement that the Secretary determines--
``(I) constitutes the best available scientific data; and
``(II) indicates that the agreement may have adverse
effects on the species that had not been considered
previously when the agreement was entered into or during any
revision thereof or amendment thereto.
``(3) The Secretary may suspend any cooperative agreement
established pursuant to subsection (c), after consultation
with the Governor of the affected State, if the Secretary
finds during the periodic review required by paragraph (1) of
this subsection that the agreement no longer constitutes an
adequate and active program for the conservation of
endangered species and threatened species.
``(4) The Secretary may terminate any cooperative agreement
entered into by the Secretary under subsection (c), after
consultation with the Governor of the affected State, if--
``(A) as result of the procedures of section 7(a)(2)
through (d) undertaken pursuant to paragraph (2) of this
subsection, the Secretary determines that continued
implementation of the cooperative agreement is likely to
jeopardize the continued existence of endangered species or
threatened species, and the cooperative agreement is not
amended or revised to incorporate a reasonable and prudent
alternative offered by the Secretary pursuant to section
7(b)(3); or
``(B) the cooperative agreement has been suspended under
paragraph (3) of this subsection and has not been amended or
revised and found by the Secretary to constitute an adequate
and active program for the conservation of endangered species
and threatened species within 180 days after the date of the
suspension.''.
SEC. 11. INTERAGENCY COOPERATION AND CONSULTATION.
(a) Consultation Requirement.--Section 7(a) (16 U.S.C.
1536(a)) is amended--
(1) in paragraph (1) in the second sentence, by striking
``endangered species'' and all that follows through the end
of the sentence and inserting ``species determined to be
endangered species and threatened species under section 4.'';
(2) in paragraph (2)--
(A) in the first sentence by striking ``action'' the first
place it appears and all that follows through ``is not'' and
inserting ``agency action authorized, funded, or carried out
by such agency is not'';
(B) in the first sentence by striking ``, unless'' and all
that follows through the end of the sentence and inserting a
period;
(C) in the second sentence, by striking ``best scientific
and commercial data available'' and inserting ``best
available scientific data''; and
(D) by inserting ``(A)'' before the first sentence, and by
adding at the end the following:
``(B) The Secretary may identify specific agency actions or
categories of agency actions that may be determined to meet
the standards of this paragraph by alternative procedures to
the procedures set forth in this subsection and subsections
(b) through (d), except that subsections (b)(4) and (e) may
apply only to an action that the Secretary finds, or concurs,
does meet such standards, and the Secretary shall suggest, or
concur in any suggested, reasonable and prudent alternatives
described in subsection (b)(3) for any action determined not
to meet such standards. Any such agency action or category of
agency actions shall be identified, and any such alternative
procedures shall be established, by regulation promulgated
prior or subsequent to the date of the enactment of this
Act.'';
(3) in paragraph (4)--
(A) by striking ``listed under section 4'' and inserting
``an endangered species or a threatened species''; and
(B) by inserting ``, under section 4'' after ``such
species''; and
(4) by adding at the end the following:
``(5) Any Federal agency or the Secretary, in conducting
any analysis pursuant to paragraph (2), shall consider only
the effects of any agency action that are distinct from a
baseline of all effects upon the relevant species that have
occurred or are occurring prior to the action.''.
(b) Opinion of Secretary.--Section 7(b) (16 U.S.C. 1536(b))
is amended--
(1) in paragraph (1)(B)(i) by inserting ``permit or
license'' before ``applicant'';
(2) in paragraph (2) by inserting ``permit or license''
before ``applicant'';
(3) in paragraph (3)(A)--
(A) in the first sentence--
(i) by striking ``Promptly after'' and inserting
``Before'';
(ii) by inserting ``permit or license'' before
``applicant''; and
(iii) by inserting ``proposed'' before ``written
statement''; and
(B) by striking all after the first sentence and inserting
the following: ``The Secretary shall consider any comment
from the Federal agency and the permit or license applicant,
if any, prior to issuance of the final written statement of
the Secretary's opinion. The Secretary shall issue the final
written statement of the Secretary's opinion by providing the
written statement to the Federal agency and the permit or
license applicant, if any, and publishing notice of the
written statement in the Federal Register. If jeopardy is
found, the Secretary shall suggest in the final written
statement those reasonable and prudent alternatives, if any,
that the Secretary believes would not violate subsection
(a)(2) and can be taken by the Federal agency or applicant in
implementing the agency action. The Secretary shall cooperate
with the Federal agency and any permit or license applicant
in the preparation of any suggested reasonable and prudent
alternatives.'';
(4) in paragraph (4)--
(A) by redesignating subparagraphs (A), (B), and (C) as
clauses (i), (ii), and (iii), respectively;
(B) by inserting ``(A)'' after ``(4)'';
(C) by striking ``the Secretary shall provide'' and all
that follows through ``with a written statement that--'' and
inserting the following: ``the Secretary shall include in the
written statement under paragraph (3), a statement described
in subparagraph (B) of this paragraph.
``(B) A statement described in this subparagraph--''; and
(5) by adding at the end the following:
``(5)(A) Any terms and conditions set forth pursuant to
paragraph (4)(B)(iv) shall be roughly proportional to the
impact of the incidental taking identified pursuant to
paragraph (4) in the written statement prepared under
paragraph (3).
``(B) If various terms and conditions are available to
comply with paragraph (4)(B)(iv), the terms and conditions
set forth pursuant to that paragraph--
``(i) must be capable of successful implementation; and
``(ii) must be consistent with the objectives of the
Federal agency and the permit or license applicant, if any,
to the greatest extent possible.''.
(c) Biological Assessments.--Section 7(c) (16 U.S.C.
1536(c)) is amended--
(1) by striking ``(1)'';
(2) by striking paragraph (2);
(3) in the first sentence, by striking ``which is listed''
and all that follows through the end of the sentence and
inserting ``that is determined to be an endangered species or
a threatened species, or for which such a determination is
proposed pursuant to section 4, may be present in the area of
such proposed action.''; and
[[Page H8557]]
(4) in the second sentence, by striking ``best scientific
and commercial data available'' and inserting ``best
available scientific data''.
(d) Elimination of Endangered Species Committee Process.--
Section 7 (16 U.S.C. 1536) is amended--
(1) by repealing subsections (e), (f), (g), (h), (i), (j),
(k), (l), (m), and (n);
(2) by redesignating subsections (o) and (p) as subsections
(e) and (f), respectively;
(3) in subsection (e), as redesignated by paragraph (2) of
this subsection--
(A) in the heading, by striking ``Exemption as Providing'';
and
(B) by striking ``such section'' and all that follows
through ``(2)'' and inserting ``such section,''; and
(4) in subsection (f), as redesignated by paragraph (2) of
this subsection--
(A) in the first sentence, by striking ``is authorized''
and all that follows through ``of this section'' and
inserting ``may exempt an agency action from compliance with
the requirements of subsections (a) through (d) of this
section before the initiation of such agency action,''; and
(B) by striking the second sentence.
SEC. 12. EXCEPTIONS TO PROHIBITIONS.
(a) Incidental Take Permits.--Section 10(a)(2) (16 U.S.C.
1539(a)(2)) is amended--
(1) in subparagraph (A) by striking ``and'' after the
semicolon at the end of clause (iii), by redesignating clause
(iv) as clause (vii), and by inserting after clause (iii) the
following:
``(iv) objective, measurable biological goals to be
achieved for species covered by the plan and specific
measures for achieving such goals consistent with the
requirements of subparagraph (B);
``(v) measures the applicant will take to monitor impacts
of the plan on covered species and the effectiveness of the
plan's measures in achieving the plan's biological goals;
``(vi) adaptive management provisions necessary to respond
to all reasonably foreseeable changes in circumstances that
could appreciably reduce the likelihood of the survival and
recovery of any species covered by the plan; and'';
(2) in subparagraph (B) by striking ``and'' after the
semicolon at the end of clause (iv), by redesignating clause
(v) as clause (vi), and by inserting after clause (iv) the
following:
``(v) the term of the permit is reasonable, taking into
consideration--
``(I) the period in which the applicant can be expected to
diligently complete the principal actions covered by the
plan;
``(II) the extent to which the plan will enhance the
conservation of covered species;
``(III) the adequacy of information underlying the plan;
``(IV) the length of time necessary to implement and
achieve the benefits of the plan; and
``(V) the scope of the plan's adaptive management strategy;
and''; and
(3) by striking subparagraph (C) and inserting the
following:
``(3) Any terms and conditions offered by the Secretary
pursuant to paragraph (2)(B) to reduce or offset the impacts
of incidental taking shall be roughly proportional to the
impact of the incidental taking specified in the conservation
plan pursuant to in paragraph (2)(A)(i). This paragraph shall
not be construed to limit the authority of the Secretary to
require greater than acre-for-acre mitigation where necessary
to address the extent of such impacts. In any case in which
various terms and conditions are available, the terms and
conditions shall be capable of successful implementation and
shall be consistent with the objective of the applicant to
the greatest extent possible.
``(4)(A) If the holder of a permit issued under this
subsection for other than scientific purposes is in
compliance with the terms and conditions of the permit, and
any conservation plan or agreement incorporated by reference
therein, the Secretary may not require the holder, without
the consent of the holder, to adopt any new minimization,
mitigation, or other measure with respect to any species
adequately covered by the permit during the term of the
permit, except as provided in subparagraphs (B) and (C) to
meet circumstances that have changed subsequent to the
issuance of the permit.
``(B) For any circumstance identified in the permit or
incorporated document that has changed, the Secretary may, in
the absence of consent of the permit holder, require only
such additional minimization, mitigation, or other measures
as are already provided in the permit or incorporated
document for such changed circumstance.
``(C) For any changed circumstance not identified in the
permit or incorporated document, the Secretary may, in the
absence of consent of the permit holder, require only such
additional minimization, mitigation, or other measures to
address such changed circumstance that do not involve the
commitment of any additional land, water, or financial
compensation not otherwise committed, or the imposition of
additional restrictions on the use of any land, water or
other natural resources otherwise available for development
or use, under the original terms and conditions of the permit
or incorporated document.
``(D) The Secretary shall have the burden of proof in
demonstrating and documenting, with the best available
scientific data, the occurrence of any changed circumstances
for purposes of this paragraph.
``(E) All permits issued under this subsection on or after
the date of the enactment of the Threatened and Endangered
Species Recovery Act of 2005, other than permits for
scientific purposes, shall contain the assurances contained
in subparagraphs (B) through (D) of this paragraph and
paragraph (5)(A) and (B). Permits issued under this
subsection on or after March 25, 1998, and before the date of
the enactment of the Threatened and Endangered Species
Recovery Act of 2005, other than permits for scientific
purposes, shall be governed by the applicable sections of
parts 17.22(b), (c), and (d), and 17.32(b), (c), and (d) of
title 50, Code of Federal Regulations, as the same exist on
the date of the enactment of the Threatened and Endangered
Species Act of 2005.
``(5)(A) The Secretary shall revoke a permit issued under
paragraph (2) if the Secretary finds that the permittee is
not complying with the terms and conditions of the permit.
``(B) Any permit subject to paragraph (4)(A) may be revoked
due to changed circumstances only if--
``(i) the Secretary determines that continuation of the
activities to which the permit applies would be inconsistent
with the criteria in paragraph (2)(B)(iv);
``(ii) the Secretary provides 60 days notice of revocation
to the permittee; and
``(iii) the Secretary is unable to, and the permittee
chooses not to, remedy the condition causing such
inconsistency.''.
(b) Extension of Period for Public Review and Comment on
Applications.--Section 10(c) (16 U.S.C. 1539(c)) is amended
in the second sentence by striking ``thirty'' each place it
appears and inserting ``45''.
(c) Experimental Populations.--Section 10(j) (16 U.S.C.
1539(j)) is amended--
(1) in paragraph (1), by striking ``For purposes'' and all
that follows through the end of the paragraph and inserting
the following: ``For purposes of this subsection, the term
`experimental population' means any population (including any
offspring arising therefrom) authorized by the Secretary for
release under paragraph (2), but only when such population is
in the area designated for it by the Secretary, and such area
is, at the time of release, wholly separate geographically
from areas occupied by nonexperimental populations of the
same species. For purposes of this subsection, the term
`areas occupied by nonexperimental populations' means areas
characterized by the sustained and predictable presence of
more than negligible numbers of successfully reproducing
individuals over a period of many years.'';
(2) in paragraph (2)(B), by striking ``information'' and
inserting ``scientific data''; and
(3) in paragraph (2)(C)(i), by striking ``listed'' and
inserting ``determined to be an endangered species or a
threatened species''.
(d) Written Determination of Compliance.--Section 10 (16
U.S.C. 1539) is amended by adding at the end the following:
``(k) Written Determination of Compliance.--(1) A property
owner (in this subsection referred to as a `requester') may
request the Secretary to make a written determination that a
proposed use of the owner's property that is lawful under
State and local law will comply with section 9(a), by
submitting a written description of the proposed action to
the Secretary by certified mail.
``(2) A written description of a proposed use is deemed to
be sufficient for consideration by the Secretary under
paragraph (1) if the description includes--
``(A) the nature, the specific location, the lawfulness
under State and local law, and the anticipated schedule and
duration of the proposed use, and a demonstration that the
property owner has the means to undertake the proposed use;
and
``(B) any anticipated adverse impact to a species that is
included on a list published under 4(c)(1) that the requestor
reasonably expects to occur as a result of the proposed use.
``(3) The Secretary may request and the requestor may
supply any other information that either believes will assist
the Secretary to make a determination under paragraph (1).
``(4) If the Secretary does not make a determination
pursuant to a request under this subsection because of the
omission from the request of any information described in
paragraph (2), the requestor may submit a subsequent request
under this subsection for the same proposed use.
``(5)(A) Subject to subparagraph (B), the Secretary shall
provide to the requestor a written determination of whether
the proposed use, as proposed by the requestor, will comply
with section 9(a), by not later than expiration of the 180-
day period beginning on the date of the submission of the
request.
``(B) The Secretary may request, and the requestor may
grant, a written extension of the period under subparagraph
(A).
``(6) If the Secretary fails to provide a written
determination before the expiration of the period under
paragraph (5)(A) (or any extension thereof under paragraph
(5)(B)), the Secretary is deemed to have determined that the
proposed use complies with section 9(a).
``(7) This subsection shall not apply with respect to
agency actions that are subject to consultation under section
7.
``(8) Any use or action taken by the property owner in
reasonable reliance on a written determination of compliance
under paragraph (5) or on the application of paragraph (6)
shall not be treated as a violation of section 9(a).
``(9) Any determination of compliance under this subsection
shall remain effective--
``(A) in the case of a written determination provided under
paragraph (5)(A), for the 10-
[[Page H8558]]
year period beginning on the date the written determination
is provided; or
``(B) in the case of a determination that under paragraph
(6) the Secretary is deemed to have made, the 5-year period
beginning on the first date the Secretary is deemed to have
made the determination.
``(10) The Secretary may withdraw a determination of
compliance under this section only if the Secretary
determines that, because of unforeseen changed circumstances,
the continuation of the use to which the determination
applies would preclude conservation measures essential to the
survival of any endangered species or threatened species.
Such a withdrawal shall take effect 10 days after the date
the Secretary provides notice of the withdrawal to the
requester.
``(11) The Secretary may extend the period that applies
under paragraph (5) by up to 180 days if seasonal
considerations make a determination impossible within the
period that would otherwise apply.''.
(e) National Security Exemption.--Section 10 (16 U.S.C.
1539) is further amended by adding at the end the following:
``(l) National Security.--The President, after consultation
with the appropriate Federal agency, may exempt any act or
omission from the provisions of this Act if such exemption is
necessary for national security.''.
(f) Disaster Declaration and Protection.--Section 10 (16
U.S.C. 1539) is further amended by adding at the end the
following:
``(m) Disaster Declaration and Protection.--(1) The
President may suspend the application of any provision of
this Act in any area for which a major disaster is declared
under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121 et seq.).
``(2) The Secretary shall, within one year after the date
of the enactment of the Threatened and Endangered Species
Recovery Act of 2005, promulgate regulations regarding
application of this Act in the event of an emergency
(including circumstances other than a major disaster referred
to in paragraph (1)) involving a threat to human health or
safety or to property, including regulations--
``(A) determining what constitutes an emergency for
purposes of this paragraph; and
``(B) to address immediate threats through expedited
consideration under or waiver of any provision of this
Act.''.
SEC. 13. PRIVATE PROPERTY CONSERVATION.
Section 13 (consisting of amendments to other laws, which
have executed) is amended to read as follows:
``Private property conservation
``Sec. 13. (a) In General.--The Secretary may provide
conservation grants (in this section referred to as `grants')
to promote the voluntary conservation of endangered species
and threatened species by owners of private property and
shall provide financial conservation aid (in this section
referred to as `aid') to alleviate the burden of conservation
measures imposed upon private property owners by this Act.
The Secretary may provide technical assistance when requested
to enhance the conservation effects of grants or aid.
``(b) Awarding of Grants and Aid.--Grants to promote
conservation of endangered species and threatened species on
private property--
``(1) may not be used to fund litigation, general
education, general outreach, lobbying, or solicitation;
``(2) may not be used to acquire leases or easements of
more than 50 years duration or fee title to private property;
``(3) must be designed to directly contribute to the
conservation of an endangered species or threatened species
by increasing the species' numbers or distribution; and
``(4) must be supported by any private property owners on
whose property any grant funded activities are carried out.
``(c) Priority.--Priority shall be accorded among grant
requests in the following order:
``(1) Grants that promote conservation of endangered
species or threatened species on private property while
making economically beneficial and productive use of the
private property on which the conservation activities are
conducted.
``(2) Grants that develop, promote, or use techniques to
increase the distribution or population of an endangered
species or threatened species on private property.
``(3) Other grants that promote voluntary conservation of
endangered species or threatened species on private property.
``(d) Eligibility for Aid.--(1) The Secretary shall award
aid to private property owners who--
``(A) received a written determination under section 10(k)
finding that the proposed use of private property would not
comply with section 9(a); or
``(B) receive notice under section 10(k)(10) that a written
determination has been withdrawn.
``(2) Aid shall be in an amount no less than the fair
market value of the use that was proposed by the property
owner if--
``(A) the owner has foregone the proposed use;
``(B) the owner has requested financial aid--
``(i) within 180 days of the Secretary's issuance of a
written determination that the proposed use would not comply
with section 9(a); or
``(ii) within 180 days after the property owner is notified
of a withdrawal under section 10(k)(10); and
``(C) the foregone use would be lawful under State and
local law and the property owner has demonstrated that the
property owner has the means to undertake the proposed use.
``(e) Distribution of Grants and Aid.--(1) The Secretary
shall pay eligible aid--
``(A) within 180 days after receipt of a request for aid
unless there are unresolved questions regarding the
documentation of the foregone proposed use or unresolved
questions regarding the fair market value; or
``(B) at the resolution of any questions concerning the
documentation of the foregone use established under
subsection (f) or the fair market value established under
subsection (g).
``(2) All grants provided under this section shall be paid
on the last day of the fiscal year. Aid shall be paid based
on the date of the initial request.
``(f) Documentation of the Foregone Use.--Within 30 days of
the request for aid, the Secretary shall enter into
negotiations with the property owner regarding the
documentation of the foregone proposed use through such
mechanisms such as contract terms, lease terms, deed
restrictions, easement terms, or transfer of title. If the
Secretary and the property owner are unable to reach an
agreement, then, within 60 days of the request for aid, the
Secretary shall determine how the property owner's foregone
use shall be documented with the least impact on the
ownership interests of the property owner necessary to
document the foregone use.
``(g) Fair Market Value.--For purposes of this section, the
fair market value of the foregone use of the affected portion
of the private property, including business losses, is what a
willing buyer would pay to a willing seller in an open
market. Fair market value shall take into account the
likelihood that the foregone use would be approved under
State and local law. The fair market value shall be
determined within 180 days of the documentation of the
foregone use. The fair market value shall be determined
jointly by 2 licensed independent appraisers, one selected by
the Secretary and one selected by the property owner. If the
2 appraisers fail to agree on fair market value, the
Secretary and the property owner shall jointly select a third
licensed appraiser whose appraisal within an additional 90
days shall be binding on the Secretary and the private
property owner. Within one year after the date of enactment
of the Threatened and Endangered Species Recovery Act of
2005, the Secretary shall promulgate regulations regarding
selection of the jointly selected appraisers under this
subsection.
``(h) Limitation on Aid Availability.--Any person receiving
aid under this section may not receive additional aid under
this section for the same foregone use of the same property
and for the same period of time.
``(i) Annual Reporting.--The Secretary shall by January 15
of each year provide a report of all aid and grants awarded
under this section to the Committee on Resources of the House
of Representatives and the Environment and Public Works
Committee of the Senate and make such report electronically
available to the general public on the website required under
section 14.''.
SEC. 14. PUBLIC ACCESSIBILITY AND ACCOUNTABILITY.
Section 14 (relating to repeals of other laws, which have
executed) is amended to read as follows:
``Public accessibility and accountability
``Sec. 14. The Secretary shall make available on a publicly
accessible website on the Internet--
``(1) each list published under section 4(c)(1);
``(2) all final and proposed regulations and determinations
under section 4;
``(3) the results of all 5-year reviews conducted under
section 4(c)(2)(A);
``(4) all draft and final recovery plans issued under
section 5(a), and all final recovery plans issued and in
effect under section 4(f)(1) of this Act as in effect
immediately before the enactment of the Threatened and
Endangered Species Recovery Act of 2005;
``(5) all reports required under sections 5(e) and 16, and
all reports required under sections 4(f)(3) and 18 of this
Act as in effect immediately before the enactment of the
Threatened and Endangered Species Recovery Act of 2005; and
``(6) data contained in the reports referred to in
paragraph (5) of this section, and that were produced after
the date of enactment of the Threatened and Endangered
Species Recovery Act of 2005, in the form of databases that
may be searched by the variables included in the reports.''.
SEC. 15. ANNUAL COST ANALYSES.
(a) Annual Cost Analyses.--Section 18 (16 U.S.C. 1544) is
amended to read as follows:
``Annual cost analysis by United States Fish and Wildlife Service
``Sec. 18. (a) In General.--On or before January 15 of each
year, the Secretary shall submit to the Congress an annual
report covering the preceding fiscal year that contains an
accounting of all reasonably identifiable expenditures made
primarily for the conservation of species included on lists
published and in effect under section 4(c).
``(b) Specification of Expenditures.--Each report under
this section shall specify--
``(1) expenditures of Federal funds on a species-by-species
basis, and expenditures of
[[Page H8559]]
Federal funds that are not attributable to a specific
species;
``(2) expenditures by States for the fiscal year covered by
the report on a species-by-species basis, and expenditures by
States that are not attributable to a specific species; and
``(3) based on data submitted pursuant to subsection (c),
expenditures voluntarily reported by local governmental
entities on a species-by-species basis, and such expenditures
that are not attributable to a specific species.
``(c) Encouragement of Voluntary Submission of Data by
Local Governments.--The Secretary shall provide a means by
which local governmental entities may--
``(1) voluntarily submit electronic data regarding their
expenditures for conservation of species listed under section
4(c); and
``(2) attest to the accuracy of such data.''.
(b) Eligibility of States for Financial Assistance.--
Section 6(d) (16 U.S.C. 1535(d)) is amended by adding at the
end the following:
``(3) A State shall not be eligible for financial
assistance under this section for a fiscal year unless the
State has provided to the Secretary for the preceding fiscal
year information regarding the expenditures referred to in
section 16(b)(2).''.
SEC. 16. REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY
REINTRODUCED SPECIES.
The Endangered Species Act of 1973 is further amended--
(1) by striking sections 15 and 16;
(2) by redesignating sections 17 and 18 as sections 15 and
16, respectively; and
(3) by adding after section 16, as so redesignated, the
following:
``Reimbursement for depredation of livestock by reintroduced species
``Sec. 17. (a) In General.--The Secretary of the Interior,
acting through the Director of the United States Fish and
Wildlife Service, may reimburse the owner of livestock for
any loss of livestock resulting from depredation by any
population of a species if the population is listed under
section 4(c) and includes or derives from members of the
species that were reintroduced into the wild.
``(b) Eligibility for and Amount.--Eligibility for, and the
amount of, reimbursement under this section shall not be
conditioned on the presentation of the body of any animal for
which reimbursement is sought.
``(c) Limitation on Requirement to Present Body.--The
Secretary may not require the owner of livestock to present
the body of individual livestock as a condition of payment of
reimbursement under this section.
``(d) Use of Donations.--The Secretary may accept and use
donations of funds to pay reimbursement under this section.
``(e) Availability of Appropriations.--The requirement to
pay reimbursement under this section is subject to the
availability of funds for such payments.''.
SEC. 17. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization.--The Endangered Species Act of 1973 is
further amended by adding at the end the following:
``Authorization of appropriations
``Sec. 18. (a) In General.--There are authorized to be
appropriated to carry out this Act, other than section
8A(e)--
``(1) to the Secretary of the Interior to carry out
functions and responsibilities of the Department of the
Interior under this Act, such sums as are necessary for
fiscal years 2006 through 2010; and
``(2) to the Secretary of Agriculture to carry out
functions and responsibilities of the Department of the
Interior with respect to the enforcement of this Act and the
convention which pertain the importation of plants, such sums
as are necessary for fiscal year 2006 through 2010.
``(b) Convention Implementation.--There is authorized to be
appropriated to the Secretary of the Interior to carry out
section 8A(e) such sums as are necessary for fiscal years
2006 through 2010.''.
(b) Conforming Amendment.--Section 8(a) (16 U.S.C. 1537(a))
is amended by striking ``section 15'' and inserting ``section
18''.
SEC. 18. MISCELLANEOUS TECHNICAL CORRECTIONS.
(a) International Cooperation.--Section 8 (16 U.S.C. 1537)
is amended--
(1) in subsection (a) in the first sentence by striking
``any endangered species or threatened species listed'' and
inserting ``any species determined to be an endangered
species or a threatened species''; and
(2) in subsection (b) in paragraph (1), by striking
``endangered species and threatened species listed'' and
inserting ``species determined to be endangered species and
threatened species''.
(b) Management Authority and Scientific Authority.--Section
8A (16 U.S.C. 1537a)) is amended--
(1) in subsection (a), by striking ``of the Interior
(hereinafter in this section referred to as the
`Secretary')'';
(2) in subsection (d), by striking ``Merchant Marine and
Fisheries'' and inserting ``Resources''; and
(3) in subsection (e)--
(A) in paragraph (1), by striking ``of the Interior
(hereinafter in this subsection referred to as the
`Secretary')''; and
(B) by striking paragraph (3) and redesignating paragraph
(4) as paragraph (3).
(c) Prohibited Acts.--Section 9 (16 U.S.C. 1538) is
amended--
(1) in subsection (a)--
(A) in paragraph (1), in the matter preceding subparagraph
(A), by striking ``of this Act, with respect to any
endangered species of fish or wildlife listed pursuant to
section 4 of this Act'' and inserting ``, with respect to any
species of fish or wildlife determined to be an endangered
species under section 4'';
(B) in paragraph (1)(G), by striking ``threatened species
of fish or wildlife listed pursuant to section 4 of this
Act'' and inserting ``species of fish or wildlife determined
to be a threatened species under section 4'';
(C) in paragraph (2), in the matter preceding subparagraph
(A) by striking ``of this Act, with respect to any endangered
species of plants listed pursuant to section 4 of this Act''
and inserting ``, with respect to any species of plants
determined to be an endangered species under section 4''; and
(D) in paragraph (2)(E), by striking ``listed pursuant to
section 4 of this Act'' and inserting ``determined to be a
threatened species under section 4'';
(2) in subsection (b)--
(A) by striking ``(1)'' before ``Species'' and inserting
``(1)'' before the first sentence;
(B) in paragraph (1), in the first sentence, by striking
``adding such'' and all that follows through ``: Provided,
That'' and inserting ``determining such fish or wildlife
species to be an endangered species or a threatened species
under section 4, if''; and
(C) in paragraph (1), in the second sentence, by striking
``adding such'' and all that follows through ``this Act'' and
inserting ``determining such fish or wildlife species to be
an endangered species or a threatened species under section
4'';
(3) in subsection (c)(2)(A), by striking ``an endangered
species listed'' and inserting ``a species determined to be
an endangered species'';
(4) in subsection (d)(1)(A), by striking clause (i) and
inserting the following: ``(i) are not determined to be
endangered species or threatened species under section 4,
and'';
(5) in subsection (e), by striking clause (1) and inserting
the following: ``(1) are not determined to be endangered
species or threatened species under section 4, and''; and
(6) in subsection (f)--
(A) in paragraph (1), in the first sentence, by striking
clause (A) and inserting the following: ``(A) are not
determined to be endangered species or threatened species
under section 4, and''; and
(B) by striking ``Secretary of the Interior'' each place it
appears and inserting ``Secretary''.
(d) Hardship Exemptions.--Section 10(b) (16 U.S.C. 1539(b))
is amended--
(1) in paragraph (1)--
(A) by striking ``an endangered species'' and all that
follows through ``section 4 of this Act'' and inserting ``an
endangered species or a threatened species and the subsequent
determination that the species is an endangered species or a
threatened species under section 4'';
(B) by striking ``section 9(a) of this Act'' and inserting
``section 9(a)''; and
(C) by striking ``fish or wildlife listed by the Secretary
as endangered'' and inserting ``fish or wildlife determined
to be an endangered species or threatened species by the
Secretary''; and
(2) in paragraph (2)--
(A) by inserting ``or a threatened species'' after
``endangered species'' each place it appears; and
(B) in subparagraph (B), by striking ``listed species'' and
inserting ``endangered species or threatened species''.
(e) Permit and Exemption Policy.--Section 10(d) (16 U.S.C.
1539(d)) is amended--
(1) by inserting ``or threatened species'' after
``endangered species''; and
(2) by striking ``of this Act''.
(f) Pre-Act Parts and Scrimshaw.--Section 10(f) (16 U.S.C.
1539(f)) is amended--
(1) by inserting after ``(f)'' the following: ``Pre-Act
Parts and Scrimshaw.--''; and
(2) in paragraph (2), by striking ``of this Act'' each
place it appears.
(g) Burden of Proof in Seeking Exemption or Permit.--
Section 10(g) (16 U.S.C. 1539(g)) is amended by inserting
after ``(g)'' the following: ``Burden of Proof in Seeking
Exemption or Permit.--''.
(h) Antique Articles.--Section 10(h)(1)(B) (16 U.S.C.
1539(h)(1)(B)) is amended by striking ``endangered species or
threatened species listed'' and inserting ``species
determined to be an endangered species or a threatened
species''.
(i) Penalties and Enforcement.--Section 11 (16 U.S.C. 1540)
is amended in subsection (e)(3), in the second sentence, by
striking ``Such persons'' and inserting ``Such a person''.
(j) Substitution of Gender-Neutral References.--
(1) ``secretary'' for ``he''.--The following provisions are
amended by striking ``he'' each place it appears and
inserting ``the Secretary'':
(A) Paragraph (4)(C) of section 4(b), as redesignated by
section 5(b)(2) of this Act.
(B) Paragraph (5)(B)(ii) of section 4(b), as redesignated
by section 5(b)(2) of this Act.
(C) Section 4(b)(7) (16 U.S.C. 1533(b)(7)), in the matter
following subparagraph (B).
(D) Section 6 (16 U.S.C. 1535).
(E) Section 8(d) (16 U.S.C. 1537(d)).
(F) Section 9(f) (16 U.S.C. 1538(f)).
(G) Section 10(a) (16 U.S.C. 1539(a)).
(H) Section 10(b)(3) (16 U.S.C. 1539(b)(3)).
(I) Section 10(d) (16 U.S.C. 1539(d)).
(J) Section 10(e)(4) (16 U.S.C. 1539(e)(4)).
(K) Section 10(f)(4), (5), and (8)(B) (16 U.S.C.
1599(f)(4), (5), (8)(B)).
(L) Section 11(e)(5) (16 U.S.C. 1540(e)(5)).
[[Page H8560]]
(2) ``president'' for ``he''.--Section 8(a) (16 U.S.C.
1537(a)) is amended in the second sentence by striking ``he''
and inserting ``the President''.
(3) ``secretary of the interior'' for ``he''.--Section
8(b)(3) (16 U.S.C. 1537(b)(3)) is amended by striking ``he''
and inserting ``the Secretary of the Interior''.
(4) ``person'' for ``he''.--The following provisions are
amended by striking ``he'' each place it appears and
inserting ``the person'':
(A) Section 10(f)(3) (16 U.S.C. 1539(f)(3)).
(B) Section 11(e)(3) (16 U.S.C. 1540(e)(3)).
(5) ``defendant'' for ``he''.--The following provisions are
amended by striking ``he'' each place it appears and
inserting ``the defendant''.
(A) Section 11(a)(3) (16 U.S.C. 1540(a)(3)).
(B) Section 11(b)(3) (16 U.S.C. 1540(b)(3)).
(6) References to ``him''.--
(A) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended by
striking ``him or the Secretary of Commerce'' each place it
appears and inserting ``the Secretary''.
(B) Paragraph (6) of section 4(b) (16 U.S.C. 1533(b)), as
redesignated by section 5(b)(2) of this Act, is further
amended in the matter following subparagraph (B) by striking
``him'' and inserting ``the Secretary''.
(C) Section 5(k)(2), as redesignated by section 9(a)(1) of
this Act, is amended by striking ``him'' and inserting ``the
Secretary''.
(D) Section 7(a)(1) (16 U.S.C. 1536(a)(1)) is amended in
the first sentence by striking ``him'' and inserting ``the
Secretary''.
(E) Section 8A(c)(2) (16 U.S.C. 1537a(c)(2)) is amended by
striking ``him'' and inserting ``the Secretary''.
(F) Section 9(d)(2)(A) (16 U.S.C. 1538(d)(2)(A)) is amended
by striking ``him'' each place it appears and inserting
``such person''.
(G) Section 10(b)(1) (16 U.S.C. 1539(b)(1)) is amended by
striking ``him'' and inserting ``the Secretary''.
(7) References to ``himself or herself''.--Section 11 (16
U.S.C. 1540) is amended in subsections (a)(3) and (b)(3) by
striking ``himself or herself'' each place it appears and
inserting ``the defendant''.
(8) References to ``his''.--
(A) Section 4(g)(1), as redesignated by section 8(1) of
this Act, is amended by striking ``his'' and inserting
``the''.
(B) Section 6 (16 U.S.C. 1535) is amended--
(i) in subsection (d)(2) in the matter following clause
(ii) by striking ``his'' and inserting ``the Secretary's'';
and
(ii) in subsection (e)(1), as designated by section
10(3)(A) of this Act, by striking ``his periodic review'' and
inserting ``periodic review by the Secretary''.
(C) Section 7(a)(3) (16 U.S.C. 1536(a)(3)) is amended by
striking ``his'' and inserting ``the applicant's''.
(D) Section 8(c)(1) (16 U.S.C. 1537(c)(1)) is amended by
striking ``his'' and inserting ``the Secretary's''.
(E) Section 9 (16 U.S.C. 1538) is amended in subsection
(d)(2)(B) and subsection (f) by striking ``his'' each place
it appears and inserting ``such person's''.
(F) Section 10(b)(3) (16 U.S.C. 1539(b)(3)) is amended by
striking ``his'' and inserting ``the Secretary's''.
(G) Section 10(d) (16 U.S.C. 1539(d)) is amended by
striking ``his'' and inserting ``the''.
(H) Section 11 (16 U.S.C. 1540) is amended--
(i) in subsection (a)(1) by striking ``his'' and inserting
``the Secretary's'';
(ii) in subsections (a)(3) and (b)(3) by striking ``his or
her'' each place it appears and inserting ``the
defendant's'';
(iii) in subsection (d) by striking ``his'' and inserting
``the officer's or employee's'';
(iv) in subsection (e)(3) in the second sentence by
striking ``his'' and inserting ``the person's''; and
(v) in subsection (g)(1) by striking ``his'' and inserting
``the person's''.
SEC. 19. CLERICAL AMENDMENT TO TABLE OF CONTENTS.
The table of contents in the first section is amended--
(1) by striking the item relating to section 5 and
inserting the following:
``Sec. 5. Recovery plans and land acquisition.''
; and
(2) by striking the items relating to sections 13 through
17 and inserting the following:
``Sec. 13. Private property conservation.
``Sec. 14. Public accessibility and accountability.
``Sec. 15. Marine Mammal Protection Act of 1972.
``Sec. 16. Annual cost analysis by United States Fish and Wildlife
Service.
``Sec. 17. Reimbursement for depredation of livestock by reintroduced
species.
``Sec. 18. Authorization of appropriations.''.
SEC. 20. CERTAIN ACTIONS DEEMED IN COMPLIANCE.
(a) Actions Deemed in Compliance.--During the period
beginning on the date of the enactment of this Act and ending
on the date described in subsection (b), any action that is
taken by a Federal agency, State agency, or other person and
that complies with the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 136 et seq.) is deemed to comply
with sections 7(a)(2) and 9(a)(1)(B) of the Endangered
Species Act of 1973 (16 U.S.C. 1536(a)(2), 1538(a)(1)(B)) (as
amended by this Act) and regulations issued under section
4(d) of such Act (16 U.S.C. 1533(d)).
(b) Termination Date.--The date referred to in subsection
(a) is the earlier of--
(1) the date that is 5 years after the date of the
enactment of this Act; and
(2) the date of the completion of any procedure required
under subpart D of part 402 of title 50, Code of Federal
Regulations, with respect to the action referred to in
subsection (a).
(c) Limitation on Application.--This section shall not
affect any procedure pursuant to part 402 of title 50, Code
of Federal Regulations, that is required by any court order
issued before the date of the enactment of this Act.
The CHAIRMAN. No amendment to that amendment is in order except those
printed in House Report 109-240. Each amendment may be offered only in
the order printed in the report, by a Member designated in the report,
shall be considered read, shall be debatable for the time specified in
the report, equally divided and controlled by the proponent and an
opponent, shall not be subject to amendment, and shall not be subject
to a demand for division of the question.
It is now in order to consider amendment No. 1 printed in House
Report 109-240.
Amendment No. 1 Offered by Mr. Pombo
Mr. POMBO. Mr. Chairman, I offer an amendment made in order under the
rule.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 1 offered by Mr. Pombo:
Page 2, strike line 24, and all that follows through page
3, line 18, and insert the following:
``(C) In carrying out subparagraph (B), the Secretary shall
undertake necessary measures to assure--
``(i) compliance with guidance issued under section 515 of
the Treasury and General Government Appropriations Act of
2001 (Public Law 106-554; 114 Stat. 2763A-171) by the
Director of the Office of Management and Budget and the
Secretary;
``(ii) data consists of empirical data; or
``(iii) data is found in sources that have been subject to
peer review by qualified individuals recommended by the
National Academy of Sciences to serve as independent
reviewers for a covered action in a generally acceptable
manner.''.
Page 4, strike lines 3 through 11, and redesignate the
subsequent subsection accordingly.
Page 4, after line 14, insert the following:
(d) Conforming Amendment.--Section 3 (16 U.S.C. 1532) is
further amended in paragraph (18), as redesignated by
subsection (a) of this section, by striking ``Trust Territory
of the Pacific Islands'' and inserting ``Commonwealth of the
Northern Mariana Islands''.
Page 6, after line 24, insert the following:
(d) Analysis of Impacts and Benefits.--Section 4(a) (16
U.S.C. 1533(a)), as amended by section 4(a) of this Act, is
further amended by striking paragraph (3) and inserting the
following:
``(4)(A) The Secretary shall, concurrently with making a
determination under paragraph (1) that a species is an
endangered species or a threatened species, prepare an
analysis of--
``(i) the economic impact and benefit of that
determination;
``(ii) the impact and benefit on national security of that
determination; and
``(iii) any other relevant impact and benefit of that
determination.
``(B) Nothing in this paragraph shall delay the Secretary's
decision or change the criteria used in making determinations
under paragraph (1).''.
Page 7, line 3, before the period insert ``, and
redesignate paragraph (4) (as added by section 4(d) of this
Act) as paragraph (3)''.
Page 16, line 14, insert ``(A)'' after ``(2)''.
Page 16, after line 19, insert the following:
``(B) Nothing in this paragraph shall be construed to
affect the authority of the Secretary to issue any emergency
regulation pursuant to section 4(b)(6).
Page 19, line 4, after ``costs'' insert ``, including
direct, indirect and cumulative costs,''.
Page 20, line 5, strike ``by''.
Page 24, beginning at line 3, strike ``to Ensure
Consistency With Development Plan''.
Page 27, line 24, after ``agreement'' insert ``from funds
appropriated under section 18(a)(1)''.
Page 33, after line 20, insert the following:
``(F) A species conservation contract agreement may list
other Federal program payments that incidentally contribute
to conservation of a listed species. The head of a Federal
agency shall not use the payments for the purposes of
implementing the species conservation contract agreement.
Page 39, strike line 23 and all that follows through page
40, line 2, and insert the following:
``(i) addresses or affects species that are determined to
be endangered species or threatened species and the species
were not addressed or the effects were not considered
previously in the agreement; or
Page 43, line 12, strike ``, under section 4'' and insert
``determined''.
[[Page H8561]]
Page 43, line 19, strike the close quotation mark and the
following period, and after line 19, insert the following:
``(6) This subsection shall not apply to any agency action
that may affect any species for which a permit is issued
under section 10 for other than scientific purposes, if the
action implements or is consistent with any conservation plan
or agreement incorporated by reference in the permit.''.
Page 49, beginning at line 15, strike ``offered by the
Secretary pursuant to paragraph (2)(B)'' and insert
``required''.
Page 49, line 17, after ``taking'' insert ``or otherwise
comply with the requirements of paragraph (2)(B)''.
Page 49, line 18, after ``proportional'' insert ``in
extent''.
Page 53, line 22, strike ``requester'' and insert
``requestor''.
Page 56, line 14, strike ``10'' and insert ``5''.
Page 56, beginning at line 15, strike ``date the Secretary
provides notice of the withdrawal to the requestor'' and
insert ``date the requestor receives from the Secretary, by
certified mail, notice of the withdrawal''.
Page 56, line 19, insert ``or biological'' before
``considerations''.
Page 57, line 21, strike ``immediate'' and insert
``imminent''.
Page 57, after line 23, insert the following:
(g) Exemption From Liability for Take of Listed Aquatic
Species.--Section 10 (16 U.S.C. 1539) is amended by adding at
the end the following:
``(n) Exemption From Liability for Take of Listed Aquatic
Species.--The operator of a water storage reservoir, water
diversion structure, canal, or other artificial water
delivery facility shall not be in violation of section 9(a)
by reason of any take of any aquatic species listed under
section 4(c) that results from predation, competition, or
other adverse effects attributable to recreational fishing
programs managed by a State Agency in a river basin in which
the water storage reservoir, water diversion structure,
canal, or other artificial water delivery facility is
located.''.
Page 60, line 19, strike ``180'' and insert ``270''.
Page 60, beginning at line 20, strike ``unresolved
questions regarding the documentation of the foregone
proposed use or''.
Page 60, beginning at line 25, strike ``the documentation
of the foregone use established under subsection (f) or''.
Page 61, line 10, after ``mechanisms'' insert ``that would
benefit the species''.
Page 61, line 15, after ``documented'' insert ``to benefit
the species''.
Page 61, line 17, after ``use'' insert ``, which shall not
include transfer of title''.
Page 62, beginning at line 7, strike ``binding on the
Secretary and the private property owner'' and insert ``the
best and final offer by the Secretary''.
Page 62, line 15, after ``for'' insert ``essentially''.
Page 66, strike lines 21 through 26 and insert the
following:
``(d) Authorization of Appropriations.--Payments under this
section are subject to appropriations.''.
At the end of the bill add the following:
SEC. 21. CONSOLIDATION OF PROGRAMS.
(a) Transfer.--The President shall, by not later than one
year after the date of enactment of this Act, transfer to the
Secretary of the Interior all duties, resources, and
responsibilities of the Secretary of Commerce under the
Endangered Species Act of 1973 existing immediately before
the enactment of this Act.
(b) Conforming Amendment.--
(1) Amendment.--Section 3 (16 U.S.C. 1532) is further
amended in paragraph (15) (relating to the definition of
``Secretary'') by striking ``or the Secretary of Commerce as
program responsibilities are vested pursuant to the
provisions of Reorganization Plan Numbered 4 of 1970''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect one year after the date of the enactment of
this Act.
(c) Report.--No later than 180 days after the date of
enactment of this Act, the Secretary of the Interior and the
Secretary of Commerce shall jointly submit to the Committee
on Resources and the Committee on Appropriations of the House
of Representatives, and the Committee on Environment and
Public Works and the Committee on Appropriations of the
Senate, a detailed description of the process by which the
transfer of functions under the amendment made by subsection
(a) shall be implemented.
(d) Prior Determinations and Actions not Affected.--This
section shall not affect any determination or action by the
Secretary of Commerce made or taken, respectively, under the
Endangered Species Act of 1973 before the date of the
enactment of this Act, except that such determinations and
actions shall be treated as determinations and actions,
respectively, of the Secretary of the Interior.
SEC. 22. REVIEW OF PROTECTIVE REGULATIONS.
The Secretary of the Interior shall--
(1) review regulations issued before the date of the
enactment of this Act pursuant to section 4(d) of the
Endangered Species Act of 1973, in order to determine whether
revision of such regulations would be desirable in order to
facilitate and improve cooperation with the States pursuant
to section 6 of such Act; and
(2) report to the Committee on Resources of the House of
Representatives and the Committee on Environment and Public
Works of the Senate regarding the findings of such review.
SEC. 23. PROVISION OF INFORMATION REGARDING COMPLIANCE COSTS
OF FEDERAL POWER ADMINISTRATIONS.
(a) Customer Billings.--The Administrator of the Bonneville
Power Administration, the Western Area Power Administration,
the Southwestern Power Administration, and the Southeastern
Power Administration shall each include in monthly firm power
customer billings sent to each customer information
identifying and reporting such customer's share of the
Federal power marketing and generating agencies' direct and
indirect costs incurred by such administration related to
compliance with the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) and activities related to such Act.
(b) Direct Costs.--In identifying and reporting direct
costs, each Administrator shall include Federal agency
obligations related to study-related costs, capital,
operation, maintenance, and replacement costs, and staffing
costs.
(c) Indirect Costs.--In identifying and reporting indirect
costs, each Administrator shall include foregone generation
and replacement power costs.
(d) Coordination.--Each Administrator shall coordinate
identification of costs under this subsection with the
appropriate Federal power generating agencies.
SEC. 24. SURVEY OF BLM LANDS AND FOREST SERVICE LANDS FOR
MANAGEMENT FOR RECOVERY OF LISTED SPECIES.
(a) In General.--Not later than 2 years after the date of
the enactment of this Act, the Secretary of the Interior
shall--
(1) survey all lands under the administrative jurisdiction
of the Bureau of Land Management and all lands under the
administrative jurisdiction Forest Service immediately before
the enactment of this Act, for the purpose of assessing the
value of such lands for management for the recovery of any
species included in a list published under section 4(c) of
the Endangered Species Act of 1973 and for addition to the
National Wildlife Refuge System; and
(2) make recommendations to the Congress for managing any
such lands as are appropriate as part of the National
Wildlife Refuge System.
(b) Limitation on Transfers.--The Secretary of the Interior
may not transfer administrative jurisdiction pursuant to any
recommendation under subsection (a)(2) except as authorized
by a statute enacted after the date of the enactment of this
Act.
SEC. 25. RELATIONSHIP BETWEEN SECTION 7 CONSULTATION AND
INCIDENT TAKE AUTHORIZATION UNDER MARINE MAMMAL
PROTECTION ACT OF 1972.
Consultation under section 7 of the Endangered Species Act
of 1973 (16 U.S.C. 1536) is equivalent to a section 101
incidental take authorization required under the Marine
Mammal Protection Act of 1972 (16 U.S.C. 1631 et seq.) for
receiving dock building permits.
The CHAIRMAN. Pursuant to House Resolution 470, the gentleman from
California (Mr. Pombo) and the gentleman from West Virginia (Mr.
Rahall) each will control 10 minutes.
The Chair recognizes the gentleman from California (Mr. Pombo).
Mr. POMBO. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, the manager's amendment makes a number of technical
changes to clarify certain provisions and address issues concerning
science, the definition of ``jeopardy,'' consolidation of ESA-related
programs, and review of protective regulations. It allows actions
authorized under an approved section 10 permit to be carried out
without duplicative consultation. It prevents water stakeholders from
being held accountable for impacts due to State actions. It requires
the four Power Marketing Administrations to include ESA costs in their
monthly billing statements. It directs the Secretary of the Interior to
survey certain Federal lands to assess their value for a report back to
Congress. It clarifies conflicting statutes to make ESA the governing
statutory authority when receiving a dock-building permit.
That is the short version of what is included in the manager's
amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. RAHALL. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, the manager's amendment makes significant changes in
the bill as it was reported from the Committee on Resources. These
changes are likely to result in more species extinctions at greater
loss of taxpayer dollars.
The pending legislation will increase direct spending in the
discretionary funding law, which we will get into in general debate,
and it could rise to more than $600 million a year, $235 million more
per year than we are spending today for species conservation, according
to the Congressional Budget Office.
[[Page H8562]]
Let me make one point perfectly clear here: the manager's amendment
is not something I agreed to in my discussions with the gentleman from
California (Chairman Pombo). To say that I agree with 90 percent of
this bill is not an accurate description, or is an unfair way to paint
the matter.
One of the points that we had reached agreement on was that there was
to be a recovery-based standard of determining when Federal agency
actions jeopardize the continued existence of a species. The manager's
amendment drops this crucial provision. It cripples it.
While I was willing to eliminate critical habitat, it was only on the
condition that we ensure that there were adequate provisions in place
to encourage recovery. Without this definition, the bill will not
promote recovery. We will likely see more endangered and threatened
species. It is upon that ground that I oppose this manager's amendment,
as well as the loosened compensation standards put in order by the
manager's amendment.
It eliminates the bill's requirement that appraisals determining the
market value of foregone use of property are binding on both the
Secretary and the property owner. Instead, the appraisal is binding
only on the Secretary, and the property owner may then go to court to
seek additional compensation. That makes the current pending
legislation worse, and it will increase the cost of this entitlement
program to property owners and it will increase that cost to the
American taxpayer.
Mr. Chairman, I yield 3 minutes to the gentleman from Maine (Mr.
Allen).
Mr. ALLEN. Mr. Chairman, I thank the gentleman for yielding me this
time.
Mr. Chairman, I rise to deal with the section of the manager's
amendment that covers the manatees. Buried in this manager's amendment
in dry language is a contest between Florida developers on the one hand
and Florida manatees on the other. In this Republican Congress, guess
who wins, the developers or the manatees? It is not even close.
This is an unprecedented move to exempt a single type of activity,
dock-building, from a key provision of the Marine Mammal Protection
Act. After losing in court, some boaters and marine contractors have
come to Congress asking for special favors so they can continue their
development without addressing the impacts on the endangered manatee.
It is not only bad policy, but it also undermines recovery efforts by
the State of Florida and the Fish and Wildlife Service.
By way of background, this section would allow those applying for
dock permits to simply prove that their activities would not, quote-
unquote, jeopardize, would not jeopardize the continued existence of
endangered and threatened marine mammal species as mandated by the
Endangered Species Act, section 7. Today, under existing law they must
prove that their activities would have only a negligible impact on
these species as mandated by the Marine Mammal Protection Act, section
101. This simple change in wording lowers our national standard for
protection of this well-loved species. Why? Because no single dock is
likely to jeopardize manatees, but a whole succession of docks is
likely to do exactly that. This amendment clearly targets manatees in
Florida, but we really have no idea what kind of precedent or
implications this would have for other critically endangered marine
mammals.
Now, it did not take long for the developers to get here. They lost a
lawsuit on July 13, 2005, against the Fish and Wildlife Service in
which the court found that the Marine Mammal Protection Act does in
fact apply to dock-building activities that would lead to incidental
take of marine mammals, and specifically manatees in Florida's inland
waters. This amendment, therefore, is rushed into this particular bill,
just part of the manager's amendment; it would undermine the process
that has gone on for several years that the State of Florida and the
Fish and Wildlife Service have engaged in to recover manatees in
Florida. It would completely short-circuit the progress made by the
State and those Federal agencies.
Finally, the minority and majority have already reached agreements
and passed a version of the Marine Mammal Protection Act out of the
Committee on Resources, and this amendment flies directly in the face
of that process.
So here is the situation: Florida developers are not pleased by a
court case in July. They rush in here, they get a provision in this
bill to make sure that they win and the Florida manatees lose. Bad
policy, bad politics.
Mr. RAHALL. Mr. Chairman, I yield 2 minutes to the gentleman from New
York (Mr. Hinchey).
Mr. HINCHEY. Mr. Chairman, I thank the gentleman for yielding me this
time. The interesting thing about the manager's amendment is that it
takes a very bad bill and makes it even worse.
I just want to focus on one aspect of this legislation which I think
would be amusing in some sense if it were not for the fact that it is
an example of a kind of cynical hypocrisy in those people who call
themselves fiscally conservative. The bill guts the Endangered Species
Act, there is no question about that, and all the protections that are
involved there; but then it creates a whole new government giveaway
program for some of the Nation's richest landowners and property
owners. What this bill does is add insult to injury.
If you think that you are a responsible fiscal conservative, if you
do not want to create a big new government giveaway program, then you
should be adamantly opposed to this legislation. You might want to even
cast aside the environmental aspects of it, because if you look at the
monetary implications of this and the budgetary implications of this
bill, it is going to create an even bigger budget deficit in the
context of this huge giveaway program.
People are using here more and more frequently the devastating impact
of the two hurricanes. They want to sell off the national parks, they
want to remove the safety net for millions of Americans who rely upon
government services, and now they are going to make it even more
difficult for this Congress to provide the kind of programs and
assistance that are needed in terms of health care, education, a
variety of things by passing a piece of legislation that builds an even
bigger budget deficit by creating a whole new giveaway program, a new
entitlement program for some of the wealthiest people in the country,
some of the biggest landowners in the country.
All they have to do is come here under this legislation, just to ask
for it, and it will be given to them. If you really want to conserve
the fiscal integrity of this process, please vote against this bill.
Mr. POMBO. Mr. Chairman, I yield myself such time as I may consume.
I look forward to the gentleman's opposition to the highway bill and
any new purchases of land, to the wildlife refuge system, to the park
system, or any other thing that we spend money on, because he sees it
as a big giveaway, a big government giveaway system.
Again, what the underlying bill does is if you step in and take
habitat from a private property owner and you tell them that you
restrict them and you tell them they cannot use part of their property,
then we set up a system of incentives and grants.
{time} 1500
But, if in the end, the Secretary says your property is necessary for
the recovery of an endangered species, therefore you cannot use it, we
compensate them for that and we pay them for it. If we build a highway
across somebody's property, even though that may increase the value of
the rest of the property, we pay them for it. If we take part of their
property for a wildlife refuge, even though that may increase the value
of the rest of their property, we pay them for it. But, if we take
their property for endangered species habitat, we tell them, you are
out of luck.
Now I have guys coming down here saying, this is a big, new giveaway
system, that we are going to give away things to people. No. This is a
big takeaway. You are taking away from them. You have been doing it for
30 years. Now it is time to pay for it. You are taking land away from
people. Every little small farmer, rancher across the country, every
homeowner across the country who has had their property taken away from
them should
[[Page H8563]]
be compensated for it. You are taking away their land. There is nothing
wrong with that.
Mr. DICKS. Mr. Chairman, will the gentleman yield?
Mr. POMBO. I yield to the gentleman from Washington.
Mr. DICKS. Mr. Chairman, when the Contract With America was written,
this provision was scored by CBO at $3.2 billion; $3.2 billion.
Mr. POMBO. Mr. Chairman, reclaiming my time, this provision was not
in the Contract With America. Nobody seems to be constrained by the
truth here. This is a brand-new way of dealing with compensating
property owners whose land is taken. CBO scored this at $10 million.
This is a brand-new way of dealing with a very real problem and
assuring some kind of protection to my property owners and your
property owners.
Mr. Chairman, it was just a couple of weeks ago that the Supreme
Court came out with a decision where this Congress stood up and said,
you cannot use eminent domain to take away private property, to take
someone's house away from them and give it to another individual. And
all of you ran down on the floor and said you were all in support of
that.
We are going to stop the government from being able to use eminent to
take away somebody's house and give it to somebody else. But, under
that provision, you have to pay them for their house. Under current
law, you do not have to pay when you steal somebody's property for
declared habitat at this time. You guys are all fine with that. Is that
because we are talking about farmers and ranchers? Is that why you do
not want to pay them? But when we are talking about somebody's house,
all of a sudden you want to pay them? I mean, you guys have no
consistency in this whatsoever.
I believe if you take away somebody's private property, you should
have to pay them for it, and that is what we are trying to do in this
underlying bill. I know that some of my colleagues are just
philosophically opposed to that, and God love you. But the fact of the
matter is, if you take away somebody's private property, you ought to
have to pay for it.
Mr. FARR. Mr. Chairman, will the gentleman yield?
Mr. POMBO. I yield to the gentleman from California.
Mr. FARR. Mr. Chairman, when you do take, meaning you have no value
left, then you have just compensation, was the Supreme Court decision.
Mr. POMBO. Mr. Chairman, reclaiming my time, that is not what the
Constitution says. The Constitution says, nor shall private property be
taken for a public use without just compensation. That is what it says.
It does not say the government can step in and take 90 percent of your
value and then it is okay; it does not say they can take away 30
percent of your value and that is okay.
Is the gentleman going to oppose the highway bill because we
compensate people when we take their land away for a highway, even
though we do not take 100 percent of the use? Why is it okay in that
instance, but it is not okay when it comes to protecting habitat?
You guys talk big about wanting to protect habitat and protect
species, but 90 percent of the habitat for endangered species is on
private property. The only way you are going to recover species is if
you bring in the property owners and have them be part of the solution.
You are stopping that from happening right now under current law and in
the substitute. You are wrong on this one.
We have to pay when you take away somebody's private property. That
is what we have to do. That is what is in the underlying bill. I am
sorry if you have a philosophical problem with paying for what you are
taking.
Mr. Chairman, I reserve the balance of my time.
Mr. RAHALL. Mr. Chairman, I yield 30 seconds to the gentleman from
Washington (Mr. Dicks).
Mr. DICKS. Mr. Chairman, the part that I have trouble with is that we
did not authorize any new money to fund this. You just said, take it
out of the Interior Appropriations bill. Well, I want to tell you, we
have not funded the Endangered Species Act properly under this
administration, and if there is not any money, it is going to have to
come out of somebody else's hide. It is going to be the Fish and
Wildlife Service, it is going to be the Park Service; somebody is going
to have to fund this, and it is going to cost a lot more than $10
million a year. That is laughable.
Mr. POMBO. Mr. Chairman how much time remains?
The CHAIRMAN. The gentleman from California (Mr. Pombo) has 3\1/2\
minutes remaining; the gentleman from West Virginia (Mr. Rahall) has 2
minutes remaining.
Mr. POMBO. Mr. Chairman, I yield myself 30 seconds to say, this is
another area where you guys are just not consistent. One of you comes
down and beats us up because we are spending too much money about this
massive increase in spending under this bill. Somebody else comes down
and says, you do not fully fund endangered species under this bill.
Either we spend too much or we do not spend enough. You cannot have it
both ways. Either we spend too much or we do not spend enough, but you
cannot keep coming down here and trying to make both arguments.
Mr. RAHALL. Mr. Chairman, who has the right to close?
The CHAIRMAN. The gentleman from West Virginia (Mr. Rahall) has the
right to close.
Mr. RAHALL. Mr. Chairman, I reserve the balance of my time.
Mr. POMBO. Mr. Chairman, I yield myself the balance of the time.
Mr. Chairman, I say to my friend from West Virginia, I appreciate all
the work that he and his staff put into this bill. This was an
important thing for us to go through, and I think that we produced a
good bill at the end of that.
I know that there are issues in the underlying bill that we disagree
on, and we probably always will. I will tell the gentleman, as we
continue to work forward, I will continue to work with the gentleman as
this bill moves through the process, continue to work with the
gentleman and try to work out whatever differences that still exist
under the bill.
The gentleman from West Virginia operated under good faith with me, I
believe I did the same thing with the gentleman throughout this entire
process, and I pledge to the gentleman that we will continue to work
together to produce the best possible bipartisan bill we can to deliver
to the President's desk.
Mr. Chairman, I yield back the balance of my time.
Mr. RAHALL. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I say to my chairman, I appreciate his concluding
comments there and, as I have said all along, we have negotiated in
good faith, and I do want to continue that relationship that we have.
Maybe we can still work on this bill together; I hope we can. But we
will see as the process goes forward.
Mr. Chairman, how much time do I have left?
The CHAIRMAN. The gentleman has 1\1/2\ minutes remaining.
Mr. RAHALL. Mr. Chairman, I yield 1 minute to the gentleman from New
York (Mr. Boehlert).
(Mr. BOEHLERT asked and was given permission to revise and extend his
remarks.)
Mr. BOEHLERT. Mr. Chairman, I would just like to correct a couple of
things. First of all, this is mandatory spending we are talking about.
Secondly, we do not allow the taxpayer protection in this bill that is
allowed in highway cases. That is important to distinguish between the
two.
Mr. Chairman, we are all in agreement. There is broad and justifiable
consensus that the act is overdue for reform, but reforming the law
should not be a euphemism for gutting the law, and that is exactly what
the bill would do.
The list of areas of disagreement are very strong, but I would also
point out that we in the substitute bill embrace many of the provisions
in the base bill because they need to be addressed in a responsible way
and, in many cases, we take the exact language. But section 13 is
totally unacceptable. That is the big controversy; opening up an open-
ended entitlement, putting the taxpayers at great risk.
I urge opposition to the base bill.
Mr. Chairman, I rise in opposition to the bill. I have no quarrel
with the stated purpose of the bill--to reform the Endangered Species
Act. Chairman Pombo is correct, there is broad and justifiable
consensus that the Act is overdue for reform.
[[Page H8564]]
But ``reforming'' the law should not be a euphemism for ``gutting''
the law, and that's what this bill would do. I urge my colleagues to
look beyond the descriptions of the bill and to examine the bill
itself.
The most advertised feature of the bill is that it gets rid of the
current ``critical habitat'' provisions of the law and replaces the
habitat requirements with flexible, comprehensive, science-based
``recovery plans.'' Sounds pretty good. And it would be pretty good if
that were a full description of what the bill did. But what the
sponsors have obscured is that, under the bill, the recovery plans are
utterly unenforceable. No one ever has to abide by them. Not only that,
the plans will be written through a process that guarantees delay, but
does not guarantee that the best science will be used.
So is there a way to get rid of the current ``critical habitat''
burdens and to use recovery plans without weakening the law? Of course
there is. And our Bipartisan Substitute shows how. We eliminate all the
provisions of current law that require critical habitat designations
just as in H.R. 3824, but we make recovery plans enforceable and we
ensure that they have strong scientific basis. That's how you get real
reform while still protecting real species.
It's not impossible to balance the need for reform with the need to
protect species. But instead, we have a bill before us that is balanced
in its rhetoric, but not in its effect.
The bill weakens just about every feature of law designed to protect
species--for example, the review of federal actions to make sure they
do not unduly harm species.
Now I am not trying to suggest that H.R. 3824 is all bad news. In
fact, many of its provisions--the incentives for landowners to protect
species, the public information requirements, the requirements to
better involve the states--are largely improvements to the law. That's
why our Substitute includes all those provisions, often in language
identical to that in H.R. 3824. So we commend the Resources Committee
for so many of the bill's provisions and we embrace them.
But there is one provision of H.R. 3824 that our Substitute does not
include at all. And that's Section 13, which creates an open-ended
entitlement that will open the federal treasury to provide mandatory
payments to developers. This is a bad idea on philosophical and legal
grounds, but this is an especially bad time to expose taxpayers to such
a burden.
We don't have to endanger taxpayers in order to reform the Endangered
Species Act. We don't have to make it easier for species to become
extinct to reform the Endangered Species Act. All we need to do to
reform the Act is to make sure that common sense isn't trumped by
ideology.
I urge my colleagues of defeat H.R. 3824, which just waves the banner
of reform to distract attention from its actual content. Vote instead
for real reform. Vote for the Bipartisan Substitute.
Mr. RAHALL. Mr. Chairman, I yield the balance of my time to the
gentleman from California (Mr. George Miller).
Mr. GEORGE MILLER of California. Mr. Chairman, I thank the gentleman
for yielding me this time.
I just want to say that when the gentleman talks about a taking, that
is not what his legislation does. All that has to happen is that a
landowner proposes a use for his property, and if that use is ruled as
a taking, the landowner gets compensated. The landowner does not show
that they could do that, that they could go through the city zoning,
they could go through the county zoning, that they would get those
permits to build those houses or whatever else he wants to do, or he
could build that commercial establishment, no showing of that. Yet,
under this legislation, he is entitled to compensation. Nothing has
been taken, only the suggestion in the proposal on a plan.
The Acting CHAIRMAN (Mr. Simpson). The question is on the amendment
offered by the gentleman from California (Mr. Pombo).
The amendment was agreed to.
The Acting CHAIRMAN. It is now in order to consider amendment No. 2
printed in House Report 109-240.
Amendment No. 2 in the Nature of a Substitute Offered by Mr. George
Miller of California
Mr. GEORGE MILLER of California. Mr. Chairman, I offer an amendment
in the nature of a substitute.
The Acting CHAIRMAN. The Clerk will designate the amendment in the
nature of a substitute.
The text of the amendment in the nature of a substitute is as
follows:
Amendment No. 2 in the nature of a substitute offered by
Mr. George Miller of California:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendment references.
Sec. 3. Definitions.
Sec. 4. Determinations of endangered species and threatened species.
Sec. 5. Repeal of critical habitat requirements.
Sec. 6. Petitions and procedures for determinations and revisions.
Sec. 7. Reviews of listings and determinations.
Sec. 8. Protective regulations.
Sec. 9. Secretarial guidelines; State comments.
Sec. 10. Recovery plans and land acquisitions.
Sec. 11. Cooperation with States and Indian tribes.
Sec. 12. Interagency cooperation and consultation.
Sec. 13. Exceptions to prohibitions.
Sec. 14. Private property conservation.
Sec. 15. Public accessibility and accountability.
Sec. 16. Annual cost analyses.
Sec. 17. Reimbursement for depredation of livestock by reintroduced
species.
Sec. 18. Authorization of appropriations.
Sec. 19. Miscellaneous technical corrections.
Sec. 20. Establishment of Science Advisory Board.
Sec. 21. Clerical amendment to table of contents.
(b) Short Title.--This Act may be cited as the ``Threatened
and Endangered Species Recovery Act of 2005''.
SEC. 2. AMENDMENT REFERENCES.
Except as otherwise expressly provided, whenever in this
Act an amendment or repeal is expressed in terms of an
amendment to, or repeal of, a section or other provision, the
reference shall be considered to be made to such section or
other provision of the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
SEC. 3. DEFINITIONS.
(a) Best Available Scientific Data.--Section 3 (16 U.S.C.
1532) is amended by redesignating paragraphs (2) through (21)
in order as paragraphs (3), (4), (5), (6), (7), (8), (9),
(10), (11), (13), (14), (15), (16), (17), (18), (19), (20),
(21), and (22), respectively, and by inserting before
paragraph (3), as so redesignated, the following:
``(2) The term `best available scientific data' means data
and analyses, regardless of source, produced by
scientifically accepted methods and procedures that are
available to the Secretary at the time of a decision or
action for which such data are required by this Act, and that
meet scientifically accepted standards of objectivity,
accuracy, reliability, and relevance. For the purpose of this
paragraph, the term `scientifically accepted' means those
methods, procedures, and standards that are widely used
within the relevant fields of science, including wildlife
biology and management.''.
(b) Permit or License Applicant.--Section 3 (16 U.S.C.
1532) is further amended by amending paragraph (13), as so
redesignated, to read as follows:
``(13) The term `permit or license applicant' means, when
used with respect to an action of a Federal agency that is
subject to section 7(a) or (b), any person that has applied
to such agency for a permit or license or for formal legal
approval to perform an act.''.
(c) Jeopardize the Continued Existence.--Section 3 (16
U.S.C. 1532) is further amended by inserting after paragraph
(11) the following:
``(12) The term `jeopardize the continued existence' means
to engage in an action that, directly or indirectly, makes it
less likely that a threatened species or an endangered
species will be brought to the point at which measures
provided pursuant to this Act are no longer necessary, is
likely to significantly delay doing so, or is likely to
significantly increase the cost of doing so.''.
(d) Conforming Amendment.--Section 7(n) (16 U.S.C. 1536(n))
is amended by striking ``section 3(13)'' and inserting
``section 3(14)''.
SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND THREATENED
SPECIES.
(a) Requirement to Make Determinations.--Section 4 (16
U.S.C. 1533) is amended by striking so much as precedes
subsection (a)(2) and inserting the following:
``Determination of endangered species and threatened species
``Sec. 4. (a) In General.--(1) The Secretary shall by
regulation promulgated in accordance with subsection (b)
determine whether any species is an endangered species or a
threatened species because of any of the following factors:
``(A) The present or threatened destruction, modification,
or curtailment of its habitat or range, including by human
activities, competition from other species, drought, fire, or
other catastrophic natural causes.
``(B) Overutilization for commercial, recreational,
scientific, or educational purposes.
``(C) Disease or predation.
``(D) The inadequacy of existing regulatory mechanisms,
including any efforts identified pursuant to subsection
(b)(1).
``(E) Other natural or manmade factors affecting its
continued existence.''.
(b) Basis for Determination.--Section 4(b)(1)(A) (16 U.S.C.
1533(b)(1)(A)) is amended--
[[Page H8565]]
(1) by striking ``best scientific and commercial data
available to him'' and inserting ``best available scientific
data''; and
(2) by inserting ``Federal agency, any'' after ``being made
by any''.
(c) Lists.--Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is
amended to read as follows:
``(2)(A) The Secretary shall--
``(i) conduct, at least once every 5 years, based on the
information collected for the biennial reports to the
Congress required by paragraph (3) of subsection (f), a
review of all species included in a list that is published
pursuant to paragraph (1) and that is in effect at the time
of such review; and
``(ii) determine on the basis of such review and any other
information the Secretary considers relevant whether any such
species should be proposed for--
``(I) removal from such list;
``(II) change in status from an endangered species to a
threatened species; or
``(III) change in status from a threatened species to an
endangered species.
``(B) Each determination under subparagraph (A)(ii) shall
be made in accordance with subsections (a) and (b).''.
SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS.
(a) Repeal of Requirement.--Section 4(a) (16 U.S.C.
1533(a)) is amended by striking paragraph (3).
(b) Conforming Amendments.--
(1) Section 4(b) (16 U.S.C. 1533(b)), as otherwise amended
by this Act, is further amended by striking paragraph (2),
and by redesignating paragraphs (3) through (8) in order as
paragraphs (2) through (7), respectively.
(2) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (2), as redesignated by paragraph (1) of this
subsection, by striking subparagraph (D).
(3) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (4), as redesignated by paragraph (1) of this
subsection, by striking ``determination, designation, or
revision referred to in subsection (a)(1) or (3)'' and
inserting ``determination referred to in subsection (a)(1)''.
(4) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (7), as redesignated by paragraph (1) of this
subsection, by striking ``; and if such regulation'' and all
that follows through the end of the sentence and inserting a
period.
(5) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended--
(A) in the second sentence--
(i) by inserting ``and'' after ``if any''; and
(ii) by striking ``, and specify any'' and all that follows
through the end of the sentence and inserting a period; and
(B) in the third sentence by striking ``, designations,''.
(6) Section 5 (16 U.S.C. 1534), as amended by section
9(a)(3) of this Act, is further amended in subsection (j)(2)
by striking ``section 4(b)(7)'' and inserting ``section
4(b)(6)''.
(7) Section 6(c) (16 U.S.C. 1535(c)), as amended by section
10(1) of this Act, is further amended in paragraph (3) by
striking ``section 4(b)(3)(B)(iii)'' each place it appears
and inserting ``section 4(b)(2)(B)(iii)''.
(8) Section 7 (16 U.S.C. 1536) is amended--
(A) in subsection (a)(2) in the first sentence by striking
``or result in the destruction or adverse modification of any
habitat of such species'' and all that follows through the
end of the sentence and inserting a period;
(B) in subsection (a)(4) in the first sentence by striking
``or result'' and all that follows through the end of the
sentence and inserting a period; and
(C) in subsection (b)(3)(A) by striking ``or its critical
habitat''.
(9) Section 10(j)(2)(C)) (16 U.S.C. 1539(j)(2)(C)), as
amended by section 12(c) of this Act, is further amended--
(A) by striking ``that--'' and all that follows through
``(i) solely'' and inserting ``that solely''; and
(B) by striking ``; and'' and all that follows through the
end of the sentence and inserting a period.
SEC. 6. PETITIONS AND PROCEDURES FOR DETERMINATIONS AND
REVISIONS.
(a) Treatment of Petitions.--
(1) In general.--Section 4(b) (16 U.S.C. 1533(b)) is
amended in paragraph (2), as redesignated by section 5(b)(1)
of this Act, by adding at the end of subparagraph (A) the
following: ``The Secretary shall not make a finding that the
petition presents substantial scientific or commercial
information indicating that the petitioned action may be
warranted unless the petitioner provides to the Secretary a
copy of all information cited in the petition.''
(2) Additional data.--Section 4(b) is further amended in
paragraph (2), as redesignated by section 5(b)(1) of this
Act, in subparagraph (A) by adding at the end the following:
``If the Secretary finds with respect to a petition under
this subparagraph, that there is substantial disagreement
regarding the sufficiency or accuracy of the available data
relevant to the petitioned action, the Secretary, in
consultation with the States, may for the purpose of seeking
additional data postpone making a finding under this
subsection by no more than 18 months.''.
(3) Prioritization allowed.--Section 4(b) is further
amended in paragraph (2), as redesignated by section 5(b)(1)
of this Act, in subparagraph (B)(iii) by amending subclause
(I) to read as follows:
``(I) the immediate proposal and timely promulgation of a
final regulation implementing the petitioned action in
accordance with paragraphs (5) and (6) is precluded within
current fiscal year funding by higher priority pending
proposals determined by the Secretary to involve species at
greater risk of extinction, and''.
(b) Implementing Regulations.--
(1) Proposed regulations.--Section 4(b) (16 U.S.C. 1533(b))
is amended--
(A) in paragraph (4)(A), as redesignated by section 5(b)(2)
of this Act--
(i) in clause (i) by striking ``, and'' and inserting a
semicolon;
(ii) in clause (ii) by striking ``to the State agency in''
and inserting ``to the Governor of, and the State agency
in,'';
(iii) in clause (ii) by striking ``such agency'' and
inserting ``such Governor or agency'';
(iv) in clause (ii) by inserting ``and'' after the
semicolon at the end; and
(v) by adding at the end the following:
``(iii) maintain, and shall make available, a complete
record of all information not protected by copyright
concerning the determination or revision in the possession of
the Secretary, on a publicly accessible website on the
Internet, including an index to such information.''; and
(B) by adding at the end the following:
``(8)(A) Information maintained and made available under
paragraph (5)(A)(iii) shall include any status review, all
information not protected by copyright cited in such a status
review, all information referred to in the proposed
regulation and the preamble to the proposed regulation, and
all information submitted to the Secretary by third parties.
``(B) The Secretary shall withhold from public review under
paragraph (5)(A)(iii) any information that may be withheld
under 552 of title 5, United States Code.''.
(2) Final regulations.--Paragraph (5) of section 4(b) (16
U.S.C. 1533(b)), as amended by section 5(b)(2) of this Act,
is further amended--
(A) in subparagraph (A) by striking clauses (i) and (ii)
and inserting the following:
``(i) a final regulation to implement such a determination
of whether a species is an endangered species or a threatened
species;
``(ii) notice that such one-year period is being extended
under subparagraph (B)(i); or
``(iii) notice that the proposed regulation is being
withdrawn under subparagraph (B)(ii), together with the
finding on which such withdrawal is based.'';
(B) in subparagraph (B)(i) by striking ``subparagraph
(A)(i)'' and inserting ``subparagraph (A)'';
(C) in subparagraph (B)(ii) by striking ``subparagraph
(A)(i)'' and inserting ``subparagraph (A)''; and
(D) by striking subparagraph (C).
(3) Emergency determinations.--Paragraph (6) of section
4(b) (16 U.S.C. 1533(b)), as redesignated by section 5(b)(2)
of this Act, is further amended--
(A) in the matter preceding subparagraph (A), by inserting
``with respect to a determination of a species to be an
endangered species'' after ``any regulation''; and
(B) in subparagraph (B), by striking ``the State agency
in'' and inserting ``the Governor of, and State agency in,''.
SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS.
Section 4(c) (16 U.S.C. 1533(c)) is amended by inserting at
the end the following:
``(3) Each determination under paragraph (2)(B) shall
consider the following as applicable:
``(A) Except as provided in subparagraph (B) of this
paragraph, the criteria in the recovery plan for the species
required by section 5(c)(1)(A) or (B).
``(B) If the recovery plan is issued before the criteria
required under section 5(c)(1)(A) are established or if no
recovery plan exists for the species, the factors for
determination that a species is an endangered species or a
threatened species set forth in subsections (a)(1) and
(b)(1).
``(C) A finding of fundamental error in the determination
that the species is an endangered species, a threatened
species, or extinct.
``(D) A determination that the species is no longer an
endangered species or threatened species or in danger of
extinction, based on an analysis of the factors that are the
basis for listing under section 4(a)(1).''.
SEC. 8. PROTECTIVE REGULATIONS.
Section 4(d) (16 U.S.C. 1533(d)) is amended by--
(1) inserting ``(1)'' before ``Whenever'';
(2) inserting ``in consultation with the States'' after
``the Secretary shall''; and
(3) adding at the end the following new paragraphs:
``(2) Each regulation published under this subsection after
the enactment of the Threatened and Endangered Species
Recovery Act of 2005 shall be accompanied with a statement by
the Secretary of the reason or reasons for applying any
particular prohibition to the threatened species.
``(3) A regulation issued under this subsection after the
enactment of the Threatened and Endangered Species Recovery
Act of 2005 may apply to more than one threatened species
only if the specific threats to, and specific biological
conditions and needs of, the species are identical, or
sufficiently similar, to warrant the application of identical
prohibitions.
``(4) The Secretary may review regulations issued under
this subsection prior to the enactment of the Threatened and
Endangered Species Recovery Act of 2005. A species afforded
protections by any such regulation shall continue to be
afforded those protections until such time as the Secretary
shall review the regulations issued prior to the enactment of
the Threatened and Endangered
[[Page H8566]]
Species Recovery Act of 2005 as they pertain to that
species.''.
SEC. 9. SECRETARIAL GUIDELINES; STATE COMMENTS.
Section 4 (16 U.S.C. 1533) is amended--
(1) by striking subsections (f) and (g) and redesignating
subsections (h) and (i) as subsections (f) and (g),
respectively;
(2) in subsection (f), as redesignated by paragraph (1) of
this subsection--
(A) in the heading by striking ``Agency'' and inserting
``Secretarial'';
(B) in the matter preceding paragraph (1), by striking
``the purposes of this section are achieved'' and inserting
``this section is implemented'';
(C) by redesignating paragraph (4) as paragraph (5);
(D) in paragraph (3) by striking ``and'' after the
semicolon at the end, and by inserting after paragraph (3)
the following:
``(4) the criteria for determining best available
scientific data pursuant to section 3(2); and''; and
(E) in paragraph (5), as redesignated by subparagraph (C)
of this paragraph, by striking ``subsection (f) of this
section'' and inserting ``section 5'';
(3) in subsection (g), as redesignated by paragraph (1) of
this section--
(A) by inserting ``Comments.--'' before the first sentence;
(B) by striking ``a State agency'' the first place it
appears and inserting ``a Governor, State agency, county (or
equivalent jurisdiction), or unit of local government'';
(C) by striking ``a State agency'' the second place it
appears and inserting ``a Governor, State agency, county (or
equivalent jurisdiction), or unit of local government'';
(D) by striking ``the State agency'' and inserting ``the
Governor, State agency, county (or equivalent jurisdiction),
or unit of local government, respectively''; and
(E) by striking ``agency's''.
SEC. 10. RECOVERY PLANS AND LAND ACQUISITIONS.
(a) In General.--Section 5 (16 U.S.C. 1534) is amended--
(1) by redesignating subsections (a) and (b) as subsections
(k) and (l), respectively;
(2) in subsection (l), as redesignated by paragraph (1) of
this section, by striking ``subsection (a) of this section''
and inserting ``subsection (k)''; and
(3) by striking so much as precedes subsection (k), as
redesignated by paragraph (1) of this section, and inserting
the following:
``Recovery plans and land acquisition
``Sec. 5. (a) Recovery Plans.--The Secretary shall, in
accordance with this section, develop and implement a plan
(in this subsection referred to as a `recovery plan') for the
conservation of the species determined under section 4(a)(1)
to be an endangered species or a threatened species, unless
the Secretary finds that such a plan will not promote the
conservation and survival of the species.
``(b) Development of Recovery Plans.--(1) Subject to
paragraphs (2) and (3), the Secretary, in developing recovery
plans, shall, to the maximum extent practicable, give
priority to those endangered species or threatened species,
without regard to taxonomic classification, that are most
likely to benefit from such plans, particularly those species
that are, or may be, in conflict with construction or other
development projects or other forms of economic activity.
``(2) In the case of any species determined to be an
endangered species or threatened species after the date of
the enactment of the Threatened and Endangered Species
Recovery Act of 2005, the Secretary shall publish a final
recovery plan for a species within 3 years after the date the
species is listed under section 4(c).
``(3)(A) For those species that are listed under section
4(c) on the date of enactment of the Threatened and
Endangered Species Recovery Act of 2005 and are described in
subparagraph (B) of this paragraph, the Secretary, after
providing for public notice and comment, shall--
``(i) not later than 1 year after such date, publish in the
Federal Register a priority ranking system for preparing or
revising such recovery plans that is consistent with
paragraph (1) and takes into consideration the scientifically
based needs of the species; and
``(ii) not later than 18 months after such date, publish in
the Federal Register a list of such species ranked in
accordance with the priority ranking system published under
clause (i) for which such recovery plans will be developed or
revised, and a schedule for such development or revision.
``(B) A species is described in this subparagraph if--
``(i) a recovery plan for the species is not published
under this Act before the date of enactment of the Threatened
and Endangered Species Recovery Act of 2005 and the Secretary
finds such a plan would promote the conservation and survival
of the species; or
``(ii) a recovery plan for the species is published under
this Act before such date of enactment and the Secretary
finds revision of such plan is warranted.
``(C)(i) The Secretary shall, to the maximum extent
practicable, adhere to the list and schedule published under
subparagraph (A)(ii) in developing or revising recovery plans
pursuant to this paragraph.
``(ii) The Secretary shall provide the reasons for any
deviation from the list and tentative schedule published
under subparagraph (A)(ii), in each report to the Congress
under subsection (e).
``(4) The Secretary, using the priority ranking system
required under paragraph (3), shall prepare or revise such
plans within 10 years after the date of the enactment of the
Threatened and Endangered Species Recovery Act of 2005.
``(5) The Secretary, using the priority ranking system
required under paragraph (3), shall revise such plans within
10 years after the date of enactment of the Threatened and
Endangered Species Recovery Act of 2005.
``(6) In development of recovery plans, the Secretary shall
use comparative risk assessments, if appropriate, to consider
and analyze the short-term and long-term consequences of
alternative recovery strategies.
``(c) Plan Contents.--(1)(A) Except as provided in
subparagraph (E), a recovery plan shall be based on the best
available scientific data and shall include the following:
``(i) Objective, measurable criteria that, when met, would
result in a determination, in accordance with this section,
that the species to which the recovery plan applies be
removed from the lists published under section 4(c) or be
reclassified from an endangered species to a threatened
species.
``(ii) A description of such site-specific or other
measures that would achieve the criteria established under
clause (i), including such intermediate measures as are
warranted to effect progress toward achievement of the
criteria.
``(iii) Estimates of the time required and the costs to
carry out those measures described under clause (ii),
including, to the extent practicable, estimated costs for any
recommendations, by the recovery team, or by the Secretary if
no recovery team is selected, that any of the areas
identified under clause (iv) be acquired on a willing seller
basis.
``(iv) An identification of those publicly owned areas of
land or water that are necessary to achieve the purpose of
the recovery plan under subsection (a), and, if such species
is unlikely to be conserved on such areas, such other areas
as are necessary to achieve the purpose of the recovery plan.
``(B) The Secretary may at the time of listing or at any
time prior to the approval of a recovery plan for a species
issue such guidance as the Secretary considers appropriate to
assist Federal agencies, State agencies, and other persons in
complying with the requirements of this Act by identifying
either particular types of activities or particular areas of
land or water within which those or other activities may
impede the conservation of the species.
``(C) In specifying measures in a recovery plan under
subparagraph (A), the Secretary shall--
``(i) whenever possible include alternative measures; and
``(ii) in developing such alternative measures, seek to
identify, among such alternative measures of comparable
expected efficacy and timeliness, the alternative measures
that are least costly.
``(2) In the case of any species for which critical habitat
has been designated prior to the enactment of the Threatened
and Endangered Species Recovery Act of 2005, and for which no
recovery plan has been developed or revised after the
enactment of such Act, the Secretary shall treat the critical
habitat of the species as an area described in subparagraph
(A)(iv) until a recovery plan for the species is developed or
the existing recovery plan for the species is revised
pursuant to subsection (b)(4). In determining, pursuant to
section 7(a)(2), whether an agency action is likely to
jeopardize the continued existence of an endangered species
or threatened species, the Secretary shall consider the
effects of the action on any areas identified pursuant to
subsection (b)(4).
``(d) Recovery Teams.--(1) The Secretary shall promulgate
regulations that provide for the establishment of recovery
teams that may advise the Secretary in the development of
recovery plans under this section. The recovery teams may
help the Secretary ensure that recovery plans are
scientifically rigorous and that the evaluation of costs
required by paragraph (1)(A)(iii) of subsection (c) are
economically rigorous.
``(2) Such regulations shall--
``(A) establish criteria and the process for selecting the
members of recovery teams that ensure that each team--
``(i) is of a size and composition to enable timely
completion of the recovery plan; and
``(ii) includes sufficient representation from scientists
with relevant expertise and constituencies with a
demonstrated direct interest in the species and its
conservation or in the economic and social impacts of its
conservation to ensure that the views of such constituencies
will be considered in the development of the plan; and
``(B) include provisions regarding operating procedures of
and recordkeeping by recovery teams.
``(3) The Federal Advisory Committee Act (5 App. U.S.C.)
shall not apply to recovery teams appointed in accordance
with regulations issued by the Secretary under this
subsection.
``(e) Reports to Congress.--(1) The Secretary shall report
every two years to the Committee on Resources of the House of
Representatives and the Committee on Environment and Public
Works of the Senate on the status of all domestic endangered
species and threatened species and the status of efforts to
develop and implement recovery plans for all domestic
endangered species and threatened species.
``(2) In reporting on the status of such species since the
time of its listing, the Secretary shall include--
[[Page H8567]]
``(A) an assessment of any significant change in the well-
being of each such species, including--
``(i) changes in population, range, or threats; and
``(ii) the basis for that assessment; and
``(B) for each species, a measurement of the degree of
confidence in the reported status of such species, based upon
a quantifiable parameter developed for such purposes.
``(f) Public Notice and Comment.--The Secretary shall,
prior to final approval of a new or revised recovery plan,
provide public notice and an opportunity for public review
and comment on such plan. The Secretary shall consider all
information presented during the public comment period prior
to approval of the plan.
``(g) State Comment.--The Secretary shall, prior to final
approval of a new or revised recovery plan, provide a draft
of such plan and an opportunity to comment on such draft to
the Governor of, and State agency in, any State and any
Indian tribe to which such draft would apply. The Secretary
shall include in the final recovery plan the Secretary's
response to the comments of the Governor and the State agency
and to any comments submitted by the Governor on behalf of a
regional or local land use agency in the Governor's State.
``(h) Indian Tribe Defined.--For purposes of this Act, the
term `Indian tribe' means--
``(1) with respect to the 48 contiguous States, any
federally recognized Indian tribe, organized band, pueblo, or
community; and
``(2) with respect to Alaska, the Metlakatla Indian
Community.
``(i) Use of Plans.--(1) Each Federal agency shall consider
any relevant best available scientific data contained in a
recovery plan in any analysis conducted under section 102 of
the National Environmental Policy Act of 1969 (42 U.S.C.
4332).
``(2)(A) The head of any Federal agency may enter into an
agreement with the Secretary specifying the measures the
agency will carry out to implement a recovery plan.
``(B) Each such agreement shall be published in draft form
with notice and an opportunity for public comment.
``(C) Each such final agreement shall be published, with
responses by the head of the Federal agency to any public
comments submitted on the draft agreement.
``(j) Monitoring.--(1) The Secretary shall implement a
system in cooperation with the States to monitor effectively
for not less than five years the status of all species that
have recovered to the point at which the measures provided
pursuant to this Act are no longer necessary and that, in
accordance with this section, have been removed from the
lists published under section 4(c).
``(2) The Secretary shall make prompt use of the authority
under section 4(b)(7) to prevent a significant risk to the
well-being of any such recovered species.''.
(b) Conforming Amendments.--
(1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by
striking ``section 4(g)'' and inserting ``section 5(j)''.
(2) The Marine Mammal Protection Act of 1972 is amended--
(A) in section 104(c)(4)(A)(ii) (16 U.S.C.
1374(c)(4)(A)(ii)) by striking ``section 4(f)'' and inserting
``section 5''; and
(B) in section 115(b)(2) (16 U.S.C. 1383b(b)(2)) by
striking ``section 4(f) of the Endangered Species Act of 1973
(16 U.S.C. 1533(f))'' and inserting ``section 5 of the
Endangered Species Act of 1973''.
SEC. 11. COOPERATION WITH STATES AND INDIAN TRIBES.
Section 6 (16 U.S.C. 1535) is further amended--
(1) in subsection (c), by adding at the end the following:
``(3)(A) Any cooperative agreement entered into by the
Secretary under this subsection may also provide for
development of a program for conservation of species
determined to be candidate species pursuant to section
4(b)(3)(B)(iii) or any other species that the State and the
Secretary agree is at risk of being determined to be an
endangered species or threatened species under section
4(a)(1) in that State.
``(B) Any cooperative agreement entered into by the
Secretary under this subsection may also provide for
monitoring or assistance in monitoring the status of
candidate species pursuant to section 4(b)(3)(C)(iii) or
recovered species pursuant to section 5(j).
``(C) The Secretary shall periodically review each
cooperative agreement under this subsection and seek to make
changes the Secretary considers necessary for the
conservation of endangered species and threatened species to
which the agreement applies.
``(4) Any cooperative agreement entered into by the
Secretary under this subsection that provides for the
enrollment of private lands or water rights in any program
established by the agreement shall ensure that the decision
to enroll is voluntary for each owner of such lands or water
rights.
``(5)(A) The Secretary may enter into a cooperative
agreement under this subsection with an Indian tribe in
substantially the same manner in which the Secretary may
enter into a cooperative agreement with a State.
``(B) For the purposes of this paragraph, the term `Indian
tribe' means--
``(i) with respect to the 48 contiguous States, any
federally recognized Indian tribe, organized band, pueblo, or
community; and
``(ii) with respect to Alaska, the Metlakatla Indian
Community.'';
(2) in subsection (d)(1)--
(A) by striking ``pursuant to subsection (c) of this
section'';
(B) by striking ``or to assist'' and all that follows
through ``section 5(j)'' and inserting ``pursuant to
subsection (c)(1) and (2) or to address candidate species or
other species at risk and recovered species pursuant to
subsection (c)(3)''; and
(C) in subparagraph (F), by striking ``monitoring the
status of candidate species'' and inserting ``developing a
conservation program for, or monitoring the status of,
candidate species or other species determined to be at risk
pursuant to subsection (c)(3)''; and
(3) in subsection (e)--
(A) by inserting ``(1)'' before the first sentence;
(B) in paragraph (1), as designated by subparagraph (A) of
this paragraph, by striking ``at no greater than annual
intervals'' and inserting ``every 3 years''; and
(C) by adding at the end the following:
``(2) Any cooperative agreement entered into by the
Secretary under subsection (c) shall be subject to section
7(a)(2) through (d) and regulations implementing such
provisions.
``(3) The Secretary may suspend any cooperative agreement
established pursuant to subsection (c), after consultation
with the Governor of the affected State, if the Secretary
finds during the periodic review required by paragraph (1) of
this subsection that the agreement no longer constitutes an
adequate and active program for the conservation of
endangered species and threatened species.
``(4) The Secretary may terminate any cooperative agreement
entered into by the Secretary under subsection (c), after
consultation with the Governor of the affected State, if--
``(A) as result of the procedures of section 7(a)(2)
through (d) undertaken pursuant to paragraph (2) of this
subsection, the Secretary determines that continued
implementation of the cooperative agreement is likely to
jeopardize the continued existence of endangered species or
threatened species, and the cooperative agreement is not
amended or revised to incorporate a reasonable and prudent
alternative offered by the Secretary pursuant to section
7(b)(3); or
``(B) the cooperative agreement has been suspended under
paragraph (3) of this subsection and has not been amended or
revised and found by the Secretary to constitute an adequate
and active program for the conservation of endangered species
and threatened species within 180 days after the date of the
suspension.''.
SEC. 12. INTERAGENCY COOPERATION AND CONSULTATION.
(a) Consultation Requirement.--Section 7(a) (16 U.S.C.
1536(a)) is amended--
(1) in paragraph (1) in the second sentence, by striking
``endangered species'' and all that follows through the end
of the sentence and inserting ``species determined to be
endangered species and threatened species under section 4.'';
(2) in paragraph (2)--
(A) in the first sentence by striking ``action'' the first
place it appears and all that follows through ``is not'' and
inserting ``agency action authorized, funded, or carried out
by such agency is not'';
(B) in the second sentence, by striking ``best scientific
and commercial data available'' and inserting ``best
available scientific data''; and
(C) by adding at the end the following: ``In fulfilling the
requirements of this paragraph, the Secretary shall take into
account whether the adverse impacts to individuals of a
species are outweighed by any conservation benefits to the
species as a whole.''.
(3) in paragraph (4)--
(A) by striking ``listed under section 4'' and inserting
``an endangered species or a threatened species''; and
(B) by inserting ``, under section 4'' after ``such
species''.
(b) Opinion of Secretary.--Section 7(b) (16 U.S.C. 1536(b))
is amended--
(1) in paragraph (1)(B)(i) by inserting ``permit or
license'' before ``applicant'';
(2) in paragraph (2) by inserting ``permit or license''
before ``applicant'';
(3) in paragraph (3)(A)--
(A) in the first sentence--
(i) by striking ``Promptly after'' and inserting
``Before'';
(ii) by inserting ``permit or license'' before
``applicant''; and
(iii) by inserting ``proposed'' before ``written
statement''; and
(B) by striking all after the first sentence and inserting
the following: ``The Secretary shall consider any comment
from the Federal agency and the permit or license applicant,
if any, prior to issuance of the final written statement of
the Secretary's opinion. The Secretary shall issue the final
written statement of the Secretary's opinion by providing the
written statement to the Federal agency and the permit or
license applicant, if any, and publishing notice of the
written statement in the Federal Register. If jeopardy is
found, the Secretary shall suggest in the final written
statement those reasonable and prudent alternatives, if any,
that the Secretary believes would not violate subsection
(a)(2) and can be taken by the Federal agency or applicant in
implementing the agency action. The Secretary shall cooperate
with the Federal agency and any permit or license applicant
in the preparation of any suggested reasonable and prudent
alternatives.'';
(4) in paragraph (4)--
[[Page H8568]]
(A) by redesignating subparagraphs (A), (B), and (C) as
clauses (i), (ii), and (iii), respectively;
(B) by inserting ``(A)'' after ``(4)'';
(C) by striking ``the Secretary shall provide'' and all
that follows through ``with a written statement that--'' and
inserting the following: ``the Secretary shall include in the
written statement under paragraph (3), a statement described
in subparagraph (B) of this paragraph.
``(B) A statement described in this subparagraph--''; and
(5) by adding at the end the following:
``(5)(A) Any terms and conditions set forth pursuant to
paragraph (4)(B)(iv) shall be no more than necessary to
offset the impact of the incidental taking identified
pursuant to paragraph (4) in the written statement prepared
under paragraph (3).
``(B) If various terms and conditions are available to
comply with paragraph (4)(B)(iv), the terms and conditions
set forth pursuant to that paragraph--
``(i) must be capable of successful implementation; and
``(ii) must be consistent with the objectives of the
Federal agency and the permit or license applicant, if any,
to the greatest extent possible.''.
(c) Biological Assessments.--Section 7(c) (16 U.S.C.
1536(c)) is amended--
(1) in the first sentence, by striking ``which is listed''
and all that follows through the end of the sentence and
inserting ``that is determined to be an endangered species or
a threatened species, or for which such a determination is
proposed pursuant to section 4, may be present in the area of
such proposed action.''; and
(2) in the second sentence, by striking ``best scientific
and commercial data available'' and inserting ``best
available scientific data''.
(d) Modification of an Endangered Species Committee
Process.--Section 7 (16 U.S.C. 1536) is amended--
(1) by repealing subsection (j);
(2) by redesignating the remaining subsections accordingly;
and
(3) in subsection (o), as redesignated by paragraph (2) of
this subsection--
(A) in the first sentence, by striking ``is authorized''
and all that follows through ``of this section'' and
inserting ``may exempt an agency action from compliance with
the requirements of subsections (a) through (d) of this
section before the initiation of such agency action,''; and
(B) by striking the second sentence.
SEC. 13. EXCEPTIONS TO PROHIBITIONS.
(a) Incidental Take Permits.--Section 10(a)(2) (16 U.S.C.
1539(a)(2)) is amended--
(1) in subparagraph (A) by striking ``and'' after the
semicolon at the end of clause (iii), by redesignating clause
(iv) as clause (vii), and by inserting after clause (iii) the
following:
``(iv) objective, measurable biological goals to be
achieved for species covered by the plan and specific
measures for achieving such goals consistent with the
requirements of subparagraph (B);
``(v) measures the applicant will take to monitor impacts
of the plan on covered species and the effectiveness of the
plan's measures in achieving the plan's biological goals;
``(vi) adaptive management provisions necessary to respond
to all reasonably foreseeable changes in circumstances that
could appreciably reduce the likelihood of the survival and
recovery of any species covered by the plan; and'';
(2) in subparagraph (B) by striking ``and'' after the
semicolon at the end of clause (iv), by redesignating clause
(v) as clause (vi), and by inserting after clause (iv) the
following:
``(v) the term of the permit is reasonable, taking into
consideration--
``(I) the period in which the applicant can be expected to
diligently complete the principal actions covered by the
plan;
``(II) the extent to which the plan will enhance the
conservation of covered species;
``(III) the adequacy of information underlying the plan;
``(IV) the length of time necessary to implement and
achieve the benefits of the plan; and
``(V) the scope of the plan's adaptive management strategy;
and''; and
(3) by striking subparagraph (C) and inserting the
following:
``(3) Any terms and conditions offered by the Secretary
pursuant to paragraph (2)(B) to reduce or offset the impacts
of incidental taking shall be no more than necessary to
offset the impact of the incidental taking specified in the
conservation plan pursuant to in paragraph (2)(A)(i).
``(4)(A) If the holder of a permit issued under this
subsection for other than scientific purposes is in
compliance with the terms and conditions of the permit, and
any conservation plan or agreement incorporated by reference
therein, the Secretary may not require the holder, without
the consent of the holder, to adopt any new minimization,
mitigation, or other measure with respect to any species
adequately covered by the permit during the term of the
permit, except as provided in subparagraphs (B) and (C) to
meet circumstances that have changed subsequent to the
issuance of the permit.
``(B) For any circumstance identified in the permit or
incorporated document that has changed, the Secretary may, in
the absence of consent of the permit holder, require only
such additional minimization, mitigation, or other measures
as are already provided in the permit or incorporated
document for such changed circumstance.
``(C) For any changed circumstance not identified in the
permit or incorporated document, the Secretary may, in the
absence of consent of the permit holder, require only such
additional minimization, mitigation, or other measures to
address such changed circumstance that do not involve the
commitment of any additional land, water, or financial
compensation not otherwise committed, or the imposition of
additional restrictions on the use of any land, water or
other natural resources otherwise available for development
or use, under the original terms and conditions of the permit
or incorporated document.
``(D) The Secretary shall have the burden of proof in
demonstrating and documenting, with the best available
scientific data, the occurrence of any changed circumstances
for purposes of this paragraph.
``(E) All permits issued under this subsection on or after
the date of the enactment of the Threatened and Endangered
Species Recovery Act of 2005, other than permits for
scientific purposes, shall contain the assurances contained
in subparagraphs (B) through (D) of this paragraph and
paragraph (5)(A) and (B). Permits issued under this
subsection on or after March 25, 1998, and before the date of
the enactment of the Threatened and Endangered Species
Recovery Act of 2005, other than permits for scientific
purposes, shall be governed by the applicable sections of
parts 17.22(b), (c), and (d), and 17.32(b), (c), and (d) of
title 50, Code of Federal Regulations, as the same exist on
the date of the enactment of the Threatened and Endangered
Species Act of 2005.
``(F) If the Secretary determines that a conservation plan
under this subsection reasonably can be expected to fail to
achieve the goals specified under paragraph (2)(A)(iv), the
Secretary shall, at the Secretary's expense, implement
remedial conservation measures. Nothing in the preceding
sentence shall be construed to allow the Secretary to require
the holder of a permit issued under this subsection to
undertake any additional measures without the consent of the
holder.
``(5)(A) The Secretary shall revoke a permit issued under
paragraph (2) if the Secretary finds that the permittee is
not complying with the terms and conditions of the permit.
``(B) Any permit subject to paragraph (4)(A) may be revoked
due to changed circumstances only if--
``(i) the Secretary determines that continuation of the
activities to which the permit applies would be inconsistent
with the criteria in paragraph (2)(B)(iv);
``(ii) the Secretary provides 60 days notice of revocation
to the permittee; and
``(iii) the Secretary is unable to, and the permittee
chooses not to, remedy the condition causing such
inconsistency.''.
(b) Extension of Period for Public Review and Comment on
Applications.--Section 10(c) (16 U.S.C. 1539(c)) is amended
in the second sentence by striking ``thirty'' each place it
appears and inserting ``45''.
(c) Experimental Populations.--Section 10(j) (16 U.S.C.
1539(j)) is amended--
(1) in paragraph (1), by striking ``For purposes'' and all
that follows through the end of the paragraph and inserting
the following: ``For purposes of this subsection, the term
`experimental population' means any population (including any
offspring arising therefrom) authorized by the Secretary for
release under paragraph (2), but only when such population is
in the area designated for it by the Secretary, and such area
is, at the time of release, wholly separate geographically
from areas occupied by nonexperimental populations of the
same species. For purposes of this subsection, the term
`areas occupied by nonexperimental populations' means areas
characterized by the sustained and predictable presence of
more than negligible numbers of successfully reproducing
individuals over a period of many years.'';
(2) in paragraph (2)(B), by striking ``information'' and
inserting ``scientific data''; and
(3) in paragraph (2)(C)(i), by striking ``listed'' and
inserting ``determined to be an endangered species or a
threatened species''.
(d) Written Determination of Compliance.--Section 10 (16
U.S.C. 1539) is amended by adding at the end the following:
``(k) Written Determination of Compliance.--(1) A property
owner (in this subsection referred to as a `requester') may
request the Secretary to make a written determination as to
whether a proposed use of the owner's property that is lawful
under State and local law will require a permit under section
10(a), by submitting a written description of the proposed
action to the Secretary by certified mail.
``(2) A written description of a proposed use is deemed to
be sufficient for consideration by the Secretary under
paragraph (1) if the description includes--
``(A) the nature, the specific location, the lawfulness
under State and local law, and the anticipated schedule and
duration of the proposed use, and a demonstration that the
property owner has the means to undertake the proposed use;
and
``(B) any anticipated adverse impact to a species that is
included on a list published under 4(c)(1) that the requestor
reasonably expects to occur as a result of the proposed use.
``(3) The Secretary may request and the requestor may
supply any other information that either believes will assist
the Secretary to make a determination under paragraph (1).
[[Page H8569]]
``(4) If the Secretary does not make a determination
pursuant to a request under this subsection because of the
omission from the request of any information described in
paragraph (2), the requestor may submit a subsequent request
under this subsection for the same proposed use.
``(5)(A) Subject to subparagraph (B), the Secretary shall
provide to the requestor a written determination of whether
the proposed use, as proposed by the requestor, will require
a permit under section 10(a), by not later than expiration of
the 180-day period beginning on the date of the submission of
the request.
``(B) The Secretary may request, and the requestor may
grant, a written extension of the period under subparagraph
(A).
``(6) At the end of each fiscal year, the Secretary shall
transmit a report to the Congress listing the requests to
which the Secretary did not provide a requestor a timely
response under paragraph (5)(A) or (B), the status of those
requests at the time of transmittal of the report, and an
explanation for the circumstances that prevented the
Secretary from providing any such requestor with a timely
response.
``(7) This subsection shall not apply with respect to
agency actions that are subject to consultation under section
7.''.
(e) National Security Exemption.--Section 10 (16 U.S.C.
1539) is further amended by adding at the end the following:
``(l) National Security.--The President, after consultation
with the appropriate Federal agency, may exempt any act or
omission from the provisions of this Act if the President
finds that such exemption is necessary for national
security.''.
SEC. 14. PRIVATE PROPERTY CONSERVATION.
Section 13 (consisting of amendments to other laws, which
have executed) is amended to read as follows:
``Private Property Conservation Program
``Sec. 13. (a) Establishment of Program.--
``(1) Requirement.--The Secretary shall establish a Private
Property Conservation Program to improve the habitat and
promote the conservation, on private lands, of endangered
species, threatened species, and species that are candidates
to be determined to be endangered species or threatened
species.
``(2) Agreements authorized.--The Secretary may enter into
an agreement with a private property owner under which the
Secretary shall, subject to appropriations, make annual or
other payments to the person to implement the agreement.
``(3) Contents.--Any agreement the Secretary enters into
under this section shall--
``(A) specify a management plan that the private property
owner shall commit to implement on the property of the
private property owner, including--
``(i) an identification of the species and habitat covered
by the plan;
``(ii) a finding by the Secretary that the land to which
the agreement applies is appropriate for the species and
habitat covered by the agreement;
``(iii) a description of the activities the private
property owner shall undertake to conserve the species and to
create, restore, enhance, or protect habitat; and
``(iv) a description of the existing or future economic
activities on the land to which the agreement applies that
are compatible with the goals of the program.
``(B) specify the terms of the agreement, including--
``(i) the terms of payment to be provided by the Secretary
to the private property owner;
``(ii) a description of any technical assistance the
Secretary will provide to the private property owner to
implement the management plan;
``(iii) the terms and conditions under which the Secretary
and the private property owner mutually agree that the
agreement may be modified or terminated;
``(iv) acts or omissions by the Secretary or the private
property owner that shall be considered violations of the
agreement, and procedures under which notice and an
opportunity to remedy any violation by the private property
owner shall be given;
``(v) a finding by the Secretary that the private property
owner owns the land to which the agreement applies or has
sufficient control over the use of such land to ensure
implementation of agreement; and
``(vi) such other duties of the Secretary and of the
private property owner as are appropriate.
``(4) Cost share.--The Secretary may provide up to 70
percent of the cost to implement the management plan under
the terms of the agreement.
``(5) Priority.--In entering into agreements under this
section, the Secretary shall give priority to those
agreements--
``(A) that apply to areas identified under section
5(c)(1)(A)(iv); and
``(B) reasonably can be expected to achieve the greatest
benefit for the conservation of the species covered by the
agreement relative to the total amount of funds to be
expended to implement the agreement.
``(6) Technical assistance.--Any State agency, local
government, nonprofit organization, or federally recognized
Indian tribe may provide technical assistance to a private
property owner in the preparation of a management plan, or
participate in the implementation of a management plan,
including identifying and making available certified
fisheries or wildlife biologists with expertise in the
conservation of species.
``(7) Transfer of property.--Upon any conveyance or other
transfer of interest in land that is subject to an agreement
under this section
``(A) the agreement shall continue in effect with respect
to such land, with the same terms and conditions, if the
person to whom the land or interest is conveyed or otherwise
transferred notifies the Secretary of the person's election
to continue the agreement by not later than 30 days after the
date of the conveyance or other transfer;
``(B) the agreement shall terminate if the agreement does
not continue in effect under subparagraph (A); and
``(C) the person to whom the land or interest is conveyed
or otherwise transferred may seek a new agreement under this
section.
``(8) Model form of agreement.--Not later than 1 year after
the date of the enactment of the Threatened and Endangered
Species Act of 2005, the Secretary shall establish a model
form of agreement that a person may enter into with the
Secretary under this section.
``(9) Voluntary program.--
``(A) Agreements may not be required.--The Secretary, or
any other Federal official, may not require a person to enter
into an agreement under this section as a term or condition
of any right, privilege, or benefit, or of any action or
refraining from any action, under this or any other law.
``(B) Requirements under laws and permits.--None of the
activities otherwise required by law or by the terms of any
permit may be included in any agreement under this section.
``(10) Relationship to habitat conservation plans.--The
Secretary may consider an agreement under this subsection
that applies to an endangered species or threatened species
in determining the adequacy of a conservation plan for the
purpose of section 10(a)(2).
``(b) Technical Assistance Program for Small Landowners.--
``(1) In general.--The Secretary shall establish a program
to offer technical assistance to owners of private property
seeking guidance on the conservation of endangered species or
threatened species, or species that are candidates for being
determined to be endangered species or threatened species.
``(2) Allowable activities.--Upon request, the Secretary
may provide technical assistance to an owner of private
property for the purpose of--
``(A) helping to prepare and implement a conservation
agreement under subsection (a);
``(B) training the managers of private property in best
practices to conserve species and create, restore, enhance,
and protect habitat for species;
``(C) helping to prepare an application for a permit and a
conservation plan under section 10(a); and
``(D) any other purpose the Secretary determines is
appropriate to meet the goals of the program under subsection
(a).
``(3) Priority.--The Secretary shall give priority in
offers of technical assistance to owners of private property
that the Secretary determines cannot reasonably be expected
to afford adequate technical assistance.
``(4) Funding for program.--For any year for which funds
are appropriated to carry out this Act, 10 percent shall be
for carrying out this subsection, unless the Secretary
determines for any fiscal year that a smaller percentage is
sufficient and submits a report to the Congress containing
the percentage and an explanation of the basis for the
determination.''.
SEC. 15. PUBLIC ACCESSIBILITY AND ACCOUNTABILITY.
Section 14 (relating to repeals of other laws, which have
executed) is amended to read as follows:
``Public accessibility and accountability
``Sec. 14. The Secretary shall make available on a publicly
accessible website on the Internet--
``(1) each list published under section 4(c)(1);
``(2) all final and proposed regulations and determinations
under section 4;
``(3) the results of all 5-year reviews conducted under
section 4(c)(2)(A);
``(4) all draft and final recovery plans issued under
section 5(a), and all final recovery plans issued and in
effect under section 4(f)(1) of this Act as in effect
immediately before the enactment of the Threatened and
Endangered Species Recovery Act of 2005;
``(5) all reports required under sections 5(e) and 16, and
all reports required under sections 4(f)(3) and 18 of this
Act as in effect immediately before the enactment of the
Threatened and Endangered Species Recovery Act of 2005; and
``(6) to the extent practicable, data contained in the
reports referred to in paragraph (5) of this section, and
that were produced after the date of enactment of the
Threatened and Endangered Species Recovery Act of 2005, in
the form of databases that may be searched by the variables
included in the reports.''.
SEC. 16. ANNUAL COST ANALYSES.
(a) Annual Cost Analyses.--Section 18 (16 U.S.C. 1544) is
amended to read as follows:
``Annual cost analysis by United States Fish and Wildlife Service
``Sec. 18. (a) In General.--On or before January 15 of each
year, the Secretary shall submit to the Congress an annual
report covering the preceding fiscal year that contains
[[Page H8570]]
an accounting of all reasonably identifiable expenditures
made primarily for the conservation of species included on
lists published and in effect under section 4(c).
``(b) Specification of Expenditures.--Each report under
this section shall specify--
``(1) expenditures of Federal funds on a species-by-species
basis, and expenditures of Federal funds that are not
attributable to a specific species;
``(2) expenditures by States for the fiscal year covered by
the report on a species-by-species basis, and expenditures by
States that are not attributable to a specific species; and
``(3) based on data submitted pursuant to subsection (c),
expenditures voluntarily reported by local governmental
entities on a species-by-species basis, and such expenditures
that are not attributable to a specific species.
``(c) Encouragement of Voluntary Submission of Data by
Local Governments.--The Secretary shall provide a means by
which local governmental entities may--
``(1) voluntarily submit electronic data regarding their
expenditures for conservation of species listed under section
4(c); and
``(2) attest to the accuracy of such data.''.
(b) Eligibility of States for Financial Assistance.--
Section 6(d) (16 U.S.C. 1535(d)) is amended by adding at the
end the following:
``(3) A State shall not be eligible for financial
assistance under this section for a fiscal year unless the
State has provided to the Secretary for the preceding fiscal
year information regarding the expenditures referred to in
section 16(b)(2).''.
SEC. 17. REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY
REINTRODUCED SPECIES.
The Endangered Species Act of 1973 is further amended--
(1) by striking sections 15 and 16;
(2) by redesignating sections 17 and 18 as sections 15 and
16, respectively; and
(3) by adding after section 16, as so redesignated, the
following:
``Reimbursement for depredation of livestock by reintroduced species
``Sec. 17. (a) In General.--The Secretary of the Interior,
acting through the Director of the United States Fish and
Wildlife Service, may reimburse the owner of livestock for
any loss of livestock resulting from depredation by any
population of a species if the population is listed under
section 4(c) and includes or derives from members of the
species that were reintroduced into the wild.
``(b) Use of Donations.--The Secretary may accept and use
donations of funds to pay reimbursement under this section.
``(c) Availability of Appropriations.--The requirement to
pay reimbursement under this section is subject to the
availability of funds for such payments.''.
SEC. 18. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization.--The Endangered Species Act of 1973 is
further amended by adding at the end the following:
``Authorization of appropriations
``Sec. 18. (a) In General.--There are authorized to be
appropriated to carry out this Act, other than section
8A(e)--
``(1) to the Secretary of the Interior to carry out
functions and responsibilities of the Department of the
Interior under this Act, such sums as are necessary for
fiscal years 2006 through 2010; and
``(2) to the Secretary of Agriculture to carry out
functions and responsibilities of the Department of the
Interior with respect to the enforcement of this Act and the
convention which pertain the importation of plants, such sums
as are necessary for fiscal year 2006 through 2010.
``(b) Convention Implementation.--There is authorized to be
appropriated to the Secretary of the Interior to carry out
section 8A(e) such sums as are necessary for fiscal years
2006 through 2010.''.
(b) Conforming Amendment.--Section 8(a) (16 U.S.C. 1537(a))
is amended by striking ``section 15'' and inserting ``section
18''.
SEC. 19. MISCELLANEOUS TECHNICAL CORRECTIONS.
(a) International Cooperation.--Section 8 (16 U.S.C. 1537)
is amended--
(1) in subsection (a) in the first sentence by striking
``any endangered species or threatened species listed'' and
inserting ``any species determined to be an endangered
species or a threatened species''; and
(2) in subsection (b) in paragraph (1), by striking
``endangered species and threatened species listed'' and
inserting ``species determined to be endangered species and
threatened species''.
(b) Management Authority and Scientific Authority.--Section
8A (16 U.S.C. 1537a)) is amended--
(1) in subsection (a), by striking ``of the Interior
(hereinafter in this section referred to as the
`Secretary')'';
(2) in subsection (d), by striking ``Merchant Marine and
Fisheries'' and inserting ``Resources''; and
(3) in subsection (e)--
(A) in paragraph (1), by striking ``of the Interior
(hereinafter in this subsection referred to as the
`Secretary')''; and
(B) by striking paragraph (3) and redesignating paragraph
(4) as paragraph (3).
(c) Prohibited Acts.--Section 9 (16 U.S.C. 1538) is
amended--
(1) in subsection (a)--
(A) in paragraph (1), in the matter preceding subparagraph
(A), by striking ``of this Act, with respect to any
endangered species of fish or wildlife listed pursuant to
section 4 of this Act'' and inserting ``, with respect to any
species of fish or wildlife determined to be an endangered
species under section 4'';
(B) in paragraph (1)(G), by striking ``threatened species
of fish or wildlife listed pursuant to section 4 of this
Act'' and inserting ``species of fish or wildlife determined
to be a threatened species under section 4'';
(C) in paragraph (2), in the matter preceding subparagraph
(A) by striking ``of this Act, with respect to any endangered
species of plants listed pursuant to section 4 of this Act''
and inserting ``, with respect to any species of plants
determined to be an endangered species under section 4''; and
(D) in paragraph (2)(E), by striking ``listed pursuant to
section 4 of this Act'' and inserting ``determined to be a
threatened species under section 4'';
(2) in subsection (b)--
(A) by striking ``(1)'' before ``Species'' and inserting
``(1)'' before the first sentence;
(B) in paragraph (1), in the first sentence, by striking
``adding such'' and all that follows through ``: Provided,
That'' and inserting ``determining such fish or wildlife
species to be an endangered species or a threatened species
under section 4, if''; and
(C) in paragraph (1), in the second sentence, by striking
``adding such'' and all that follows through ``this Act'' and
inserting ``determining such fish or wildlife species to be
an endangered species or a threatened species under section
4'';
(3) in subsection (c)(2)(A), by striking ``an endangered
species listed'' and inserting ``a species determined to be
an endangered species'';
(4) in subsection (d)(1)(A), by striking clause (i) and
inserting the following: ``(i) are not determined to be
endangered species or threatened species under section 4,
and'';
(5) in subsection (e), by striking clause (1) and inserting
the following: ``(1) are not determined to be endangered
species or threatened species under section 4, and''; and
(6) in subsection (f)--
(A) in paragraph (1), in the first sentence, by striking
clause (A) and inserting the following: ``(A) are not
determined to be endangered species or threatened species
under section 4, and''; and
(B) by striking ``Secretary of the Interior'' each place it
appears and inserting ``Secretary''.
(d) Hardship Exemptions.--Section 10(b) (16 U.S.C. 1539(b))
is amended--
(1) in paragraph (1)--
(A) by striking ``an endangered species'' and all that
follows through ``section 4 of this Act'' and inserting ``an
endangered species or a threatened species and the subsequent
determination that the species is an endangered species or a
threatened species under section 4'';
(B) by striking ``section 9(a) of this Act'' and inserting
``section 9(a)''; and
(C) by striking ``fish or wildlife listed by the Secretary
as endangered'' and inserting ``fish or wildlife determined
to be an endangered species or threatened species by the
Secretary''; and
(2) in paragraph (2)--
(A) by inserting ``or a threatened species'' after
``endangered species'' each place it appears; and
(B) in subparagraph (B), by striking ``listed species'' and
inserting ``endangered species or threatened species''.
(e) Permit and Exemption Policy.--Section 10(d) (16 U.S.C.
1539(d)) is amended--
(1) by inserting ``or threatened species'' after
``endangered species''; and
(2) by striking ``of this Act''.
(f) Pre-Act Parts and Scrimshaw.--Section 10(f) (16 U.S.C.
1539(f)) is amended--
(1) by inserting after ``(f)'' the following: ``Pre-Act
Parts and Scrimshaw.--''; and
(2) in paragraph (2), by striking ``of this Act'' each
place it appears.
(g) Burden of Proof in Seeking Exemption or Permit.--
Section 10(g) (16 U.S.C. 1539(g)) is amended by inserting
after ``(g)'' the following: ``Burden of Proof in Seeking
Exemption or Permit.--''.
(h) Antique Articles.--Section 10(h)(1)(B) (16 U.S.C.
1539(h)(1)(B)) is amended by striking ``endangered species or
threatened species listed'' and inserting ``species
determined to be an endangered species or a threatened
species''.
(i) Penalties and Enforcement.--Section 11 (16 U.S.C. 1540)
is amended in subsection (e)(3), in the second sentence, by
striking ``Such persons'' and inserting ``Such a person''.
(j) Substitution of Gender-Neutral References.--
(1) ``secretary'' for ``he''.--The following provisions are
amended by striking ``he'' each place it appears and
inserting ``the Secretary'':
(A) Paragraph (4)(C) of section 4(b), as redesignated by
section 5(b)(2) of this Act.
(B) Paragraph (5)(B)(ii) of section 4(b), as redesignated
by section 5(b)(2) of this Act.
(C) Section 4(b)(7) (16 U.S.C. 1533(b)(7)), in the matter
following subparagraph (B).
(D) Section 6 (16 U.S.C. 1535).
(E) Section 8(d) (16 U.S.C. 1537(d)).
(F) Section 9(f) (16 U.S.C. 1538(f)).
(G) Section 10(a) (16 U.S.C. 1539(a)).
(H) Section 10(b)(3) (16 U.S.C. 1539(b)(3)).
(I) Section 10(d) (16 U.S.C. 1539(d)).
(J) Section 10(e)(4) (16 U.S.C. 1539(e)(4)).
(K) Section 10(f)(4), (5), and (8)(B) (16 U.S.C.
1599(f)(4), (5), (8)(B)).
(L) Section 11(e)(5) (16 U.S.C. 1540(e)(5)).
[[Page H8571]]
(2) ``president'' for ``he''.--Section 8(a) (16 U.S.C.
1537(a)) is amended in the second sentence by striking ``he''
and inserting ``the President''.
(3) ``secretary of the interior'' for ``he''.--Section
8(b)(3) (16 U.S.C. 1537(b)(3)) is amended by striking ``he''
and inserting ``the Secretary of the Interior''.
(4) ``person'' for ``he''.--The following provisions are
amended by striking ``he'' each place it appears and
inserting ``the person'':
(A) Section 10(f)(3) (16 U.S.C. 1539(f)(3)).
(B) Section 11(e)(3) (16 U.S.C. 1540(e)(3)).
(5) ``defendant'' for ``he''.--The following provisions are
amended by striking ``he'' each place it appears and
inserting ``the defendant''.
(A) Section 11(a)(3) (16 U.S.C. 1540(a)(3)).
(B) Section 11(b)(3) (16 U.S.C. 1540(b)(3)).
(6) References to ``him''.--
(A) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended by
striking ``him or the Secretary of Commerce'' each place it
appears and inserting ``the Secretary''.
(B) Paragraph (6) of section 4(b) (16 U.S.C. 1533(b)), as
redesignated by section 5(b)(2) of this Act, is further
amended in the matter following subparagraph (B) by striking
``him'' and inserting ``the Secretary''.
(C) Section 5(k)(2), as redesignated by section 9(a)(1) of
this Act, is amended by striking ``him'' and inserting ``the
Secretary''.
(D) Section 7(a)(1) (16 U.S.C. 1536(a)(1)) is amended in
the first sentence by striking ``him'' and inserting ``the
Secretary''.
(E) Section 8A(c)(2) (16 U.S.C. 1537a(c)(2)) is amended by
striking ``him'' and inserting ``the Secretary''.
(F) Section 9(d)(2)(A) (16 U.S.C. 1538(d)(2)(A)) is amended
by striking ``him'' each place it appears and inserting
``such person''.
(G) Section 10(b)(1) (16 U.S.C. 1539(b)(1)) is amended by
striking ``him'' and inserting ``the Secretary''.
(7) References to ``himself or herself''.--Section 11 (16
U.S.C. 1540) is amended in subsections (a)(3) and (b)(3) by
striking ``himself or herself'' each place it appears and
inserting ``the defendant''.
(8) References to ``his''.--
(A) Section 4(g)(1), as redesignated by section 8(1) of
this Act, is amended by striking ``his'' and inserting
``the''.
(B) Section 6 (16 U.S.C. 1535) is amended--
(i) in subsection (d)(2) in the matter following clause
(ii) by striking ``his'' and inserting ``the Secretary's'';
and
(ii) in subsection (e)(1), as designated by section
10(3)(A) of this Act, by striking ``his periodic review'' and
inserting ``periodic review by the Secretary''.
(C) Section 7(a)(3) (16 U.S.C. 1536(a)(3)) is amended by
striking ``his'' and inserting ``the applicant's''.
(D) Section 8(c)(1) (16 U.S.C. 1537(c)(1)) is amended by
striking ``his'' and inserting ``the Secretary's''.
(E) Section 9 (16 U.S.C. 1538) is amended in subsection
(d)(2)(B) and subsection (f) by striking ``his'' each place
it appears and inserting ``such person's''.
(F) Section 10(b)(3) (16 U.S.C. 1539(b)(3)) is amended by
striking ``his'' and inserting ``the Secretary's''.
(G) Section 10(d) (16 U.S.C. 1539(d)) is amended by
striking ``his'' and inserting ``the''.
(H) Section 11 (16 U.S.C. 1540) is amended--
(i) in subsection (a)(1) by striking ``his'' and inserting
``the Secretary's'';
(ii) in subsections (a)(3) and (b)(3) by striking ``his or
her'' each place it appears and inserting ``the
defendant's'';
(iii) in subsection (d) by striking ``his'' and inserting
``the officer's or employee's'';
(iv) in subsection (e)(3) in the second sentence by
striking ``his'' and inserting ``the person's''; and
(v) in subsection (g)(1) by striking ``his'' and inserting
``the person's''.
SEC. 20. ESTABLISHMENT OF SCIENCE ADVISORY BOARD.
The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)
is further amended by adding at the end the following:
``Science Advisory Board
``Sec. 19.
``(a) In General.--Within 12 months after the date of the
enactment of the Threatened and Endangered Species Recovery
Act of 2005, the Secretary of Interior, through the Director
of the United States Fish and Wildlife Service, shall
establish a Science Advisory Board (in this section referred
to as the `Board') to provide such scientific advice as may
be requested by the Secretary to assist in the evaluation of
the use of science in implementing this Act, including in the
development of policies and procedures pertaining to the use
of scientific information.
``(b) Composition.--The Board shall each consist of 9
members appointed by the Secretary of the Interior from a
list of nominees recommended by the National Academy of
Sciences, utilizing a system of staggered 3-year terms of
appointment. One member shall be elected by the members of
the Board as its Chairman. Members of the Board shall be
selected on the basis of their professional qualifications in
the areas of ecology, fish and wildlife management, plant
ecology, or natural resource conservation. Members of the
Board shall not hold another office or position in the
Federal Government. If a vacancy occurs on the Board due to
expiration of a term, resignation, or any other reason, each
replacement shall be selected by the Secretary from a group
of at least 4 nominees recommended by the National Academy of
Sciences. The Secretary may extend the term of a Board member
until the new member is appointed to fill the vacancy. If a
vacancy occurs due to resignation, or reason other than
expiration of a term, the Secretary shall appoint a member to
serve during the unexpired term utilizing the nomination
process set forth in this subsection. The Secretary shall
publish in the Federal Register the name, business address,
and professional affiliations of each appointee.
``(c) Compensation.--Each member of the Board shall receive
per diem compensation at a rate not in excess of that fixed
for GS-15 of the General Schedule as may be determined by the
Secretary of the Interior.
``(d) Staff.--Upon the recommendation of the Board, the
Secretary of the Interior shall make available employees as
necessary to exercise and fulfill the Board's
responsibilities. ''.
SEC. 21. CLERICAL AMENDMENT TO TABLE OF CONTENTS.
The table of contents in the first section is amended--
(1) by striking the item relating to section 5 and
inserting the following:
``Sec. 5. Recovery plans and land acquisition.''
; and
(2) by striking the items relating to sections 13 through
17 and inserting the following:
``Sec. 13. Private property conservation program.
``Sec. 14. Public accessibility and accountability.
``Sec. 15. Marine Mammal Protection Act of 1972.
``Sec. 16. Annual cost analysis by United States Fish and Wildlife
Service.
``Sec. 17. Reimbursement for depredation of livestock by reintroduced
species.
``Sec. 18. Authorization of appropriations.
``Sec. 19. Science Advisory Board.''.
The Acting CHAIRMAN. Pursuant to House Resolution 470, the gentleman
from California (Mr. George Miller) and the gentleman from California
(Mr. Pombo) each will control 30 minutes.
The Chair recognizes the gentleman from California (Mr. George
Miller).
Mr. GEORGE MILLER of California. Mr. Chairman, I yield myself such
time as I may consume.
The bipartisan substitute that we have introduced here in fact goes
to fundamental and basic changes in the Endangered Species Act to both
provide for the better protection of the species, but also to make this
Act far more workable, far more definite in terms of the interests of
landowners, the impacts and the timelines and the guidelines that will
be offered to them to make this Act work. That is the spirit of the
reform of the Endangered Species Act. That is not what is taking place
in this underlying bill.
In the manager's amendment that was just introduced, it has been
suggested now for the last several days that there is a recovery plan
in the underlying bill. The manager's amendment, in fact, strikes that
recovery plan in terms of its basic, fundamental necessity for the
recovery of those species. So the difference between the substitute and
the underlying bill is in the substitute, you will, in fact, have
enforceable recovery plans where other actions have to be measured
against the impacts on those recovery plans, the habitat that is
developed under those recovery plans to make sure that the recovery of
the species continues. That is no longer a requirement. That is no
longer a requirement in the substitute bill.
That is why I would hope that people would understand that if you
really want to provide for the reform, if you really want to provide
for the reform of the Endangered Species Act, if you really want to
make this Act more user-friendly, if you really want to have it based
upon science, if you want to have the recovery based upon science, you
want those determinations made with the best science, then that is what
the substitute does.
There has been a bait and switch here. Up until just recently, with
the adoption of the manager's amendment, you could argue that that is
what the underlying bill does. But, with the new language that is
introduced in the manager's amendment, that is no longer the case, and
I would hope that people would understand you will not be able to
provide for the kind of recovery that this Nation expects, that our
constituents expect, and most Members of Congress expect with that
legislation now with the manager's amendment.
Mr. Chairman, I reserve the balance of my time.
[[Page H8572]]
Mr. POMBO. Mr. Chairman, I yield 5 minutes to the gentleman from
California (Mr. Cardoza).
Mr. CARDOZA. Mr. Chairman, I rise today in opposition to the
substitute being offered for a number of reasons.
The substitute basically takes the Pombo bill and cuts out everything
that is important to my constituents, the small farmers and ranchers of
the Central Valley who are being driven out of our valley through
arbitrary and capricious regulatory burdens. It is my constituents who
are the ones that are begging me to help them reform the Endangered
Species Act, and I think this substitute leaves them behind and brings
our efforts back to square one.
What I cannot support is the removal of 2 provisions that I find
absolutely critical to any reforms to the ESA: mandatory landowner
notification, and the conservation compensation plans for effective
landowners.
{time} 1515
The first issue, the landowner notification is just a no-brainer
issue. Landowners deserve to know what they can and cannot do with
their property and the service should be responsible for telling them.
Many of the opponents of this provision claim that landowners can
simply go to court and get a decision but in reality, they cannot
because the court has ruled in previous cases that unless the service
tells them no directly they have no standing in court. This provision
is crucial, especially to the little guy who does not have millions and
millions of dollars to higher lawyers, biologists and surveyors needed
to take on the service.
Mr. Chairman, these little guys deserve an answer just like the big
guys do. I understand that there is a provision in the substitute that
attempts to address this issue with a similar 180 day timeline.
Unfortunately, there is no enforcement behind the language other than a
report to Congress, and we all know what we do with reports to
Congress.
The service is under a number of other time lines under ESA such as a
time line for completing political opinions which they also choose to
ignore. The substitute provisions would do exactly the same thing and
bring us back to square one. The second is the strong private property
rights section that are good in H.R. 3824. They did not seem to make
the cut in the substitute. It is not a sweeping entitlement program as
some would have you believe. It is a program that will fairly
compensate landowners and will provide species with conservation
mitigation measures that would otherwise go unprotected.
I do have to say that I am pleased that my colleagues chose to
include a number of provisions from the underlying bill in the
substitute. The fact that the substitute includes the same repeal of
critical habit speaks volumes for the overall consensus that this Act
needs to be changed and updated to reflect the evolving circumstances
on the ground that have impeded the accurate critical habit
designations.
But the deleted provisions from H.R. 3824 and the new definition of
jeopardy, under which, frankly, I am not sure if I could mow my own
lawn, will do nothing to relieve the conflict that currently exists
under that ESA.
It will do nothing more than the underlying bill to recovery species,
and this will simply put us back to square one.
Mr. Chairman, I have one final comment. I must correct the record. I
would ask that the gentleman from Oregon (Mr. Walden) place back up the
slide that he had from the bill which outlines that under the Pombo
bill, actually, it is here, under the Pombo bill you can only become
compensated for what is an allowable use for what is the current State
or local regulation, under the current zoning use.
So a farmer who is plowing his field and trying to grow a crop every
day, if he is denied the use of that property, he can only be
compensated for the loss of his farming income and he can not claim
that it could be a high rise hotel in its place. He only gets
compensated for what he was currently doing on the property, and that
is just simply an erroneous statement to say anything else.
Mr. Chairman, we need to defeat this substitute. We need to pass the
underlying measure.
Mr. GEORGE MILLER of California. Mr. Speaker, I yield 15 minutes to
the gentleman from New York (Mr. Boehlert) and ask unanimous consent
that he be permitted to control that time.
The Acting CHAIRMAN (Mr. Simpson). Is there objection to the request
of the gentleman from California?
There was no objection.
Mr. BOEHLERT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I rise in strong support of the substitute. I want to
thank all of our co-sponsors for their support, the gentleman from
Michigan (Mr. Dingell), the gentleman from Washington (Mr. Dicks), the
gentleman from New Jersey (Mr. Saxton), the gentlewoman from California
(Mrs. Tauscher), the gentleman from Illinois (Mr. Kirk), the
gentlewoman from California (Ms. Matsui), the gentleman from Illinois
(Mr. Johnson), and the gentleman from New Hampshire (Mr. Bass).
That is a pretty good sampling of Congressional centrists because
there is a moderate, targeted solution. Our substitute truly reforms
the Endangered Species Act without endangering any species or the
American taxpayer. And that is where it differs from H.R. 3824.
But before I describe the differences, I want to emphasize the
similarities. Both the bill and the substitute eliminate the current
requirements for setting aside critical habitat and rely instead on
recovery plans to save endangered and threatened species. They are
identical. Both the bill and the substitute offer new financial
incentives and legal protections to landowners to save species. Both
the bill and the substitute require greater involvement of States in
decisionmaking involving species. Both the bill and the substitute
ensure that the public will have greater information about and a
greater role in the decisionmaking.
In fact, while it is hard to quantify, I would guess about 80 to 90
percent of the language in the substitute is identical to the base
bill. That is because we developed the substitute by reading through
the base bill, once we could seize a copy, and by incorporating into
our substitute every word of H.R. 3824 that we possibly could.
What we could not accept was language weakening the Act by, for
example, making recovery plans unenforceable, sit on a shelf, gather
dust or making it too easy for the Federal Government to take actions
that would harm species. And most of all what we could not accept was
the new mandatory spending required by this bill which would open the
federal purse to developers while eliminating basic taxpayer
protections.
I laid out my specific concerns for that provision during the general
debate. I urge support for the substitute and opposition to H.R. 3824
as presented.
Mr. Chairman, I reserve the balance of my time.
Mr. POMBO. Mr. Chairman, I reserve the balance of my time.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield 3 minutes to
the gentleman from Michigan (Mr. Dingell).
(Mr. DINGELL asked and was given permission to revise and extend his
remarks.)
Mr. DINGELL. Mr. Chairman, I rise in strong support of the
substitute. It is bipartisan. It is supported by Members of Congress
from every part of the country. It is not only a unique and valuable
bipartisan piece of legislation, but it is one that will work.
Like the underlying bill, the substitute would repeal the current
requirement that the Secretary designate critical habitat for
endangered fish, wildlife and plants, before formulating a plan for
species recovery. In order, however, to maintain a strong ESA, the
substitute gives a strong definition of what is meant to jeopardize
continued existence of the species.
Science is the core principle of ESA and we direct the Secretary to
issue, and regularly revise, guidance on the acceptable scientific
measures. The substitute also creates a Science Advisory Board to peer-
review controversial decisions and offer other assistance when
necessary.
The substitute is going to provide a helping hand to landowners;
dedicated funding for technical assistance to private property owners;
a conservation grants program for landowners who help conserve the
species on or near
[[Page H8573]]
their property; assurances that private citizens can get timely answers
from the Fish and Wildlife Service; and reporting requirements so that
we know how many applications are really going unanswered, and most
importantly, why.
The substitute directs the Federal Government to work with the States
on a far broader and more cooperative manner than either current law or
the Committee on Resources bill.
The substitute directs the Secretary to first determine whether
public lands are sufficient to protect and save the species; if we
could protect the species, and save the species in our public lands, in
our national forests, our national BLM lands, and in our parks and
wildlife refuges, we should do so without placing the burden on private
landowners.
Mr. Chairman, this amendment represents a broad bipartisan and
fiscally responsible effort to move this process forward in a manner
that can not only get an overwhelming vote of support in the House, but
which can move on to the President's desk for signature in the same
manner as the original Act.
I urge my colleagues to support the substitute, and I say that it
will be not only a successful undertaking, but one which will be much
more in the interests of the landowners and of the species that we are
trying to protect and preserve.
Mr. POMBO. Mr. Chairman, I yield 3 minutes to the gentleman from
Texas (Mr. Gohmert).
Mr. GOHMERT. Mr. Chairman, I appreciate the chairman not only
yielding me time but, more especially, I appreciate all the work that
he has done in this. We heard over and over in the hearings that
Democrats really appreciated the way in which the gentleman reached out
and started from scratch and negotiated with them. Everything was
honest, open, above board and that the gentleman's example was one to
be emulated by people that wanted bipartisanship.
Of course, we get to the floor and I am hearing some different things
now. But nonetheless I also want to thank those Democrats who, with an
open mind and with a regard for fairness, have assisted the chairman in
trying to put together a good bill.
Now, it seems to me what this comes down to is a couple of differing
philosophies here. On the one hand, you have a philosophy that says
private property ownership rights are important and on the other says
King George, before we had the revolution, did not have such a bad
system. If you were a suck-up to the king, if you paid homage, kind of
like the Kelo decision, you were the better friend of the government,
then the government was going to treat you good. Never mind your
private property rights. We will tell you how you can use your
property. We will tell you what you can be compensated for and how and
when.
Now, under the substitute amendment, it is pretty clear you do not
get an honest answer from the government. Do my private property rights
violate or infringe upon some endangered species? Will it amount to an
inappropriate use?
Well, maybe it will and maybe it will not. We do not have to give you
an answer, but you will have to buy a permit and then under the bill,
the chairman has come up with you get a straight answer and you get it
quickly. And if you do not get it within 180 days, then you have got
your answer as a matter of law.
Under this substitute, all property owners can find out is if they
need to be having a habitat conservation plan and if they do, well,
gee, the government will help you fill out the application in begging
to see what you can do with your own property. We give you a straight
answer yes or no under the original bill, and that is how it should be.
The substitute amendment is going to stick the private property
owners with the fees. And, boy, I tell you what, when I hear this word
``entitlement'' as if it is going to somebody that is not entitled to
something. I tell you, entitlement has a different connotation here.
But under this bill, under the original bill it is not an entitlement
the way most people see it. If you own property and it is taken away
from you, you cannot use it the way you want to because some Federal
entity says you cannot. By golly, under our system of law, the way our
Constitution is written, you ought to be compensated for it. That is
America.
Mr. BOEHLERT. Mr. Chairman, I yield 3 minutes to the distinguished
gentleman from Maryland (Mr. Gilchrest), a valued member from the
Committee on Resources.
Mr. GILCHREST. Mr. Chairman, I think we are here in some sense, past
all the clutter of people articulating their most emotional feelings,
is a bill set aside some 30 years ago to have an understanding about
how we as Members of Congress, the government, can restore the
prodigious bounty of God's creation. How do we understand nature's
design? How do we use our intelligence to understand the facts behind
how nature sustains itself?
Well, in the real world, well, actually, in the real world which is
nature, but in the reality of the human condition, we have a lot of
other little things that we have to take into consideration. How do you
afford an Endangered Species Act? What do you do about private property
rights? Do you get enough science? Is the recovery plan appropriate? Do
you deal with farmers that have a problem with reintroduced species on
the property eating their sheep or their cows?
All these things have to be taken into consideration so that we
create a policy that protects private property rights, that brings
individuals on those farms and that landscape into the process and
helps pay for their contribution to the process, that brings Federal
agencies in so they can view the landscape, not from just one small
little fly or tiger beetle or some other particular species, but upon
which the landscape that supports that species, supports clean water,
supports clean air, supports the whole ecosystem including human
beings, including us as a species.
{time} 1530
We are not separate from clean water. We are not separate from clean
air. We are part of nature's design. We are part of this bounty of
God's creation. So how do we clarify all these different perspectives
and views based on different things that happen in our districts?
Well, we come up with the best available science. We come up with the
best available recovery plan. We come up with the best policy for not
only the species but for private property, and we come up with the
funds that are appropriate to deal with all these issues.
I would tell my colleagues that I feel strongly this is the best
policy change, the best reauthorization plan that we can use to deal
with the Endangered Species Act that will deal with nature's design and
man's impact on nature's design, which includes private property
rights, which includes reimbursements for helping to preserve
endangered species, and by the way, in this substitute is a provision
to pay those private property individuals.
I urge an ``aye'' vote on the substitute.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield 2 minutes to
the gentlewoman from California (Mrs. Tauscher).
Mrs. TAUSCHER. Mr. Chairman, I thank my good friend from California
(Mr. George Miller) for yielding me the time, and I join him in
offering this substitute, because the bill we are considering today,
H.R. 3824, will make it less likely that threatened and endangered
species will recover; but today we can support this bipartisan
substitute which will update and improve the Endangered Species Act.
I reject the notion, Mr. Chairman, that we cannot preserve both our
natural environment for future generations while supporting strong
economic growth.
Our substitute gives private property owners the opportunity to
protect species on our own land while ensuring they will not face
additional regulatory burden. Importantly, this substitute actually
discourages the use of private land for public purposes. The substitute
says if we can protect a species on public land, we should.
In some cases, private property owners will be asked to mitigate for
the effects of preserving threatened and endangered species. However,
we can and should provide incentives for private property owners who
are complying with the law, and the substitute does just that.
The substitute strikes a careful balance between the rights of
private
[[Page H8574]]
property owners and the preservation of our natural resources.
I encourage my colleagues to join me and a bipartisan group of
Members in supporting this reasonable, better substitute and opposing
H.R. 3824.
Mr. POMBO. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from
South Carolina (Mr. Brown).
(Mr. BROWN of South Carolina asked and was given permission to revise
and extend his remarks.)
Mr. BROWN of South Carolina. Mr. Chairman, in the 32 years that the
Endangered Species Act has been in effect, we have learned a lot of
lessons over time and seen the areas where it needs some improvement.
I believe that the gentleman from California (Chairman Pombo) and
other members of the House Committee on Resources have worked very hard
to come up with a piece of legislation that protects property owners'
rights and improves the way that we protect and rehabilitate endangered
species, and I am proud to be an original cosponsor of this
legislation.
Mr. Chairman, one of the most important aspects of H.R. 3824 deals
with private property owners' participation in species recovery. I
believe in America it is a fundamental right to be able to own property
and to be able to enjoy that property.
I visited a country back during the spring that no citizen in that
country could own property or they could lease it for 25 years or 99
years; and, Mr. Chairman, I do not believe America wants to return to
that fundamental time where we could not own property, we could just
live on property owned by somebody else.
I believe taking property that allows somebody an option not to be
able to use their property how they intended, property they used their
hard-earned money to purchase is fundamentally wrong.
Specifically, H.R. 3824 will provide certainty for private property
owners by allowing landowners to request a written determination as to
whether their land use activities will violate the take prohibitions of
section 9.
It will also compensate private property owners for the fair market
value for foregone use of their property where the Secretary has
determined that the use of that property would constitute a take under
section 9.
I believe we should protect our endangered species but not at the
expense of our private landowners.
Mr. Chairman, there is a better way to protect endangered species;
and I believe it is H.R. 3824, the Threatened and Endangered Species
Recovery Act of 2005.
I encourage my colleagues to vote ``no'' on the Miller substitute
amendment and ``yes'' on the final passage of H.R. 3824.
Mr. BOEHLERT. Mr. Chairman, I yield 3 minutes to the distinguished
gentleman from New Jersey (Mr. Saxton), an informed and valued member
of the Committee on Resources.
Mr. SAXTON. Mr. Chairman, I rise in strong support of the bipartisan
substitute.
Mr. Chairman, the Endangered Species Act is one of our most
farsighted and important conservation laws. For more than 30 years, the
Endangered Species Act has sounded the alarm and saved wildlife that we
humans have driven toward extinction. Today, we have wolves in
Yellowstone, manatees in Florida, and sea otters in California, largely
because of the act.
In the southern part of New Jersey, we have bald eagles, timber
rattlesnakes, and barred owls because of the protections provided by
the Endangered Species Act; and by protecting their habitat, we have
protected our own habitat.
I am concerned that the provisions contained in H.R. 3824 would
profoundly alter the act and the process. It contains costly, highly
problematic, vague new procedures and ill-conceived tradeoffs that will
undermine our ability to conserve fish and wildlife for future
generations.
Consequently, I join with my colleagues to offer the responsible,
bipartisan Miller-Boehlert substitute that reforms the law, answers the
concerns of landowners, States, and sportsmen while improving the
ability to achieve timely recovery of threatened and endangered fish,
wildlife, and plants.
Our amendment provides a creative, workable solution that promises
better results for recovering endangered species and reducing burdens
on landowners.
The most important tool needed to halt the decline and recover
threatened and endangered species is effective habitat protection. H.R.
3824 fails to protect habitat. The bipartisan amendment has strong
provisions to do that.
By contrast, our substitute provides a better way of protecting
habitat necessary for recovery, with a true focus on recovering
species.
There is broad consensus in Congress to reform the Endangered Species
Act, Mr. Chairman; but it is vital that in doing so we maintain the
integrity of the act and our ability to conserve these species for
future generations. The Miller-Boehlert amendment will do just that,
and I urge my colleagues to support the substitute.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield 1 minute to
the gentleman from Oregon (Mr. DeFazio).
Mr. DeFAZIO. Mr. Chairman, the substitute would be a great
improvement for the current Endangered Species Act. It would treat
landowners much as we do under the Conservation Reserve Program; but
the underlying bill would be a disaster for taxpayers, a new
entitlement.
The Secretary shall pay no less than fair market value. I guess the
Secretary, if they are feeling good that day, could pay more than fair
market value with taxpayers' money, borrowed money; and it does not
require the historic, usual, or custom use.
Take a piece of remote farm land, propose a huge development on it;
it does not have to be proven to be economically viable. You proposed
it; you were going to build 5,000 houses; you were going to make
$1,000, $2,000, $5,000 on each house. You would have to be compensated
for that. You do not have to prove that this is economically viable,
and sequential owners would get that right. You then sell it to your
next door neighbor; they can make the same claim. They sell it to the
guy down the street, they can make the same claim, on and on and on.
What an incredible new, speculative market, helping the housing
bubble, I guess; but this is going to kill the taxpayers and the
Federal Treasury. You should vote for the substitute. It will improve
the Endangered Species Act.
Mr. POMBO. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. Costa).
Mr. COSTA. Mr. Chairman, I very much wanted to support the substitute
amendment that we are debating this afternoon.
I have the utmost respect for the gentleman from California (Mr.
George Miller). Both he and I have been afforded the opportunity to
spend some time together in the wonderful Sierra Nevada mountains, and
I know how much respect and pride he has for America's natural
resources. I share it as well.
But there are three areas as it relates to the proposed substitute
amendment that I find to be very problematic and important to the
constituents that I represent that have had difficulty with this act
over the years.
First of all, the definition as it relates to property rights I think
is lacking and needs to be worked on in an important way.
Second, as it relates to the discussion of jeopardy to species, it is
so vague. How it would be applied to section 7 and other aspects of the
measure, I do not believe it is clear and could indicate further need
for litigation, which is the current problem and part that we are
trying to solve. I just do not believe that the jeopardy definitions
under the current proposed substitute amendment could work as they
currently are drafted.
Finally, this is very important and I mentioned it in my comments in
supporting the bill: there are no clear definitions as it relates to
takings for farmers and ranchers, not just in California but throughout
the country. Farmers and ranchers, I would maintain, are, in many
cases, one of the last bastions of protection for habitat. I mean,
think about it. They really want to farm, and they want to be able to
maintain their ranches. When we have growth areas throughout the
country, like in California, those farms and those ranches are one of
the last hedges to urban sprawl and uncontrolled growth. Therefore,
having no clear definitions for takings, I think, is critical.
[[Page H8575]]
Mr. BOEHLERT. Mr. Chairman, I reserve the balance of my time.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield 1 minute to
the gentleman from Maryland (Mr. Hoyer), the minority whip.
(Mr. HOYER asked and was given permission to revise and extend his
remarks.)
Mr. HOYER. Mr. Chairman, I thank the gentleman for yielding me time.
The time is insufficient, not only to explain my position, but also the
time for consideration of this bill has been insufficient.
Thirty-two years ago, we passed a bill that a Republican President,
Richard Nixon, signed to protect and conserve species in danger of
extinction. Unfortunately, though, the underlying bill, which has been
fast-tracked since its introduction, would substantially undermine the
Endangered Species Act. That is what this is about.
For example, this bill would undermine the ability of the responsible
Federal agencies to ably perform their oversight roles, and it fails to
recognize the importance of sound science to species recovery and
restoration.
The bill also creates a fiscally irresponsible, open-ended
entitlement program that effectively pays landowners to comply with the
law.
In contrast, the bipartisan substitute offered by the gentleman from
California (Mr. George Miller) has a far more reasoned approach.
It ensures consultation between the Secretary and other Federal
agencies with proposed actions that may jeopardize species. It
strengthens the definition of what constitutes jeopardy and requires
the Secretary to ensure that proposed recovery plans identify and
include areas necessary for species survival.
I urge support of the substitute and opposition to the underlying
bill.
Mr. Chairman. Thirty-two years ago, Congress passed and a Republican
President--Richard Nixon--signed the Endangered Species Act to protect
and conserve species in danger of extinction.
Today, there are 1,268 species listed as endangered or threatened in
the United States, including 26 in the State of Maryland.
This law is not perfect, but it has been very successful. Roughly 40
percent of listed species have witnessed the stabilization or growth of
their populations.
And, less than one percent have been declared extinct since the law's
enactment.
The fact is, this law has enabled the very survival of some of our
most vulnerable species--including the bald eagle, the gray wolf, the
California condor, and the whooping crane.
Unfortunately, though, the underlying bill--which has been fast-
tracked since its introduction last week--would substantially undermine
the Endangered Species Act.
For example, this bill would undermine the ability of the responsible
Federal agencies--the Departments of Commerce and Interior--to ably
perform their oversight roles, and it fails to recognize the importance
of sound science to species recovery and restoration.
The bill also creates a fiscally irresponsible, open-ended
entitlement program that effectively pays landowners to comply with the
law.
In contrast, the bipartisan substitute offers a far more reasoned
approach.
It ensures consultation between the Secretary and other Federal
agencies with proposed actions that may jeopardize species. It
strengthens the definition of what constitutes jeopardy and requires
the Secretary to ensure that proposed recovery plans identify and
include areas necessary for species survival.
The substitute also creates conservation programs that would provide
technical and financial assistance to landowners committed to efforts
that protect species.
Mr. Chairman, we have a responsibility to protect our environment--as
well as the diverse forms of life that share it.
The bipartisan substitute will help us achieve the goal. I urge my
colleagues to support it.
Mr. POMBO. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. Doolittle).
{time} 1545
Mr. DOOLITTLE. Mr. Chairman, I rise to oppose the substitute and to
support the underlying bill.
Mr. Chairman, it has been represented that this legislation is going
to cost billions of dollars potentially, and for that reason we should
reject it in the fiscal crisis in which we currently live. I just say
to you that the CBO, which makes the estimates on everything we do
around here, the official word for the Congress to act, projects that
the cost would be small over the 5 years. Indeed, and I quote, ``would
likely total less than $10 million.'' That was the CBO cost estimate to
H.R. 3824.
Fiscal conservatives like myself and Grover Norquist of Americans For
Tax Reform support this important legislation. Nothing could be more
conservative or more right than a vote for private property. So please
vote ``no'' to Miller-Boehlert and ``yes'' to final passage.
I might also note, as a representative of one of the districts that
has vast amounts of property in the mountains and so forth, that a lot
of small property owners, people who want to use their property, have
that ability compromised by the cloud that is placed over their
property once they get word of a threatened or endangered species. The
bill of the gentleman from California (Mr. Pombo) makes it certain and
provides a process for compensation. Otherwise, a small property owner
is faced with a big question mark, I call it a cloud. It is like a
cloud on your title and it is not easily resolved. It can cost you
many, many thousands of dollars and a great deal of worry.
The Pombo legislation eliminates this terrible burden we place on
small property owners. Please vote ``no'' on the Miller-Boehlert
amendment and ``yes'' for final passage on the Pombo legislation.
Mr. BOEHLERT. Mr. Chairman, I yield 1\1/2\ minutes to the
distinguished gentleman from Delaware (Mr. Castle).
Mr. CASTLE. Mr. Chairman, I thank the gentleman for yielding me this
time and for his tremendous work on this legislation.
I applaud my colleagues here today for offering this amendment in the
nature of a substitute. It goes a long way in making meaningful reforms
to the Endangered Species Act without hollowing the fundamental goals
of America's flagship wildlife conservation efforts. While there have
been successes in species recovery since enactment of the 32-year-old
Endangered Species Act, most would agree that it is in need of real
reform to make it more effective in species recovery, less demanding on
some landowners, and less prone to lawsuits and bureaucracy.
However, pushing the problematic and prohibitively expensive H.R.
3824, the Threatened and Endangered Species Recovery Act through the
legislative process has left a sour taste in many of our mouths because
it removes the enforceable protections for species recovery and creates
the entitlement program for private landowners.
At a time when our country is still coping with the cost of the wars
in Iraq and Afghanistan, and most recently with Hurricanes Katrina and
Rita, one has to wonder why a rewrite of the Endangered Species Act
that includes an entitlement program is even a consideration. This
substitute will improve the recovery of more species, put back into
place needed enforcement of species recovery plans, and it will do all
of this and much more without creating an entitlement program.
This bipartisan substitute is a more pragmatic solution, and I urge
my colleagues on both sides of the aisle to support it.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield for the
purpose of a unanimous consent request to the gentleman from California
(Mr. Farr).
(Mr. FARR asked and was given permission to revise and extend his
remarks.)
Mr. FARR. Mr. Chairman, I rise in support of the underlying
amendment, because in the middle of the night, the manager's amendment
removed the NOAA fisheries provision in the Interior.
Mr. Chairman, I rise in opposition to H.R. 3824, the Threatened and
Endangered Species Recovery Act, as it is currently drafted.
Mr. Chairman, once again California leads the Nation: This time it is
for the number of listings for threatened and endangered species.
California has more than twice the species listed as any other State.
My home on the Central Coast in the 17th district has more habitat
where both endangered plants and animals have lived with commercial
farming and ranching. The same climate that produces over three billion
dollars annually in agriculture farm gate also is home to the tar plant
in Santa Cruz and the California condor in Big Sur.
Another example is the Big Sur area of California where you can find
redwoods from
[[Page H8576]]
northern California growing next to the yucca of southern California.
I recognize the need for some ``tune-ups'' in the ESA, unfortunately,
H.R. 3824 takes a meat axe approach when what we need is a scalpel.
The Endangered Species Act is one of America's most important and
successful environmental laws. As one of the pillars of environmental
law, it has brought public attention to the impact of human activities
on our Nation's wildlife that contributes so much beauty and delight to
life as well as growing economic development in environmental tourism.
But it also goes beyond that to declare the preservation of such
species as the American bald eagle and the California condor, that
glide on the thermals along the Big Sur coastline, a national priority.
While opponents of the law complain that it has restored healthy
populations of only 16 of the more than 1,800 species on its endangered
list, dozens of other species have dramatically increased their
populations because of the law's protection.
Without the ESA these species could easily have succumbed to
extinction as corporations and developers decided the fate of their
habitats.
That's no small accomplishment. What's more, only nine endangered
plants and animals have been lost. We cannot forget that robust
biodiversity is absolutely necessary to a healthy human environment.
Ninety-eight percent of the species protected under the Endangered
Species Act are still alive today, and many are stable or improving.
Without the Endangered Species Act, wildlife such as the bald eagle,
American alligator, California condor, Florida panther and many other
animals that are part of America's natural heritage could have
disappeared from the planet years ago. The Endangered Species Act works
because it safeguards the places where endangered animals and plants
live.
With the recent discovery of the once thought to be extinct Ivory-
billed woodpecker in Arkansas and the Mount Diablo Buckwheat in
California, I think this is an opportune moment to highlight the
success of many of our conservation efforts. For example, in my home
State of California, I am especially proud of the conservation and
management efforts that have helped significantly restore populations
of California condor, the Southern sea otter, the winter run Chinook
salmon, the Least Bell's Vireo songbird, the California Brown Pelican,
and the California gray whale.
Mr. Chairman, it is fitting that Congress is moving to reauthorize
ESA on Sea Otter Awareness Week since the sea otters are a success
story in my district. While the Southern Sea Otter still has a long way
to go before being delisted, the increased numbers of sea otters along
my district shoreline have greatly contributed to our tourism economy.
Studies show sea otters draw tourists to my district where they spend
money on lodging, restaurants and other merchandise.
The dramatic turnaround realized by the once thought extinct Southern
sea otter is a result of two critical protection laws--the ESA and the
Marine Mammal Protection Act, the Southern sea otter population grew
from less than 100 otters in the 1930's to the present total of 2,800.
Scientists maintain that it will take 3,100 otters to make a population
stable enough to even consider removing them from the Endangered
Species list and many threats remain. As reauthorization of the ESA
moves forward this week in the House, I will fight to keep it strong
enough to successfully overcome these threats to the Southern sea
otter.
Despite success stories, like this we need to be aware that more
needs to be done. At this time, more than 1,000 species in the U.S. and
abroad, are designated as ``at risk'' for extinction. One small step is
to increase awareness about the seriousness of the circumstances facing
many of these endangered species and educating the public about these
species.
I know the ESA has it's problems and the proponents of this
legislation have brought many of those cases to light today.
Any law that has been on the books for as long as the Endangered
Species Act will have issues--Some of these issues deal with inadequate
funding, and some with the law itself.
I agree we need to tweak and update the current law, to make changes,
but we do not need to completely rewrite this critical protection
legislation.
Mr. Chairman, I want to use the rest of my time to discuss a specific
provision to move the National Oceanic and Atmospheric Administration's
ESA responsibilities to the Department of Interior.
This is an awful idea, and it should have been vetted within the
Resources committee before being brought to the floor.
As you know, many of our constituents across the country care deeply
about, whales, salmon, and sea turtles. Taking ESA responsibilities
away from the experts at NOAA, will put these animals at further risk.
Giving jurisdiction of the ocean animals, whose survival is most at
risk, to an agency without ocean expertise is ludicrous. Taking ESA
responsibilities from NOAA will split jurisdiction on marine animals,
creating a management nightmare and further fracturing our marine
management.
For example, Pacific salmon will be a management nightmare. Fish in
one river that arrive in spring will be managed by the Department of
Commerce, while fish that arrive in that same river during fall will be
managed by the Department of Interior. To make things more complicated,
who will manage these fish when they are all mixed together in the
ocean? Will the fishermen have to choose from two sets of fishing
regulations, one from the Department of Commerce and the other from the
Department of Interior?
As the Pew and US Commissions on Ocean Policy recommended, we need to
consolidate our ocean management under one roof, Specifically the
National Oceanic and Atmospheric Administration in the Department of
Commerce, to be effective. Further splitting our ocean management is
only going to create more problems.
Mr. Chairman, let's not send the message that this Congress is more
interested in private property development than in the common good of
America the beautiful, from sea to shining sea.
The action this House takes today is a step in the long process to
reauthorizing the Endangered Species Act. I urge my colleagues not to
take the meat axe approach but to support the bipartisan Miller/
Boehlert substitute.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield 1 minute to
the gentleman from Oregon (Mr. Blumenauer).
Mr. BLUMENAUER. Mr. Chairman, I will support the bipartisan
substitute amendment by my colleagues, the gentleman from California
(Mr. George Miller) and the gentleman from New York (Mr. Boehlert)
because it is an honest effort to make it a better alternative that
does not include the most egregious parts of the underlying bill.
I would, however, just make one point. I take modest exception to the
implication that was made from the other side of the aisle that somehow
the Endangered Species Act and environmental legislation had something
to do with the tragedy we witnessed unfurl in the Katrina-affected
region. The GAO presented a report yesterday saying that the delays in
the project, that none of the changes are believed to have had any role
in the levee breaches. And, in fact, Corps officials believe that the
flooding would have been worse if the original proposed design had been
built. That was presented to Congress yesterday by the GAO.
This is contentious enough, Mr. Chairman, so it would be nice if we
could stick to the facts and not make implications that somehow the
environmental legislation had anything to do with that tragedy.
Knowledgeable people understand that in the long run environmental
legislation, had it been enforced and applied uniformly, would have
made things better.
Mr. Chairman, I submit for the Record the GAO report I just referred
to.
Lake Pontchartrain and Vicinity Hurricane Protection Project
what gao found
Congress first authorized the Lake Pontchartrain and
Vicinity, Louisiana Hurricane Protection Project in the Flood
Control Act of 1965. The project was to construct a series of
control structures, concrete floodwalls, and levees to
provide hurricane protection to areas around Lake
Pontchartrain. The project, when designed, was expected to
take about 13 years to complete and cost about $85 million.
Although federally authorized, it was a joint federal, state,
and local effort.
The original project designs were developed based on the
equivalent of what is now called a fast-moving Category 3
hurricane that might strike the coastal Louisiana region once
in 200-300 years. As GAO reported in 1976 and 1982, since the
beginning of the project, the Corps has encountered project
delays and cost increases due to design changes caused by
technical issues, environmental concerns, legal challenges,
and local opposition to portions of the project. As a result,
in 1982, project costs had grown to $757 million and the
expected completion date had slipped to 2008. None of the
changes made to the project, however, are believed to have
had any role in the levee breaches recently experienced as
the alternative design selected was expected to provide the
same level of protection. In fact, Corps officials believe
that flooding would have been worse if the original proposed
design had been built. When Katrina struck, the project,
including about 125 miles of levees, was estimated to be from
60-90 percent complete in different areas with an estimated
completion date for the whole project of 2015. The floodwalls
along the drainage canals that were breached were complete
when the hurricane hit.
[[Page H8577]]
The current estimated cost of construction for the
completed project is $738 million with the federal share
being $528 million and the local share $210 million. Federal
allocations for the project were $458 million as of the
enactment of the fiscal year 2005 federal appropriation. This
represents 87 percent of the federal government's
responsibility of $528 million with about $70 million
remaining to complete the project. Over the last 10 fiscal
years (1996-2005), federal appropriations have totaled about
$128.6 million and Corps reprogramming actions resulted in
another $13 million being made available to the project.
During that time, appropriations have generally declined from
about $15-20 million annually in the earlier years to about
$5-7 million in the last three fiscal years. While this may
not be unusual given the state of completion of the project,
the Corps' project fact sheet from May 2005 noted that the
President's budget request for fiscal years 2005 and 2006,
and the appropriated amount for fiscal year 2005 were
insufficient to fund new construction contracts. The Corps
had also stated that it could spend $20 million in fiscal
year 2006 on the project if the funds were available. The
Corps noted that several levees had settled and needed to be
raised to provide the level of protection intended by the
design.
Mr. POMBO. Mr. Chairman, I yield 2 minutes to the gentleman from Utah
(Mr. Bishop).
Mr. BISHOP of Utah. Mr. Chairman, I appreciate the opportunity to
stand here and speak about this particular substitute. As it was
brought to the Committee on Rules last night, I noticed that it has
been consistently called the ``bipartisan substitute.'' It does have
eight cosponsors that are bipartisan. But I would note that the actual
bill itself has 95 co-sponsors and it has four times as many Democrats
on the bill itself as the so-called ``bipartisan substitute.'' So I
would like to speak a bit about the bipartisan bill that is actually
before us as well.
I have one of my good constituents, Mr. Child, who bought 500 acres
of land and found an endangered species on it. The snail. The problem
is not that the snail was on it. The problem is he also had 11 geese,
and the Federal Government threatened to sue him at the rate of $50,000
for every snail the geese happened to consume. This meant that the
Federal Government went in there and captured all 11 geese, forced them
to vomit to find out how many snails were actually consumed by the
geese.
This gives us some idea why a small private property owner, as soon
as he finds an endangered species, the goal is to get rid of the
endangered species. And the problem is not the big guys. The problem is
that 90 percent of the habitat for endangered species is on private
property. Our goal, if we are really serious about trying to preserve
endangered species of all kinds, is to get control and cooperation with
small private property owners.
The main bill does that by providing a grant program for the
cooperation, whereas the substitute eliminates that provision. It puts
us backwards to the same old process of trying to threaten and
intimidate, which does not work. That is why the recovery rate is so
abysmally low with the Endangered Species Act. In fact, it moves us
somewhat backwards by weakening scientific standards and creating
potential for more litigation.
We have agencies like the U.S. Fish and Wildlife Service which year
after year is bankrupt by rampant litigation. This means they have
little money and little funds left for actual recovery of species. What
we need to do is to make sure that we are engaging the private property
owners so that they assist and work in cooperation with the Federal
Government. You cannot do that by supporting both the substitute and
the main bill.
Mr. POMBO. Mr. Chairman, I yield for the purpose of a unanimous
consent request to the gentleman from California (Mr. Gallegly), a
member of the Committee on Resources.
(Mr. GALLEGLY asked and was given permission to revise and extend his
remarks.)
Mr. GALLEGLY. Mr. Chairman, I appreciate the opportunity to stand in
strong opposition to the substitute and in strong support of the
underlying bill. Unfortunately, I may not be able to stay for the vote
because there are fires in my district and my neighborhood is being
evacuated.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield 2 minutes to
the gentlewoman from California (Ms. Pelosi), the minority leader.
Ms. PELOSI. Mr. Chairman, I thank the gentleman for yielding me this
time, and I thank him for his extraordinary leadership on behalf of the
American people in terms of the air they breathe, the water they drink,
in protecting God's beautiful gift to us, this beautiful legacy that we
have in our environment, and I commend the ranking member, the
gentleman from West Virginia (Mr. Rahall), for his leadership as well.
He has been a champion as well in this area.
Mr. Chairman, I rise in opposition to this legislation which would
critically undermine protections for our Nation's endangered species. I
support the bipartisan substitute that the gentleman from New York (Mr.
Boehlert) is putting forth with the gentleman from California (Mr.
George Miller), and commend them for this good proposal because it
provides common sense proposals to strengthen the Endangered Species
Act, and yet give a common sense enforcement to it.
I rise as House Democratic leader, of course, in support of the
substitute, but I also rise as a mother and as a grandmother; mother of
five and grandmother of five. My husband always says I just like to
know how long into a speech it is before you start talking about your
grandchildren. But we teach our grandchildren, and I did teach my
children when they were little, that everything in nature is connected
and that there is a reason, a balance to it all, this beautiful web of
life that is nature. Today's bill of course in this debate points out
what value we place on that.
With the passage of the first Endangered Species law in 1966 and the
modern Endangered Species Act in 1973, Congress made a commitment to
future generations of Americans, at that time that would be our
children, my grandchildren. We made a commitment to maintain the web of
life and preserve the myriad species that form an essential part of our
natural heritage. We must keep that commitment for the sake of our
children and our grandchildren.
The Endangered Species Act is a safety net for wildlife, fish and
plants that are on the brink of extinction. When other environmental
laws have not provided enough protection, the Endangered Species Act is
there to give endangered species one last chance to survive. Of the
1,800 species protected by the law, only nine species have been
declared extinct. An impressive achievement.
Earlier in the debate, I heard the gentleman from Washington (Mr.
Dicks) speaking, and I see he is still in the Chamber, and I thank him
for his very enlightening presentation about how many species have been
saved during the life of this law. That was very inspiring and
encouraging. The safety net saved our majestic national symbol, the
bald eagle, and the peregrine falcon. It saved the Florida manatee, the
grizzly bear, the southern sea otter, sea turtles, and many other
animals and plants, all important in the balance of nature.
On the floor of the House, week after week, month after month, the
Republican leadership pushes through legislation shredding the safety
net for children, for veterans, for the elderly, for the poor, for the
sick and the disabled, so it comes as no surprise today that they bring
a bill that will shred the safety net for the endangered plants and
animals. This is really unfortunate, because, again, it all relates to
the balance of nature.
We find these words from the psalms: ``How many are your works, O
Lord! In wisdom you made them all; the earth is full of your creatures.
There is the sea, vast and spacious, teeming with creatures beyond
number, living things both large and small.'' In wisdom God has made
them all ``living both things both large and small,'' and in wisdom we
should preserve and protect them.
We have yet to learn the roles that many creatures play in the web of
life, and we are yet to discover the practical effects many species may
bring to humankind. One example in California is the Pacific forest
yew. Once considered virtually useless, a trash tree, became extremely
valuable as the source for the anti-cancer drug Taxol. Many of us have
dear friends or family members whose chances of survival have been
increased by the use of Taxol.
The bill we consider today is loaded with provisions that will make
it harder to preserve endangered species. It undermines sound science
by directing the Secretary of the Interior, a political appointee, to
issue regulations
[[Page H8578]]
locking in a static definition of specific acceptable scientific data.
It repeals all protections from pesticides, it drops the requirement
for other Federal agencies to consult with wildlife experts at the Fish
and Wildlife Service or the fisheries experts at the National Marine
Fisheries Service. It establishes an extraordinarily new entitlement
program for developers and speculators that requires taxpayers to pay
them unlimited amounts of money, and the list goes on and on.
Reasonable people agree that there are ways to improve the Endangered
Species Act. Many people who care very, very much about the
environment, about the balance of nature, about the web of life have
concerns about the enforcement. I think that is why it is important for
Congress to be very clear what our intent is, so that intention of
Congress and that clarity of our voices here will give guidance to
those who enforce the law so that is the implementation and the
execution of it is not in a way that is so risk averse as to be
counterproductive.
We can do better than the current law, but it is hard to do worse
than the legislation being proposed by the gentleman from California
(Mr. Pombo). That is why my colleague, the gentleman from California
(Mr. George Miller), joined by a group of Members and also the
gentleman from New York (Mr. Boehlert), taking the lead on the
Republican side, have developed a substitute to this bill that gives
landowners assistance and incentives to protect endangered species,
strengthens the science behind the Endangered Species Act, and requires
improved coordination with the States.
{time} 1600
I urge my colleagues to strengthen the Endangered Species Act by
voting for a bipartisan substitute and opposing the underlying bill,
and in doing so, to truly, as Members of Congress, show our children
that we mean it when we say that we all know that everything in nature
is connected and it is important to maintain the balance, the web of
life.
In Isaiah in the Old Testament, we are told that to minister to the
needs of God's creation, and that includes our beautiful environment,
is an act of worship. To ignore those needs is to dishonor the God who
made us.
Let us minister to the needs of God's creation. Let us support the
substitute and oppose the underlying bill.
Mr. BOEHLERT. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman
from Connecticut (Mr. Shays).
Mr. SHAYS. Mr. Chairman, I rise in support of the Miller-Boehlert
substitute amendment because I believe we will not have a world to live
in if we continue our neglectful ways.
The Endangered Species Act has been a guiding force for the
preservation of species threatened with extinction for over 30 years.
It is vitally important that we not alter it in any way that could
result in the protection it provides from being compromised.
The Endangered Species Act is working. According to the U.S. Fish and
Wildlife Service, 99 percent of the species ever listed under the ESA
have been prevented from going extinct, and 68 percent are stable or
improving; but the recovery plans in place may need 50 years to restore
these to relative abundance.
The amendment would prevent the creation of a mandatory entitlement
program for private property owners which is likely to be hugely
expensive.
The substitute also restores the role of science in the Endangered
Species Act. The underlying bill appears to give the opinions of
individuals without any scientific expertise equal standing with those
of scientists and repeals protections against hazardous pesticides.
I oppose H.R. 3824 and any efforts to weaken the Endangered Species
Act. I support the Miller-Boehlert substitute.
Mr. POMBO. Mr. Chairman, I yield 2 minutes to the gentleman from Utah
(Mr. Cannon).
Mr. CANNON. Mr. Chairman, I would like to thank the chairman of the
full committee, the gentleman from California (Mr. Pombo). I rise in
opposition to the substitute amendment and in support of the underlying
bill. I would like to congratulate the gentleman from California (Mr.
Pombo) on many, many years of hard work on this issue.
I have to say, I am astonished to be here today. By my count, the
number of Democrats who voted for the underlying bill in committee was
greater than the number of Democrats who voted against it. The minority
leader just told us that reasonable people can agree that the
Endangered Species Act can be improved. I think that is the fundamental
starting place, and it is nice to be debating the substitute, because
we are talking about a fundamentally defective process.
On the other hand, the underlying bill is a good bill. The substitute
has some great defects. In the first place, it raises the regulatory
bar. It makes it more difficult. In the second place, the substitute
does nothing to provide straightforward answers to property owners. In
other words, the fundamental problems, which have caused such division
in America, are not dealt with in the substitute bill. They do not
provide compensation to a landowner.
If you are a landowner and the town or the State or country builds a
highway, the land gets condemned and you get paid for the land. We need
to have some kind of a compensatory process, and we do not have that in
the substitute bill.
The substitute bill replaces the dysfunctional critical habitat
concept with something far worse. They talk about lands necessary for
recovery. What that is, I do not know that we can figure that out until
we have done a lot of litigation and have been through a great deal of
pain in America.
The substitute removes the incentives and creates a voluntary
program. And a landowner, after he volunteers, could get 70 percent of
his costs back for participating in the program. It does not give him
any grants or any contractual rights. It does not pay him for the cost.
I urge support of the underlying bill and opposition to the substitute
amendment.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield 1 minute to
the gentleman from West Virginia (Mr. Rahall).
Mr. RAHALL. Mr. Chairman, I rise in support of the substitute
amendment. It will significantly improve the species recovery which is
an important part of our negotiating process that led us up to this
bill on the floor today.
It will assist landowners in their efforts to conserve species. The
substitute will also include a statutory definition of jeopardy that
will ensure that Federal agency actions do not diminish recovery. That
is a very important part of giving up the critical habitat designation,
that we have an improved consultation process and an improved
definition of what constitutes jeopardy.
Mr. Chairman, I urge strong support of this bipartisan substitute
and, again, opposition to the underlying bill.
Mr. BOEHLERT. Mr. Chairman, I yield 2 minutes to the gentleman from
Illinois (Mr. Kirk).
Mr. KIRK. Mr. Chairman, I would respectfully disagree with the
minority leader that this bill is not Republicans versus Democrats.
This is largely east versus west with western Democrats supporting the
underlying bill and eastern Republicans opposing.
For me, I would quote from the House Republican majority Committee on
the Budget that warned that the underlying legislation ``creates a new
entitlement program.''
This spring, moderates of the Republican Tuesday Group and
conservatives of the Republican Study Committee worked together to put
forward budget reforms to end deficit spending. The heart of our reform
was a prohibition against new entitlement spending. Entitlement
spending already makes up two-thirds of all Federal spending. Our
deficit, because of Hurricane Katrina and related costs, will top over
$500 billion this year; and I do not believe that we can afford a new
entitlement program.
I would urge our chairman to reform the provisions in the bill, to
keep the spending within the budget, and make it subject to
appropriations. The grant portion of this bill that compensates
landowners is responsible. The mandated spending portion of the bill is
not responsible.
CBO warns that in their score of this bill both costs and litigation
will go up under the bill. Following CBO's fiscal advice, I would urge
adoption of the more fiscally responsible substitute.
Mr. POMBO. Mr. Chairman, I yield 3 minutes to the gentleman from
Louisiana (Mr. Jindal).
[[Page H8579]]
Mr. JINDAL. Mr. Chairman, I rise in opposition to the substitute and
in favor of the underlying bill.
An amendment offered by the gentleman from California (Mr.
Radanovich) in committee, which was accepted without objection, will
allow local officials to perform vital work needed to prevent the
potential threat of catastrophic flooding. I rise in opposition because
this needed amendment is stripped out of the substitute.
We know how complex Federal bureaucracy can be, but in times of
emergency nothing is more important than human health and safety. My
disaster declaration and protection provision in this bill must be
preserved.
When critical levee repairs are needed to protect human life, time is
of the essence. Appropriate action to repair levees must be done
quickly and cannot be delayed by cumbersome paperwork and bureaucracy.
The ESA must be made flexible enough to allow timely repair and
maintenance of levees before disaster strikes. Any efforts to improve
ESA must include this provision which recognizes protecting the public
from impending danger must take priority.
The amendment that I offered recognizes that when critical repair,
reconstruction, or improvements to levee systems are needed, the
Federal Government should not be an impediment to targeted, urgent
public safety work that must happen.
The amendment that we offered frees local agencies from lengthy
processes only for those projects where critical repairs are needed to
avoid the loss of human life due to natural disaster. Current agency
regulations only allow for an expedited consultation in a
Presidentially declared disaster area for levee repair, but they only
allow that after flood waters have topped or broken through levees and
devastated the communities that they are designed to protect.
The amendment that we offered in committee is narrowly tailored to
give local flood protection officials the same flexibility to make
needed repairs; but importantly, it does so before the onset of deadly
flooding.
It is ironic that the Fish and Wildlife Service and NOAA Fisheries
have recently implemented emergency procedures enabling them to
expedite the otherwise lengthy consultation process that has to occur
before the reconstruction of levees and other flood protection
infrastructure ravaged by Hurricane Katrina. Thank God they did
implement these procedures, because time is of the essence.
Remarkably, however, these emergency guidelines are only invoked
after disaster strikes. There is no provision under existing law that
allows for emergency measures to be taken prior to the onset of danger.
The Federal Government will only expedite vital repair work that will
protect people from deadly floodwaters if they first suffer the
calamity that we are trying to avoid.
My colleague advised in California back in 1990 and 1991, the Corps
of Engineers warned the community that their levees needed repair work.
It took 6 years. Tragically, right as they got approval, a flood
occurred and three people lost their lives. We must not allow this kind
of avoidable tragedy to happen again.
The amendment that we offered reflects the commonsense notion that
local flood protection districts should not have to haggle with Federal
agencies for more than 6 years to repair a levee, particularly when
that levee has been designated as posing a potential threat to human
life. For that reason, I stand opposed to the substitute.
Mr. POMBO. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. Calvert).
Mr. CALVERT. Mr. Chairman, reforming the Endangered Species Act is
long overdue. Today the House has an opportunity to enact significant
improvements to ESA that restore balance and protections to species as
well as landowners.
One of the most effective ways to protect species habitat is through
development of habitat conservation plans. The bill improves and
encourages habitat conservation plans by codifying the no-surprise
policy and eliminating unnecessary red tape that required multiple
consultations regarding already approved actions.
These important provisions will free up limited government and
landowner resources and ultimately improve conservation of species
habitat by encouraging more habitat conservation plans.
My district in California is home to a large comprehensive habitat
conservation plan both in Riverside and Orange counties. In fact, the
West Riverside County Multi-Species Conservation Plan is the largest in
the Nation covering over 1 million acres of land. The plan cost tens of
millions of dollars to develop, years to put into effect, and will cost
upward of $1 billion to implement. Once fully implemented, 500,000
acres in western Riverside County will be set aside for species
habitat.
It is our responsibility to ensure when landowners and local
authorities undertake an extensive planning like that back in my
district, the Federal Government lives up to its part of the agreement.
This bill does just that and removes unnecessary regulatory burdens
that do nothing to benefit the species.
I just discovered in the Miller-Boehlert substitute that the habitat
conservation plans that we put a lot of time in to work out in Southern
California may be put at risk. That would be very, very difficult for
areas that spent large amounts of money to put this into effect, not to
mention time. I want to make sure that we defeat the substitute, and I
thank the gentleman from California (Mr. Pombo) for working with me to
include language that improves habitat conservation plans.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield to the
gentleman from Massachusetts (Mr. Markey) for the purpose of a
unanimous consent request.
(Mr. MARKEY asked and was given permission to revise and extend his
remarks.)
Mr. MARKEY. Mr. Chairman, I thank the gentleman for yielding me this
time.
Mr. Chairman, I rise in support of the Boehlert-Miller substitute and
against the underlying bill.
A major factor forcing threatened and endangered species towards
extinction is the loss and deterioration of habitat necessary for
survival. We cannot expect a species to recover without first ensuring
that it has the habitat in which to do so.
The Majority has just presented us with this manager's amendment to
the underlying bill that would delete not only the protections and
enforceability afforded under the designation of critical habitat but
also the broader habitat protection provided by the jeopardy
definition.
We have arrived at a situation where the underlying bill will offer
no enforceable protection for the habitat that endangered species need
to survive, but will only create a blizzard of unenforceable
bureaucratic paperwork which, in the words of Shakespeare, would be
``full of sound and fury but signifying nothing.''
The Boehlert-Miller substitute would retain the enforceable
protections for habitat provided under a strong jeopardy definition and
I urge its adoption.
Mr. GEORGE MILLER of California. Mr. Chairman, I yield 30 seconds to
the gentleman from Washington (Mr. Inslee).
Mr. INSLEE. Mr. Chairman, what possible reason is there for taxpayers
to have to pay three, four times for the same protection of endangered
species?
Under the bill as written, the taxpayer would have to pay a landowner
once for the privileges of not building the casino. That landowner
could then sell it to his brother. The taxpayer has to pay his brother
a second time for the same project. His brother could sell it to his
cousin, and the taxpayer would have to pay a third time for the same
casino. This is a failure in drafting. Reject this bill.
{time} 1615
Mr. POMBO. Mr. Chairman, I yield 2 minutes to the gentleman from
Oregon (Mr. Walden).
Mr. WALDEN of Oregon. Mr. Chairman, first of all, to respond to my
colleague from Washington, a simple deed restriction takes care of
that. They do not go through this and pay and pay and pay and pay. They
put it in the deed when they cut the deal, and they pay fair and just
compensation for taking somebody's property. That would be stupid to do
that over and over. They do that in the deed, and that is a restriction
that carries with the property.
Let me talk about a couple of the differences between these two plans
and why I support the underlying Pombo bill. Among other things,
section 10, page 18, they give 3 years, the government, to come up with
a recovery plan.
[[Page H8580]]
Our plan says 2 years. So if they want to recover species, we say get
it done in 2 years with the recovery plan; they say 3.
If my colleagues want to talk about spending, they create a new
science board. GS15s, section 20 in the bill, $1 million a year. CBO
says we will compensate private property owners to the tune of maybe $6
million in the first 5 years. That is all they score out. This, $1
million a year for bureaucrats, and private property owners are left
carrying their own costs. That is not fair and right in America.
So if the Members want bigger bureaucracy, pay GS15s here in
Washington, a total of $1 million combined over the year, and they get
just as much as we are talking about trying to help out the private
property owners.
And if they ask the government for some sort of safe harbor for
entering into a habitat conservation program, basically they get back a
written determination under our provision that prevents them from being
prosecuted, from the government's coming back and double-timing them,
saying, yes, go ahead and we will not prosecute if you do everything
you said you were going to do. Under the alternative, as I read it,
whatever they do, they would have to get an incidental take permit and
then they still do not have any kind of protection from the
government's coming back again after them.
So what we are trying to do is create cooperative partnerships with
private landowners through new conservation programs and give certainty
over 10-, 20-, and 30-year periods to recover species and set up
recovery programs that would come together in 2 years, not 3, and
provide for compensation when somebody loses their farm or a portion
thereof just as if a highway ran through it.
Mr. POMBO. Mr. Chairman, I yield 1 minute to the gentleman from
California (Mr. Cardoza), co-author of the underlying bill.
Mr. CARDOZA. Mr. Chairman, I rise at this point to make a
clarification and to, again, speak to my opposition to the substitute.
The first clarification is that when the Fish and Wildlife Service
compensates an owner for a restriction on his property, it is done
through a deed restriction or a fee title. So this claim that
subsequent owners can make the same claims against the Fish and
Wildlife Service is simply inaccurate. When they buy an easement, they
buy a perpetual easement unless the Secretary were to make a mistake,
and, simply, that is just not the way we do it in law currently.
The second point, and the main objection that I have to the
substitute goes to the fundamental fifth amendment protection under the
Constitution that says that when we take someone's property, we
compensate them for it. And that is what the Pombo bill does, and that
is what the substitute does not do.
I would ask my colleagues to cast an ``aye'' vote on the underlying
bill and oppose the substitute.
The Acting CHAIRMAN (Mr. Simpson). The Chair advises Members that the
gentleman from California (Mr. George Miller) has 3\1/2\ minutes
remaining, the gentleman from New York (Mr. Boehlert) has 3 minutes
remaining, and the gentleman from California (Mr. Pombo) has 4 minutes
remaining.
The Chair would further advise that the order of closing is the
gentleman from New York (Mr. Boehlert), the gentleman from California
(Mr. George Miller), and the gentleman from California (Mr. Pombo).
Mr. BOEHLERT. Mr. Chairman, I yield myself such time as I may
consume.
This all boils down to a principal difference. There are a number of
differences, but a principal difference. The substitute does not have
the controversial section 13 in it; the base bill does.
Here is something that could actually happen under section 13. A
developer could buy a parcel of land knowing that part of it could not
be used because of the presence of endangered species. The developer
then could request permission to build, say, a hotel on the property
without doing much more than outlining the proposal on the back of an
envelope. The developer would not even have to try to get necessary
State permits or local zoning variances before submitting a claim.
When the Federal Government says that the hotel could not be built,
that developer could get a payment from the government based upon what
his appraiser said it was worth without providing much evidence that
the project was realistic or serious. Then the developer could propose
to build a landfill on the same site and go through the same process
again and get money from the government again. Then the developer could
propose to build a store on the same site and get money from the
government again because the store could not be built.
In the meantime, the developer could proceed with the same project on
other portions of the property, make substantial profits on his
property, and never have that affect the steady stream of payments
coming from the government from what was always known to be a
problematic site.
This is no exaggeration, and it shows how right the provision is for
abuse. The bill puts the taxpayers at risk. That is why the same
concerns that we have expressed to our colleagues on the floor today
have been expressed by the administration in the Statement of
Administration Policy, which is otherwise supportive of the bill, in
part because of the provisions that we also have in our substitute. The
Statement of Administration Policy warns: ``The new conservation aid
program for private property owners provides little discretion to
Federal agencies and could result in a significant budgetary impact . .
. The bill would affect direct spending. To sustain the economy's
expansion, it is critical to exercise responsible restraint over
Federal spending.'' We want to help exercise responsible restraint by
eliminating section 13.
Mr. Chairman, there is no doubt about it. The Endangered Species Act
has to be revisited. That is the responsible thing to do. The Committee
on Resources has put a lot of hard work into and has come up with a
product that, in many respects, is just wonderful, necessary. That is
why we embrace the product. But section 13 is absolutely, totally
unacceptable for a whole lot of very good reasons, and it is
unacceptable to the taxpayers of America because, boy, does this impose
a burden on them.
I urge support for the substitute. It is responsible. It is
bipartisan. It is thoughtful. It eliminates section 13. It provides
more opportunity for good science. It emphasizes the need of small
property owners, and we want to help them.
Mr. Chairman, I yield back the balance of my time.
Mr. GEORGE MILLER of Florida. Mr. Chairman, I yield myself the
balance of my time.
I thank the gentleman from New York (Mr. Boehlert), the cosponsor of
this legislation, and all the rest of the cosponsors for their support
of this amendment. I want to thank all of my colleagues who joined in
this debate today, and I think that it is important that we adopt this
substitute.
Earlier the gentleman from California (Mr. Cardoza) got up on the
floor, and he was upset that somebody had said that the underlying bill
would eviscerate the Endangered Species Act. Yesterday, that statement
would have been true. He had a right to be upset. But today when the
manager's amendment was offered and was accepted, the Endangered
Species Act was eviscerated and let me tell you why: Because the bill,
prior to that amendment, contained this language: The term to
jeopardize the continued existence means, with respect to any agency
action, that action reasonably that would be expected to significantly
impede directly or indirectly the conservation long-term of the species
in the wild. That language was struck in the manager's amendment when
you struck on page 4, strike lines 3 through 11 and redesignate.
The point is this, there is now no statutory protection in law if
this bill is passed for the protection of this species because there is
no standard of jeopardy. That was not true last night, it was not true
this morning, but it is true this afternoon. You can shake your head
until the cows come home. The fact of the matter is, that is what took
place in this amendment. So the evisceration is now complete because
there is no standard in the bill for jeopardy.
Ladies and gentlemen, it is important that we accept this amendment,
[[Page H8581]]
this bipartisan substitute, because this is our last best chance to
hold on to what this Nation holds dear, and that is the protection and
the diversity of the species that inhabit this Nation, and the effort
that we have made as a Nation to make sure that our actions and
governmental actions, and the actions of others, do not destroy and
bring to extinction these species.
Those protections that we have provided since the inception of this
act when the gentleman from Michigan (Mr. Dingell) and the gentleman
from Wisconsin (Mr. Obey) and others were here to support it, those
protections have served this Nation well. We have a chance today to
have a commonsense reform of that effort. Yes, this act should be
changed; it is 30 years old, and we are about to do that with this
substitute, because we provide the balance for the protection of these
species and the protection of the landowners. What we do not do is what
they do in the underlying bill; that, if a landowner has a proposal and
a notion of how he might want to use his or her land, the Secretary
then has to make a determination of whether or not a take might be
possible.
No take is required. The Secretary makes no scientific study, makes
no scientific investigation, just makes a determination. Does the
landowner sue on that? Does the government sue to protect themselves?
Then, if the Secretary says so, the landowner is compensated no longer
by fair appraisals, because appraisals only bind the Secretary, they do
not bind the landowner. Pretty soon, the U.S. Attorney is going to have
to go in to protect the treasury of the United States because, as the
gentleman from Illinois (Mr. Kirk) pointed out, this is a new
entitlement with direct spending. That is why the Bush administration
says that it will generate new litigation, further divert agency
resources, and have significant budgetary impact, because that is what
they have done.
That is why the substitute provides you the means by which to reform,
streamline, and make more efficient the Endangered Species Act at the
same time, while protecting not only the landowners, but also
protecting the taxpayers of this Nation from a raid on their Treasury
when, in fact, no take has taken place.
We all share the gentleman from California's concerns and beliefs
that, when your land is taken, you should be reimbursed; when your land
is not taken, you should not be reimbursed.
I ask support of the Boehlert/Miller substitute.
Mr. POMBO. Mr. Chairman, I yield myself the balance of my time.
Well, George, we have come a long ways. We have come a long ways,
because, as you know, I have been working on this since I got here, and
when I first started, all I heard was there is nothing wrong with the
act that a little bit more money would not solve. Here we are today,
everybody saying that there is problems with the law and we have to fix
it. So we have come a long ways, and I am being attacked for spending
more money under the act on the reauthorization.
First of all, I wanted to respond to your comments on jeopardy. We
stay with current law. That is what is in the bill, is current law. We
stay with current law. We had a different definition in the bill
originally, and that caused the administration to say that it would
result in new litigation, so we said we will stay with current law; and
that eviscerates the act, staying with current law that they have so
dutifully defended.
I have heard here today that the underlying bill guts, eviscerates,
euthanizes, is unreasonable, and then I get a handout that talks about
how much the substitute is like the base bill. When it comes to
critical habitat, both bills use identical language. When it comes to
providing certainty for landowners, both bills contain identical
language. When it comes to providing incentives for landowners, both
bills contain identical language, and on and on and on, about how much
alike the bills are; and yet they gut, eviscerate, euthanize, and they
are unreasonable.
The gentleman from New York (Mr. Boehlert) I think is right about
this: The real difference between the two bills is how private property
rights is protected.
The gentleman from West Virginia (Mr. Rahall) and I spent months
debating the meaning of a word, and we finally came pretty close to
getting a bill put together. The substitute represents, I think, a step
back in the negotiations in that everything that you wanted that you
did not get, you put in the substitute; change the words a little bit
so that they really do not mean anything. There is no protection for
private property owners. I remember 10 years ago, I introduced a bill
on endangered species, and one of the major provisions in that bill was
to utilize public lands, and I got ripped over it because 90 percent of
the species have their habitat on private land. You cannot just put the
focus on public lands. You cannot. But if it is going to work, if we
are truly going to put the focus on recovery, if we are truly going to
try to bring these species back from the brink and do the responsible
thing, private property owners have to be part of the solution.
We hear a lot of horror stories about things that have happened in my
district and Mr. Cardoza's district and Mr. Costa's district and Mr.
Baca's district, in your district, Mr. Miller.
{time} 1630
If you do not do something to protect the property owners, those
stories are never going to stop. The act has been a failure in
recovering species. Now we can all agree.
When it comes to protecting private property owners, regardless of
what all the hot rhetoric is, what the underlying law says is that if
you meet State and local zoning laws, if you go through the process of
getting that approval, then you have something. If you are a farmer
farming your land and they tell you that you cannot farm your land
anymore, you can get compensated for agriculture land.
If you are a developer who has gone through the process, gotten your
land zoned and they tell you you cannot use it, then that is what you
get compensated for. But once land has that restriction on it, whoever
buys it cannot come back again and say they want something else,
because they know it is restricted.
So this argument is totally out of line and off base. We protect
private property owners. That is what leads to recovery. The substitute
just does not.
Vote against the substitute, support the base bill, and let us move
on with some decent legislation.
Announcement by the Acting Chairman
The Acting CHAIRMAN (Mr. Simpson). The Chair would advise all Members
that it is improper to walk in front of a Member in the well who has
the floor.
Mr. LARSON of Connecticut. Mr. Chairman, I rise today in opposition
to the Threatened Endangered Species Act, the so-called ``reform'' that
will dismantle our Nation's most fundamental wildlife protection law
and in support of the bipartisan Miller, Boehlert, Dingell, Gilchrest,
Dicks, Saxton, Tauscher, Kirk Substitute. I am disappointed at the
missed opportunity for the House to strike a real balance in the
protection of rare species facing extinction and landowners from future
government constraints.
While I agree that the current Endangered Species Act, ESA, needs
improvements and updating, the controversial bill before us today does
little to improve the current ESA. Among other things, the Threatened
and Endangered Species Act would remove the federal protection of
critical habitats that are necessary for the recovery of a species. I
also find it extremely disturbing that my colleagues are so intent on
establishing an entirely new entitlement program to pay landowners for
compliance at the taxpayers' expense at the same time they are working
so hard to privatize entitlement programs like Medicare and Social
Security.
I believe there is more we can do to support the goals of the ESA.
That is why I support the bipartisan substitute amendment offered by
Representative George Miller and Representative Sherwood Boehlert. This
compromise amendment would proactively conserve species using both real
science standards and conservation incentives for landowners. This
amendment maintains several provisions in the underlying bill, but
would, among other things, take a more comprehensive approach to
recovery plans and create an advisory board to provide scientific
advice to the Interior Department about applying the best science when
enforcing endangered species law.
It took decades for many of our Nation's species to reach the point
of extinction. It is unrealistic to propose that there will be a quick
fix to the recovery of animals and plants facing
[[Page H8582]]
decline. For over 30 years, the ESA has been a work in progress. Now is
not the time to turn back the clock on wildlife protection.
Environmental preservation is about self-preservation and about the
land we are leaving our children. As Members of Congress, as
responsible citizens, I urge my colleagues to join me in supporting
real reforms to the ESA by supporting the bipartisan substitute
amendment and rejecting the underlying bill.
Mr. KIND. Mr. Chairman, the Endangered Species Act remains an
enduring testament to the importance the American people place on
preserving plant and animal species for future generations. That
sentiment was reflected in President Richard Nixon's words during his
signing of the Act on December 28, 1973 when he said, ``Nothing is more
priceless and more worthy of preservation than the rich array of animal
life with which our country has been blessed. It is a many-faceted
treasure, of value to scholars, scientists, and nature lovers alike,
and it forms a vital part of the heritage we all share as Americans.''
I am also reminded of the wisdom of my recently passed friend and
hero, Senator Gaylord Nelson, who said, ``We must recognize that we're
all part of a web of life around the world. Anytime you extinguish a
species, the consequences are serious.'' Thankfully today, citizens can
see firsthand in every State the progress being made in bringing
wildlife back from the brink of extinction.
For example, In Wisconsin, for the first time since its 1991 listing
as an endangered species, the winged mapleleaf mussel, a species found
only in a small area of the St. Croix River, have been found to be
slowly rebuilding their numbers. Another success of the ESA is the
Karner blue butterfly. Although 99 percent or more of the Karner blue
butterfly's range has been destroyed, Wisconsin helped bring the
species back using a conservation plan that takes into account the
butterfly's entire life cycle. The State's project, which involves 38
public and private partners, began after the butterfly was listed as
endangered in 1992. Lastly, perhaps best known, is that bald eagles are
increasing in Wisconsin, where 645 pairs occupied territories in 1997,
up from 358 in 1990. In fact, since eagles are relatively numerous in
Wisconsin, the State has donated them to other areas from which they
have vanished, including to the Nation's Capital--Washington, DC.
I mention these successes because many of the comments made on the
floor today cast ESA as an unmitigated failure. I don't believe that is
the case at all; and the scientific journal, Ecology Letters, recently
published a study of the status of threatened and endangered species
that showed more than half on the list for 5 years or more have either
stabilized or are improving.
That said, I agree with my friend and colleague, Congressman John
Dingell, author of the original ESA in 1973, that this landmark bill
could use an update--that it could be and should be strengthened in
ways that cuts bureaucratic red tape, broadens stakeholder
participation, and most importantly better facilitates the revival of
more threatened and endangered species.
Mr. Chairman, the bipartisan substitute does a substantially better
job in these areas. For instance, it is widely agreed the ESA has done
a good job in preventing the extinction of many species but it has been
less successful in bringing about ``the recovery of listed species to
levels where protection under the Act is no longer necessary.'' I
believe it is crucial the legislation provides for the development of
strong, comprehensive recovery plans within a short period of time
after a species is listed as threatened or endangered.
The Boehlert substitute, like the base bill, would repeal the current
requirement that the Secretary designate ``critical habitat'' for
endangered fish, wildlife, and plants before formulating a plan for
species recovery. But it adds crucial language requiring the Secretary
to identify--during a 3-year recovery planning process--lands that are
necessary for the conservation of the species--first on public lands
and then, if necessary, on private lands.
I also agree that private landowners have been required by ESA to
individually shoulder too much of the burden. More than two-thirds of
threatened and endangered species reside on private lands where the
Endangered Species Act is least effective. It is imperative landowners
be regarded as part of the solution and given the tools and incentives
necessary to engender their help and support. I believe we should have
at least considered expanding the Habitat Conservation Plan Land
Acquisition Program in H.R. 3824 which has proven itself effective in
reducing conflicts between the conservation of threatened and
endangered species and land development and use. That, unfortunately,
is not in the base bill.
Instead, H.R. 3824 provides a new, uncapped entitlement program in
Section 13 that will only plunge our Nation's finances deeper in the
red, and then prohibits common-sense steps that could at least provide
some protection to the taxpayer. For example, under H.R. 3824 the
government can be forced to pay out repeated claims for different
proposals to use the exact same piece of property. These claims don't
even need to be backed up by proof of compliance with State or local
land use laws. And instead of lessening the number of ESA related
lawsuits, even CBO has stated this provision is likely to increase the
amount of litigation.
In contrast, the Boehlert substitute would establish a land owner
incentive program that would operate much like a Farm Bill conservation
program, with 70 percent cost sharing. From EQIP it adds language that
would require the Secretary to maximize the conservation benefit for
every dollar expended, put Federal money where it will do the most
good. A technical assistance program would be established, and the safe
harbor regulations would be codified.
Mr. Chairman, I urge my colleagues to support the responsible,
bipartisan Boehlert substitute that answers the concerns of landowners,
States, and sportsmen, while improving the ability to achieve timely
recovery of endangered and threatened fish, wildlife, and plants. Let's
mend it in light of past experience and the demands of modern times,
but let's do it responsibly--support the substitute.
Mr. BLUMENAUER. Mr. Chairman, I rise in reluctant support of this
amendment. I have serious concerns about the changes to the current
Endangered Species Act being discussed today, both in the underlying
bill and this amendment. I am especially frustrated that both bills
repeal the critical habitat provisions of the ESA, which are crucial to
the recovery of species. I plan to vote against final passage of any
legislation that repeals this important provision.
But I will support the bipartisan substitute amendment by my
colleagues Mr. Miller and Mr. Boehlert because it is an honest effort
to present an alternative. It does not include the most egregious parts
of H.R. 3824 which make a mockery of science and conservation.
The ACTING CHAIRMAN. The question is on the amendment in the nature
of a substitute offered by the gentleman from California (Mr. George
Miller).
The question was taken; and the Acting Chairman announced that the
noes appeared to have it.
Recorded Vote
Mr. GEORGE MILLER of California. Mr. Chairman, I demand a recorded
vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 206,
noes 216, not voting 11, as follows:
[Roll No. 505]
AYES--206
Abercrombie
Ackerman
Allen
Andrews
Baird
Baldwin
Barrow
Bass
Bean
Becerra
Berkley
Berman
Biggert
Bishop (NY)
Blumenauer
Boehlert
Boucher
Boyd
Bradley (NH)
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Carnahan
Carson
Case
Castle
Chandler
Clay
Cleaver
Clyburn
Conyers
Cooper
Costello
Crowley
Cummings
Davis (CA)
Davis (IL)
Davis (TN)
Davis, Tom
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Ehlers
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Ferguson
Filner
Fitzpatrick (PA)
Ford
Frank (MA)
Frelinghuysen
Gerlach
Gilchrest
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Hastings (FL)
Higgins
Hinchey
Hinojosa
Holden
Holt
Honda
Hooley
Hoyer
Inglis (SC)
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kelly
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
Kirk
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
Leach
Levin
Lewis (GA)
Lipinski
LoBiondo
Lofgren, Zoe
Lowey
Lynch
Maloney
Markey
Marshall
Matheson
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Owens
Pallone
Pascrell
Pastor
Pelosi
Petri
Platts
Pomeroy
Price (NC)
Rahall
Ramstad
Rangel
Reyes
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Saxton
Schakowsky
Schiff
Schwartz (PA)
Schwarz (MI)
Scott (VA)
Serrano
Shays
Sherman
Skelton
Slaughter
Smith (NJ)
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Tierney
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson
[[Page H8583]]
Watt
Waxman
Weiner
Weldon (PA)
Wexler
Wolf
Woolsey
Wu
Wynn
NOES--216
Aderholt
Akin
Alexander
Baca
Bachus
Baker
Barrett (SC)
Bartlett (MD)
Barton (TX)
Beauprez
Berry
Bilirakis
Bishop (GA)
Bishop (UT)
Blackburn
Blunt
Boehner
Bonilla
Bonner
Bono
Boozman
Boren
Boustany
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Cardoza
Carter
Chabot
Chocola
Coble
Cole (OK)
Conaway
Costa
Cramer
Crenshaw
Cubin
Cuellar
Cunningham
Davis (AL)
Davis (KY)
Davis, Jo Ann
Deal (GA)
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Edwards
Emerson
English (PA)
Everett
Feeney
Flake
Foley
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Gallegly
Garrett (NJ)
Gibbons
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Hoekstra
Hostettler
Hulshof
Hunter
Hyde
Issa
Istook
Jenkins
Jindal
Johnson, Sam
Jones (NC)
Keller
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McIntyre
McKeon
McMorris
Melancon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy
Musgrave
Myrick
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Ortiz
Osborne
Otter
Oxley
Pearce
Pence
Peterson (MN)
Peterson (PA)
Pickering
Pitts
Poe
Pombo
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Royce
Ryan (WI)
Ryun (KS)
Salazar
Schmidt
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (TX)
Sodrel
Souder
Stearns
Sullivan
Sweeney
Tancredo
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Turner
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Young (AK)
Young (FL)
NOT VOTING--11
Boswell
Culberson
Davis (FL)
Fattah
Gutierrez
Harman
Hobson
Lee
Paul
Payne
Towns
{time} 1653
Ms. GRANGER, Mr. BRADY of Texas, and Mr. ADERHOLT changed their vote
from ``aye'' to ``no.''
Mr. RANGEL changed his vote from ``no'' to ``aye.''
So the amendment in the nature of a substitute was rejected.
The result of the vote was announced as above recorded.
The Acting CHAIRMAN (Mr. Simpson). The question is on the committee
amendment in the nature of a substitute, as amended.
The committee amendment in the nature of a substitute, as amended,
was agreed to.
The Acting CHAIRMAN. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Thornberry) having assumed the chair, Mr. Simpson, Acting Chairman of
the Committee of the Whole House on the State of the Union, reported
that that Committee, having had under consideration the bill (H.R.
3824) to amend and reauthorize the Endangered Species Act of 1973 to
provide greater results conserving and recovering listed species, and
for other purposes, pursuant to House Resolution 470, he reported the
bill back to the House with an amendment adopted by the Committee of
the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on the amendment to the committee
amendment in the nature of a substitute adopted by the Committee of the
Whole? If not, the question is on the committee amendment in the nature
of a substitute.
The committee amendment in the nature of a substitute was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. POMBO. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, this 15-
minute vote on passage of H.R. 3824 will be followed by 5-minute votes
on passage of H.J. Res. 68 and suspending the rules and agreeing to H.
Con. Res. 178.
The vote was taken by electronic device, and there were--ayes 229,
noes 193, not voting 11, as follows:
[Roll No. 506]
AYES--229
Abercrombie
Aderholt
Akin
Alexander
Baca
Bachus
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Beauprez
Berry
Bilirakis
Bishop (GA)
Bishop (UT)
Blackburn
Blunt
Boehner
Bonilla
Bonner
Bono
Boozman
Boren
Boustany
Boyd
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Cardoza
Carter
Chabot
Chocola
Coble
Cole (OK)
Conaway
Costa
Costello
Cramer
Crenshaw
Cubin
Cuellar
Cunningham
Davis (AL)
Davis (KY)
Davis (TN)
Davis, Jo Ann
Deal (GA)
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Edwards
Emerson
English (PA)
Everett
Feeney
Flake
Forbes
Ford
Fortenberry
Fossella
Foxx
Franks (AZ)
Gallegly
Garrett (NJ)
Gibbons
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Hinojosa
Hoekstra
Holden
Hostettler
Hulshof
Hunter
Hyde
Inglis (SC)
Issa
Istook
Jenkins
Jindal
Johnson, Sam
Jones (NC)
Keller
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kline
Knollenberg
Kolbe
Kuhl (NY)
Latham
Lewis (CA)
Lewis (KY)
Linder
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marshall
Matheson
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McIntyre
McKeon
McMorris
Melancon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Mollohan
Moran (KS)
Murphy
Murtha
Musgrave
Myrick
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Ortiz
Osborne
Otter
Oxley
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Poe
Pombo
Pomeroy
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Royce
Ryan (WI)
Ryun (KS)
Salazar
Schmidt
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Sherwood
Shimkus
Shuster
Simpson
Skelton
Smith (TX)
Sodrel
Souder
Stearns
Sullivan
Sweeney
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Turner
Walden (OR)
Wamp
Weldon (FL)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wynn
Young (AK)
Young (FL)
NOES--193
Ackerman
Allen
Andrews
Baird
Baldwin
Bass
Bean
Becerra
Berkley
Berman
Biggert
Bishop (NY)
Blumenauer
Boehlert
Boucher
Bradley (NH)
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Carnahan
Carson
Case
Castle
Chandler
Clay
Cleaver
Clyburn
Conyers
Cooper
Crowley
Cummings
Davis (CA)
Davis (IL)
Davis, Tom
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Ehlers
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Ferguson
Filner
Fitzpatrick (PA)
Foley
Frank (MA)
Frelinghuysen
Gerlach
Gilchrest
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Hastings (FL)
Higgins
Hinchey
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kelly
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
Kirk
Kucinich
LaHood
Langevin
Lantos
Larsen (WA)
Larson (CT)
LaTourette
Leach
Levin
Lewis (GA)
Lipinski
LoBiondo
Lofgren, Zoe
Lowey
Lynch
Maloney
Markey
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McKinney
McNulty
Meehan
Meek (FL)
[[Page H8584]]
Meeks (NY)
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Moore (KS)
Moore (WI)
Moran (VA)
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Owens
Pallone
Pascrell
Pastor
Pelosi
Platts
Price (NC)
Rahall
Ramstad
Rangel
Reichert
Reyes
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Saxton
Schakowsky
Schiff
Schwartz (PA)
Schwarz (MI)
Scott (VA)
Serrano
Shaw
Shays
Sherman
Simmons
Slaughter
Smith (NJ)
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tauscher
Thompson (CA)
Tierney
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walsh
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Weldon (PA)
Wexler
Wolf
Woolsey
Wu
NOT VOTING--11
Boswell
Culberson
Davis (FL)
Fattah
Gutierrez
Harman
Hobson
Lee
Paul
Payne
Towns
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (Mr. Thornberry) (during the vote). Members
are advised that two minutes remain in this vote.
{time} 1712
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________