[Congressional Record (Bound Edition), Volume 151 (2005), Part 16]
[House]
[Pages 21807-21850]
[From the U.S. 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

[[Page 21808]]

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 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

[[Page 21809]]

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.
  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.
  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

[[Page 21810]]

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 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

[[Page 21811]]

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 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

[[Page 21812]]

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.
  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 endanger-
ment. 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

[[Page 21813]]

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.
  Mr. POMBO. Mr. Chairman, Section 12(g) of H.R. 3824 clarifies that 
the operator of a water storage reservoir, water diversion structure, 
canal or other artificial water delivery facility is not liable for 
``take'' of listed aquatic species that is attributable to recreational 
sportfishing programs managed by a State agency. Over the past several 
decades, the stocking of sport fish by State agencies has contributed 
to the decline in populations of native fish. Sport fish frequendy prey 
upon native fish and compete with native fish for food, breeding 
habitat and other essential resources. Nevertheless, State operated 
programs to stock these fish in river systems continue. Likewise, there 
are continuing adverse effects to native fish resulting from earlier 
State operated programs which introduced sport fish into the streams. 
In recent years, some federal agencies have attempted to impose the 
responsibility for ``take'' of listed native fish resulting from the 
presence of sport fish in the streams on operators of water storage 
reservoirs, canals, water diversion structures and other artificial 
water delivery facilities in the river basin. These operators have been 
faced with demands that they take on the financial burden of 
``mitigating'' for the loss of native listed fish, even though this 
loss is attributable to the introduction of sport fish under programs 
managed by State agencies. Section 12(g) makes clear that the operators 
of water storage reservoirs, water diversion structures, canals and 
other artificial water delivery facilities are not liable for take of 
listed native fish under these circumstances, and are not responsible 
for implementing or financing mitigation measures to offset this take.
  Mr. UDALL of Colorado. Mr. Chairman, I rise in strong support of this 
bipartisan substitute.
  I am a supporter of the Endangered Species Act, but I have never 
rejected the idea of changing it. On the contrary, I have repeatedly 
said that I thought it would be possible to improve the way it was 
implemented.
  So, I regret that I was unable to support H.R. 3824 as ordered 
reported by the Resources Committee.
  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.
  For example, the committee approved my amendment to retain 
protections for species listed as ``threatened'' and an amendment I 
offered with the gentleman from New Mexico, Mr. Pearce, to authorize 
the U.S. Fish and Wildlife Service to compensate ranchers for livestock 
lost to an endangered predator that has been reintroduced into the 
wild.
  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.
  Now, with this substitute, we can keep the best parts of the bill as 
reported--including the authorization for reimbursement for livestock 
losses--and make the further improvements that will make it into one 
that deserves approval by the full House of Representatives.
  Like the bill as reported, the substitute, with identical language, 
will eliminate the critical-habitat provisions of current law that have 
done relatively little to protect species and so much to foster 
lawsuits ,and red tape.
  And the substitute includes the same language as the bill as reported 
to codify and expand on regulations ensuring that land owners who enter 
into conservation agreements with the Fish and Wildlife Service won't 
be required to do more if circumstances beyond their control change.
  But the substitute goes further than the bill as reported by 
requiring the government first to do as much as possible on public 
lands to conserve species before it acts to put that burden on private 
land owners. This is a very important provision that will directly 
benefit landowners, especially in Colorado and other States where there 
are extensive Federal lands.
  Also, like the bill as reported the substitute includes provisions to 
create a new, voluntary program of incentives to landowners who 
implement conservation practices on their lands. Ranchers and farmers 
in Colorado and across the west understand the importance of protecting 
threatened and endangered species, and want to do what they can to 
help, and I strongly support providing these incentives.
  But here again the substitute is better--because while both the bill 
as reported and the substitute include provisions for giving landowners 
technical assistance, only the bipartisan Substitute allows the 
Interior Department to give priority to smaller land owners who cannot 
afford expensive consultants.
  Just as important, the substitute not only improves on good features 
of the bill as reported, it also corrects its worst flaws.
  The bill as reported would weaken the protection of threatened and 
endangered species by making recovery plans unenforceable, by limiting 
the role of science, and in other ways as well. The substitute is 
better on these points.
  In addition the substitute does not include the reported bill's 
language to change the current law regulating the use of pesticides. 
That law may need some revisions, but if so they should be made after 
thorough consideration and careful deliberation, rather than through a 
last-minute amendment in the Resources Committee, which is how this was 
added to the bill.
  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 does not have the same problems.
  And, finally, the substitute does 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 completely agree and I support the bipartisan substitute because it 
makes the revisions necessary to close those loopholes. For the benefit 
of our colleagues, I attach the full text of the letter from Taxpayers 
for Common Sense.
  I urge the adoption of the substitute.

                                                     Taxpayers for


                                          Common Sense Action,

                               Washington, DC, September 28, 2005.
       Dear Representative: Taxpayers for Common Sense (TCS), a 
     non-partisan budget watchdog, has grave concerns regarding 
     H.R. 3842, the Threatened and Endangered Species Recovery Act 
     of 2005. As reported by the House, this bill would establish 
     a new entitlement program that will not only burden taxpayers 
     but require the creation of an unnecessary and complex 
     Federal spending program.
       TCS believes that, as written, the true fiscal impacts of 
     this bill are impossible to calculate, but are likely to be 
     large. H.R. 3824

[[Page 21814]]

     establishes a policy whereby landowners could file takings 
     claims against the government for relatively unspecific 
     future development plans. The bill's vague language is also 
     likely to encourage serial filers, as there is nothing to 
     prevent landowners from collecting multiple times on the same 
     piece of land property. Additionally, H.R. 3824 would require 
     Federal taxpayers to pay even if the law affects only a small 
     portion of a landowner's property and has little or no impact 
     on the overall value of the remainder of that property. In 
     fact, this legislation, as written, would almost always 
     result in mandated payouts of taxpayer dollars, even if the 
     value of the property had risen. In addition, the threshold 
     for filing a claim and proving a taking under these new 
     regulations would be extremely low, resulting in not only a 
     near guaranteed payout from taxpayers to landowners, but also 
     a likely flood of applications to take advantage of the 
     windfall.
       As we have seen countless times in the past, a loophole 
     will always be exploited, and an enormous loophole will be 
     exploited enormously. This legislation is rife with loopholes 
     and vague wording that have the potential to cost taxpayers 
     billions of dollars, and must be revised.
           Sincerely,
                                                      Steve Ellis,
                                      Vice President for Programs.

  Ms. LEE. Mr. Chairman, today I missed rollcall vote 506, the vote on 
final passage for H.R. 3824. Had I been present, I would have voted 
``nay.'' I was unable to take part in this vote because I was attending 
a constituent funeral.
  Mr. Chairman, I rise in strong opposition to H.R. 3824, which is a 
threat to the recovery of endangered species.
  Mr. Chairman, the original Endangered Species Act was signed into law 
by President Nixon in 1973 with the goal of protecting species on the 
brink of extinction, preserving critical habitats from human 
development and exploitation, and safeguarding the diversity of our 
natural wildlife for future generations.
  This bill would redefine the entire concept of the Endangered Species 
Act to protect the short term economic interests of western landowners 
and developers.
  Instead of working to protect threatened or endangered species and 
their habitats for the benefit of everyone, the Federal Government 
would now be driving the extinction of countless species--and your tax 
dollars would be paying for it.
  We've got to ask ourselves who really needs to be protected here?
  Is it our planet, our future? Or is it the right of some developer to 
build a strip mall?
  I urge my colleagues to vote against this cynical attempt to gut the 
endangered species act.
  Mr. MEEHAN. Mr. Chairman, I rise today in opposition to the so-called 
``Threatened and Endangered Species Recovery Act,'' (TESRA). The 
sponsors of TESRA claim that they want to ``reform'' the ESA because 
it's not helping enough threatened and endangered species recover. In 
reality, it is aimed at weakening, dismantling, and rendering 
unenforceable the Endangered Species Act, ESA.
  The original Endangered Species Act was a bipartisan effort to 
protect our natural heritage. Yet today, as we consider how to update 
and modernize that legislation, we are presented not with a truly 
bipartisan bill, but a massive special interest giveaway that guts ESA 
despite a thirty year track record of success. A vote for the passage 
of TESRA is a vote to abdicate responsible environmental policy and to 
create a new form of corporate welfare.
  Since the enactment of the Endangered Species Act in 1973, tens of 
millions of acres of land in the United States have been managed for 
conservation purposes. As a result, of the 1800 species protected under 
ESA, we have lost only 9 to extinction. That's a 99 percent success 
rate on extinction prevention.
  TESRA's most fundamental change abandons the basic priority of the 
Endangered Species Act: the commitment to species recovery. The 
overarching goal of ESA is to bring species back from the brink of 
extinction to the point where they no longer need to be given special 
protection. TESRA alters that mission by effectively negating the goal 
of species recovery. TESRA specifically eliminates the requirement that 
the Federal Government attempt to restore species to healthy population 
levels.
  Furthermore, under TESRA any species recovery plan the government 
might conceive would be non-binding. Had ESA had these guidelines in 
place since 1973, the recovery of many species, including the peregrine 
falcon and the American alligator, would have been almost 
inconceivable. In the case of the alligator, recovery was so successful 
that we are now even able to implement controlled farming of the 
restored population.
  There are two areas of the bill which I found particularly 
problematic and sought to address through amendments. My first 
amendment would strike language from TESRA that would turn back the 
clock on the scientific determination of an endangered species. My 
second amendment would strike language from TESRA that creates a very 
dangerous precedent: setting up a system where the government pays 
people for obeying the law.
  Rather than offer these separately on the floor, I am pleased to see 
their substance included in the bipartisan Miller-Boehlert substitute 
that we will be considering today.
  The use of science is of special importance in the implementation of 
the species protection program. Rather than using the best available 
science for species protection, TESRA explicitly prohibits the 
government from using advanced, modern scientific tools like 
statistical modeling that we have at our disposal today and that assist 
us in the implementation of ESA.
  By taking away these cutting edge tools, TESRA would make it 
exceedingly difficult to make determinations on the status of any 
species whose populations are small, isolated, and scattered. The 
result will be a weakened and limited scientific process in decisions 
made under the act, more obstacles and less protection. The substitute 
bill restores ESA's original approach to science, which is to use the 
best science available to help save and recover endangered species.
  My second proposed amendment addresses a trouble area in TESRA 
introducing a requirement that the Federal Government actually pay 
developers and polluters to comply with the law. This provision would 
have serious and widespread implications: it sets a dangerous precedent 
in environmental protection. This amounts to a new entitlement program 
that would result in a windfall for land developers and speculators--at 
the expense of the taxpayers and the species we seek to protect under 
ESA.
  This provision of TESRA is part of a broader movement to treat all 
environmental regulation as a form of ``property taking'' that requires 
government compensation. It is a novel legal theory that would strike 
at the heart of virtually every piece of environmental regulation ever 
passed. The proposal under TESRA is particularly ripe for abuse because 
it sets no cap or limitations. Under TESRA, someone could purchase 
cheap land, announce an intention to develop on it, and then demand a 
check from the government compensating them for the much higher value 
of the developed property, all without ever even intending to break 
ground. The same developer could conceivably come back an unlimited 
number of times for an unlimited number of ``projects''. My amendment, 
the substance of which is mirrored in the Miller-Boehlert substitute, 
strikes this payment scheme entirely.
  I strongly urge my colleagues to oppose the TESRA roll back of the 
Endangered Species Act and to support the bipartisan Miller-Boehlert 
substitute to preserve and strengthen one of the most successful pieces 
of environmental legislation in 30 years.
  Mr. POMBO. Mr. Chairman, regarding the authority of Indian tribes 
under H.R. 3824, nothing in the Threatened and Endangered Species 
Recovery Act is intended, or shall be construed to expand, diminish or 
alter the authority of Indian tribes, as defined in this bill, with 
respect to the management of fish and wildlife on non-reservation 
lands.
  In addition, H.R. 3824 repeals the Endangered Species Act critical 
habitat requirements; however, it preserves the impact analysis 
requirement at the time of listing. Using language similar to that now 
located at Endangered Species Act section 4(b)(2), 16 U.S.C. 
1533(b)(2), FWS is required to analyze the economic impact and benefit 
of the listing determination; the impact and benefit on national 
security of that determination; and any other relevant impact and 
benefit of that determination. For each listing, the Fish and Wildlife 
Service analysis may conclude that there is no benefit, or it may 
conclude that there is a benefit, and that benefit must be based on 
reasonably ascertainable and calculable data. H.R. 3824 clarifies that 
the listing decision continues to be made solely on the basis of the 
criteria enumerated in section 4(a)(1).
  H.R. 3824 requires, and the Resources Committee fully expects, that 
the Fish and Wildlife Service will perform this analysis concurrently 
with all listing decisions. Further, by expanding the scope of the 
analysis to include all consequences of the listing (rather than those 
attributable to critical habitat designation), the Committee expects 
the impact analyses under H.R. 3824 will be better and more useful than 
those prepared under current law. This impact analysis requirement will 
provide not only legal notice, but truly meaningful information 
concerning proposed listing decisions to all those affected, including 
individuals, corporations, property owners, State and local 
governments, the military services, and

[[Page 21815]]

other Federal agencies. It is expected that this opportunity for 
greater participation by all potentially affected parties at the front 
end of the listing process will provide additional assurance that the 
Fish and Wildlife Service will adequately consider all relevant data 
associated with each proposal to list a species. Further, the Committee 
expects that the Fish and Wildlife Service will take advantage of 
developments that have occurred in genetics testing and other technical 
advances in the years since enactment of the original Endangered 
Species Act, to make the most scientifically sound listing decisions 
possible.
  Mr. OTTER. Mr. Chairman, today the House of Representatives passed 
H.R. 3824, the ``Threatened and Endangered Species Act of 2005.'' 
During floor consideration of this important measure, the distinguished 
Chairman of the Resources Committee, Richard Pombo, offered an en bloc 
amendment to the bill. This amendment, which was adopted, included my 
provision to require the four Power Marketing Administrations, PMAs, to 
list Endangered Species Act-related costs as a line-item in each of 
their customers' monthly billings. These agencies--the Bonneville Power 
Administration, the Western Area Power Administration, the Southwestern 
Power Administration and the Southeastern Power Administration--market 
the surplus hydropower generated at Federal dams, selling this 
electricity to 1,450 wholesale customers throughout the Nation. These 
customers, in turn, provide this federally generated electricity to 
almost 54 million retail consumers.
  The Endangered Species Act substantially impacts Federal electricity 
service and rates. For instance, the Bonneville Power Administration 
and the Western Area Power Administration experience high, double-digit 
compliance costs for Endangered Species Act and related statutes. 
During a hearing earlier this year, the House Resources Committee found 
that compliance played a significant role in recent rate increases and 
led to higher energy costs that were passed directly to consumers.
  The Bonneville Power Administration spends the most of all Federal 
agencies to comply with the requirements of the Endangered Species Act. 
It also has similar responsibilities under the Northwest Power Act. 
Many have pushed the agency to increase the accountability of its 
rapidly growing fish and wildlife programs and to develop measurable 
performance objectives that will lead to long-term stability and 
recovery of certain species. The intent of this provision, however, is 
limited to requiring that the PMAs notify electric power customers how 
these programs impact their monthly electric rates.
  As the bill language in Section 23 makes clear, the agency and the 
other PMAs shall inform their customers of all the direct and indirect 
costs associated with meeting Endangered Species Act and other related 
fish and wildlife obligations. While the PMAs have provided general 
costs associated with the Endangered Species Act in past years, the 
agencies have not provided their customers a detailed or ``unbundled'' 
explanation of these costs. This section simply gives electricity 
consumers the right to know how much of their monthly bills are being 
used to comply with the requirements of the Endangered Species Act and 
related programs. That enables customers to make informed decisions 
about their energy choices, as well as to better understand the market 
implications of public policies. Without such information, customers 
are deprived of the kind of cost signal that is essential to an 
efficient free-market economy.
  It is my understanding that the authorizing committees expect the 
PMAs to provide a detailed explanation of these monthly costs in a 
readable and transparent format. It is important that the PMAs consult 
with their customers before implementing this provision. In addition, 
it is my understanding that the PMAs can comply with this section 
without hiring additional staff or upgrading computer systems since it 
simply involves the creation of new computer billing codes.
   Mr. Chairman, in conclusion, I thank Chairman Pombo for including my 
provision in H.R. 3824. I look forward to working with him and my 
Senate colleagues in seeing this important bill enacted.
  Mr. GARY G. MILLER of California. Mr. Chairman, I rise in support of 
H.R. 3824, a bill to bring much-needed reforms to the outdated 
Endangered Species Act (ESA). While I believe Congress must work to 
ensure its policies protect and preserve our nation's natural resources 
and environment, the current interpretation of the ESA has strayed 
significantly from the original intent of the law and done little to 
protect our nation's endangered species.
  While the ESA has the laudable goal of preventing the extinction of 
species, the fact is the law is broken and has created an adverse 
relationship between the government and America's farmers, ranchers, 
and private property owners. For example, of the 1,304 species that 
have been listed as endangered over the last 31 years, only 12 have 
been de-listed, a one percent success rate. Although our understanding 
of what is required to protect and recover endangered species has grown 
and become more sophisticated, the ESA has remained a blunt set of 
mandates that do not reflect or accommodate these advancements. I 
firmly believe we must allow the states and the federal government to 
work together to ensure the true intent of the ESA, to help preserve 
and recover endangered species, can be accomplished.
  H.R. 3824, the Threatened and Endangered Species Recovery Act, 
repairs many of the problems inherent in the ESA by requiring the use 
of the best scientific data in all listing decisions, replacing the 
broken critical habitat program with a more integrated recovery 
planning process, and strengthening the role of states. In addition, 
this bill makes great strides to ensure regulatory certainty for 
private property owners by providing compensation for lands vital to 
species rehabilitation, increasing transparency throughout the process, 
and encouraging voluntary conservation efforts. These provisions will 
help ensure that species conservation efforts take a more collaborative 
and less confrontational approach to protecting endangered species.
  Now is the time to modernize the ESA and move forward to update this 
law to bring it into the 21st century. I urge my colleagues to pass 
this important measure to ensure the protection and recovery of 
America's wildlife, while balancing the needs of the communities in 
which we live and work.
  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 30 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 fanners 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 30 
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 change of environmental law in the past 3 
decades.
  I have grave concerns about provisions in the bill that would give 
political appointees the power to remove species from the endangered 
list, and other drastic changes such as those which would take away 
critical habitat areas that have been set aside for endangered species. 
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 may need 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. POMBO. Mr. Chairman, regarding the Judicial jurisdiction under 
H.R. 3824, the United States District Court shall have jurisdiction 
over an action by a requestor arising over

[[Page 21816]]

a written determination under Section 12(d) or a claim for aid under 
Section 13 of the Threatened and Endangered Species Recovery Act, 
including the determination of the documentation of the foregone use 
and the fair market value thereof.
  Mr. Chairman, the addition of paragraph (6) to the Endangered Species 
Act section 7(a) is intended to preclude agency actions from being 
subject to section 7(a) requirements, if those actions implement or are 
consistent with a conservation habitat plan or agreement incorporated 
in a permit issued under section 10. The issuance of a section 10 
permit is itself an agency action and therefore subject to section 7(a) 
requirements. This new paragraph allows agency actions authorized in an 
approved section 10 permit to transpire without having to meet further 
section 7(a) requirements.
  Mr. PUTNAM. Mr. Chairman, the intent of Sec. 25 of H.R. 3824, the 
Relationship Between Section 7 Consultation and Incident Take 
Authorization Under Marine Mammal Protection Act of 1972 is to clarify 
that when regulations set forth under the Endangered Species Act 
conflict with regulations set forth under the Marine Mammal Protection 
Act during the review process for issuing dock permits, it is the 
regulations set forth under the Endangered Species Act that are the 
governing authority.
  Ms. McCOLLUM of Minnesota. Mr. Chairman, I rise in strong opposition 
to H.R. 3824. This legislation seeks to undermine one of the most 
successful and visionary environmental policies, the Endangered Species 
Act. For 32 years, the Endangered Species Act has been a safety net for 
wildlife, plants, and fish that are on the brink of extinction.
  Since its enactment in 1973, the Endangered Species Act has prevented 
the extinction of hundreds of species. In fact, 99 percent of the 
species listed are still with us today, and more than two-thirds of all 
currently listed species are improving.
  Minnesotans have witnessed the success of this Act first hand. In 
Minnesota, the bald eagle population grew from a dwindling 380 eagles 
in 1981 to more than 1,400 eagles today. This is more than double the 
recovery goal of 600 eagles. We have seen the gray wolf population grow 
from 300 in 1975 to 3,020 in 2004. Again, that is more than double the 
recovery goal of 1,400 wolves. Minnesota is also home to the dwarf 
trout lily, which is found nowhere else in the world.
  In April 2005, many of my constituents showed their support for 
endangered species during Aveda Corporation's Earth Month. In Aveda 
salons and stores across the country, more than 170,000 people signed 
petitions asking for a strong, fully funded Endangered Species Act. 
These petitions were delivered to the steps of the Capitol in July. The 
message is clear. Americans want to protect endangered species for 
future generations.
  Unfortunately, H.R. 3824 makes it harder to protect threatened and 
endangered species. It repeals one of the most important parts of the 
act--critical habitat protection. Habitat destruction is the primary 
reason many animals end up on the Endangered Species List. Species with 
designated critical habitats recover at twice the rate of endangered 
species without critical habitat. Yet, this bill provides no 
alternative to protect the places where vulnerable species live.
  This bill also creates a new corporate welfare entitlement for 
developers. Under this bill, the U.S. Fish and Wildlife Service would 
have only 180 days to review proposed developments and their impact on 
endangered species. If an assessment cannot be reached within this time 
frame, the project is allowed to proceed. If it is determined that 
endangered species would be harmed by the project, the Federal 
Government must pay the landowner the value of the proposed 
development. This would encourage speculative development schemes aimed 
at harming endangered species in order to receive windfall payments 
from the government. A frenzy of fraud and abuse will not help 
responsible landowners comply with the law, and it will not help 
species recover.
  The use of sound science is also undermined by this bill. It gives 
political appointees the authority to determine the ``best available 
science'' without having to consult with recognized scientists and 
other experts in the field. Under this bill, the use of sophisticated 
scientific modeling could also be banned. This opens the door to the 
use of questionable science and politically-motivated findings.
  This bill also repeals all Endangered Species Act provisions related 
to pesticides. Pesticides, such as DOT, have contributed to the decline 
of many species, including the American bald eagle. Under this bill, 
the Environmental Protection Agency can approve pesticides without 
considering their impact on threatened and endangered species. Given 
the choice between recovery and extinction, this bill appears to favor 
extinction.
  I supported a responsible alternative aimed at recovering species. 
The Miller/Boehlert substitute amendment contained a more flexible 
timeline for consideration of projects, clarified the obligation of 
federal agencies, and provided real landowner incentives for 
conservation and species recovery. This approach responded to the 
legitimate concerns of landowners and sportsmen while continuing 
efforts to recover endangered species. Unfortunately, this amendment 
was not adopted.
  Mr. Speaker, the Threatened and Endangered Species Recovery Act fails 
to protect vulnerable wildlife and plants and threatens to break the 
federal bank with a new open-ended entitlement for developers. I urge 
my colleagues to reject this bill and work together to create a strong, 
scientific and bipartisan Endangered Species Act.
  Mr. COSTA. Mr. Chairman, I rise today to clarify the intent and 
importance of language in H.R. 3824 regarding the discretionary nature 
of recovery plans under the ESA. Language in TESRA states that, 
``Nothing in a recovery plan shall be construed to establish regulatory 
requirements.'' This important language will ensure that, as is 
currently the case, recovery plans cannot be used as a regulatory 
``hammer'' on private landowners or others. Let me elaborate.
  The ESA Sec. 4(f) states that the Secretaries of Interior and 
Commerce ``shall develop and implement recovery plans'' for listed 
species, ``unless . . . such a plan will not promote the conservation 
of the species.'' This responsibility has been delegated to the U.S. 
Fish and Wildlife Service (FWS) and the National Oceanic and 
Atmospheric Administration Fisheries Service (NOAA Fisheries) 
(collectively, the Services).
  Thus, as a general matter, the ESA compels the Services to develop 
recovery plans. While FWS and NOAA Fisheries are under a general duty 
to develop a recovery plan for listed species, the federal courts are 
in unanimous agreement that the contents of a recovery plan are 
discretionary with the Services. Recovery plans do not impose legal 
obligations or requirements on anyone--not on private landowners, not 
on local or state government units, and not even on the federal 
government itself. Rather, the case law makes clear that recovery plans 
are guidance documents.
  For example, the 11th Circuit Court of Appeals rejected the argument 
of an environmental group that would have ``elevate[d] the 1987 
[Florida panther] recovery plan into a document with the force of 
law.'' Fund for Animals v. Rice, 85 F.3d 535, 547 (11th Cir. 1996). The 
11th Circuit wrote that ESA Sec. 4(f):

       ``makes it plain that recovery plans are for guidance 
     purposes only. . . . By providing general guidance as to what 
     is required in a recovery plan, the ESA `breathe[s] 
     discretion at every pore.'''

Id. (emphasis supplied), citing Strickland v. Morton, 519 F.2d 467, 469 
(9th Cir. 1975)).

  FWS itself has taken the position that recovery plans have no binding 
effect. Courts have agreed with the agency's position. For example, in 
Biodiversity Legal Found. v. Norton, 285 F. Supp. 2d 1 (D.D.C. 2003), 
environmental groups argued that the recovery plan for the Cape Sable 
Seaside sparrow had a binding impact to compel revisions to the 
species' critical habitat. FWS asserted that ```the content of Recovery 
Plans required under ESA Sec. 4(f) is not binding upon the Service, so 
cannot create a legal duty.''' Id. at 13. The district court, citing 
the 11th Circuit's opinion in Fund for Animals (discussed above), 
agreed with FWS. It ruled that the sparrow's recovery plan ``was merely 
a guidance, which FWS had discretion to follow.'' Id.
  Similarly, environmental groups claimed that the recovery plan for 
certain whale species was deficient because it failed to include 
substantive, mandatory requirements. The court disagreed, holding that 
``[c]ase law instructs that [FWS is] correct in [its] assertion that 
the content of recovery plans is discretionary.'' Strahan v. Linnon, 
967 F. Supp. 581, 597 (D. Mass. 1997), aff'd, 187 F.3d 623 (1st Cir. 
1998). The court recognized that FWS is under a statutory duty to 
develop a recovery plan ``to the extent that it is feasible and 
possible,'' but that ``requirement does not mean that the agency can be 
forced to include specific measures in its recovery plan.'' Id. at 598. 
Environmental groups also argued that the recovery plan for the Perdido 
Key beach mouse must include an expansion of the species' critical 
habitat. The court, aligned with all of the other opinions on the 
topic, rejected the environmentalists' argument because ``the contents 
of the [recovery plan] are discretionary.'' Morrill v. Lujan, 802 F. 
Supp. 424, 433 (S.D. Ala. 1992).
  There is a strong policy justification for finding that recovery 
plans are discretionary:

[[Page 21817]]

namely, to allow FWS to allocate its scarce resources as it sees fit. 
``Congress recognized that the development of recovery plans for listed 
species would take significant time and resources. It therefore 
provided in the ESA that the Secretary could establish a priority 
system for developing and implementing such plans. This priority system 
allows the Secretary broad discretion to allocate scarce resources to 
those species that he or she determines would most likely benefit from 
development of a recovery plan.'' Oregon Natural Resources Council, 
supra, 863 F. Supp. at 1282-83 (emphasis supplied).
  To conclude, in a rare show of agreement among court interpretations 
of the ESA, the federal judges that have addressed this point have all 
agreed that recovery plans are simply discretionary guidance documents, 
with no binding effect. It is clearly the intent of H.R. 3824 to not 
only remain consistent with this established line of precedent, but to 
codify this important fact.
  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 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

[[Page 21818]]

     ``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
       (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

[[Page 21819]]

     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 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.''.

[[Page 21820]]

       (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 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--

[[Page 21821]]

       ``(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 
     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:

[[Page 21822]]

       ``(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
       (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

[[Page 21823]]

     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- 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

[[Page 21824]]

     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 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

[[Page 21825]]

     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)).
       (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

[[Page 21826]]

     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 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

[[Page 21827]]

     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.
  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;

[[Page 21828]]

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 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

[[Page 21829]]

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. 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.
  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

[[Page 21830]]

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--
       (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

[[Page 21831]]

       (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 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

[[Page 21832]]

     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--
       ``(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)''.

[[Page 21833]]

       (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)--
       (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--

[[Page 21834]]

       (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).
       ``(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.

[[Page 21835]]

       ``(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 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--

[[Page 21836]]

       (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)).
       (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''.

[[Page 21837]]

       (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.
  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

[[Page 21838]]

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. 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 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

[[Page 21839]]

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 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. Mr. Chairman, in the 32 years that the 
Endangered Species Act has been in effect, we have learned a lot of 
lessons

[[Page 21840]]

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.
  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. Mr. Chairman, I thank the gentleman for yielding me time.

[[Page 21841]]

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. 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 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.

[[Page 21842]]

  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

[[Page 21843]]

     floodwalls along the drainage canals that were breached were 
     complete when the hurricane hit.
       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. 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

[[Page 21844]]

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 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

[[Page 21845]]

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).
  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. 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

[[Page 21846]]

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. 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.

[[Page 21847]]

  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, 
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, 
eutha-
nizes, 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

[[Page 21848]]

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 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.
  Ms. ESHOO of California. Mr. Chairman, I rise to oppose the Pombo 
bill and in support of the reforms in the substitute amendment offered 
by Representatives George Miller and Sherwood Boehlert.
  The Endangered Species Act is a cornerstone of environmental 
protection. I'm very proud that one of my predecessors in the Congress, 
Pete McCloskey, was a leader in enacting this bipartisan law.
  After more than 30 years, it's worth reevaluating and updating this 
law to better meet its objectives. I understand some of the 
frustrations that constituents have with the current law, but I don't 
think we should throw ``the baby out with the bathwater'' as the 
underlying bill would do.

[[Page 21849]]

  While critics rightfully point out that we need to do more to help 
endangered species recover so they can be removed from the endangered 
list, the fact is the Endangered Species Act has been highly 
successful, with 99 percent of species listed under the ESA being saved 
from extinction.
  I have very deep concerns about the bill before us today.
  First, the bill requires the Federal Government to pay developers' 
costs in complying with the Endangered Species Act whenever even a 
portion of a property is impacted. There's no limit on the compensation 
payments that would be paid. The Congressional Budget Office has said 
this is a new entitlement that will increase spending by billions of 
dollars and establish a dangerous precedent. Imagine, for example, the 
Federal Government paying a factory owner for the costs of complying 
with the Clean Air Act when a decision is made to expand the plant. 
That's the principle this bill will establish. It's an extraordinary 
mistake.
  Second, the bill removes protections against the use of hazardous 
pesticides. It's estimated that 67 million birds die each year from the 
effects of pesticides. These protections must be kept in place. One of 
the reasons the Endangered Species Act was adopted in the first place 
was to address declines in the population of the bald eagle caused by 
DDT.
  Third, the bill strips the National Oceanic and Atmospheric 
Administration of its role in administering the Endangered Species Act, 
transferring it to the Department of Interior with no assurance 
whatsoever that this agency will have the resources or the expertise to 
take on this responsibility.
  Fourth, the bill reduces the role of science by ending the current 
requirement that Federal agencies consult with wildlife biologists 
before undertaking actions that might harm endangered species.
  The Miller-Boehlert Substitute makes great sense if we want to 
capitalize on the successes and the lessons of the last 30-plus years.
  The substitute will repeal the current requirement that the Secretary 
designate ``critical habitat'' for endangered fish, wildlife, and 
plants before formulating a plan for species recovery. Instead, the 
substitute requires real habitat recovery efforts to conserve rare and 
threatened fish and wildlife. It ensures that recovery plans include 
the best possible science and that they're enforceable.
  The substitute directs the Secretary to first determine whether 
public lands are sufficient to protect and save the endangered species 
before taking other measures that will impact private landowners.
  The substitute will help small landowners who may not have the 
resources to comply with the Act. It will provide dedicated funding for 
technical assistance for these private property owners and establish a 
conservation grants program for landowners who help conserve the 
species on or near their property. It contains requirements that 
private citizens get timely answers from ESA enforcement agencies and 
insists on reporting requirements so that we know how many applications 
are really going unanswered.
  The reforms in the substitute make sense and they should be adopted. 
The base text should be rejected.
  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
     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.

[[Page 21850]]

  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)
     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.

                          ____________________