[Senate Report 105-128]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 242
105th Congress                                                   Report
                                 SENATE

 1st Session                                                    105-128
_______________________________________________________________________


 
                ENDANGERED SPECIES RECOVERY ACT OF 1997

                               __________

                              R E P O R T

                                 of the

                              COMMITTEE ON

                      ENVIRONMENT AND PUBLIC WORKS

                          UNITED STATES SENATE

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                              to accompany

                                S. 1180





                October 31, 1997.--Ordered to be printed


               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED FIFTH CONGRESS

                 JOHN H. CHAFEE, Rhode Island, Chairman

JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
DIRK KEMPTHORNE, Idaho               FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma            HARRY REID, Nevada
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri        JOSEPH I. LIEBERMAN, Connecticut
TIM HUTCHINSON, Arkansas             BARBARA BOXER, California
WAYNE ALLARD, Colorado               RON WYDEN, Oregon
JEFF SESSIONS, Alabama

                     Jimmie Powell, Staff Director

               J. Thomas Sliter, Minority Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page
General statement:
    Objectives of the legislation................................     1
    Summary of the major provisions..............................     3
Background:
    Overview of the existing law.................................     4
    Problems and solutions.......................................     5
        Administrative reforms...................................     6
        Expanding the role of State and local governments........     7
        Ensuring use of sound science............................     8
        Enhancing recovery.......................................     9
        Inproving cooperation between Federal agencies...........    10
        Providing incentives for property owners.................    10
Section-by-section analysis:
    Section 2. Listing and delisting species.....................    12
    Section 3. Enhanced recovery planning........................    16
    Section 4. Interagency consultation and cooperation..........    24
    Section 5. Conservation plans................................    28
        Multiple species conservation plans......................    31
        Low effect activities permits............................    32
        No Surprises.............................................    33
        Candidate Conservation Agreements........................    34
        Safe Harbor agreements...................................    35
        Habitat Reserve agreements...............................    36
        Scientific permits.......................................    36
    Section 6. Enforcement.......................................    37
    Section 7. Education and technical assistance................    38
    Section 8. Authorization of appropriations...................    38
    Section 9. Other amendments..................................    40
Additional issues:
    Water rights.................................................    41
    National Environmental Policy Act............................    42
Hearings.........................................................    42
Rollcall votes...................................................    45
Regulatory impact................................................    46
Mandates assessment..............................................    47
Cost of legislation..............................................    47
Additional views of:
    Senator Sessions.............................................    53
    Senator Inhofe...............................................    55
    Senators Lieberman, Moynihan, Graham, Lautenberg, Wyden, and 
      Boxer......................................................    56
Minority views of Senator Boxer..................................    57
Changes in existing law..........................................    61



                                                       Calendar No. 242
105th Congress                                                   Report
                                 SENATE

 1st Session                                                    105-128
_______________________________________________________________________


                ENDANGERED SPECIES RECOVERY ACT OF 1997

                                _______
                                

                October 31, 1997.--Ordered to be printed

_______________________________________________________________________


    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 1180]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 1180), to reauthorize the Endangered 
Species Act, having considered the same, reports favorably 
thereon with amendments, and an amendment to the title, and 
recommends that the bill, as amended, do pass.

                           General Statement

                     Objectives of the Legislation

    The Endangered Species Act (``the Act'') was enacted in 
1973 to establish a program to identify and conserve species of 
fish, wildlife and plants that are declining to the point where 
they are now, or may be within the foreseeable future, at risk 
of extinction. While the Act's goal of promoting the recovery 
of threatened and endangered species enjoys widespread public 
support, implementation of the Act has been the source of 
controversy in many areas of the country.
    This legislation has three fundamental goals: first, to 
maintain and improve conservation of endangered and threatened 
species; second, to improve and expedite recovery of those 
species; and third, to reduce the regulatory burden on, and 
uncertainty for, property owners. Under the current law, 
recovery of threatened and endangered species has been an 
elusive goal. Only eight percent of the listed species are 
actually improving in status. When accomplished, the rewards of 
recovery are enormous: the bald eagle, our national symbol, has 
rebounded from a population of 417 breeding pairs in the lower 
48 States in 1963 to over 5,000 breeding pairs in 1996; the 
American alligator and Eastern Pacific population of the grey 
whale have been delisted; the successful captive breeding 
program for the California condor has led to its reintroduction 
in the wild. The successes, however, are few.
    In addition, existing law has not effectively protected or 
conserved species on non-Federal lands. This is vital for the 
recovery of many species that depend on those lands entirely or 
to a great extent. Between 1982 and 1992, only 14 permits and 
associated conservation plans, covering 440,000 acres of land, 
were approved for actions on non-Federal lands. Since then, 
however, the Secretary has approved over 200 additional 
conservation plans and several hundred more are being prepared. 
For the first time, proactive conservation measures are being 
taken on those lands in concert with economic activity.
    Decisions to list the northern spotted owl in the Pacific 
Northwest, the Stephens kangaroo rat in Southern California, 
and the golden cheeked warbler and karst invertebrates in 
Texas, among others, increased public attention on the 
potential conflict between the Act and economic activity. The 
listing of the red-cockaded woodpecker in the Southeast had the 
unintended consequence of creating an incentive for some 
landowners to cut down trees on their land to avoid attracting 
the woodpecker and potential Federal regulation.
    Experience with these and other listed species under the 
Act has demonstrated that the law can be improved to do a 
better job of recovering species, while at the same time 
addressing the legitimate concerns of property owners or others 
affected by the Act. To accomplish this, S. 1180, the 
Endangered Species Recovery Act of 1997 (``the bill''), places 
greater emphasis on the use of sound science throughout the 
Act; it significantly strengthens the recovery planning process 
and creates new tools to ensure that recovery plans are 
implemented; it increases public participation; it streamlines 
the consultation process; and it provides significant new 
incentives for property owners to preserve and restore habitat 
for listed and unlisted species.
    The bill was the product of more than three years of 
hearings and extensive negotiations. The Subcommittee on 
Drinking Water, Fisheries and Wildlife held a series of 
hearings on the Act. Over 100 witnesses testified, including 
conservation biologists, state fish and wildlife directors, 
small woodlot owners, large developers, environmental 
advocates, commercial fishermen, and the Secretary of the 
Interior, identifying problems with the current law and 
suggesting improvements to the Act. The bill incorporates many 
of their suggestions, including elements from the 
Administration's Ten Point Plan (Protecting America's Living 
Heritage: A Fair, Cooperative and Scientifically Sound Approach 
to Improving the Endangered Species Act (March 6, 1995)), the 
Western Governors Association's proposal (endorsed by the 
International Association of State Fish and Wildlife Agencies), 
and the Keystone Center's 1995 Report on Incentives for Private 
Landowners.

                    Summary of the Major Provisions

    The bill makes significant improvements to many of the 
major provisions of the Endangered Species Act:

          Throughout the bill, there is an increased 
        emphasis on the use of sound science.
          Independent peer review is required for 
        listing and delisting decisions, and for the 
        establishment of a biological recovery goal in a 
        recovery plan.
          The bill increases the emphasis on the 
        recovery of species, requiring that recovery plans be 
        drafted for each species within set deadlines. Recovery 
        plans must include a biological recovery goal, recovery 
        measures to achieve that goal in a timely and cost-
        effective way, and benchmarks to measure progress 
        towards achieving recovery. When the recovery goal is 
        met, the Secretary is required to initiate delisting 
        procedures.
          States will have a larger role in 
        implementing the Act. They are required to be notified 
        and their views solicited in the listing process and in 
        the consultation process, and they may assume 
        responsibility for the development of draft recovery 
        plans.
          The bill streamlines the consultation 
        process, allowing Federal action agencies to make an 
        initial determination that a project is not likely to 
        adversely affect a species.
          The bill provides a broad range of incentives 
        for private landowners, ranging from a new more 
        streamlined conservation plan for low effect activities 
        and habitat reserve agreements to comprehensive 
        multiple species conservation plans for listed and 
        unlisted species. All conservation plans are 
        accompanied by no surprises assurances.
          The bill also includes new authority for 
        candidate conservation agreements and State 
        conservation agreements.

                               Background

    In 1973, President Richard Nixon signed the first 
comprehensive endangered species legislation into law, 
congratulating Congress for taking ``this important step'' and 
declaring that the legislation ``provides the Federal 
Government with needed authority to protect an irreplaceable 
part of our national heritage threatened wildlife.''
    The 1973 Endangered Species Act established the basic 
framework for wildlife protection that is embodied in the 
current law. Among other things, the 1973 Act:

          Established broad authority to list and 
        conserve ``any member of the animal kingdom,'' and, for 
        the first time, plants as well;
          Extended protection to species threatened 
        with extinction, not solely those whose existence was 
        actually endangered;
          Included several provisions to protect 
        habitat for endangered species;
          Established the first general prohibition 
        against the taking of endangered fish and wildlife 
        species; and
          Created a process through section 7 to 
        require Federal agencies to protect endangered species 
        and threatened species and their habitat by utilizing 
        their programs to further the purposes of the Act, and 
        to ensure that their activities do not jeopardize the 
        continued existence of endangered or threatened 
        species, or destroy or adversely modify critical 
        habitat.
    Since its enactment in 1973, the Act has been amended a 
number of times. The basic structure and protections of the 
Act, however, have remained essentially intact.

                        Overview of Existing Law

    Endangered species law and policy today are driven largely 
by six provisions of the statute: (1) the listing of species as 
threatened or endangered under section 4(a)(1); (2) the 
designation of habitat as critical under section 4(a)(3); (3) 
the development and implementation of recovery plans under 
section 4(f); (4) the prohibition against taking an endangered 
fish or wildlife species under section 9; (5) the prohibition 
against Federal agency actions that are likely to jeopardize 
the continued existence of listed species; and (6) the 
authorization of activities under section 10(a)(1) that would 
result in an incidental take of a listed fish or wildlife 
species.
    Listing and critical habitat designation provide the 
starting point for the Endangered Species Act. All subsequent 
activities under the Act depend on the initial determinations 
made in these provisions. Section 4(a)(1) requires the 
Secretary to list species as threatened or endangered after 
weighing a variety of factors. The factors include the present 
or threatened destruction of a species' habitat; 
overutilization of the species; disease or predation; the 
inadequacy of existing regulatory mechanisms; or other natural 
or manmade factors. These factors are also considered in the 
decision to delist a species. The decision to list or delist a 
species must be based solely on the use of the best scientific 
and commercial data available.
    At the same time that a species is listed, section 
4(a)(3)(A) directs the Secretary to designate, to the maximum 
extent prudent and determinable, critical habitat for the 
species. Unlike the listing decision, which must be based 
solely on the science, any critical habitat designation must 
also take into consideration economic and other impacts. The 
designation of critical habitat is also significant because 
impacts to critical habitat by Federal agency actions are 
considered during consultation under section 7 of the Act. In 
practice, critical habitat is rarely designated and exists now 
for only approximately 11 percent of the species listed as 
threatened or endangered.
    Section 4(f) of the Act requires the Secretary to develop a 
recovery plan to identify site-specific and other management 
actions that can be implemented to bring a species back to the 
point where it no longer needs the protections of the Act. 
There is no deadline for the development of recovery plans and 
currently one-third of the species listed do not have final 
recovery plans. Private parties have no duty to implement 
recovery plans.
    The obligations of Federal agencies are defined in large 
part by section 7 of the Act. Section 7(a)(1) requires all 
Federal agencies, in consultation with the Secretary, to 
``utilize their authorities in furtherance of the purposes of 
the [Act] by carrying out programs for the conservation of 
endangered species and threatened species,'' but does not 
impose specific duties. Section 7(a)(2) requires Federal 
agencies to consult with the Fish and Wildlife Service or the 
National Marine Fisheries Service (referred to collectively as 
``the Services'') to ensure that their actions are not ``likely 
to jeopardize the continued existence of any endangered or 
threatened species or result in the destruction or adverse 
modification of habitat of such species which is determined . . 
. to be critical.'' This consultation requirement applies to 
any action ``authorized, funded or carried out'' by a Federal 
agency and therefore has a broad reach encompassing not only 
activities undertaken by the Federal agencies themselves, but 
also the granting of licenses, contracts, permits, easements, 
rights-of-way and grants. The consultation process also 
provides a mechanism for Federal actions that would otherwise 
result in the incidental take of a species to receive an 
incidental take statement to be excepted from the take 
prohibition under section 9(a).
    Perhaps the most significant regulatory consequence of a 
listing decision is the prohibition against the taking of an 
endangered fish or wildlife species under section 9(a). The 
take prohibition does not apply to threatened species under the 
terms of section 9(a), but the Secretary has the authority 
under section 4(d) to extend all of the protections of the Act, 
including the take prohibition, to threatened species. A taking 
under the Act includes activities that ``harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or attempt 
to engage in any such conduct.'' U.S. Fish and Wildlife Service 
regulations have defined the term ``harm'' to include 
``significant habitat modification where it actually kills or 
injures wildlife.'' This definition was upheld by the Supreme 
Court in Babbitt v. Sweet Home Chapter of Communities for a 
Great Oregon, 115 S. Ct. 2407 (1995).
    Section 10(a)(1) of the Act provides that the Secretary may 
permit a taking otherwise prohibited by section 9(a) if the 
taking is incidental to, and not the purpose of, the carrying 
out of an otherwise lawful activity. In order to obtain an 
``incidental take permit,'' the applicant must submit a 
conservation plan and the Secretary must determine, among other 
things, that the taking will not appreciably reduce the 
likelihood of the survival and recovery of the species in the 
wild. This provision was added in 1982 to address the concerns 
of private landowners that they would not be able to proceed 
with otherwise lawful activities due to the section 9(a) 
prohibition against taking an endangered fish or wildlife 
species. Until recently, relatively few conservation plans had 
been approved under this section. Since 1992, however, the 
Secretary has approved over 200 conservation plans with 
incidental take permits.

                         Problems and Solutions

    The effort to protect endangered species affects the lives 
of many Americans. Almost 90 percent of the continental United 
States--2,450 counties--provides habitat for one or more listed 
species. Over 210 million Americans live close to at least one 
endangered or threatened species. There are 1,107 listed 
species in the United States, including 228 threatened species 
(113 plants and 115 animals) and 879 endangered species (542 
plants and 337 animals). Only 18 species in the United States 
have been delisted.
    Two things are clear. First, the protection of endangered 
and threatened species continues to be a national priority; and 
second, the Act must be improved to be more effective. In 
amending the Act, the Congress should consider the significant 
economic and other impacts that Federal protection of 
endangered and threatened species can have on the communities 
that contain habitat for these species and take steps to 
minimize those impacts while protecting the needs of species.
Administrative Reforms
    On March 6, 1995, the Administration formally announced its 
Ten Point Plan to ``carry out the Endangered Species Act in a 
fair, efficient and scientifically sound manner.'' In testimony 
before the Subcommittee on Drinking Water, Fisheries and 
Wildlife, Secretary of the Interior Bruce Babbitt explained 
that the ``key objectives [of the Ten Point Plan] are based on 
a common sense approach to the Act and a concerted effort to 
solve legitimate problems while preserving the core goal of 
protecting our nation's priceless biological heritage. These 
objectives include, but are not limited to, expanding the role 
of States; reducing socio-economic effects of listing and 
recovery; ensuring that the best available peer-reviewed 
science is the basis for listing decisions; and increasing 
cooperation among Federal agencies.''
    The principles underlying the Administration's Ten Point 
Plan are sound and have also guided the committee's efforts in 
drafting this bill. They are:

     1. LBase endangered species decisions on sound and 
objective science.
     2. LMinimize social and economic impacts.
     3. LProvide quick, responsive answers and certainty to 
landowners.
     4. LTreat landowners fairly and with consideration.
     5. LCreate incentives for landowners to conserve species.
     6. LMake effective use of limited public and private 
resources by focusing on groups of species dependent on the 
same habitat.
     7. LPrevent species from becoming endangered or 
threatened.
     8. LPromptly recover and delist threatened and endangered 
species.
     9. LPromote efficiency and consistency.
    10. LProvide state, tribal and local governments with 
opportunities to play a greater role in carrying out the Act.

    Implementation of the Ten Point Plan has resulted in 
several significant changes in the way that the Act is 
administered.
    In his testimony, Secretary Babbitt noted that a critical 
component of the Ten Point Plan deals with the issue of greater 
State and local government involvement in the implementation of 
the Act. He further stated that, ``[t]he leading model for 
State and local government involvement in administration of the 
Act is the Natural Communities Conservation Planning 
[(``NCCP'')] process now underway in several Southern 
California counties. In a special rule under the Act, first 
proposed in the Spring of 1993, the Fish and Wildlife Service . 
. . delegated to the State and counties in southern California 
the opportunity to use existing planning processes to protect 
habitat for the California gnatcatcher, as a substitute for 
Federal regulation.'' Fish and Wildlife Service Director Jamie 
Clark recently noted that ``[t]his innovative ecosystem based 
management program has been successfully balancing the need to 
preserve the unique species of the coastal sage scrub ecosystem 
with the desired economic development of the area.''
    For non-Federal landowners, the Administration has 
developed a no surprises policy in habitat conservation 
planning under section 10 of the Act. Under the policy, a 
landowner who develops an approved habitat conservation plan 
(``HCP'') for an endangered or threatened species will not be 
subject to later requirements of additional land or financial 
commitments if the landowner complies with the plan. The policy 
is intended to provide assurances to landowners who are engaged 
in development activities over a period of many years that 
their habitat conservation planning permits will remain valid 
for the life of the permits. The Administration has also 
implemented a policy of providing safe harbor agreements to 
landowners who voluntarily agree to enhance habitat on their 
lands by insulating them from restrictions if they later need 
to bring their land back to its previous condition. These 
agreements have been used in North Carolina to enhance habitat 
for the red-cockaded woodpecker.
    More recently, the Administration has initiated a policy to 
encourage the development of candidate conservation agreements 
to preserve or enhance habitat for candidate species and 
species proposed for listing. These agreements are intended to 
help conserve species before they are listed and, in doing so, 
may avoid the need to list the species as threatened or 
endangered under the Act.
    The Administration's initiatives reflect an important first 
step in the effort to improve implementation of the Act. 
However, the Ten Point Plan itself recognizes that additional 
Congressional authorization is needed to expand and improve the 
Administration's reforms. Additional refinements to these 
reforms are appropriate to enhance their effectiveness. By 
adding express language to the Act regarding recent endangered 
species administrative reforms, the bill provides further 
clarity regarding appropriate criteria and procedures for their 
implementation.
Expanding the Role of State and Local Governments
    One of the criticisms of the Act is that it fails to 
provide adequate mechanisms to encourage State involvement in 
the listing, conservation and recovery processes. States 
possess broad trustee and police powers over fish and wildlife 
within their borders. To enhance implementation of the Act, it 
is important to take better advantage of the resources and 
expertise of State fish and wildlife agencies.
    The Western Governors Association (``WGA'') provided 
legislative recommendations on establishing a partnership with 
the Federal Government. The WGA recommendations included: 
making recovery of the species a central focus of the Act; 
providing a greater role for States in the listing process; 
authorizing delegation to the States of the recovery planning 
process; recognizing States as partners in the implementation 
of recovery plans; authorizing State conservation agreements; 
adopting a collaborative rulemaking process; giving priority to 
the conservation of species and habitats that, if protected, 
are most likely to reduce the need to list other species 
dependent on the same habitats; making designation of critical 
habitat concurrent with drafting of a recovery plan; assessing 
economic impacts of recovery; and providing incentives and 
regulatory certainty to private property owners. To a 
significant degree, these recommendations have been included in 
the bill.
    The central tenet of the bill is that recovery of species 
is both an objective of the Act and an underutilized planning 
device. If the recovery planning process can be used as a 
consensus building tool, it can promote recovery of species 
covered by plans and help avoid future conflicts under the Act. 
The objectives of the Act can be enhanced through State 
involvement in either Federally-directed recovery teams or 
through a State-nominated team.
    State conservation agreements will involve the States in 
helping to avoid the listing of species by providing 
conservation actions that address threats to candidate and 
certain other species.
    A more collaborative rulemaking process and consultation 
with the States will assure that the practical needs of the 
States are acknowledged and fully considered. This process is 
specifically required in the development of recovery plans. In 
addition, State input into decision making is to be actively 
solicited in listing, delisting, change of status of species, 
and consultation.
Ensuring Use of Sound Science
    Public confidence in the science underlying key decisions 
made in implementing the Act, including listing and delisting 
determinations, is critical to the success of the Act. Concerns 
have been raised, however, that decisions may sometimes be 
based on information that is flawed, incomplete, or no longer 
current.
    Lack of independent peer review has contributed to costly 
litigation in the case of three species of fairy shrimp in 
California. Changes need to be made to the listing process that 
will enhance public confidence in the biological integrity of 
listing decisions. The addition of a mandatory independent 
scientific review requirement for all listing and delisting 
proposals will ensure the use of sound science and, therefore, 
provide a mechanism for resolving scientific disputes during 
the rulemaking process.
    The Services have taken steps to improve the scientific 
basis for listing determinations. In July 1994, the 
Administration announced its Policy for Peer Review in 
Endangered Species Act Activities; it has since used this 
policy to peer review 76 final listing determinations and 91 
recovery plans. The bill builds upon the efforts of the 
Services, requiring independent peer review for all listing and 
delisting determinations, as well as for the establishment of 
the biological recovery goal in a draft recovery plan. This 
process should significantly increase public confidence in the 
implementation of the Act and serve to reduce litigation.
    To ensure that all actions taken under the Act are based on 
sound science, the bill further encourages the Services and 
others to continue to identify and obtain additional 
information that will assist in the development of recovery 
plans, including the recovery goals. In the past, some people 
have perceived that the effort to gather additional scientific 
information stops with the listing determination, reducing 
their confidence in the validity of recovery plans and the 
delisting process. When the Federal agencies and non-Federal 
parties have actively worked to expand the scientific knowledge 
regarding a listed species, public support for, and 
participation in, recovery efforts has been significantly 
enhanced.
    Sound science should also be the basis of any enforcement 
action. The bill requires that an action, including an action 
for injunctive relief, to enforce the prohibition against the 
incidental taking of a species, must be based on pertinent 
evidence using scientifically valid principles, as recently 
described in the Supreme Court's decision in Daubert v. Merrell 
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Enhancing Recovery
    The objective success of the Act must, in part, be measured 
by the progress achieved in recovering species to the point 
where they are delisted and no longer need the protections of 
the Act. By this measure, the recovery provisions of the 
current law fall short. There are 1,667 U.S. and foreign 
species listed as threatened or endangered. As of February 
1997, only 25 species had been delisted. Of these, eight were 
delisted due to data error; seven were determined to be 
extinct; three kangaroo species were delisted as a result of 
changes in policy in Australia. Measured by a standard of 
preventing species from becoming extinct, the Act has been more 
successful. The most recent Fish and Wildlife Service Report to 
Congress, Endangered and Threatened Species Recovery Program 
(1994) concluded that the length of time that a species has 
remained under the Act's protections correlates positively with 
the status of the species. Specifically, of the 108 species 
listed between 1968 and 1973, 58 percent are stable or 
improving. Of the 294 species listed between 1989 and 1993, 
only 22 percent are stable or improving; the others were 
identified as in decline or in an uncertain population trend. 
By either measure, the numbers suggest that the existing 
recovery planning and implementation process can be improved.
    The recovery plan is the linchpin of the effort to recover 
a species to the point where it may be delisted. Yet, only 487 
recovery plans have been completed, leaving approximately one-
third of the species listed in the United States without an 
effective mechanism to guide recovery. As a first step, 
therefore, the bill requires that recovery plans be developed, 
for virtually all species listed in the United States after the 
date of enactment, within 30 months after a listing decision is 
made. It also provides for the appointment of a recovery team, 
in most cases, to draft the plan. Encouraging participation in 
the planning process by those who are most affected by the 
listing and recovery of a species is intended both to improve 
the plan by including broadly representative perspectives on 
all aspects of recovery and, more generally, to enhance public 
support for recovery measures. The plans themselves are to 
identify concrete measures that can be taken to recover species 
and establish benchmarks to ensure that progress is being made 
towards the recovery goal. The intent is that these new 
recovery plans will serve as the road map to recovering 
species.
    The second step is to ensure that the recovery measures 
identified in recovery plans are executed. This has been a 
problem in the past where recovery plans have been prepared, 
but in many cases have never been implemented. To make these 
plans an effective tool to achieve the goals of the Act, it is 
essential that both Federal agencies and non-Federal persons be 
encouraged to actively participate in carrying out specific 
conservation measures identified in the plan. Under the bill, 
Federal agencies retain primary responsibility for recovering 
species. Each Federal agency identified in a recovery plan will 
be required to enter into an agreement to carry out 
conservation measures for the species. States and others are 
encouraged to voluntarily enter into these agreements to 
implement measures to assist in the recovery of species.
    Finally, the goal of the recovery planning and 
implementation process should remain the delisting of a 
species. Therefore, the bill provides that once the ultimate 
recovery goal set by the recovery plan has been achieved, the 
Secretary must initiate the procedures to determine whether to 
remove the species from the list. It is expected that 
achievement of the recovery goal will generally result in a 
delisting determination.
Improving Cooperation Between Federal Agencies
    The section 7 consultation process has been perceived by 
some as a source of conflict between private property owners 
and Federal agencies. The actions of private parties have 
sometimes been delayed while Federal agencies engage in 
consultation under section 7. In some cases, consultation 
between Federal agencies and the Services has not been 
completed within the statutory deadlines. For a private party 
seeking a permit or authorization for a project, any delays and 
lack of certainty that result from the current section 7 
process can present significant problems.
    Although the Services have initiated efforts to improve the 
consultation process and have reduced the backlog of pending 
applications, the bill further streamlines the process by 
allowing a Federal action to proceed if the Federal action 
agency makes the initial ``not likely to adversely affect'' 
determination and the Secretary does not object within 60 days.
    The bill also opens up the consultation process so that any 
person who has sought authorization or funding from a Federal 
agency for an action that is the subject of the consultation 
can obtain information used by the Secretary to develop the 
draft and final biological opinions, subject to relevant 
Freedom of Information Act (``FOIA'') exemptions. The public 
may obtain a list of notices received from Federal agencies 
that made a determination that an action is not likely to 
adversely affect a species, and obtain the information received 
by the Secretary on which the agency based its determination, 
subject to relevant FOIA exemptions.
    Finally, the bill addresses concerns raised by some permit 
applicants by requiring that reasonable and prudent measures be 
related in nature and extent to the effect of the proposed 
activity.
Providing Incentives for Property Owners
    According to the Government Accounting Office (``GAO''), 
over 90 percent of the listed species have some or all of their 
habitat on non-Federal lands; two-thirds have over 60 percent 
of their total habitat on non-Federal lands; and one-third are 
entirely dependent on non-Federal lands for their habitat. In 
light of these figures, it is clear that actions by non-Federal 
persons are critical to achieving the Act's ultimate goal of 
conserving threatened and endangered species. Recent efforts of 
property owners to develop habitat conservation plans and to 
enter into safe harbor agreements, among other things, indicate 
that property owners are willing to assist in the conservation 
of species given affirmative incentives to do so.
    The advantage of an incentive-based approach was 
highlighted by the testimony of Michael J. Bean of the 
Environmental Defense Fund:

          In other areas of environmental policy, incentives are a 
        commonly used tool to achieve congressional goals . . . .
          To achieve the goals of the Endangered Species Act, we have 
        thus far relied almost exclusively on the ``stick'' of 
        penalties and prohibitions to deter harmful conduct, and have 
        generally neglected the ``carrot'' of incentives to reward 
        beneficial conduct. The shortcomings of this ``all stick and no 
        carrot'' approach are evident. The stick does not always work, 
        and it is often resented. Moreover, even if it did always work, 
        at best it would preserve only the status quo. Thus, 
        ultimately, the most significant shortcoming of an all stick 
        and no carrot approach is that it misses the opportunities to 
        improve upon the current situation by giving landowners an 
        incentive to create or restore habitat that will aid in the 
        recovery of imperiled species.

    In July 1995, the Keystone Center published its Keystone 
Dialogue on Incentives for Private Landowners to Protect 
Endangered Species. Participants in the dialogue included 
representatives of environmental, mining, ranching and 
agriculture organizations, private landowner groups, forest 
products companies, real estate interests, Federal and State 
agencies, and Congressional staff. The Keystone Report 
recommended a broad range of incentives for private landowners 
to conserve species on their lands. The recommendations 
included, among other things, suggestions to: (1) streamline 
the habitat conservation planning process; (2) increase 
participation in voluntary species conservation through 
prelisting conservation agreements, safe harbor agreements, no 
take agreements and recovery plan incentives; and (3) establish 
new financial incentives through estate tax reform, estate tax 
credits and tax credits for conservation measures.
    Many of the recommendations of the Keystone Report are 
reflected in policies that are being implemented by the 
Administration, including safe harbor agreements and candidate 
conservation agreements. The bill incorporates many of the 
recommendations of the Keystone Report and the Administration's 
policies to provide a broad range of incentives for non-Federal 
property owners. The incentives include an expedited process 
for small landowner and other low effect habitat conservation 
plans; a statutory no surprises provision to give property 
owners certainty that HCPs will not be reopened with greater 
mitigation demands for more money or more land; safe harbor 
agreements to encourage the enhancement of potential habitat 
for a species while protecting property owners from added 
liability under the Act; candidate conservation agreements to 
encourage property owners to take proactive measures to help 
reduce the need to list species as threatened or endangered 
under the Act; and relief from section 7 consultation 
requirements for site-specific activities undertaken by 
property owners to assist in the implementation of recovery 
plans. These new incentives are intended to enhance 
conservation of species and reduce conflicts with private 
landowners.

                       Section-by-Section Summary

Section 2: Listing and Delisting Species

                                Summary

    The bill expands section 3 of the Act to include both 
definitions and general provisions. Section 2(a) and section 
2(d) each include an amendment to the general provisions of the 
Act. Section 2(a) states that, when the Act requires the 
Secretary to use the best scientific and commercial data 
available, and when evaluating comparable data, the Secretary 
must give greater weight to data that is empirical, field-
tested or peer-reviewed. Section 2(d) allows the Secretary, and 
the head of any other Federal agency upon recommendation by the 
Secretary, to withhold or limit the availability of data 
otherwise to be released under FOIA if the data describe or 
identify the location of listed or proposed species, and 
release of the data would likely result in increased take of 
the species.
    Sections 2(c)(4)-(6) of the bill amend the process to 
determine whether a species is endangered or threatened in 
several significant ways. First, a petition to list, delist or 
reclassify a species as threatened or endangered must contain 
certain minimum documentation. Second, the Secretary must 
notify the States that may be affected by a listing of any 
petition received, or any action considered by the Secretary, 
and consider any State assessment received within 90 days of 
the notification. Third, at least one public hearing in each 
affected State (including one hearing in each affected rural 
area) must be held upon the request of any person within 45 
days of publication of the proposed rule, although not more 
than five hearings may be required. Fourth, independent peer 
review is required for every proposal to add or remove a 
species from a list, to be conducted by three scientists 
nominated by the National Academy of Sciences (``NAS'') and 
selected by the Secretary.
    The bill also changes the listing process with respect to 
other provisions of the Act. It moves the deadline for 
designating critical habitat from the final listing deadline to 
the final recovery plan deadline. Section 2(c)(3) requires that 
the Secretary initiate procedures for determining whether to 
delist a species when the recovery goal for that species has 
been met. Section 2(c)(7) requires certain information to be 
included with the publication of listing regulations. Section 
2(c)(8) requires that data for recovery plans be solicited in 
conjunction with a proposed listing regulation, and be 
considered subsequently by the recovery team and the Secretary 
during recovery plan development. Section 2(c)(12) of the bill 
allows States to enter into State conservation agreements to 
conserve species before they need to be listed, and enumerates 
requirements for these agreements.
    Section 2(c)(10) of the bill also requires that protective 
regulations for threatened species, pursuant to section 4(d) of 
the Act, must be specific to that species by the date a 
recovery plan must be approved for the species. This applies 
only to species listed as threatened after the date of 
enactment of the bill.

                               Discussion

    The scientific underpinnings of decisions made by the 
Secretary in implementing the Act have often been criticized by 
both conservation groups and private property owners. In 
particular, certain listing decisions have been the subject of 
controversy. To ensure that decisions are scientifically sound 
and to enhance public confidence in the listing process, 
section 2 of the bill makes a series of changes to the general 
provisions and specifically to section 4 of the Act to place 
greater emphasis on the use of sound science and public 
participation in listing and other decisions. Under the current 
law, the Secretary is required to make decisions pursuant to 
section 4(a) solely on the basis of ``the best scientific and 
commercial data available,'' and all Federal agencies are 
required to use ``the best scientific and commercial data 
available'' during the consultation process under section 7. 
While this general standard is widely accepted, concerns have 
been raised regarding its application in individual instances. 
Specifically, the existing law provides no guidance as to what 
constitutes the ``best scientific and commercial data 
available.''
    Section 2(a) of the bill requires that, where the Act 
requires the Secretary to use the best scientific and 
commercial data available, and when evaluating comparable data, 
the Secretary must give greater weight to data that is 
empirical, field-tested, or peer-reviewed. This section is not 
intended to preclude the Secretary from using other data. The 
bill does recognize, however, that all else being equal (i.e., 
comparable), data that are empirical, field-tested or peer-
reviewed should be given greater weight than data that are not. 
For example, when evaluating comparable data from two studies, 
one of which has been peer-reviewed and the other has not, 
greater weight is to be given to the former. If two population 
viability models are conducted, and both use equally valid but 
different assumptions, the model that has undergone peer review 
or field testing is to be given greater weight, although the 
other model may also be considered.
    Section 2(d) of the bill addresses two recent court 
decisions that prevented the U.S. Forest Service from 
withholding information on the location of nesting sites for 
two threatened species of birds. The Forest Service sought to 
withhold the information pursuant to exemption 2 of the Freedom 
of Information Act (``FOIA''), on the basis that disclosure 
would facilitate the unlawful taking of the species, but both 
the 9th Circuit, in Maricopa Audubon Society v. Thomas, and the 
10th Circuit, in Audubon Society v. U.S. Forest Service, 
required release of the information. The bill allows for 
certain information to be withheld, provided that the 
information describes or identifies the location of a listed 
species or one proposed to be listed, and the release of the 
information would likely result in increased take of the 
species. Exemption 3 of FOIA (5 USC 552(b)(3)) incorporates 
disclosure provisions of other statutes, and this provision is 
to be considered under that exemption. The provision is also to 
be narrowly construed, such that increased take of a species 
must be likely, rather than merely possible. Furthermore, the 
exemption may not be used to withhold information regarding the 
presence of a species on private land from the owner of that 
land.
    Under existing law, the process for determining whether a 
species is endangered or threatened is an elaborate one. First, 
the Secretary must make a finding within 90 days of receipt of 
a petition whether the petition presents substantial scientific 
or commercial information indicating that the petitioned action 
may be warranted. Upon making this finding, the Secretary must 
then conduct a status review to determine whether to propose 
the species as endangered or threatened. This is a resource-
intensive process. To ensure that limited resources are not 
spent on petitions that do not include adequate information, 
section 2(c)(4) of the bill requires certain information to be 
included in a petition. This requirement does not change the 
standard for making the finding; it does, however, require that 
the person submitting the petition provide information on which 
the finding may be based in order to reduce the burden upon the 
Secretary. These minimum requirements are not intended to place 
excessive burdens on petitioners or bar further consideration 
of potentially meritorious proposals. This requirement also 
does not preclude the Secretary from using additional 
information for the finding.
    Section 2(c)(4) also expands the role of State fish and 
wildlife agencies in the listing process. State fish and 
wildlife agencies have valuable expertise and biological data 
and other information regarding species in their jurisdiction. 
The bill elevates the role of the State agencies in the listing 
process. Section 2(c)(4) provides that, prior to publication of 
a determination that a petitioned action is warranted or, if no 
petition has been received, the issuance of a proposed 
regulation, State fish and wildlife agencies, in each State in 
which the species is believed to occur, shall have an 
opportunity to review and submit their views on potential 
proposals to list, delist, or change the status of a species.
    Section 2(c)(3) requires that when the Secretary determines 
that the recovery plan goals for a species have been met, the 
Secretary must initiate the process to determine whether a 
species should be delisted in accordance with section 4(a)(1) 
of the Act. This provision is intended to address concerns that 
not enough emphasis has been placed on delisting, even when the 
recovery goals for a species established by a recovery plan 
have been met. It does not, however, change the standards or 
procedures for determining whether a species should be 
delisted.
    Section 2(c)(8) of the bill requires that the Secretary 
select three referees, based on recommendations by the NAS, to 
provide independent peer review of proposed listing, delisting 
and reclassification decisions, to ensure that the decisions 
are based on sound science. In order to ensure the most 
effective peer review of any proposal to list, delist or change 
the status of the species, the referees should be allowed to 
review all the information, data, and documentation relied upon 
by the Secretary to make the proposed determination. In July of 
1994, the Services issued a joint policy requiring independent 
scientific peer review of all proposed listings, 59 Fed. Reg. 
34270 (1994). Section 2(c)(8) expands that policy. Prior to 
making a final determination, the Secretary must consider the 
recommendation of the peer review panel, if the referees have 
made a recommendation in accordance with this section. Peer 
review shall not delay the determination as to whether to list 
the species. Both the NAS and the referees are to fulfill their 
commitments in a timely manner. Any delay on their part, 
however, does not serve to waive or extend the deadlines 
imposed upon the Secretary. The Federal Advisory Committee Act 
(``FACA'') does not apply to the selection and activities of 
referees.
    Section 4(d) of the Act requires that the Secretary 
promulgate regulations necessary and appropriate for the 
conservation of threatened species. The Secretary of the 
Interior published a rule, codified at 50 C.F.R 17.31, that 
prohibited the take of all threatened species, but allowed for 
special rules for individual species. Section 2(c)(10) of the 
bill restores the distinction between species listed as 
endangered or threatened by requiring the Secretary to issue a 
special regulation, under section 4(d) of the Act, for each 
species listed as threatened after the date of enactment of 
this bill. Specifically, section 2(c)(10) requires that, with 
respect to species listed as threatened in the future, 
regulations under section 4(d) must be specific to that species 
by the time the Secretary is required to approve a recovery 
plan for the species. Prior to that time, the general 
prohibitions in 50 C.F.R. 17.31 and 50 C.F.R. 17.71 may 
continue to apply. However, the scope of the protections for 
that species will be reevaluated and revised, as necessary, 
after the threats to the species and the actions required to 
recover the species have been identified. While the 
prohibitions may apply after the time the Secretary is required 
to approve a recovery plan for the species, the prohibitions 
must be promulgated through a special rule specifically for 
that species.
    Existing law recognizes the role of States in protecting 
species before they become endangered or threatened. Section 
4(b)(1)(A) of the Act requires the Secretary to make a listing 
determination after taking into account efforts being made by 
any State, or political subdivision thereof, to protect the 
species. Section 2(c)(12) of the bill includes a new provision 
expressly authorizing States to enter into State conservation 
agreements to protect species before they are listed. The 
Secretary may enter into State conservation agreements with one 
or more States for a species that has been proposed for 
listing, is a candidate for listing, or is likely to become a 
candidate species in the near future. The Secretary may approve 
a conservation agreement if, after notice and opportunity for 
public comment, the Secretary finds, among other things, that 
the actions taken under the agreement, if undertaken by all 
States within the range of the species, would produce a 
conservation benefit that would be likely to eliminate the need 
to list the species for the duration of the agreement. Solely 
for purposes of making the finding under section 4(i)(1) of the 
Act, as amended by this section, the Secretary is to assume 
that all relevant States have entered into similar conservation 
agreements.
    By encouraging States to take active steps to address 
threats to a species before it is listed, these agreements will 
benefit species and, in doing so, may help avoid the need to 
list those species. For example, NMFS and the State of Oregon 
entered into an agreement to implement the central Oregon 
Coastal Salmon Restoration Initiative to conserve the Oregon 
coast coho salmon population. Unlike candidate conservation 
agreements or habitat conservation plans, these agreements are 
only available to States and do not provide any specific 
regulatory assurances if a species covered by an agreement 
subsequently needs to be listed.
    The conservation benefits derived from the agreement may be 
considered in a listing determination by the Secretary. In the 
case of the coho salmon, for example, the benefits of the 
Oregon initiative formed the basis of the Secretary's decision 
not to list the central Oregon coast population. These benefits 
may include future benefits that are reasonably certain to 
occur under an agreement that is being implemented at the time 
of the determination.
Section 3: Enhanced Recovery Planning

                                Summary

    The bill creates a new section 5 in the Endangered Species 
Act relating to recovery planning and implementation. 
Generally, the Secretary shall, in cooperation with the States 
and on the basis of the best scientific and commercial data 
available, develop and implement recovery plans for the 
conservation and recovery of listed species indigenous to the 
United States or in waters with respect to which the United 
States exercises sovereign rights or jurisdiction. The 
Secretary may also authorize a State to prepare a draft 
recovery plan. The bill establishes priorities and schedules 
for completing recovery plans, including plans not yet 
developed for currently listed species. For species listed 
after the date of enactment of this bill, under new section 
5(c), draft plans must be completed 18 months after listing, 
and final plans 30 months after listing. For species currently 
listed but without recovery plans, section 3(e) of the bill 
requires that plans be completed for not less than one-half the 
species not later than 36 months after enactment, and for the 
remainder, not later than 60 months after enactment.
    Under new section 5(d), the Secretary is required, with 
limited exceptions, to appoint a recovery team that is broadly 
representative of the constituencies with an interest in the 
species and in the social and economic impacts of recovery. The 
Secretary is not expected to appoint a recovery team in those 
situations in which the recovery of the species will have 
little, if any, impact on the public. The team is to prepare a 
draft plan, including recommended recovery measures and 
alternatives, to meet the recovery goal, and submit the plan to 
the Secretary. The team may assist the Secretary in reviewing, 
revising and implementing plans, may be reimbursed for travel 
expenses, and is exempt from FACA.
    New section 5(e) establishes substantive requirements for 
recovery plans, including a biological recovery goal, recovery 
measures, benchmarks, and an identification of Federal agencies 
whose actions are likely to have a significant impact on 
recovery of the species. The biological recovery goal must be 
established by those members of the team with relevant 
scientific expertise, and undergo independent peer review. It 
may be advantageous to use the same scientists who conducted 
the peer review of the proposed listing to review the recovery 
goal. The goal is to be based solely on the best scientific and 
commercial data available. The bill requires that the 
biological recovery goal, when met, would result in the 
determination, in accordance with the provisions of section 4, 
that the species be removed from the list, and when it is met, 
that the Secretary initiate the procedures for making this 
determination. Recovery measures to meet the recovery goal may 
be general or site-specific. The recovery measures must achieve 
an appropriate balance among three factors: (1) the 
effectiveness of the measures in meeting the recovery goal; (2) 
the period of time in which the recovery goal is likely to be 
achieved, provided that it will not pose a significant risk to 
recovery; and (3) the social and economic impacts of the 
measures. Plans must include descriptions of alternative 
measures, and where the measures impose significant costs, a 
description of the overall economic effects on public and 
private sectors.
    New sections 5(f) and 5(h) provide for public comment, and 
Secretarial review and approval. After the recovery team 
submits the draft plan to the Secretary, the Secretary shall 
review the plan to determine whether it meets the requirements 
of the Act, and give the team an opportunity to address any 
concerns. The Secretary must then publish a notice of 
availability and request for comments in the Federal Register 
and in a newspaper of general circulation in each affected 
State, and upon request, hold at least one public hearing. In 
adopting a final plan, the Secretary must select recovery 
measures that meet the recovery goal and achieve the 
appropriate balance among the same factors mentioned above. The 
Secretary must explain why any measures recommended by the 
recovery team were not adopted.
    Under new sections 5(i), 5(j) and 5(k), recovery plans are 
to be reviewed every ten years, and must be revised if the 
Secretary finds that substantial new information indicates that 
the recovery goals will not achieve the conservation and 
recovery of the species. Plans in existence prior to date of 
enactment of the bill must be reviewed by the Secretary within 
five years of the date of enactment. Plans approved, or for 
which notice and comment procedures have been initiated, or on 
which significant progress has been made, prior to the date of 
enactment of the bill, are not required to be redrafted to 
comply with these new provisions prior to publication.
    The bill includes provisions relating to the implementation 
of recovery plans, to be codified as a new section 5(l). In 
general, the Secretary is authorized to enter into agreements 
with Federal agencies, States, Indian tribes, local 
governments, and private entities to implement conservation 
measures identified in an approved recovery plan. Each non-
Federal party must have the legal authority and capability to 
carry out the agreement, the agreement must be reviewed and 
revised as necessary on a regular basis (but no later than 
every five years), the agreement must establish a mechanism for 
monitoring and evaluation, and the agreement must be subject to 
public notice and opportunity for public comment.
    Federal agencies identified in the recovery plan in section 
5(e)(4) must enter into an implementation agreement no later 
than two years after the recovery plan is approved. The 
substantive provisions of the agreement are within the sole 
discretion of the Secretary and the heads of the agencies. 
Consultation pursuant to section 7 of the Act is waived for 
certain Federal actions specified in a recovery plan 
implementation agreement between the Federal agency and the 
Secretary that promote the recovery of the species. If a non-
Federal person desires to include an action requiring Federal 
authorization or funding in an implementation agreement, the 
Federal agency must participate in the development of the 
agreement and identify all measures for the species that would 
be required under the Act. Grants of up to $25,000 may be 
provided by the Secretary to private landowners for carrying 
out implementation agreements.
    Under new section 5(m), the Secretary may authorize a State 
agency to develop a draft recovery plan upon the request of the 
Governor. The State must have entered into a cooperative 
agreement with the Secretary and demonstrate adequate authority 
and capability to carry out the necessary requirements. The 
State agency may appoint the recovery team, which is to submit 
the draft plan to the Secretary, through the State agency, for 
review. The Secretary may withdraw the authority from a State, 
after an opportunity to correct any deficiencies, if the State 
is not in compliance with the requirements of the section; in 
such cases, the Secretary is to develop the recovery plan.
    The bill changes the timeframe for designation of critical 
habitat. Generally, under new section 5(n), the Secretary must 
publish a proposed rule designating critical habitat no later 
than 18 months after a species is determined to be threatened 
or endangered, and a final rule no later than 30 months after 
the determination. The Secretary must publish proposed and 
final rules after consultation and in cooperation with the 
recovery team, if any.

                               Discussion

    The mandate to develop and implement plans for the 
conservation and recovery of endangered and threatened species 
has never been an integral component of the existing law. It 
wasn't until 1978 that Congress required the development of 
recovery plans, and it wasn't until 1988 that Congress 
significantly expounded on the process and contents for 
recovery plans. Under section 4(f) of the Act, the Secretary 
must develop and implement plans, and must incorporate in each 
plan site-specific management actions, objective and measurable 
criteria for delisting, and estimates of time and cost of 
recovery actions. Public notice and comment is required, and 
recovery teams may be convened, for recovery plan development.
    The bill expands the provisions governing recovery planning 
and implementation. For example, under current law, there are 
no deadlines to complete plans. Nor are there specific 
requirements for determining the goal of recovery, criteria for 
choosing particular measures to achieve recovery, or parameters 
for participation by stakeholders or States. With respect to 
plan implementation, there are neither requirements nor 
incentives for Federal or non-Federal entities seeking to 
undertake conservation measures.
    These shortcomings have been detrimental to the recovery of 
endangered and threatened species throughout the country. Since 
the passage of the Act in 1973, of the 25 species delisted, 
only 11 species have been delisted because they have recovered, 
and of these, only five have resided partially or entirely in 
the U.S. In its most recent report to Congress in 1994, the 
Fish and Wildlife Service indicated that of 909 species listed 
at the time, 41 percent have either stabilized or are 
improving; of this number, however, only 8 percent are actually 
improving. Of the 1,107 U.S. species listed by the Fish and 
Wildlife Service, 69 percent are covered in one of the 487 
approved final recovery plans. Fifty-six percent of those 
species without final recovery plans have been listed for 
longer than one year. Of the 25 U.S. species listed by National 
Marine Fisheries Service (``NMFS''), only 10 have approved 
recovery plans.
    It is against the backdrop of these statistics that the 
bill amends the recovery planning provisions of the current 
law. Recovery must be the linchpin of the Act, so that species 
can reach a point at which they can be delisted and the often 
costly and contentious requirements of the law would no longer 
be necessary; in other words, the ultimate goal of the Act is 
to make itself obsolete, rather than self-perpetuating. The 
bill does this by first specifying requirements for plan 
development, and then specifying measures to encourage, and in 
some cases, require, plan implementation.
    Recovery plans are to serve as blueprints for species 
conservation and should guide recovery actions under the Act. 
Plans would be generally required to be prepared by the 
Secretary or an authorized State. There are limited instances, 
however, where plans need not be prepared. Only species in 
United States lands or waters with respect to which the United 
States exercises sovereign rights or jurisdiction would require 
plans, given that plans would have little bearing for foreign 
species. Waters with respect to which the United States 
exercises sovereign rights or jurisdiction means those waters 
landward of the outer boundary of the Exclusive Economic Zone 
(``EEZ''). The EEZ means the zone established by Proclamation 
Numbered 5030, dated March 10, 1983. The exemption for plans 
that do not promote the recovery of species is a narrow one, to 
be used in instances in which plans would be detrimental to 
species conservation, such as by identifying locations of 
listed species that might encourage poaching. Additionally, 
only plans or strategies that have undergone similar procedural 
and substantive requirements could serve as functional 
equivalents.
    The bill identifies four factors for prioritizing recovery 
plans, and requires the Secretary to develop a priority ranking 
system, based on those factors, for completing plans for 
species currently without plans, and for future listed species. 
While the Secretary must use all four factors, the Secretary 
would have discretion in determining how to weigh them. One 
factor concerns plans that address multiple species. To the 
extent practicable, a plan should consider not only the needs 
of the species for which the plan is being developed, but for 
other species as well that depend on the same habitat. Such 
plans would greatly assist overall conservation efforts, 
particularly for non-listed species that may be tending towards 
listing. Another factor concerns plans that reduce conflicts 
with economic activities and property rights. Plans should 
identify and foster conservation methods that reduce or avoid 
such conflicts, in order to achieve recovery in a cost-
effective and efficient manner, and to promote goodwill among 
affected private property owners.
    The current law allows for the appointment of a recovery 
team, although it does not enumerate the composition of the 
team. The bill would ensure that recovery teams are broadly 
representative of all stakeholders, including government 
officials, academics, and private individuals and 
organizations, such as conservation groups and members of the 
regulated community. It is expected that recovery teams will 
include persons with an interest in the species and its 
recovery or in the economic or social impacts of recovery. The 
teams should also provide a fair representation among the 
different groups. In addition to development of draft plans, 
recovery teams may provide assistance in the implementation, 
review, and revision of plans. The selection of teams by either 
the Secretary or an authorized State agency, and the teams' 
activities, would be exempt from FACA.
    The perceived failure of plans to identify biologically 
defensible goals is one of the significant deficiencies in the 
current law. Another deficiency of existing law is that, 
although an estimate of costs associated with recovery measures 
must be made, it need not be taken into account in making 
planning decisions. Several witnesses during hearings in 1995 
observed that recovery goals were being tempered by social, 
political and economic considerations. While these 
considerations may not be appropriate in establishing the 
recovery goal, they must be taken into account in the recovery 
planning process. The bill establishes a two-part process, in 
which the recovery goal is to be developed using solely the 
best scientific and commercial data available by those members 
of the recovery team with relevant scientific expertise, while 
the measures to achieve the recovery goal, along with the 
associated analyses, are to take into account a balancing of 
factors, and are to be developed by the team as a whole.
    The appropriate recovery goal for a species is a purely 
biological question, and is to be expressed as objective and 
measurable biological criteria. These criteria may vary from 
species to species, and be based on the extent of available 
data that may include numbers of populations, numbers of 
individuals, rate of reproduction and habitat conditions. As a 
biological matter, the goal must be established so that, when 
met, the species can be a naturally self-sustaining one that no 
longer needs the protections of the Act, and could therefore be 
delisted. As a legal matter, when the goal is met, the 
Secretary must initiate the procedures for determining whether 
those conditions, in fact, have been met and the species can be 
delisted. The factors enumerated in section 4(a)(1) on which 
the Secretary is to base a determination whether a species is 
endangered or threatened are the same factors on which the 
Secretary is to base a determination whether a species has 
recovered to the point where it can be delisted.
    Although the recovery goal is to be developed by those 
members of the recovery team with relevant scientific 
expertise, independently of the recovery measures, this 
requirement should not preclude the overall team from beginning 
to work on the measures in order to expedite the recovery 
planning process. The measures should be revised as necessary 
to reflect any modifications made to the recovery goal, as 
appropriate.
    The measures can be either site-specific or general, and 
are to provide generally for the conservation of the species, 
and collectively for the recovery of the species to the point 
at which the species can be delisted. In requiring an 
appropriate balance among effectiveness, time, and social and 
economic impacts, the bill accomplishes two things: first, it 
establishes parameters that govern the selection of recovery 
measures; second, it gives the Secretary discretion to choose 
measures within those parameters, provided that the period of 
time for recovery will not pose a significant risk to recovery. 
The actual balance among the three factors will be necessarily 
a case-by-case determination, based on the status of the 
species, the nature of the threats affecting the species, and 
the social and economic impacts associated in addressing those 
threats. In measuring social and economic impacts of recovery 
measures, the team is to consider both negative and positive 
impacts.
    Upon completing a draft plan, the recovery team is to 
submit it to the Secretary for the Secretary's review. Prior to 
publishing the draft plan for notice and opportunity for 
comment, the Secretary must make a preliminary assessment that 
the draft plan satisfies the requirements of section 5. In 
adopting a final plan, the Secretary must ensure that the plan 
meets the requirements of this section. The recovery measures 
chosen by the Secretary in the final plan must meet the 
recovery goal and achieve the appropriate balance among the 
three factors. However, if the measures chosen by the Secretary 
are different than those recommended by the team, then the 
Secretary must provide an explanation of why the team's 
recommendations were not selected.
    The existing law contains no provisions for reviewing or 
revising recovery plans. The bill provides that final plans 
published prior to the date of enactment must be reviewed 
within five years. Plans approved or revised after the date of 
enactment must be reviewed every 10 years. The bill further 
requires the Secretary to revise a plan if the Secretary finds 
that substantial new information indicates that the recovery 
goal identified in the plan will not achieve recovery. It is 
expected that any revision to a plan will trigger a review of 
any implementation agreement pursuant to that plan to determine 
whether the agreement is consistent with the revised plan. In 
order to ensure efficient expenditures of scarce resources for 
recovery planning, the bill includes a savings clause for 
certain plans. Specifically, final recovery plans, draft 
recovery plans on which notice-and-comment procedures have been 
initiated, and draft recovery plans on which significant 
progress has been made, prior to date of enactment, need not be 
modified until the plans are revised in accordance with the 
provisions of the bill. In the case of the Department of the 
Interior, draft plans on which significant progress has been 
made are draft plans that have been completed to the point that 
they are under agency review. In the case of NMFS, draft plans 
on which significant progress has been made at this time are 
the draft plans for the sperm, sei, and fin whales. Any 
modifications of recovery plans are expected to satisfy the 
relevant substantive and procedural requirements of this 
section.
    The existing law addresses recovery plan implementation 
less than it does plan development. This deficiency is a 
significant reason why recovery has been so elusive for many 
species. Even where there are plans with adequately defined 
recovery goals, often measures to meet those goals are not 
implemented. In prioritizing measures according to an 
administrative ranking system, the Fish and Wildlife Service 
will often implement only those high priority tasks that 
address the most significant and immediate threats facing the 
species, due to a lack of funding for other, longer-term 
measures. Recovery plans have thus become merely another 
vehicle in the law to prevent further decline of species, 
rather than the foundation on which to affirmatively recover 
the species. Of the $39.75 million appropriated to the Fish and 
Wildlife Service for recovery in FY 97, 75 percent was directed 
towards recovery implementation. Despite this figure, the 
National Research Council of the NAS reported in 1995 that 50 
percent of the recovery objectives have been accomplished for 
only 68 of the species listed, while 77 percent of the species 
listed had less than 25 percent of their recovery tasks 
completed. These statistics again underscore the need for 
reform.
    The bill affirms the importance of implementing plans once 
they are developed. As a general matter, the bill authorizes 
the Secretary to enter into agreements with Federal agencies, 
States, Indian tribes and local governments, as well as private 
property owners, to implement specified measures identified in 
an approved plan. The Services currently enter into such 
agreements for some species for which recovery raises complex 
issues; at the same time however, the Services recognize that 
generally, no one agency or group has sufficient ability to 
achieve recovery alone, so that a consolidated effort is 
necessary. Consequently, implementation agreements are 
encouraged.
    Federal agencies can and should provide substantial 
protections for listed species. A recent study by The Nature 
Conservancy reported that 50 percent of listed species have 
half of their known occurrences on Federal lands. The bill 
requires Federal agencies identified in recovery plans to enter 
into implementation agreements with the Secretary not later 
than two years after the plan is approved. Federal agencies 
should bear a greater burden than private property owners in 
conserving species. However, they cannot be responsible for the 
entire burden, nor can they be expected to implement every 
recovery measure identified for them in a recovery plan. The 
specific questions of how Federal agencies are to implement 
recovery plans, and which measures in particular they should 
carry out, are ones left to the administrative process. 
Consequently, the bill requires that Federal agencies enter 
into an agreement to undertake measures to achieve recovery, 
but the substantive provisions of the agreement are left to the 
sole discretion of the Secretary and the head of the Federal 
agency or agencies entering into the agreement. With the 
exception of the deadline for completion of recovery plan 
implementation agreements between the Secretary and a Federal 
agency, compliance of those agreements with section 5 would not 
be subject to judicial review under the provisions of section 
11 of the Act. The agreement may be challenged as violative of 
other laws and other sections of the Act. This provision does 
not authorize Federal agencies to undertake any action that 
exceeds their authority under this or any other Federal law or 
affect their obligation to comply with State law to the extent 
they are otherwise required to do so.
    Entering into an implementation agreement is an action for 
purposes of section 7(a)(2) of the Act. Consultation may 
therefore be required on the effects of the actions identified 
in the agreement. If an action covered by an implementation 
agreement may result in an incidental take of a listed species, 
the terms and conditions of the incidental take statement for 
the action shall be incorporated into the implementation 
agreement. A Federal agency that has entered into a recovery 
plan implementation agreement that satisfies the requirements 
of this section would not have to engage in any further 
consultation under section 7(a)(2) before authorizing, funding 
or carrying out the actions specified in the agreement. 
Provided the Federal agency that is a party to the 
implementation agreement, as well as any permit or license 
applicant involved, carries out the specified recovery action 
in compliance with the terms and conditions of the agreement, 
then there would be no liability under section 9(a)(1) of the 
Act for incidental take that arises from the action.
    Consultation is only waived under certain conditions. Those 
conditions are intended to remove uncertainties as to the 
impacts of site-specific actions benefiting from the waiver, by 
requiring sufficient information on the nature, scope and 
duration of the action to determine its effect on listed 
species or critical habitat, that the action will be carried 
out during the term of the agreement, and that the agency is in 
compliance with the agreement. The most important basis for the 
waiver is that the action must promote the recovery of the 
species. Whether an action meets this standard must be 
supported by the record of decision by the Secretary or the 
action agency, as appropriate. Assuming this standard is 
satisfied by the record, there would be no need to further 
analyze the action under section 7(a)(2) for that species.
    In addition to requiring Federal agencies to enter into 
implementation agreements, the bill encourages participation of 
non-Federal persons in several ways. First, it provides 
financial grants for conservation actions. Second, if a non-
Federal person proposes to include in an agreement an action 
requiring Federal authorization or funding, the bill requires 
that each Federal agency, during the development of the 
agreement, identify all measures for the species that would be 
required under the Act. The purpose of this provision is to 
allow a person whose actions are subject to Federal funding or 
authorization to know, up front, all the requirements of the 
Act with which he or she will need to comply. This does not 
obligate the Federal agency to actually enter into the 
agreement. It does, however, ensure that the non-Federal person 
will have full knowledge of the consequences of undertaking any 
conservation measures at the time that person is making the 
decision.
    The bill provides that the Secretary may authorize State 
agencies to develop recovery plans. In assuming this 
responsibility, whether individually or cooperatively, each 
State must have entered into a cooperative agreement that 
covers that species under section 6(c) of the Act, and have 
submitted a statement to the Secretary demonstrating authority 
and capability to carry out the applicable requirements. Review 
and approval of both draft and final plans are to be made by 
the Secretary. If a plan does not meet the requirements of the 
section, under new section 5(m)(6), the Secretary is to give 
the State agency an opportunity to correct any deficiencies 
within 60 days, after which the Secretary is to withdraw State 
authority to develop the plan if the deficiencies have not been 
corrected.
    Under existing law, critical habitat is required to be 
designated at the time of the final determination that a 
species is endangered or threatened. If the critical habitat is 
not then determinable, a one-year delay is allowed. Both the 
Fish and Wildlife Service and NMFS have often invoked this one 
year extension for one of several reasons, including: the 
conservation needs of a species, which are the basis for the 
critical habitat designation, are not known at the time of 
listing; or the designation also requires consideration of 
economic impacts, which often cannot be completed concurrently 
with the listing. For these reasons, the bill moves critical 
habitat designation to the recovery planning provisions of the 
Act. As with recovery plans, the requirement for critical 
habitat designation is limited to those species in the United 
States or the United States EEZ. Designation of critical 
habitat would generally occur concurrent with publication of a 
final recovery plan for the species. If a recovery plan is not 
developed, critical habitat is to be designated within three 
years of listing. In addition, the Secretary may designate 
critical habitat concurrent with listing if designation is 
essential to avoid the imminent extinction of the species. The 
designation of critical habitat must still take into 
consideration the economic impacts of the designation. 
Petitions and other procedural requirements to designate 
critical habitat have not changed.
Section 4. Interagency consultation and cooperation

                                Summary

    The bill establishes a new streamlined process for Federal 
agencies to comply with their obligation under section 7(a)(2) 
to ensure that their actions are not likely to jeopardize the 
continued existence of a listed species, or destroy or result 
in the adverse modification of critical habitat. Under section 
4(c) of the bill, a Federal action agency is authorized to make 
the initial determination that an action funded, authorized or 
carried out by the agency is not likely to adversely affect a 
listed species or critical habitat, based on the opinion of a 
qualified biologist. If the Secretary does not object to the 
agency's determination within 60 days of notification to the 
Secretary, the action may proceed.
    The bill directs the Secretary and the GAO to prepare 
reports for the Congress on the implementation and cost of 
consultations under section 7 of the Act. The bill also 
authorizes the Secretary to consolidate section 7 consultations 
for a number of actions within a particular geographic area.
    In the event that a new listing or designation of critical 
habitat requires reinitiation of consultation on a land and 
resource management plan for a national forest or a Bureau of 
Land Management land use plan, the bill authorizes site-
specific actions within the scope of those plans to proceed 
while consultation on the plan is underway, provided the site-
specific actions comply with section 7(a)(2) of the Act in 
their own right. Consultation on the plan must be reinitiated 
within 90 days of the listing or designation and be completed 
within one year.
    The Secretary, when consulting on a Federal action, must 
solicit and consider information from the State fish and 
wildlife agency in each affected State. In addition, the 
Secretary is required to provide any person who has sought 
authorization or funding from a Federal agency on which 
consultation is required, access to relevant information, 
including the draft biological opinion, and an opportunity to 
respond to the same, as part of the consultation process.
    Section 4 also requires Federal agencies, to the maximum 
extent practicable, to develop an inventory of listed, 
proposed, and candidate species on land or water owned or under 
the control of the agency and to update that inventory every 
ten years; includes a definition of the term ``reasonable and 
prudent alternatives''; provides that measures to mitigate the 
impact of incidental taking resulting from an activity that is 
the subject of a consultation shall be related both in nature 
and extent to the effect of the proposed activity; and allows 
Federal agencies to defer consultation to make emergency 
repairs of a natural gas pipeline, hazardous liquid pipeline, 
or electrical transmission facility.

                               Discussion

    Section 7(a)(2) of the Act requires each Federal agency to 
consult with the Fish and Wildlife Service or NMFS to ensure 
that its actions are not likely to jeopardize the continued 
existence of a listed species or destroy or adversely modify 
its critical habitat. This consultation process is required not 
only for activities that may affect listed species on public 
lands, but also for activities authorized, funded, or carried 
out by Federal agencies that may affect listed species on 
private lands. The bill includes a number of provisions to 
streamline section 7 consultations and provide greater 
opportunities for involvement in the consultation process by 
interested parties.
    Section 4(a) codifies the existing regulatory definition of 
the term ``reasonable and prudent alternatives.'' Concerns have 
been raised that in some cases, reasonable and prudent 
alternatives have been proposed that do not satisfy the 
requirements of the regulatory definition. The purpose in 
codifying this definition is to reaffirm that definition and 
ensure that it is applied in all instances.
    To assist species conservation efforts of Federal agencies 
that manage land and water, section 4(b) requires those Federal 
agencies to conduct, to the maximum extent practicable, 
inventories of listed species, proposed species, and candidate 
species on land or water owned or under the control of the 
agency. In conducting the inventory, land management agencies 
are encouraged to use all reasonably available tools and 
mechanisms. This provision does not authorize Federal agencies 
to require inventories on private property. Nor does this 
provision place a duty on the Department of Defense or the 
United States Navy to survey the oceans or seas in which they 
conduct operations. Moreover, the phrase ``under the control of 
the agency'' is to be interpreted narrowly to mean under the 
year round management responsibility of an agency.
    Periodic updates will enable agencies to assess the status 
of species included in the prior inventory as well as species 
that have been listed, proposed to be listed, or identified as 
candidate species since the last inventory was completed. 
Because the inventories only have to be updated no more 
frequently than once every ten years, Federal agencies that 
revise resource management plans at least that often should be 
able to integrate the inventory into their existing planning 
process without any new revisions being required due solely to 
the inventories.
    Section 4(c) creates a new streamlined consultation 
process. Under this process, a Federal action agency, using its 
own qualified biologists, may make the initial determination 
that a proposed action is not likely to adversely affect a 
listed species. The Secretary is given 60 days to review the 
determination. If the Secretary does not object in writing to 
the determination, the action may proceed. The Secretary shall 
object to an agency's determination if the Secretary finds 
that: (1) the proposed action may have an adverse effect on a 
listed species or critical habitat; (2) there is insufficient 
information in the documentation accompanying the determination 
to evaluate the impact of the proposed action on a listed 
species or critical habitat; or (3) because of the nature of 
the proposed action and its impact on a listed species or 
critical habitat, review of the determination cannot be 
completed in 60 days. The authority for the Secretary to object 
based on inadequate time for review is included to address 
highly complex projects or plans and not the lack of resources. 
If the Secretary objects to a determination, formal 
consultation is required.
    The Secretary is also authorized to exclude certain 
categories of actions from this streamlined process. This 
exemption is intended to be applied narrowly to cover only 
those actions with respect to specific listed species that are 
likely to have an adverse effect on the species or its critical 
habitat.
    Federal agencies are encouraged to take further steps to 
streamline the consultation process within the scope of their 
authority. For example, while the process established by the 
bill is available to action agencies, those agencies are not 
precluded from initiating formal consultation. In addition, the 
Secretary is not precluded from issuing a written statement 
that the Secretary does not object to a determination prior to 
the 60-day deadline so that the action may proceed sooner.
    Under current regulations, formal consultation is not 
required if, as a result of a biological assessment or informal 
consultation, a Federal agency determines, with the written 
concurrence of the Fish and Wildlife Service or NMFS, that the 
proposed action is not likely to adversely affect any listed 
species or critical habitat. The bill amends this process so 
that written concurrence of either Service is no longer 
required, but does not alter the existing substantive standards 
under section 7(a)(2) of the Act.
    The bill requires the Secretary to provide any person who 
has sought authorization or funding from a Federal agency on 
which consultation is required an opportunity to submit 
information prior to the development of a draft biological 
opinion, to discuss the information with the Secretary, to 
receive information used by the Secretary in developing the 
draft and final biological opinion subject to the exemptions 
specified in section 552(b) of title 5 of the United States 
Code, and to receive a copy of the draft biological opinion and 
submit comments on it. Information submitted to, or received 
from, those persons must also be made available to the public, 
subject to the same exemptions.
    Sections 4(c) and 4(d) include two new reporting 
requirements with respect to this new streamlined consultation 
process. The first is a requirement that the Secretary report 
to Congress at least once every two years on the implementation 
of this provision. The second is a requirement that the General 
Accounting Office prepare two reports over the next five years 
for the relevant congressional committees on the cost of 
consultation under section 7 of the Act.
    Several lawsuits have challenged the Forest Service for 
failure to consult on forest plans and have resulted in courts 
enjoining or threatening to enjoin site-specific activities 
that may affect newly listed species until consultation on the 
plans is completed. The lawsuits have focused on the issue of 
whether such plans are ``actions'' that may affect listed 
species, thus triggering the consultation requirement of 
section 7(a)(2). \1\
---------------------------------------------------------------------------
    \1\ See Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 
1994).
---------------------------------------------------------------------------
    Section 4(e) confirms that land use plans under the Federal 
Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.) 
and land and resource management plans under the Forest and 
Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 
1600 et seq.), as amended, are each an ``action'' for the 
purposes of section 7(a)(2) of the Act. This is not intended to 
address whether such plans should be defined as ``actions'' 
outside of the context of section 7 of the Act.
    In the event that consultation must be reinitiated on a 
Bureau of Land Management land use plan or a national forest 
land and resource management plan in response to a new listing 
or designation of critical habitat, section 4(e) authorizes 
site-specific actions within the scope of the plan to proceed 
pending completion of consultation and issuance of a biological 
opinion for the plan, provided that consultation is completed 
on the individual action to the extent required under section 
7(a)(2). Consultation on the plan must be reinitiated not later 
than 90 days after the new listing or critical habitat 
designation, and must be completed within one year.
    To further streamline the consultation process, section 
4(f) authorizes the Secretary to consolidate section 7 
consultations or conferences for a number of actions within a 
particular geographic region. This provision applies to related 
or similar actions by one Federal agency or actions involving 
several Federal agencies which affect the same species. This 
provision is not intended to extend the statutory deadline for 
the completion of consultation on any individual action.
    State fish and wildlife agencies have a great deal of 
expertise and biological data and information that should be 
better utilized in implementing this and other provisions of 
the Act. Toward that end, section 4(g) requires the Secretary, 
when consulting on a Federal action, to solicit and consider 
information from the State fish and wildlife agency in each 
affected State.
    One criticism of the section 7 consultation process is 
that, in cases involving private citizens requiring Federal 
permits or approvals, the parties most affected by the 
consultation may not be given adequate access to the process. 
Although the current regulations provide persons who require 
formal approval or authorization from a Federal agency limited 
access and input to the consultation process, this section of 
the bill expands and codifies that requirement.
    Specifically, section 4(h) requires the Secretary to 
provide any person who has sought authorization or funding from 
a Federal agency on which consultation is required an 
opportunity to submit information prior to the development of a 
draft biological opinion, to discuss the information with the 
Secretary, to receive certain kinds of information used by the 
Secretary in developing the draft and final biological opinion, 
and to receive a copy of the draft biological opinion and 
submit comments on it. Comments or other information that is 
exchanged under this provision between the Secretary and the 
person who has sought authorization or funding must also be 
made available to the public, subject to applicable exemptions 
in 5 U.S.C. 552(b).
    Section 4(i) amends section 7(b)(4) of the Act to require 
the Secretary to specify those reasonable and prudent measures 
considered to be necessary or appropriate to both minimize and 
mitigate the impacts of any incidental taking. This amendment 
is consistent with the requirements under section 10(a)(2) for 
incidental take permits. In addition, this section of the bill 
clarifies that reasonable and prudent measures must be related 
both in nature and extent to the effect of the proposed 
activity that is the subject of the consultation.
    Finally, section 4(j) authorizes the deferral of 
consultations under section 7(a)(2) to make emergency repairs 
of a natural gas pipeline, hazardous liquid pipeline, or 
electrical transmission facility. Consultation can only be 
deferred in response to a natural disaster or other emergency 
and if the repair is necessary to address an imminent threat to 
human lives or an imminent and significant threat to the 
environment. Consultation must be initiated as soon as 
practicable after the threat to human lives or the environment 
has abated. The terms ``pipeline'' and ``facility'' are 
intended to be interpreted to include closely related 
supporting facility, such as pumps and transmission lines, 
necessary to the operation of the pipeline or the electrical 
transmission facility.
Section 5. Conservation Plans

                                Summary

    The bill provides a broad range of incentives for property 
owners to preserve and enhance habitat for species.
    Section 10(a)(2) is amended to expressly authorize property 
owners to develop conservation plans for multiple species, 
including species proposed for listing, candidate species and 
other unlisted species, that depend on the same habitat. For 
listed species, the plan must satisfy the criteria under 
current law. For proposed and candidate species, the bill 
requires that the actions taken by the applicant, if undertaken 
by all similarly situated persons, must be likely to eliminate 
the need to list the species. For other non-listed species, the 
bill requires that the actions taken by the applicant, if 
undertaken by all similarly situated persons, must not be 
likely to contribute to a determination to list the species.
    The bill establishes a new streamlined process to develop 
and approve conservation plans for activities that will have no 
more than a negligible effect, both cumulatively and 
individually, on a species. To minimize the cost to small 
landowners, the bill requires the Secretary, in cooperation 
with State fish and wildlife agencies, to develop a model 
permit application that can serve as the conservation plan.
    The bill provides that no surprises assurances shall be 
included in all habitat conservation plans. Specifically, if 
additional mitigation measures are necessary for species 
covered by an HCP, the bill prohibits the Secretary from 
requiring the plan permittee to carry out those measures except 
under extraordinary circumstances. Even under extraordinary 
circumstances, the Secretary could not require the landowner to 
spend more money or to set aside additional land or adopt 
additional land use restrictions for conservation of species 
covered by the plan, unless agreed to by the permittee. No 
surprises assurances are also extended to unlisted species 
included in a conservation plan. The incidental take permit for 
unlisted species covered by a multiple species conservation 
plan takes effect at the time the species is listed.
    The bill authorizes non-Federal persons, at their request, 
to enter into candidate conservation agreements with the 
Secretary for candidate and proposed species. Actions taken 
under the agreement, if undertaken by all similarly situated 
persons, must be likely to eliminate the need to list the 
species. Landowners who enter into candidate conservation 
agreements receive assurances essentially identical to those 
provided through the no surprises provision to a landowner who 
has entered into an HCP.
    The bill specifically authorizes safe harbor agreements. 
Under this provision, the Secretary may enter into voluntary 
agreements with landowners to benefit conservation of listed 
species by assuring these landowners that their efforts to 
maintain, create, restore or improve habitat will not subject 
them to additional liability under the Act.
    Finally, the bill authorizes the Secretary to enter into 
habitat reserve agreements with non-Federal persons to protect, 
manage or enhance suitable habitat for endangered or threatened 
species. The Secretary is authorized to make payments to a 
property owner to carry out the terms of the agreement.

                               Discussion

    One of the principle criticisms levied against the Act has 
been that there are few incentives for property owners to 
participate in the conservation of threatened and endangered 
species and their habitat. To the contrary, many have 
recognized that the punitive aspects of the Act, particularly 
the take prohibition of section 9, have in some instances had 
the unintended effect of encouraging property owners to destroy 
potential habitat for a species in order to avoid the 
possibility of a listed species ever occupying that habitat and 
triggering regulation under the Act. At the same time, there is 
broad consensus that a substantial majority of threatened and 
endangered species will occupy or depend on private land during 
some portion of their life cycle. In order to achieve greater 
success in conserving and recovering species, therefore, it is 
critical that private property owners be encouraged to set 
aside habitat and undertake other conservation measures to 
benefit both listed and unlisted species.
    Prior to the 1982 amendments, the take prohibition of 
section 9 was considered by many persons to effectively 
preclude a non-Federal property owner whose land was occupied 
by, or provided habitat for, endangered fish and wildlife 
species from carrying out economic or other activities on that 
property. The 1982 Amendments to the Act addressed this problem 
by creating a process through section 10 of the Act for 
property owners to obtain a permit authorizing the take of a 
species incidental to the carrying out of an otherwise legal 
activity (known as an ``incidental take permit''). In return 
for obtaining the permit, and the authority to carry out 
activities on property occupied by a listed species, the 
property owner is required to submit an HCP that specifies, 
among other things, the impacts that are likely to result from 
the taking and the measures that the property owner will take 
to minimize and mitigate the taking of the species. Any taking 
of a species under an HCP must not appreciably reduce the 
likelihood of the survival and recovery of the species in the 
wild.
    While the habitat conservation plan process was intended to 
provide a mechanism for non-Federal property owners to allow 
incidental take under the Act, in practice few HCPs were 
approved before 1995. In the first ten years, between 1982 and 
1992, only 14 incidental take permits were issued under section 
10.
    Since 1995, the Administration has implemented several 
initiatives to make the HCP process work better for property 
owners. These initiatives include a streamlined process to 
review and approve HCPs, a no surprises policy to provide 
property owners that enter into HCPs with certainty that they 
will not be required to make additional land or financial 
commitments to benefit species covered by the plan, even if the 
needs of the species change, and the establishment of ``safe 
harbor agreements'' to encourage property owners to enhance 
habitat for species while insulating them from regulation under 
the Act if they subsequently return the property to its 
baseline condition before the enhancement. \2\
---------------------------------------------------------------------------
    \2\ See Protecting America's Living Heritage: A Fair, Cooperative 
and Scientifically Sound Approach to Improving the Endangered Species 
Act, March 6, 1995.
---------------------------------------------------------------------------
    Under these new policies, the Services have now approved 
approximately 211 HCPs with no surprises assurances and 
approximately 200 more are under review. In addition, the Fish 
and Wildlife Service has entered into 21 safe harbor agreements 
with private property owners.
    The bill builds upon the existing authorization for habitat 
conservation plans under section 10 of the Act and these recent 
initiatives, providing a broad range of incentives for private 
property owners to facilitate compliance with the law and to 
further voluntary measures to preserve habitat for species. The 
incentives include multiple species conservation plans, low 
effect activities permits, candidate conservation agreements, 
safe harbor agreements, and habitat reserve agreements. In 
addition to confirming and expanding the statutory authority 
for these incentives, the bill authorizes funding to make these 
incentives work. A new Habitat Conservation Planning Loan Fund 
is created to assist property owners in the development of 
HCPs. In addition, the bill authorizes funding to implement 
safe harbor agreements, habitat reserve agreements, and a 
habitat conservation insurance program.
Multiple Species Conservation Plans
    First, the bill clarifies and confirms authority for 
multiple species habitat conservation plans that may include, 
in addition to at least one listed species, proposed species, 
candidate species or other unlisted species. In extending the 
authority of HCPs to include unlisted species, the bill does 
not preempt State jurisdiction and control over those species. 
By considering the needs of several species at once, this 
approach will help address the needs of both species and 
private landowners.
    The Act includes standards for listed species. Inclusion of 
standards for unlisted species covered by a conservation plan 
is intended to encourage property owners to include protections 
for unlisted species, but does not otherwise subject those 
species to the restrictions of the Act.
    The standard for approval of the HCP with respect to listed 
species remains the same as under existing law. Among other 
things, any taking of a listed species must be incidental to 
the activity covered by the HCP, the property owner must 
minimize and mitigate the impact of the taking to the maximum 
extent practicable, adequate funding for the plan must be 
assured, and the taking cannot appreciably reduce the 
likelihood of the survival and recovery of the species in the 
wild.
    The bill establishes separate standards for approval of an 
HCP with respect to unlisted species. Under the bill, the 
impact on an unlisted species must be incidental. The applicant 
must also agree to minimize and mitigate the impact to the 
unlisted species. Instead of considering whether the activities 
will reduce the likelihood of the survival and recovery of the 
species in the wild, however, the bill provides that (1) for 
proposed and candidate species, the actions of the applicant, 
if they were also undertaken by all similarly situated property 
owners within the range of the species, would be likely to 
eliminate the need to list the species for the duration of the 
agreement; and (2) for other unlisted species, the actions of 
the applicant, again if undertaken by all similarly situated 
property owners within the range of the species, would not be 
likely to contribute to a determination to list the species for 
the duration of the agreement.
    For purposes of determining whether these standards are met 
by any single HCP, the assessment should be based on an 
assumption that all similarly situated property owners would 
undertake the conservation actions covered by the HCP. An 
individual applicant should not be not held solely responsible 
for eliminating the need to list a species or for eliminating 
all threats to unlisted species covered by a plan when that 
plan encompasses a portion of the habitat of the species. While 
the standard for proposed, candidate and other unlisted species 
refers to the specific actions undertaken by all similarly 
situated persons, this is not intended to require that all 
similarly situated property owners must in fact agree to 
undertake the activities before an HCP for that applicant can 
be approved. Nor is it intended to impose any affirmative 
obligations on a property owner seeking approval of an HCP to 
survey actions being undertaken by others or to conduct 
biological surveys in areas outside the applicable planning 
area. By focusing the analysis on the impact of specific 
activities of similarly situated persons, the bill recognizes 
that an individual property owner may not have the ability to 
eliminate all of the threats facing a proposed or candidate 
species and therefore eliminate the need to list that species. 
Similarly, a single property owner in most cases cannot control 
the behavior of others to avoid contributing to the 
determination to list. For example, a single timber company 
could agree as part of an HCP to implement conservation 
measures that preserve habitat for bull trout, even if factors 
not within their control might nonetheless lead to the ultimate 
decision to proceed to list the species. In that case, the 
timber company should still be able to negotiate an HCP and 
receive an incidental take permit under section 10.
    Encouraging private property owners to undertake 
conservation measures for a species before it is listed will 
provide benefits to the species not otherwise available through 
the prohibitions of section 9 or other provisions of the Act.
    One of the greatest benefits of multiple species plans is 
that they can be built upon principles of ecosystem management 
and conserve habitat used by numerous species. This, in turn, 
will generally provide for greater protection for larger 
numbers of species than would otherwise be practicable under 
separate single-species conservation plans.
    In certain instances, regional collaborative habitat-based 
planning processes have been undertaken to develop plans for 
multiple species. The inclusion of provisions on multiple 
species conservation plans in the bill is not intended to 
create any negative inference about the authority of the 
Secretary to approve plans relying on regional collaborative 
habitat-based conservation strategies, such as those already 
being employed in Southern California, and under consideration 
for use in the lower Colorado River and the California Bay 
Delta.
Low Effect Activities Permits
    Much of the experience with HCPs to date has been with 
large, complex conservation plans that may cover thousands of 
acres of land and extend in duration for decades. While these 
HCPs have allowed property owners and counties with large 
tracts of land to carry out economic activities with incidental 
take authorization, many owners of smaller tracts of land have 
raised legitimate concerns that these HCPs are not a viable 
alternative for them. In a number of instances, owners of small 
tracts of land have been faced with the dilemma that they need 
incidental take permits to carry out activities on their land, 
for example the expansion of an existing home or the removal of 
a few trees, but because they lack the resources to hire 
biologists and develop HCPs, they may have trouble obtaining 
the permits they need. The low effect activity permit was 
intended to address these situations.
    The low effect HCP provides a streamlined mechanism for a 
property owner to obtain an incidental take permit. Under this 
provision, a property owner may receive an incidental take 
permit if the Secretary finds that the activity planned by the 
property owner will have no more than a negligible impact, both 
cumulatively and individually, on a listed species, any taking 
will be incidental, and the taking will not appreciably reduce 
the likelihood of the survival and recovery of the species in 
the wild. In addition, the permittee must take appropriate 
actions, if any, to offset the effects of the activity on the 
species. This low effect HCP does not require the property 
owner to develop a complex conservation plan, but instead 
allows the application for the incidental take permit to serve 
as the plan. In addition, the Secretary is directed to develop 
model application forms for low effect activities to further 
streamline the process.
    This provision addresses concerns raised by smaller 
landowners. However, because the low effect activity permit 
itself is based on the impact of the activity rather than the 
size of the property owner, larger landowners may also be able 
to take advantage of this mechanism for routine activities that 
have only a negligible effect on a listed species.
No Surprises
    One of the greatest concerns voiced by property owners 
faced with potential regulation under the Act has historically 
been the lack of regulatory certainty. Until recently, property 
owners feared that they would negotiate the terms of 
conservation plans and carry out their planned activities in 
accordance with the terms of those plans, only to be told later 
that additional mitigation measures would be required. In many 
cases, this uncertainty acted as a significant disincentive for 
private property owners to participate in conservation plans 
that benefit species.
    The Administration addressed this problem in its no 
surprises policy, issued jointly by the Department of the 
Interior and the Department of Commerce. Under the policy, 
property owners who developed a habitat conservation plan for 
an endangered or threatened species would receive a commitment 
from the Fish and Wildlife Service or NMFS that no additional 
land, money, or additional restrictions on lands or other 
natural resources released for development use would be 
required from that property owner for that species for the 
duration of the plan, even if the needs of the species were to 
change.
    The no surprises policy has proven to be an effective 
incentive to encourage property owners to develop habitat 
conservation plans for the benefit of both listed and unlisted 
species. The bill, therefore, confirms and clarifies authority 
for no surprises assurances for both listed and unlisted 
species covered by multiple species HCPs and low effect 
activity permits.
    Under the bill, as is the case under the Administration's 
policy, a property owner who complies with the terms of an 
approved HCP is assured that activities on the property can 
proceed without the payment of additional money or the adoption 
of additional management restrictions on the use of the 
property, unless the property owner agrees to those measures.
    The bill recognizes that under certain circumstances, 
conditions may change in such a way as to warrant some 
modification to the conservation measures under an approved 
HCP. The Secretary, under the terms of the plan as negotiated 
by the parties, may only modify the conservation program of an 
HCP under extraordinary circumstances, but in no instance may 
the modifications require the payment of additional money or 
the adoption of additional use, development or management 
restrictions without the consent of the permittee.
Candidate Conservation Agreements
    As is the case with multiple species plans that include one 
or more unlisted species, candidate conservation agreements 
provide non-Federal persons an opportunity to manage their 
property to benefit certain species that are in decline, but 
are not yet listed under the Act. In most cases, the earlier 
conservation efforts begin, the more likely it is that a 
species will respond positively. Encouraging property owners to 
undertake beneficial management measures before a species is 
listed can in some cases avoid the need to list a species under 
the Act.
    Many property owners are willing to carry out management 
measures to benefit species that have not yet been listed, 
including candidate species. Under the current law, however, 
there is little incentive for most property owners to do so. 
Even if property owners are willing to limit their activities 
voluntarily for the benefit of an unlisted species, if the 
species is subsequently listed as threatened or endangered, all 
of the prohibitions and restrictions of the Act automatically 
apply and serve to impose additional restrictions on the 
property owners. The bill recognizes the need to provide an 
incentive for property owners to participate in the 
conservation of candidate species. That incentive is regulatory 
certainty analogous to that which is available under the no 
surprises provision of HCPs.
    The bill creates a new section 10(a)(1)(C) that authorizes 
the Secretary to permit incidental taking pursuant to a 
candidate conservation agreement. In return for agreeing to 
undertake conservation actions for proposed species, candidate 
species, or species that are likely to become candidate species 
in the near future, property owners receive a legal assurance 
comparable to the no surprises provision for HCPs. This 
``assurances'' protection, like the no surprises protection for 
unlisted species in HCPs, takes effect immediately. Candidate 
conservation agreements, therefore, provide property owners 
with regulatory certainty, while at the same time achieving an 
important benefit for unlisted species.
    The criteria for approval of a candidate conservation 
agreement include a requirement that the Secretary find that 
the actions of the property owner, if undertaken by all 
similarly situated property owners, would produce a 
conservation benefit that would be likely to eliminate the need 
to list the species as threatened or endangered under the Act 
for the duration of the agreement. This is nearly identical to 
the standard that is applicable to proposed and candidate 
species included in HCPs. As is the case with HCPs, this 
standard is not intended to require that all similarly situated 
property owners must also agree to enter into candidate 
conservation agreements.
    Candidate conservation agreements can play an important 
role in reducing the need to list species under this Act. 
States and private property owners are encouraged to take 
advantage of this important tool. The Secretary may consider 
the conservation benefits derived from a candidate conservation 
agreement in making a listing determination. These benefits may 
include future benefits that are reasonably certain to occur 
under an agreement that is being implemented at the time of the 
determination.
Safe Harbor Agreements
    Under the current law, some property owners are reluctant 
to manage their property in a way that might attract or benefit 
endangered or threatened species because they fear that the 
presence of a listed species will later preclude them from 
using their property as they otherwise might have. As a result 
of that fear, some property owners may even destroy potential 
habitat in order to avoid attracting listed species. In 1995, 
the Administration developed safe harbor agreements to address 
this problem and remove a disincentive in the current law for 
property owners to enhance or restore habitat. The bill 
clarifies and confirms statutory authorization for these 
agreements.
    The safe harbor agreement provides legal assurance to 
property owners who are willing to undertake habitat 
improvements that they will not be penalized for these 
improvements by additional restrictions. Specifically, they 
will be able to return the property to baseline conditions, 
without being subject to additional take restrictions under 
section 9 of the Act. Net conservation benefits to the species 
that may result from these agreements may include a reduction 
in habitat fragmentation, an increase in population numbers, 
and opportunities to field test innovative management 
techniques. For property owners, safe harbor agreements again 
provide some degree of certainty that they will be able to use 
their property in the future consistent with the terms of the 
agreements.
    Experience with the red-cockaded woodpecker in the 
Sandhills, North Carolina indicates that safe harbor agreements 
can be an important tool for property owners to benefit 
species. The red-cockaded woodpecker was listed in 1970. 
Notwithstanding the protections provided by the Act, however, 
the species continued to decline in large part because the Act 
does not include a mechanism to restore or enhance habitat. The 
Fish and Wildlife Service used the safe harbor program to 
create a incentive for landowners, who were willing to 
undertake management measures to improve habitat for the 
woodpecker. Under these agreements, property owners were given 
the assurances they needed that they would be able to harvest 
trees on their property at the end of the agreement, in return 
for which they agreed to rehabilitate suitable habitat by 
removing hardwood understory and, in some cases, repairing 
entrance holes to nest cavities. The Fish and Wildlife Service, 
in turn, will have an opportunity to come onto the property to 
move any new woodpeckers that have been attracted to the 
property as a result of the actions taken by the landowner. The 
Sandhills safe harbor agreements currently protect 46 
woodpecker groups and have already helped to increase the 
population of the red cockaded woodpeckers in that area.
Habitat Reserve Agreements
    The bill creates a new program to encourage small property 
owners to preserve and manage suitable habitat for species. 
Using the Conservation Reserve Program under the 1985 ``Farm 
Bill'' as a model, the bill authorizes the Secretary to make 
payments to a property owner to carry out the terms of a 
habitat reserve agreement, which can include among other 
things, short or long-term conservation easements, 
modifications in farming practices, or commitments to undertake 
specific conservation measures to benefit listed species. The 
bill authorizes $40,833,333 to implement habitat reserve 
agreements.
    The purpose of these habitat reserve agreements is to 
encourage small property owners, particularly farmers and small 
woodlot owners, many of whom have suitable habitat for a listed 
species, to manage that habitat to benefit the species. Many of 
the property owners want to preserve or enhance habitat for 
species on their property, but they simply cannot afford to do 
so. In some cases, providing even small amounts of financial 
assistance can be enough of an incentive for property owners to 
go the extra step. For example, paying an individual farmer to 
set aside buffer strips may be the most effective way of 
enhancing important riparian habitat for listed species of fish 
and migratory birds. The farmer, in turn, would receive 
financial assistance for conserving that habitat.
    As is the case with safe harbor agreements, participation 
in a habitat reserve agreement is entirely voluntary. The terms 
of these agreements, including the duration of the agreements, 
the activities or management measures covered, and the amount 
of payment, are to be negotiated by the Secretary and the 
property owner. A property owner can use payments made under 
this provision to supplement payments received under other 
similar programs. These agreements cannot be used, however, to 
provide financial assistance to property owners to undertake 
activities otherwise required by the Act, including, for 
example, conservation measures to avoid taking a listed 
species.
Scientific Permits
    The bill amends section 10(d) of the Act to allow the 
Secretary to issue permits under section 10(a)(1)(A) for 
scientific purposes or to enhance the propagation or survival 
of a listed species for a single transaction, a series of 
transactions, or a number of activities over a specified period 
of time. This provision is intended to address a problem that 
has been raised by the scientific and conservation community 
that permitting delays under the Act have hindered efforts to 
conserve these species.
    In the case of scientific facilities that depend upon the 
importation or exportation of listed or other rare and unique 
species for their research and conservation efforts, permit 
delays may be caused only, in part, by this Act. For example, 
the Peregrine Fund is currently required to obtain permits 
under both the Endangered Species Act and Convention on 
International Trade in Endangered Species of Wild Fauna and 
Flora (``CITES''), as well as to comply with U.S. laws, such as 
the Bald and Golden Eagle Protection Act, the Migratory Bird 
Treaty Act, the Migratory Bird Conservation Act, and the Fish 
and Wildlife Conservation Act of 1992. While these laws protect 
species, the permitting process may have the unintended effect 
of discouraging conservation efforts of organizations like the 
Peregrine Fund.
    The Secretary, through the Assistant Secretary for Fish, 
Wildlife and Parks, and the Director of the U.S. Fish and 
Wildlife Service have worked to expedite permit decisions for 
scientific organizations. This language is intended to provide 
the Secretary with additional statutory authority under the Act 
and to further encourage active participation by the scientific 
community in the conservation of threatened and endangered 
species. The bill attempts to address the problem faced by the 
Peregrine Fund and other similarly qualified institutions by 
expressly authorizing the Secretary to issue a single permit 
for more than one action to be carried out over a period of 
time.
Section 6. Enforcement

                                Summary

    Section 6 of the bill modifies the enforcement provisions 
of section 11 of the Act to confirm that, in an action against 
any person for an incidental take of a listed species, the 
Secretary, Attorney General, or citizen suit plaintiff must 
establish, using pertinent evidence based on scientifically 
valid principles, that the person's acts have caused or will 
cause the take of the species.

                               Discussion

    Section 11 of the Act establishes the general enforcement 
system. Most significantly, section 11(a) establishes civil 
penalties for violations of the Act, section 11(b) establishes 
criminal penalties for violations of the Act, section 11(e)(6), 
authorizes the Attorney General to seek to enjoin any person 
who is alleged to be violating the Act, and section 11(g) 
authorizes citizen suits.
    An important objective of the bill is to ensure that 
decisions under the Act are based on sound science. 
Accordingly, section 6 of the bill amends section 11 of the Act 
with respect to actions alleging an incidental take of a 
protected species. Subsection (a) of the bill creates a new 
subsection providing that any such action by the Secretary or 
Attorney General for civil penalties, criminal penalties, or 
injunctive relief ``must establish, using pertinent evidence 
based on scientifically valid principles,'' that the acts of 
such person have caused, or will cause, the take of a listed 
species. Subsection (b) of the bill amends the citizen suit 
provision of section 11(g) of the Act to establish an identical 
standard for a citizen suit alleging an incidental take. 
Nothing in this section is intended to alter the admissibility 
of scientific evidence under Rule 702 of the Federal Rules of 
Evidence. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 
U.S. 579 (1993), the Supreme Court stated that a court should, 
in making its determination on the admissibility of scientific 
evidence, consider a number of factors, including ``whether a 
theory or technique is scientific knowledge that . . . can be 
(and has been) tested,'' whether ``the theory or technique has 
been subjected to peer review and publication,'' ``the known or 
potential rate of error,'' and the ``general acceptance'' of 
the scientific evidence in the scientific community. \3\
---------------------------------------------------------------------------
    \3\ Id. at 593-595.
---------------------------------------------------------------------------
    The prohibition against the take of listed wildlife under 
section 9 of the Act has been the subject of considerable 
litigation in the Federal courts, and, most recently, in the 
United States Supreme Court. \4\ Under current law, an action 
that ``harms'' an endangered or threatened fish or wildlife 
species constitutes a prohibited take, unless covered by a 
statutory exemption or authorized by permit. Fish and Wildlife 
Service regulations define ``harm'' to include habitat 
modification that results in actual injury or death to an 
endangered species or threatened species. The committee agrees 
with the Sweet Home majority opinion's analysis: under current 
law, when bringing an enforcement action for civil or criminal 
penalties for an incidental take due to harm to a listed 
species, ordinary requirements of proximate cause and 
foreseeability apply. The committee does not intend to endorse 
the separate concurring opinion or the dissenting opinion in 
Sweet Home.
---------------------------------------------------------------------------
    \4\ See Babbitt v. Sweet Home Chapter of Communities for a Great 
Oregon, 115 S. Ct. 2407 (1995).
---------------------------------------------------------------------------
Section 7. Education and Technical Assistance

                                Summary

    The bill provides for the development and implementation of 
a private property owners education and technical assistance 
program by the Secretary, in cooperation with the States and 
other Federal agencies, such as the National Resources 
Conservation Service. The program is to inform the public about 
the Act, respond to requests for technical assistance from 
property owners interested in conserving species, and recognize 
exemplary efforts to conserve species on private lands.

                               Discussion

    The Endangered Species Act--its goals, requirements and 
implementation--has had a contentious history. Much of the 
frustration expressed by private property owners stems from a 
perceived inability to get accurate and timely information 
regarding the law, how it works, how it affects them, and how 
they can comply with it. This program seeks to defuse much of 
the contentiousness and to foster goodwill towards protection 
of endangered and threatened species by providing information 
and technical assistance to those persons who are subject to 
the Act's requirements, and by training Federal employees how 
to address concerns and avoid conflicts with property owners. 
Furthermore, exemplary stewardship of lands for species 
protection is to be recognized on a national basis.
Section 8. Authorization of Appropriations

                                Summary

    The bill would authorize appropriations for implementing 
the Act for six years, from 1998 through 2003. Specifically, 
the Fish and Wildlife Service would be authorized the following 
amounts: $90,000,000 in 1998; $120,000,000 in 1999; 
$140,000,000 in 2000; $160,000,000 in 2001; $165,000,000 in 
2002 and $165,000,000 in 2003. NMFS would be authorized the 
following amounts: $35,000,000 in 1998; $50,000,000 in 1999; 
$60,000,000 in 2000; $65,000,000 in 2001; $65,000,000 in 2002 
and $70,000,000 in 2003. Of the funds made available for the 
Fish and Wildlife Service and NMFS to carry out section 5, not 
less than $32,000,000 and $13,000,000, respectively, shall be 
made available to implement recovery actions. Of the funds made 
available for the Fish and Wildlife Service and NMFS to list 
species, not less than 10 percent shall be made available for 
delisting of eligible species.
    Authorized funding for the Secretary to carry out the 
Western Convention is increased to $1,000,000 annually. 
Additional authorizations include $10,000,000 per year for the 
Fish and Wildlife Service and $5,000,000 per year for NMFS for 
safe harbor agreements; and $30,000,000 per year for the Fish 
and Wildlife Service and $15,000,000 per year for NMFS for 
grants for recovery implementation. Lastly, a habitat 
conservation insurance program is established, funded from 5 
percent of the appropriations for the incentive programs, up to 
$10,000,000.

                               Discussion

    The Services have testified that lack of funding has been a 
problem. Current appropriations for FY97 are $67,385,000 for 
the Fish and Wildlife Service, and $21,216,000 for NMFS. The 
authorizations in this bill essentially double the Services' 
current budgets in five years' time. While these increases are 
high, they represent the financial commitment that is vital to 
conserve and recover listed species. They further recognize 
that the additional substantive and procedural measures in this 
bill to strengthen existing law will require additional funding 
to ensure that the measures are carried out in a timely and 
effective manner. At the same time, the bill gradually phases 
in the additional authorized funding to avoid inefficient use 
of funds that might accompany a sudden, sharp jump in funding 
levels.
    In addition to general authorized appropriations, various 
provisions ensure funding for conservation and recovery 
actions. First, certain sums of general appropriations are 
earmarked for recovery implementation. The bill includes 
significant new planning requirements, and deadlines for 
addressing the existing backlog in plan development. Additional 
funds necessary to meet these requirements should not come at 
the expense of ongoing actions to recover species. The earmark 
in the bill is considered a floor, and as both the backlog is 
reduced and appropriations increase, the Services should 
increase funding for recovery plan implementation accordingly. 
In addition, of the funds made available for listing, no less 
than 10 percent is to be used for processing petitions to 
delist species, provided that there are such petitions being 
considered by the Secretary. Although the Fish and Wildlife 
Service currently spends approximately 10 percent of its 
listing budget on delisting petitions, if funding is limited, 
consideration of those petitions is often delayed for 
consideration of listing petitions. If the Act is to be 
considered a success, however, delisting species that are 
recovered must be done in a timely manner, and this funding 
will ensure that.
    Second, funding is specifically authorized for several new 
incentive programs established in the bill. The need for such 
programs has been expressed frequently during the hearings by 
the Subcommittee on Drinking Water, Fisheries, and Wildlife and 
Committee on Environment and Public Works, and in numerous 
reports and studies. The prohibitions of the Act provide a 
bottom-line standard for species protection; it is in the 
interests of both the species and property owners for the 
property owner to undertake additional conservation actions in 
order to expedite the recovery and delisting of species. 
Programs to encourage these actions include grants for recovery 
plan implementation, grants for safe harbor agreements, and 
interest-free loans from a HCP loan fund.
    Third, a habitat conservation insurance fund is established 
to hold funds in reserve in the event that they are needed to 
provide additional mitigation or protection for species covered 
under an HCP. Given that the no surprises assurances for HCPs 
and candidate conservation agreements prohibit the Secretary 
from requiring the permittee to set aside additional land or to 
spend more money to conserve species under an approved plan, 
this fund would provide up to $10,000,000 for Federal funding 
of such mitigation.
Section 9. Other Amendments

                                Summary

    Section 9(a)(1) of the bill defines ``candidate species'' 
to mean those species for which the Secretary has on file 
sufficient information to support a proposal to list the 
species, but for which listing is precluded. Section 9(a)(2) of 
the bill defines ``in cooperation with the States'' to mean a 
process under which the State agency is given an opportunity to 
participate in a meaningful and timely manner in the 
development of the standards, guidelines and regulations to 
implement the applicable provisions of the Act, and the 
Secretary carefully considers all substantive concerns raised 
by the State agency while retaining final decision making 
authority. Definitions for ``rural area'' and ``territorial 
sea'' are added by sections 9(a)(3) and 9(a)(5), respectively, 
and the definition for ``State'' is amended by section 9(a)(4) 
to update an obsolete reference to the Trust Territories of the 
Pacific Islands. Section 9(b)(2) of the bill includes a policy 
to encourage Federal agencies to coordinate and collaborate to 
further the conservation of listed species. Lastly, section 
9(c) of the bill amends section 9 of the Act to authorize the 
Secretary to enter into agreements with non-Federal property 
owners that identify activities that would not result in a 
violation of the take prohibitions of paragraphs (1)(B), (1)(C) 
and (2)(B) of subsection (a).

                               Discussion

    The bill includes several new definitions to section 3 of 
the Act. ``Candidate species'' are those species for which 
listing as threatened or endangered is ``warranted but 
precluded'' pursuant to section 4(b)(3)(C)(iii). While the 
Services have had different definitions of candidate species in 
the past, this amendment will require both Services to use the 
same definition, with the exception that NMFS's existing list 
would be grandfathered. In addition, the term ``territorial 
sea,'' as used in this Act, is intended to correspond to the 
extent of the United States' assertion of territorial sea 
jurisdiction under international law.
    The new Congressional policy added by section 9(b)(2) of 
the bill recognizes that effective implementation of the Act 
depends greatly on efforts by the Federal Government, and 
encourages coordination and collaboration among all the 
agencies in this regard. Federal agencies are encouraged to 
coordinate and collaborate to further the conservation of 
endangered and threatened species.
    Section 9(c) of the bill authorizes the Secretary to enter 
into agreements with property owners identifying activities 
that would not result in a taking of the species under section 
9. They are advisory documents intended to provide some 
assurance to persons that their actions would not constitute a 
violation of law. Although the Secretary must make a 
determination whether a taking would occur, these agreements do 
not authorize, fund, or carry out an action, so they would not 
be subject to section 7. Similarly, they are not major Federal 
actions that trigger the requirements of NEPA. At the same 
time, however, they cannot provide a guarantee that a take will 
not occur, and further do not preclude the commencement of an 
enforcement action brought by the Federal Government or a third 
party. This provision is consistent with the Clinton 
Administration's 1994 policy to identify, at the time of 
listing, actions that would constitute a taking, and is further 
consistent with the recent decision by the Ninth Circuit in 
Marbled Murrelet v. Babbitt, 83 F.3d 1068 (1996).

                           Additional issues

                              Water Rights

    The respective relationship of the States and the Federal 
Government over the use or allocation of water has never been 
precisely fixed. Consequently, the boundaries between State and 
Federal responsibility have been the subject of much discussion 
and debate for many decades in a variety of contexts. 
Principles of comity and cooperative federalism are the 
hallmark of the State-Federal relationship over the use and 
allocation of water. \5\ Because of the absence of a clearly 
defined line between Federal and State jurisdiction over water, 
arguments have been advanced that the Act limits the exercise 
of certain water rights that are accorded priority under State 
water law.
---------------------------------------------------------------------------
    \5\ See, e.g., California v. United States, 438 U.S. 645 (1978); 
Arizona v. California, 373 U.S. 546 (1963); First Iowa Hydro-Elec. Co-
op v. Federal Power Commission, 328 U.S. 152 (1946); United States v. 
Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899).
---------------------------------------------------------------------------
    It was ultimately determined that a delineation of the 
boundaries between the States and the Federal Government over 
the use or allocation of water was not possible in the context 
of the reauthorization of the Act. A position of neutrality on 
this issue is reflected in this bill.
    The bill contains a number of provisions that refer to 
water. None of these references, nor anything else in the bill, 
is intended to alter the respective authorities of the States 
and the Federal Government over the use or allocation of water.
    Further, the bill leaves in place the declaration of 
congressional policy in section 2(c)(2) of the Endangered 
Species Act, which directs Federal agencies to ``cooperate with 
State and local agencies to resolve water resource issues in 
concert with conservation of endangered species.'' It also 
retains the requirement in section 6(a) that ``the Secretary 
shall cooperate to the maximum extent practicable with the 
States . . . . includ[ing] consultation with the States 
concerned before acquiring any land or water, or interest 
therein . . . .''

                   National Environmental Policy Act

    In implementing the National Environmental Policy Act 
(``NEPA'') in the context of this Act, the Committee urges the 
Federal agencies to take full advantage of regulatory 
mechanisms intended to ensure that all required environmental 
analysis is integrated with the provisions of this Act in a way 
that eliminates delay, duplication and paperwork.
    Low effect HCPs have already been ``categorically 
excluded'' in the agencies' implementing NEPA procedures. Thus, 
absent extraordinary circumstance, no documentation is required 
under NEPA for these actions. For other HCPs, analysis at the 
level of an environmental assessment would generally be 
required. Such analysis can be fully integrated into the HCP 
proposal itself and requires neither separate documentation nor 
separate public involvement processes.
    Similarly, the Committee urges the agencies to fully 
integrate the requirements of NEPA into the recovery process. 
Many elements of the planning process are consistent with the 
regulations promulgated by the Council on Environmental 
Quality. Those regulations also provide direction to eliminate 
any duplication between NEPA and other environmental 
requirements. In particular, the Committee urges that full use 
of the tiering process be used to avoid duplicating analysis 
done at the planning stage for proposed actions in the context 
of implementation agreements.

                                Hearings

    On September 23, 1997, the Committee on Environment and 
Public Works held a hearing on S. 1180, the Endangered Species 
Recovery Act of 1997. Testimony was given by: Jamie Rappaport 
Clark, Director, U.S. Fish and Wildlife Service, U.S. 
Department of the Interior; Terry Garcia, Acting Assistant 
Secretary for Oceans and Atmosphere, U.S. Department of 
Commerce; Marc Racicot, Governor, State of Montana, on behalf 
of the National Governors' Association; James A. McClure, on 
behalf the National Endangered Species Act Reform Coalition; 
Michael J. Bean, Director, Wildlife Program, Environmental 
Defense Fund; W. Henson Moore, President and CEO, American 
Forest and Paper Association; Mark Van Putten, President, 
National Wildlife Foundation; and Duane Shroufe, Director, 
Arizona Department of Game and Fish, on behalf of the 
International Association of State Fish and Wildlife Agencies. 
Written testimony was submitted by two coalitions: the 
Evangelical Environmental Network, Coalition on the Environment 
and Jewish Life, and the National Council of Churches of 
Christ, USA; and the Coalition on the Environment and Jewish 
Life, The Jewish Council for Public Affairs, and the Union of 
American Hebrew Congregations. -
    During 1995, the Subcommittee on Drinking Water, Fisheries, 
and Wildlife held six hearings on the reauthorization of the 
Endangered Species Act. On July 13, 1995, a hearing was held on 
Federal administration of the Act. Testimony was given by: 
Bruce Babbitt, Secretary of the Interior; Michael T. Clegg, 
Acting Dean, College of Natural and Agricultural Sciences, 
University of California at Riverside; Judy DeHose, 
Councilwoman, White Mountain Apache Tribe, Whiteriver, AZ; 
Gregg Easterbrook, Arlington, VA; Douglas K. Hall, Assistant 
Secretary for Oceans and Atmosphere, U.S. Department of 
Commerce; John Harja, Chairman, Western Governors' Association 
Staff Working Group on Reauthorization of the Endangered 
Species Act; William Robert Irvin, Deputy Vice President for 
Marine Wildlife and Fisheries Conservation, Center for Marine 
Conservation; Jane Lubchenco, Professor, Department of Zoology, 
Oregon State University, Corvallis, OR; Dick Knox, State 
Representative, Winifred, MT; David F. Mazour, Assistant 
General Manager, Central Nebraska Public Power and Irrigation 
District, Holdrege, NE; Stuart Pimm, Professor of Ecology, 
University of Tennessee, Knoxville, TN; Mark L. Plummer, Senior 
Fellow, Discovery Institute; David R. Schmidt, Commissioner, 
Linn County, OR; and Emily Swanson, State Representative, 
Bozeman, MT. -
    On July 20, 1995, a hearing was held on national and 
international species conservation. Testimony was given by: 
Mollie Beattie, Director, U.S. Fish and Wildlife Service, U.S. 
Department of the Interior; Jeff Cilek, Program Director, the 
Peregrine Fund, Boise, ID; Allan Egbert, Executive Director, 
Florida Game and Freshwater Fish Commission, Tallahassee, FL; 
John Grandy, Vice President, Wildlife and Habitat Protection, 
The Humane Society; Gerhardus J. Hanekom, Minister of 
Environment and Tourism, Republic of Namibia; Ginette Hemley, 
Director of the International Wildlife Policy, World Wildlife 
Fund; Stephen Kasere, Deputy Director, CAMPFIRE Association, 
Zimbabwe; John Lambeth, Project Manager, Fairy Shrimp Study 
Group, Sacramento, CA; David Langhorst, Member, Board of 
Directors, Idaho Wildlife Federation and affiliate 
representative National Wildlife Federation, Ketchum, ID; 
Rolland Schmitten, Assistant Administrator, National Marine 
Fisheries Service, U.S. Department of Commerce; Michael Scott, 
Research Biologist, National Biological Service, Moscow, ID; 
Robert Taylor, Director of Wildlife Ecology, California 
Forestry Association, Sacramento, CA; and Robert J. Wiese, 
Assistant Director of Conservation and Science, American Zoo 
and Aquarium Association, Bethesda, MD. -
    On August 3, 1995, the subject was innovation, habitat 
recovery, and private property rights. Testimony was given by: 
Michael J. Bean, Director, Wildlife Program, Environmental 
Defense Fund; Sherl L. Chapman, Executive Director, Idaho Water 
Users Association, Inc.; Charles E. Gillilard, Associate 
Research Economist, Real Estate Center, Texas A&M University; 
Murray Lloyd, Executive Committee Member, Black Bear 
Conservation Committee; Brian Loew, Executive Director, 
Riverside County Habitat Conservation Agency; Carl Loop, 
President, Florida Farm Bureau Federation, on behalf of the 
American Farm Bureau Federation; Lindell L. Marsh, partner, 
Siemon, Larsen, and Marsh; George E. Meyer, Secretary, 
Wisconsin Department of Natural Resources; Elliott Parks, Vice 
Chairman, San Diego Association of Governments; Steven P. 
Quarles, Counsel to the Endangered Species Coordinating Council 
and American Forest and Paper Association; Randy Scott, 
Planning Manager, San Bernardino County, CA; R.J. Smith, Senior 
Environmental Scholar, Competitive Enterprise Institute; James 
M. Sweeney, Manager, Wildlife Issues, Champion International 
Corporation; and Michael White, Vice President and General 
Counsel, Hecla Mining Company. -
    The Subcommittee also held three field hearings on the 
reauthorization of the Act. On June 1, 1995, a hearing was held 
in Roseburg, Oregon. Statements were made by host Senators from 
the State of Oregon, Bob Packwood and Mark O. Hatfield. 
Testimony was given by: Bob Allen, President, Oregon 
Cattleman's Association, Joseph, OR; Bill Arsenault, Small 
Woodlands Association, Elkton, OR; Mark Birkmeier, President, 
Oregon Cattleman's Association, Joseph, OR; John Crawford, 
President, Klamath Basin Water Users, Klamath Falls, OR; Bob 
Doppelt, Executive Director, Pacific Rivers Council, Eugene, 
OR; Paul Ehinger, Ehinger and Associates, Eugene, OR; Allyn 
Ford, Executive Vice President, Roseburg Forest Products, 
Roseburg, OR; Jim Hallstrom, General Manager, Zip-O-Log Mills, 
Inc., Eugene, OR; Liz Hamilton, Executive Director, Northwest 
Sport Fishing Industry Association, Oregon City, OR; Ann 
Hannes, Assistant State Forester, State of Oregon; Mark 
Hubbard, Conservation Director, Oregon Natural Resources 
Council, Eugene, OR; Jim Ince, President, UMPQUA Watershed, 
Inc., Rod Johnson, Oregon State Senator, Salem, OR; Penny Lind, 
Roseburg, OR; Ernie Niemi, Eco Northwest, Eugene, OR; Merilee 
Peay, Coordinator, Yellow Ribbon Coalition; Doug Roberston, 
Douglas County Commissioner, Roseburg, OR; Rudy Rosen, 
Director, Oregon Department of Fish and Wildlife, Salem, OR; 
Jerry Rust, Lane County Commissioner, Eugene, OR; Mark Simmons, 
Northwest Timberworkers Resource Council, Elgin, OR; Curt 
Smitch, Assistant Regional Director, U.S. Fish and Wildlife 
Service, Olympia, WA; Glen Spain, Regional Director, Pacific 
Coast Federation of Fishermen's Associations, Eugene, OR; 
Nelson Wallulatum, Columbia River Intertribal Fish Commission, 
Bend, OR; Mike Wiedeman, Oregon Lands Coalition, Enterprise, 
OR. -
    On June 3, 1995, a hearing was held in Lewiston, Idaho, 
where statements were made by Larry Craig, U.S. Senator from 
the State of Idaho, Michael D. Crapo, U.S. Representative from 
the State of Idaho, and Slade Gorton, U.S. Senator from the 
State of Washington. Testimony was given by: Bob Adams, Chamber 
of Commerce, Priest Lake, ID; Lenore Barrett, Idaho State 
Representative; Ray Brady, Grangeville, ID; Phil Church, 
President, Pulp and Paper Resource Workers Council Union Local, 
Lewiston, ID; Sherry Colyer, Local Citizens' Alliance, Bruneau, 
ID; Chuck Cuddy, Idaho State Representative; Bill DeVeny, Idaho 
Farm Bureau, Riggins, ID; Ron Gillett, Outfitter and Motel 
Owner, Stanley, ID; Michael A. Guerry, Idaho Wool Growers, 
Buhl, ID; Jim Hawkins, Custer County Agent, Challis, ID; Ted 
Hoffman, Idaho Cattlemen's Association, Mountain Home, ID; Rick 
Johnson, Executive Director, Idaho Conservation League; Darrell 
Kerby, City Council President, Bonners Ferry, ID; Falma Moye, 
Blue Ribbon Coalition, Challis, ID; Laird Noh, Chairman, 
Resources and Environment Committee, Idaho State Senate; James 
Peek, University of Idaho Wildlife Biology Professor, Moscow, 
ID; Sam Penney, Chairman, Nez Perce Tribe, Lapwai, ID; Charles 
Ray, Idaho Rivers United, McCall, ID; Mitch Sanchotena, 
President, Idaho Salmon and Steelhead, Unlimited, Eagle, ID; 
and Dave Wilson, Idaho Homebuilders Association, Ketchum, ID. -
    On August 16, 1995, a hearing was held in Casper, Wyoming. 
Statements were made by Barbara Cubin, U.S. Representative from 
the State of Wyoming, and Alan Simpson, U.S. Senator from the 
State of Wyoming. Testimony was given by: Larry J. Bourret, 
Executive Vice President, Wyoming Farm Bureau Federation, 
Laramie, WY; Dru Bower, National Coalition for Public Land and 
Natural Resources, Cheyenne, WY; Tom Christiansen, President, 
Wyoming Chapter, The Wildlife Society, Green River, WY; Dan 
Chu, Executive Director, Wyoming Wildlife Federation; George 
Enneking, Idaho County Commissioner, Grangeville, ID; needle; 
Howard Ewart, Casper, WY; the Reverend Harold R. Fray, Jr., 
Casper, WY; Jim Geringer, Governor, State of Wyoming; Nicky 
Groenewold, Newcastle, WY; Kirk Koepsel, Northern Plains 
Office, Sierra Club, Sheridan, WY; Marion Klaus, Sheridan, WY; 
Frank Philp, Wyoming State Representative, Shoshoni, WY: 
Michael K. Purcell, Director, Wyoming Water Development Office, 
Cheynne, WY; Terry Schramm, Walton Ranch Company, Jackson, WY; 
Herman Strand, Rancher, Casper, WY; John Talbott, Director, 
Wyoming Game and Fish Department, Cheyenne, WY; Leah Talbott, 
Albany County Commissioner, Laramie, WY; Richard Tass, Johnson 
County Commissioner, Buffalo, WY; Steve Thomas, Wyoming Field 
Representative, Greater Yellowstone Coalition, Cody, WY; Tom 
Throop, Executive Director, Wyoming Outdoor Council, Lander, 
WY; Michael Tokonczyk, Logger, Hulett, WY; Jack Turnell, 
Pitchfork Ranch, Meeteetse, WY; John Winter, Two Ocean 
Outfitters, Moran, WY; and Connie Wilbert, Chair, Northern 
Plains Regional Conservation Committee, Sierra Club, Laramie, 
WY.

                             Rollcall Votes

    Section 7(b) of rule XXVI of the Standing Rules of the 
Senate and the rules of the Committee on Environment and Public 
Works require that any rollcall votes taken during the 
Committee's consideration of a bill be noted in the report. The 
Committee met to consider S. 1180 on September 30, 1997, and it 
was on that day ordered reported, as amended, by a rollcall 
vote of 15 ayes to 3 nays, with 10 members present. Those 
voting in favor were Senators Chafee, Warner, Smith, 
Kempthorne, Inhofe, Thomas, Bond, Hutchinson, Allard, Session, 
Baucus, Moynihan, Reid, Graham, and Wyden. Those voting against 
were Senators Lautenberg, Lieberman and Boxer.

                           Regulatory Impact

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact of the bill. Generally, 
S.1180 is projected to increase the regulatory burden of the 
Fish and Wildlife Service and National Marine Fisheries 
Service, but to relieve the regulatory burden on non-Federal 
persons subject to the law's requirements. The letter from the 
Congressional Budget Office printed below provides further 
details of the regulatory impact if the bill were enacted. This 
bill would not affect the personal privacy of individuals.
    The bill would specifically mandate that the Secretary 
promulgate modifications to regulations codified at 50 C.F.R. 
Part 402 regarding changes to section 7 not later than one year 
after date of enactment. In addition, guidelines must be 
promulgated regarding implementation of section 10, and 
authorization of State agencies to develop recovery plans. 
These provisions are not expected to have any regulatory 
impact.
    The regulatory burden is expected to be relieved with 
respect to threatened species, given the requirement in the 
bill that regulations to protect such species be published 
specifically for each species. Currently, the Fish and Wildlife 
Service prohibits the taking of threatened species as a generic 
requirement upon listing; this is the maximum protection 
afforded a species under the law. By requiring protective 
regulations to be specific for each threatened species, the 
bill increases the flexibility that the Fish and Wildlife 
Service will use in developing regulations affecting private 
persons, which in turn relieves the regulatory burden on such 
persons.
    Section 3 of the bill contains several provisions that 
reduce the regulatory burden on private persons. Specifically, 
consultation otherwise required under section 7 of the Act is 
waived for certain actions that are authorized or funded by a 
Federal agency. In addition, Federal agencies would be 
required, upon request by a person proposing to undertake 
certain actions for the conservation of a listed species, to 
identify all requirements under the Act for that species that 
would be relevant to that action. This would enable the person 
to know, at that time, the regulatory burden for that action.
    Similarly, the bill's provisions with respect to the role 
of an applicant for Federal funding or authorization for an 
action subject to section 7 relieves the regulatory burden on 
the applicant. In allowing the applicant an opportunity to 
receive information from, and submit comments to, the 
Secretary, the bill reduces the regulatory burden upon the 
applicant by ensuring that the applicant receives relevant 
information in making his or her decision regarding the action.
    Section 5 of the bill amends the provisions regarding 
permits required to conduct activities that would result in a 
taking of a species that is otherwise prohibited under section 
9 of the Act. Subsection (a) relieves the regulatory burden on 
non-Federal entities seeking to conduct such activities on the 
high seas, by allowing them to obtain permits for those 
activities, whereas under existing law, such permits could not 
be issued. Subsection (c) relieves the regulatory burden on 
non-Federal persons by amending the permit process generally. 
First, a person may apply for a permit to take multiple 
species, including species not yet listed. For non-listed 
species, the permit would take effect without further action 
upon listing. Second, an expedited, streamlined process is 
established for persons engaging in low-effect activities. 
These activities would require less mitigation than other 
activities, and the Secretary must minimize the costs to the 
applicant of the permitting process. Third and most important, 
conservation plans prepared in conjunction with the permit must 
include a no surprises provision that ensures that a permittee 
will not be required to undertake additional mitigation 
measures if the measures would require payment of additional 
money or adoption of additional restrictions on land, water or 
water-related rights.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act 1995 
(Pub. L. 104-4), the committee makes the following evaluation 
of the Federal mandates contained in the bill. The bill imposes 
no Federal intergovernmental unfunded mandates on State, local 
or tribal governments. All of the bill's directives are imposed 
upon Federal agencies. In addition, the bill does not impose 
any Federal private sector mandates. The bill will have no 
discernible effect on the competitive balance between the 
public and private sectors.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:
                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 31, 1997.

Hon. John H. Chafee,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the cost estimate for S. 1180, the Endangered Species 
Recovery Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Deborah 
Reis (for federal costs), who can be reached at 226-3220, 
Marjorie Miller (for the state and local impact), who can be 
reached at 225-3220, and Patrice Gordon (for the impact on the 
private sector), who can be reached at 226-2940.
            Sincerely,

                              James Blum, for June O'Neill.

                                ------                                


               Congressional Budget Office Cost Estimate

Summary
    S. 1180 would amend the Endangered Species Act (ESA) and 
authorize funding for programs carried out under the statute 
for each of fiscal years 1998 through 2003. A major focus of 
the bill is cooperation among all parties affected by the ESA, 
including Federal agencies (both those with primary 
responsibility for carrying out the Act and those that manage 
Federal lands or whose activities may affect protected 
species), State and local governments, and private property 
owners. The bill would enhance this cooperation by (I) 
providing incentives to encourage owners of nonfederal land to 
participate in species recovery plans, habitat conservation 
projects and other activities, (2) giving State and local 
governments a greater voice in Federal regulatory decisions, 
(3) streamlining the procedures by which Federal agencies 
consult with one another before finding or carrying out 
activities that may affect protected species, and (4) 
authorizing appropriations to provide financial and technical 
assistance for these purposes.
    The bill would authorize specific appropriations for 
Federal agencies responsible for administering the ESA (the 
Interior, Commerce, and Agriculture Departments) and for 
financial assistance to State and local governments or other 
nonfederal entities. In aggregate, the bill would authorize 
specific annual appropriations of between $241 million (for 
fiscal year 1998) and $341 million (for 2003), for a total of 
about $1.9 billion over the 6-year period. In addition, section 
8 of the bill would authorize the appropriation of whatever 
amounts arc necessary to provide financial and technical 
assistance to States to carry out conservation activities under 
the Act. (This is in addition to any grants authorized by the 
ESA from the Cooperative Endangered Species Conservation Fund.)
    S. 1180 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
(UMRA). Enactment of this legislation would not affect Federal 
receipts or direct spending; therefore, pay-as-you-go 
procedures would not apply.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    Although authorizations for funding under the ESA expired 
in 1992, the Congress has continued to appropriate finds each 
year for programs carried out under the act. For fiscal year 
1997, the Congress earmarked about $92 million for these 
programs. Full-year funding for fiscal year 1998 has not yet 
been enacted.
    Assuming appropriation of the entire amounts specified for 
each fiscal year, the 1998 funding for ESA activities would 
total $241 million-an increase of $150 million over the 1997 
level CBO estimates that additional indefinite authorizations 
(for State assistance) and implicit authorizations (for new 
requirements on Federal land-management agencies) would 
increase the authorized funding levels by an additional $10 
million annually. The estimated budgetary effects of 
implementing S. 1180 are summarized in the following table.

                                                                                                                
                                     By Fiscal Year, in Millions of Dollars                                     
----------------------------------------------------------------------------------------------------------------
                                                              1997     1998     1999     2000     2001     2002 
----------------------------------------------------------------------------------------------------------------
ESA Spending Under Current Law                                                                                  
    Estimated Budget Authority \1\ \2\....................      92        0        0        0        0        0 
    Estimated Outlays.....................................      84        2        2        0        0        0 
                                                                                                                
Proposed Changes                                                                                                
    Authorization level...................................       0      251      296      326      346      351 
    Estimated Outlays.....................................       0      138      278      295      328      350 
                                                                                                                
ESA Spending Under S. 1180                                                                                      
    Specific Authorization Level \1\......................      92      241      286      316      336      341 
    Estimated Authorization Level.........................       0       10       10       10       10       10 
                                                           -----------------------------------------------------
        Total Estimated Authorizations....................      92      251      296      326      346      351 
                                                                                                                
    Estimated Outlays.....................................      84      140      280      295      328      350 
----------------------------------------------------------------------------------------------------------------
\1\ The 1997 level is the amount actually appropriated for programs authorized by this bill.                    
\2\ Appropriations for ESA have not yet been enacted for fiscal year 1998. Senate-passed S. 1002, making        
  appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and related agencies, would
  provide $32 million, and H.R. 2107, making appropriations for the Department of the Interior and related      
  agencies (as cleared by the Congress), would provide and additional $80 million.                              

    The costs of S. 1180 fall within budget function 300 
(natural resources and environment). In addition to the amounts 
shown in the table, the bill would authorize appropriations of 
an additional $351 million for fiscal year 2003 (the same 
amount as shown above for 2002).

                           BASIS OF ESTIMATE

    For purposes of this estimate, CBO has assumed that S. 1180 
will be enacted during fiscal year 1998 and that the entire 
amounts specifically authorized or estimated to be necessary to 
carry out the bill will be appropriated for each fiscal year.
Authorizations of Appropriations
    Section 8 of S. 1180 would authorize the appropriation of 
operating fiends to the three Federal agencies responsible for 
carrying out the ESA. In total, the funding levels specified in 
S. 1180 for each year are more than double the appropriations 
for recent years. The higher authorization levels, particularly 
those for operations of the Interior Department (DOI), reflect 
both newly authorized financial assistance programs as well as 
the greater costs of carrying out the ESA under the new 
requirements imposed by the bill These provisions would require 
expedited development of recovery plans for the backlog of 
previously listed species as well as new procedural 
requirements such as additional public notices and hearings and 
greater consultation with affected States.
    Specified Authorizations. For fiscal years 1998 through 
2003, the authorization levels shown in the table include 
specified amounts of:
      between $90 million and $165 million a year for 
DOI, which has primary responsibility for implementing and 
enforcing the Act through the U.S. Fish and Wildlife Service 
(USFWS),
      between $35 million and $70 million annually for 
the Department of Commerce, which administers ESA programs for 
marine species through the National Marine Fisheries Service 
(NMFS),
      $4 million annually for the Department of 
Agriculture for animal and plant inspections, and
      $1 million annually for DOI to implement CITES--
the Convention on International Trade in Endangered Species and 
$0.6 million a year to carry out the functions of the 
Endangered Species Committee.
    Also included are specified authorizations of between $116 
million (for 1998) and $106 million (for 2003) for grants and 
other assistance to nonfederal entities, including:
      about $41 million annually for the habitat 
reserve program, under which the USFWS and NMFS would execute 
contracts or easements with owners of nonfederal property to 
preserve, manage, or improve suitable habitat for protected 
species,
      $15 million annually for safe harbor agreements, 
under which the two agencies would provide funds to nonfederal 
entities that create, restore, or otherwise maintain natural 
habitat in exchange for permits to take protected species,
      $45 million annually for grants to private 
landowners who agree to implement species recovery plans, and
      $10 million a year for 1998 through 2000 and $5 
million a year for 2001 and 2002 for the subsidy cost of 
providing no-interest loans to State and local governments to 
finance the development of habitat conservation plans. We 
estimate that such appropriations, less about 10 percent for 
administrative costs, would support an annual loan level of 
about $40 million for 1998 through 2000 and about $20 million 
for 2001 and 2002.
    Estimated Authorizations. The table also includes estimated 
authorizations of $10 million annually, about one-half of which 
is for the financial assistance to States, as authorized by 
section 8. CBO estimates that the balance would be needed for 
each of the next 5 years by Federal agencies such as the Forest 
Service and the Bureau of Land Management to conduct 
inventories of protected species required by section 4 We 
estimated the costs of these indefinite authorizations on the 
basis of information provided by the Departments of Commerce 
and the Interior, other affected Federal agencies, and various 
State agencies.
Outlays from Spending Subject to Appropriation
    Outlays for administrative activities have been estimated 
on the basis of historical spending patterns for ongoing ESA 
programs. Spending rates for most new programs, such as those 
involving grants to property owners, reflect the time that 
would be required for the needed regulatory procedures to be 
completed. For example, payments to property owners who wish to 
implement recovery plans and direct loans to State or local 
governments for developing such plans could lag behind species 
listing and plan development by several years. Moreover, set-
asides over the next 5 years for the habitat conservation 
insurance program would delay some of the outlays for a number 
of financial assistance programs because 5 percent of such 
amounts would be reserved for conservation efforts after 2002.

                      Pay-as-you-go Considerations

    None.

        Estimated impact on State, local, and tribal governments

    S. 1180 contains no intergovernmental mandates as defined 
in UMRA. The bill would affect State and local governments in a 
number of ways, but would not require any additional spending 
by these governments. State and local governments would benefit 
from many provisions in the bill that would enhance their role 
in implementing the ESA. Any additional State or local costs 
would result hum voluntary decisions to accept greater 
responsibilities under the act. The bill would authorize 
appropriations to cover the cost of these activities.
    A number of provisions in S. 1180 would offer States the 
opportunity to accept increased responsibilities under the ESA. 
For example, the bill would authorize Federal agencies to enter 
into State conservation agreements, under which one or more 
States would undertake activities to benefit candidate species. 
Under such agreements, States would be required to ensure 
adequate funding and enforcement to implement the agreement. S. 
1180 would also offer States an increased role in developing 
and implementing recovery plans for endangered or threatened 
species. The bill would establish a number of other vehicles 
under which Federal agencies could enter into agreements with 
State or local agencies or private parties to carry out various 
activities under the ESA.
    State and local governments could receive additional 
Federal fluids to support their activities under the ESA as a 
result of provisions in S. 1180. The bill would authorize 
appropriations totaling $40 million over the 1998-2002 period 
for the habitat Conservation Planning Jean Program. CBO 
estimates that, if appropriated, these finds would subsidize 
no-interest loans to State and local governments totaling $160 
million over that period It also would authorize appropriations 
for State conservation activities not covered by existing 
appropriations. CBO estimates that States would use about $5 
million per year to support these activities

                 Estimated impact on the private sector

    S. 1180 contains no private-sector mandates as defined in 
UMRA. The bill would affect landowners in a number of ways, but 
would not mandate any additional spending. The bill would allow 
landowners who require Federal permits or approvals under GSA 
to have a greater role in implementing recovery plans for 
listed species. Further, the bill would authorize Federal 
grants (subject to available appropriations) for agreements 
with private landowners to implement conservation measures 
identified by approved recovery plans.
    S. 1180 also includes several other incentives to encourage 
private landowners to participate in various ESA programs. Any 
additional costs incurred by the private sector would result 
from voluntary decisions to accept greater responsibilities 
under the act. The bill would authorize appropriations to cover 
some of the costs of these voluntary activities.
    Under current law, landowners whose lands provide habitat 
to endangered species are prohibited from ``taking'' an 
endangered species. ``Taking'' is defined broadly and includes 
killing, harming, or harassing protected species and, in 
certain instances, modifying their habitat. According to the 
General Accounting Office, in 1993 over 90 percent of species 
protected under ESA had a major share of their habitat on 
nonfederal land. Nonfederal lands containing habitat for 
protected species may be owned by private or government 
landowners. Over 600 species have some or all of their habitat 
on laid owned by private landowners and more than 500 listed 
species have their habitat on land owned by State and local 
governments. Under the ESA, a landowner whose land is occupied 
by threatened or endangered species may obtain ``incidental 
take'' permits in return for carrying out habitat conservation 
plans (HCPs) on their property. These permits, allow landowners 
to carry out economic activities on their property that may 
incidentally harm listed species.
    The bill would codify several existing policies that 
encourage the involvement of private landowners in the 
conservation of protected species including the ``no 
surprises'' policy and safe harbor agreements. The ``no 
surprises'' policy protects parties participating in habitat 
conservation plans from being required to take additional steps 
to protect species in the future. Safe harbor agreements 
protect landowners who take voluntary steps to create or 
restore habitats from future liability under ESA. The bill 
would authorize grants to assist landowners in carrying out 
safe harbor agreements.
    S. 1180 also would provide incentive programs to encourage 
small landowners to participate in conservation programs under 
the Endangered Species Act, including low-effect habitat 
conservation plans and habitat reserve agreements. The bill 
would require the Secretary of the Interior in cooperation with 
State fish and wildlife agencies, to develop a model permit 
application that could serve as the conservation plan and 
thereby provide a less expensive, streamlined process for small 
landowners and others whose activities will have a minor effect 
on listed species (``low-effect plans''). The habitat reserve 
program would be similar to the existing conservation reserve 
program and would provide a direct monetary incentive to 
conserve habitat, particularly for farmers.
    Estimate prepared by: Federal costs: Deborah Reis; Impact 
on State, Local, and Tribal Governments: Marjorie Miller; 
Impact on the Private Sector: Patrice Gordon.
    Estimate approved by: Robert A. Sunshine, Deputy Director 
for Budget Analysis.
                  ADDITIONAL VIEWS OF SENATOR SESSIONS

    I am concerned that the committee report accompanying S. 
1180 does not thoroughly and adequately address several 
concerns that I have about this legislation. I want to take 
this opportunity to raise several issues that this bill fails 
to address, but which are, in my opinion, fundamental to 
successful reform. Although I did vote to allow this bill to 
proceed out of the Environment and Public Works Committee, I 
did so in the hopes that the issues I am raising will receive 
fair consideration should this legislation reach the Senate 
floor.
    My chief concern with this legislation is its failure to 
address private property rights compensation. I believe that 
this issue, which is of critical importance to both large and 
small property owners throughout this country, should have been 
addressed within the legislation that is so often the source of 
``regulatory takings''. Several amendments regarding this issue 
were introduced during committee markup, however they were 
subsequently withdrawn. We owe those upon whom we impose the 
often onerous burdens of Endangered Secies At provisions the 
benefit of a public discussion of these issues.
    I am also concerned about several changes that this bill 
makes to current law. For example, under current law, the 
Secretary is required to designate critical habitat 
concurrently with a listing decision. This At would change this 
requirement, allowing the designation of critical habitat to be 
deferred until promulgation of a recovery plan. Under current 
law, if critical habitat is designated concurrently, 
individuals who are to be directly affected are put on notice 
of the At and are provided an early opportunity to make their 
opinions known through the public comment process. Delaying the 
designation of critical habitat for a significant period of 
time deprives individuals adversely affected of early 
opportunities to present their views. Similarly, although I am 
aware that this bill provides that critical habitat 
designations should consider economic impacts, I am concerned 
that this bill's change to the critical habitat designation 
process will result in greater restrictions on commercial and 
recreational activities.
    I also believe that this bill's provisions regarding the 
citizen suit process do not go far enough to address a problem 
that exists under current law. Under current law, any person 
may file suit against any other person for alleged violations 
of the Endangered Species Act. As a result, many special 
interest groups use this as a weapon, threatening lawsuits in 
an attempt to deter conduct that may be perfectly legal in 
nature. I believe that it is more appropriate for the Federal 
Government to be responsible for law enforcement. The citizen 
suit process should be changed so that prospective plaintiffs 
may only bring suit against the Federal Government when the 
Federal Government has failed to enforce the law.
    This bill also makes several more changes to current law, 
that I will address briefly here, but which I think merit more 
focused attention. For instance, current law makes no mention 
of the need to protect ``candidate species'', but this bill, 
for the first time, extends these species protection by 
providing for their ``voluntary'' protection in habitat 
conservation plans. As a result, species that have never been 
given the scrutiny of the public notice and comment period will 
be linked to the receipt of incidental take permits. I am also 
concerned that the provisions regarding Federal agency 
``implementation agreements'' could result in large unfunded 
mandates being placed on these agencies as they try to comply 
with the terms of these agreements, which would impose 
measurable costs on the taxpaying public. A further concern of 
mine regards the ability of the Secretary to list distinct 
population segments , where the remainder of a species 
population is not endangered or threatened. I believe that this 
issue could best be resolved at the State or local level, and 
that some consideration should be given to this matter. I also 
remain concerned that the language within the bill that 
provides for a ``prohibition on assistance for required 
activities'' could be misinterpreted to cancel out the 
positive, incentive based features found within the bill. 
Furthermore, I continue to remain concerned that, in many 
instances, this bill arguably provides the Secretary with too 
much discretionary power as he is potentially allowed veto 
authority over the findings of States in the development of 
recovery plans, or because the Secretary often is allowed to 
proceed even in the absence of recovery teams. Finally, during 
committee hearings I raised an issue concerning what I believe 
to be an attempt by the Environmental Protection Agency and the 
United States Fish and Wildlife Service to create an Edangered 
Secies Act consultation requirement for States that have 
received delegated water permitting programs under the Clean 
Water Act. I believe that a very strong case can be made that 
this represents an unjustified expansion of the statutory 
authority of these two agencies, and that it is an issue that 
merits further consideration.
    These are some of the reservations I continue to have 
regarding this legislation, and are all issues that I would 
like to see more public discussion about. Therefore, even 
though I voted affirmatively to move this bill out of 
committee, I will continue to study its overall merit.
                   ADDITIONAL VIEWS OF SENATOR INHOFE

    I am filing these additional views on the emergency access 
provision adopted by the committee during deliberations on S. 
1180. I am concerned that the report language prepared by the 
committee explaining the provision does not provide adequate 
guidance to the Executive Branch regarding how the provision is 
to be interpreted and applied and may, in fact, require further 
textual changes to assure that the Endangered Species Act 
provides the necessary flexibility to address public health and 
safety emergencies.
    I offered, and the committee adopted, the emergency access 
provision to address a very real and practical problem that 
occurs on the ground with administration of the Endangered 
Species Act. Today, owners and operators of natural gas 
pipelines, hazardous liquid pipelines, and electricity 
transmission facilities are caught between the need to repair 
damaged facilities promptly and the requirements of the 
Endangered Species Act to obtain Federal agency approval for 
their repair activities prior to undertaking the repairs if the 
repair activity might affect an endangered species. The 
emergency access provision is intended to resolve this conflict 
in a way that facilitates these repairs while assuring that 
endangered species are appropriately protected.
    While I appreciate the efforts of the committee to help 
resolve the conflicts, I believe that the provision, without 
better guidance, may be inadequate to do the job. First, it 
does not clearly assure that all essential facilities benefit 
from the flexibility. Second, it only addresses facilities that 
are on public land, thereby leading to possible interpretations 
that damaged facilities located on nonfederal lands--which are 
the majority--cannot be repaired without approval first. In 
most situations, immediate repair is essential for the 
protection of public health and safety. Finally, without better 
clarification by the Committee in report language, the 
Executive Branch may take an unduly narrow interpretation of 
what is meant by a threat to human lives or a imminent and 
significant threat to the environment, thereby delaying 
essential repairs.
 ADDITIONAL VIEWS OF SENATORS LIEBERMAN, MOYNIHAN, GRAHAM, LAUTENBERG, 
                            WYDEN, AND BOXER

    Sensible stewardship of the Earth requires active measures 
to protect biodiversity. Congress passed the Endangered Species 
Act in 1973 in recognition that species of animals and plants 
``are of esthetic, ecological, educational, historical, 
recreational, and scientific value to the nation and its 
people.''
    Diversity of species is the foundation of healthy 
ecosystems on which we depend for a variety of economic needs. 
Forty percent of all medicinal drugs in use today are 
synthesized from natural compounds. Of the world's estimated 
80,000 edible plants, we depend on only 20 species to provide 
90 percent of our food supply. Wild relatives of these common 
crops provide an essential genetic reservoir from which new and 
more pest- or disease-resistant strains are developed. Loss of 
species as a result of human activity should serve as a clarion 
call that our actions ultimately may endanger our own 
existence.
    S. 1180 contains some provisions that may improve 
conservation of imperiled species. For example, the bill 
provides for greater public participation in the development of 
conservation plans for species. In addition, several measures 
offer financial incentives to private landowners who agree to 
manage their lands in a manner that will benefit species. 
Nevertheless, we are concerned that S. 1180 may undermine the 
ESA's ``safety net'' for endangered and threatened species if 
these important conservation programs are not funded 
adequately.
    A number of provisions in the bill impose new procedural 
requirements on the Fish and Wildlife Service and the National 
Marine Fisheries Service for listing species under the ESA and 
for planning species' recovery efforts. Again, adequate funding 
is critical if the Services are to complete the complex 
analyses specified in this legislation on time. With tight 
deadlines for recovery plan completion--only five years to 
complete plans for over 400 plus species--limited resources for 
on-the-ground conservation efforts could be consumed if the 
law's new requirements overwhelm the staffs of the Services.
    While we are pleased that the committee has increased the 
level of authorizations for the ESA, we have seen in other 
legislation, such as the 1996 Federal Agricultural Improvement 
and Reform Act (the Farm Bill), that appropriations for 
conservation incentive programs often are not sufficient. In 
other cases, such as the Land and Water Conservation Fund, the 
level of funds available for conservation has never been 
appropriated. If the new incentive programs under the ESA are 
to work, a secure source of funding is needed.
    As the bill moves through the process, we plan to work with 
the committee leadership to find a way to address the funding 
issue so that the promises in this bill can be fulfilled. 
Funding for ESA programs is minimal; we spend more every month 
on military bands than we spend annually to protect our earth's 
species. This funding needs to be addressed adequately.
                    MINORITY VIEWS OF SENATOR BOXER

    Our nation's long-term economic prosperity is closely 
linked to our ability to preserve our natural heritage. 
Biodiversity is key to human health and quality of life. We all 
know that extinction of species is a natural event over time as 
species evolve and give rise to other species. But today, in 
the United States and all over the world, human activity in the 
form of habitat destruction, pollution and the introduction of 
invasive non-native species, is resulting in the rapid 
depletion of our biological assets and natural resources and 
extinction rates that are estimated to be up to 10,000 times 
the natural or background level rate. We need a strong and 
functional Endangered Species Act now more than ever before.
    The goal of the Endangered Species Act (ESA) is to achieve 
the recovery of endangered and threatened species. Once species 
recover, they are delisted resulting in the lifting of any 
restrictions that had been placed on the uses of the land when 
the species were under Federal protection. The key question is 
how we achieve recovery and at the same time have an effective 
law that minimizes social and economic impacts on local 
communities.
    In order to achieve the conservation and the recovery of 
species, we need to strengthen the protection of habitat, help 
prevent species from becoming threatened in the first place, 
and provide more incentives and regulatory certainty for 
private landowners. While S. 1180 contains provisions that 
would improve current law in some respects, the bill in its 
current form does not achieve these goals.
    Adequate funding is critical to the success of the ESA. 
Unfortunately, Congress has consistently underfunded the U.S. 
Fish and Wildlife Service (FWS) and National Marine Fisheries 
Service (NMFS) ESA activities. This in great part is 
responsible for current Federal agency delays which have in 
turn led to frustration and controversy about how the Act is 
being implemented.
    Under the provisions of S. 1180, lack of funding will take 
an even greater toll on species protection and could seriously 
undermine species recovery, because S. 1180 imposes tight 
deadlines and many new procedural requirements in the species 
listing process, the recovery planning process, and other 
areas. While some of these provisions improve current law, they 
are clearly new burdens that could result in further agency 
delays and a reprioritization of Federal tasks and 
responsibilities that could significantly weaken ESA on-the-
ground implementation.
    For example, Federal action agencies (i.e. agencies 
approving Federal permits or carrying out activities such as 
the Bureau of Reclamation, or the Corps of Engineers) make the 
initial determination that a project is not likely to adversely 
affect a species. Under current law, permit approval cannot 
take place until the FWS or NMFS reviews the determination 
(this is commonly referred to as a Section 7 consultation). 
Under the provisions of S. 1180, the FWS and NMFS have 60 days 
to review the initial determination. If they do not meet the 
deadline, the initial determination will prevail. Unless FWS 
and NMFS are sufficiently funded, this new 60-day requirement 
will lead to the approval of projects by default without 
adequate review by Interior and Commerce--to the detriment of 
protected species.
    Another example is the new recovery plan requirements in S. 
1180. I support many of the new requirements regarding public 
participation, and peer review, but they make the preparation 
of recovery plans significantly more complex and more 
expensive. Agreement among the diverse members of a recovery 
planning team within strict deadlines will probably require 
professional facilitators, especially in cases where a plan 
potentially affects many very different stakeholders (miners, 
loggers, real estate developers etc.) across state boundaries.
    This ESA reauthorization effort can only succeed on the 
ground if we find a way to secure a reliable source of funding 
for ESA implementation and we provide adequate funds.
    My other major concern is the lack of a clear species 
protection standard requirement for Habitat Conservation Plans 
(HCPs) and its potential effect on achieving the goal of 
species recovery. A strong and clear HCP standard is vitally 
important given the fact that many listed species occur almost 
exclusively on private land.
    HCPs are plans agreed to by private landowners in exchange 
for a permit from the FWS and NMFS to ``take'' an endangered or 
threatened species. A permit to ``take'' a listed species 
allows a landowner to harass, harm, pursue, hunt, shoot, wound, 
trap, capture or collect a listed species. ``Harm'' includes 
the modification of habitat if it interferes with the nesting 
or reproduction of a listed species. The permit is granted in 
exchange for a commitment by a landowner to implement actions. 
including the minimization and mitigation of the impact of the 
permitted ``take'' activities and an agreement to conduct 
activities to conserve listed species habitat.
    Implementation of the ESA has changed significantly since 
1990 with the dramatic increase in the number and extent of 
HCPs being approved by the Secretaries of the Interior and 
Commerce. Because many recovery plans are not being 
implemented, HCPs are currently the primary means through which 
any habitat protection is being provided to listed species on 
nonfederal lands.
    The standard in current law and in S. 1180 which applies to 
an HCP's ``take'' of a listed species is that the ``take'' 
cannot ``appreciably reduce the likelihood of the survival and 
recovery of the species in the wild''
    There has been much debate on how to interpret the 
``survival and recovery'' standard with some arguing that it 
means mere short-term survival of species and others arguing 
that ``survival and recovery'' means that HCPs must not 
undermine and must promote long-term species recovery.
    The net effect of this debate is that the standard is not 
being implemented consistently to mean recovery. This is of 
great concern given the FWS and NMFS race to approve HCPs.
    Some California HCPs have clearly adopted the promotion of 
recovery as the species protection standard. For example, the 
FWS has been very clear about its intent to ensure that the San 
Diego Multiple Species Conservation Plan (MSCP) promotes the 
recovery of species. In a March 18, 1997 statement before the 
San Diego City Council, FWS Regional Director Mike Spear said:
    ``The (San Diego) MSCP will provide for the recovery of 
covered species within the proposed reserve--whether they be 
species with narrow or wide ranges. For species with restricted 
ranges (i.e. many of the plants), the MSCP will be the vehicle 
for recovery. For other species dependent on vegetation 
communities conserved in the plan (ie. Gnatcatchers in coastal 
sage scrub), the MSCP will likewise support recovery. Finally, 
for wide-ranging species (ie. the golden eagle), the MSCP will 
contribute to their overall conservation through the protection 
of large, interconnected blocks of habitat versus the small 
patches of habitat that result from project-by-project 
mitigation.''
    However, there are examples in other parts of the country 
where the FWS is under heavy criticism from the scientific 
community for only pursuing the mere ``survival'' of listed 
species. For example, HCPs being approved for the red-cockaded 
woodpecker allow landowners to destroy all of the habitat on 
their property in exchange for building artificial woodpecker 
cavities on public lands. This is viewed by independent 
scientists as being inconsistent with species recovery in the 
wild.
    We must take this opportunity to clarify that the HCP 
``survival and recovery'' standard means that HCPs must go 
beyond merely ensuring the survival of a species. The ``take'' 
approved by the FWS or the NMFS must only occur in exchange for 
HCP mitigation, minimization and other measures that will help 
the recovery of the species.
    If we fail to clarify this now, we will have many HCPs that 
work against the goal of the ESA because they in effect 
undermine the recovery of species. As a result, efforts to 
recover species (via the implementation of recovery plans) will 
be more difficult, complex and expensive and in some cases may 
be rendered impossible.
    Furthermore, I believe that the review by FWS and NMFS of 
Federal actions should be held to the same clear recovery 
standard. We can achieve this by ensuring that Section 7 
consultations (where Federal agencies review how an action 
which they authorize, fund or carry out, may affect listed 
species) require recovery as a standard.
    S. 1180 strengthens current law by requiring a recovery 
standard for candidate and other unlisted species so it is hard 
to fathom why this would not be applied to listed species.
    If we combine S. 1180's lack of assured funding and it's 
weak HCP species protection standard with S. 1180's provisions 
on ``no surprises'', the web that holds a functional ESA 
together looks even more precarious.
    Under ``no surprises'', a landowner participating in an HCP 
will not have to bear the cost of any additional actions that 
might be needed to ensure species survival and recovery even 
when new scientific and biological data shows that additional 
measures are needed to achieve the goals of the HCP.
    ``No surprises'' is particularly troubling given the fact 
that HCP agreements cover not only listed species for which we 
would have sound scientific data, but also candidate and other 
unlisted species for which we may have little scientific 
information.
    If the HCP standard is species recovery, and we have 
assured funding to cover the cost of additional mitigation 
measures, then ``no surprises'' is a reasonable concession as 
long as the performance of the HCP is closely monitored for 
both compliance (with the HCP agreement) and biological 
performance (to ensure that the HCP is achieving the goal of 
recovery).
    The other key factor is to ensure that there is a legal 
mechanism (not included in S. 1180) to re-open an HCP if its 
biological performance is low or new science indicates that 
additional measures are needed. The ``no surprises'' policy 
gives landowners certainty and we should ensure that it also 
means no surprises for species protection.
    In S. 1180 HCPs have neither a clear recovery standard nor 
assured funding. ``No surprises'' could therefore spell 
disaster in cases where an HCP hurts species recovery, is 
nonfunctional, or is rendered inadequate given new science.
    We are at a crossroads in the challenge to conserve our 
Nation's biological diversity for our generation and future 
generations.
    I hope that we will be able to improve S. 1180 when it 
reaches the Senate floor on at least the two issues I have 
addressed--assured funding and a clear species recovery 
standard for HCPs and Section 7 consultations . We will 
otherwise continue to have a reauthorization bill that does not 
have the support of a single environmental organization.
                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: existing law as proposed to 
be omitted is enclosed between [bold brackets]; new matter 
proposed to be added to existing law is printed in italic; and 
existing law in which no change is proposed is shown in roman.

              ENDANGERED SPECIES ACT OF 1973 1
---------------------------------------------------------------------------

    \1\ As amended by P.L. 94-325, June 30, 1976; P.L. 94-359, July 12, 
1976; P.L. 95-212, December 19, 1977; P.L. 95-632, November 10, 1978; 
P.L. 96-159, December 28, 1979; 97-304, October 13, 1982; P.L. 98-327, 
June 25, 1984; and P.L. 100-478, October 7, 1988; P.L. 100-653, 
November 14, 1988; and P.L. 100-707, November 23, 1988.
---------------------------------------------------------------------------

            [As Amended Through P.L. 104-333, Nov. 12, 1996]

  AN ACT To provide for the conservation of endangered and threatened 
     species of fish, wildlife, and plants, and for other purposes.

      Be it enacted by the Senate and House of Representatives 
of the United States of America in Congress assembled, That 
this Act may be cited as the ``Endangered Species Act of 
1973''.

                           TABLE OF CONTENTS

 Sec. 2. Findings, purposes, and policy.
Sec. 3. [Definitions] Definitions and general provisions.
Sec. 4. Determination of endangered species and threatened species.
Sec. 5. [Land acquisition.] Recovery plans.
Sec. 5A. Land acquisition.
Sec. 6. Cooperation with the States.
Sec. 7. Interagency cooperation.
Sec. 8. International cooperation.
Sec. 8A. Convention implementation.
Sec. 9. Prohibited acts.
Sec. 10. [Exceptions.] Conservation measures and exceptions.
Sec. 11. Penalties and enforcement.
Sec. 12. Endangered plants.
Sec. 13. [Conforming amendments.] Private property owners education and 
          technical assistance program.
Sec. 14. Repealer.
Sec. 15. Authorization of appropriations.
Sec. 16. Effective date.
Sec. 17. Marine Mammal Protection Act of 1972.
Sec. 18. Annual cost analysis by the Fish and Wildlife Service.

                     findings, purposes, and policy

    Sec. 2. (a) Findings.--The Congress finds and declares 
that--
            (1) various species of fish, wildlife, and plants 
        in the United States have been rendered extinct as a 
        consequence of economic growth and development 
        untempered by adequate concern and conservation;
            (2) other species of fish, wildlife, and plants 
        have been so depleted in numbers that they are in 
        danger of or threatened with extinction;
            (3) these species of fish, wildlife, and plants are 
        of esthetic, ecological, educational, historical, 
        recreational, commercial, and scientific value to the 
        Nation and its people;
            (4) the United States has pledged itself as a 
        sovereign state in the international community to 
        conserve to the extent practicable the various species 
        of fish or wildlife and plants facing extinction, 
        pursuant to--
                    (A) migratory bird treaties with Canada and 
                Mexico;
                    (B) the Migratory and Endangered Bird 
                Treaty with Japan;
                    (C) the Convention on Nature Protection and 
                Wildlife Preservation in the Western 
                Hemisphere;
                    (D) the International Convention for the 
                Northwest Atlantic Fisheries;
                    (E) the International Convention for the 
                High Seas Fisheries of the North Pacific Ocean;
                    (F) the Convention on International Trade 
                in Endangered Species of Wild Fauna and Flora; 
                and
                    (G) other international agreements; and
            (5) encouraging the States and other interested 
        parties, through Federal financial assistance and a 
        system of incentives, to develop and maintain 
        conservation programs which meet national and 
        international standards is a key to meeting the 
        Nation's international commitments and to better 
        safeguarding, for the benefit of all citizens, the 
        Nation's heritage in fish, wildlife, and plants.
    (b) Purposes.--The purposes of this Act are to provide a 
means whereby the ecosystems upon which endangered species and 
threatened species depend may be conserved, to provide a 
program for the conservation of such endangered species and 
threatened species, and to take such steps as may be 
appropriate to achieve the purposes of the treaties and 
conventions set forth in subsection (a) of this section.
    (c) Policy.--(1) It is further declared to be the policy of 
Congress that all Federal departments and agencies shall seek 
to conserve endangered species and threatened species and shall 
utilize their authorities in furtherance of the purposes of 
this Act.
    (2) It is further declared to be the policy of Congress 
that Federal agencies shall cooperate with State and local 
agencies to resolve water resource issues in concert with 
conservation of endangered species.
    (3) Agency coordination.--Federal agencies are encouraged 
to coordinate and collaborate to further the conservation of 
endangered species and threatened species.

(16 U.S.C. 1531)

                              definitions

    Sec. 3. [For the purposes of this Act--] Definitions and 
General Provisions
    (a) Definitions.--In this Act:
    (1) The term ``alternative courses of action'' means all 
alternatives and thus is not limited to original project 
objectives and agency jurisdiction.
    (2) Candidate species.--The term ``candidate species'' 
means a species for which the Secretary has on file sufficient 
information on biological vulnerability and threats to support 
a proposal to list the species as an endangered species or a 
threatened species, but for which listing is precluded because 
of pending proposals to list species that are of a higher 
priority. This paragraph shall not apply to any species defined 
as a candidate species by the Secretary of Commerce prior to 
the date of enactment of this sentence.
    [(2)] (3) The term ``commercial activity'' means all 
activities of industry and trade, including, but not limited 
to, the buying or selling of commodities and activities 
conducted for the purpose of facilitating such buying and 
selling: Provided, however, That it does not include 
exhibitions of commodities by museums or similar cultural or 
historical organizations.
    [(3)] (4) The terms ``conserve,'' ``conserving,'' and 
``conservation'' mean to use and the use of all methods and 
procedures which are necessary to bring any endangered species 
or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all 
activities associated with scientific resources management such 
as research, census, law enforcement, habitat acquisition and 
maintenance, propagation, live trapping, and transplantation, 
and, in the extraordinary case where population pressures 
within a given ecosystem cannot be otherwise relieved, may 
include regulated taking.
    [(4)] (5) The term ``Convention'' means the Convention on 
International Trade in Endangered Species of Wild Fauna and 
Flora, signed on March 3, 1973, and the appendices thereto.
    [(5)] (6)(A) The term ``critical habitat'' for a threatened 
or endangered species means--
          (i) the specific areas within the geographical area 
        occupied by the species, at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, on which are found those physical or biological 
        features (I) essential to the conservation of the 
        species and (II) which may require special management 
        considerations or protection; and
            (ii) specific areas outside the geographical area 
        occupied by the species at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, upon a determination by the Secretary that such 
        areas are essential for the conservation of the 
        species.
    (B) Critical habitat may be established for those species 
now listed as threatened or endangered species for which no 
critical habitat has heretofore been established as set forth 
in subparagraph (A) of this paragraph.
    (C) Except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire 
geographical area which can be occupied by the threatened or 
endangered species.
    [(6)] (7) The term ``endangered species'' means any species 
which is in danger of extinction throughout all or a 
significant portion of its range other than a species of the 
Class Insecta determined by the Secretary to constitute a pest 
whose protection under the provisions of this Act would present 
an overwhelming and overriding risk to man.
    [(7)] (8) The term ``Federal agency'' means any department, 
agency, or instrumentality of the United States.
    [(8)] (9) The term ``fish or wildlife'' means any member of 
the animal kingdom, including without limitation any mammal, 
fish, bird (including any migratory, nonmigratory, or 
endangered bird for which protection is also afforded by treaty 
or other international agreement), amphibian, reptile, mollusk, 
crustacean, arthropod or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the dead body or 
parts thereof.
    [(9)] (10) The term ``foreign commerce'' includes, among 
other things, any transaction--
            (A) between persons within one foreign country;
            (B) between persons in two or more foreign 
        countries;
            (C) between a person within the United States and a 
        person in a foreign country; or
            (D) between persons within the United States, where 
        the fish and wildlife in question are moving in any 
        country or countries outside the United States.
    [(10)] (11) The term ``import'' means to land on, bring 
into, or introduce into or attempt to land on, bring into, or 
introduce into, any place subject to the jurisdiction of the 
United States, whether or not such landing, bringing, or 
introduction constitutes an importation within the meaning of 
the customs laws of the United States.
    (12) In cooperation with the states.--The term ``in 
cooperation with the States'' means a process under which--
            (A) the State agency in each of the affected 
        States, or the representative of the State agency, is 
        given an opportunity to participate in a meaningful and 
        timely manner in the development of the standards, 
        guidelines, and regulations to implement the applicable 
        provisions of this Act; and
            (B) the Secretary carefully considers all 
        substantive concerns raised by the State agency, or the 
        representative of the State agency, and, to the maximum 
        extent practicable consistent with this Act, 
        incorporates their suggestions and recommendations, 
        while retaining final decision making authority.
    [(12)] (13) The term ``permit or license applicant'' means, 
when used with respect to an action of a Federal agency for 
which exemption is sought under section 7, any person whose 
application to such agency for a permit or license has been 
denied primarily because of the application of section 7(a) to 
such agency action.
    [(13)] (14) The term ``person'' means an individual, 
corporation, partnership, trust, association, or any other 
private entity; or any officer, employee, agent, department, or 
instrumentality of the Federal Government, of any State, 
municipality, or political subdivision of a State, or of any 
foreign government; any State, municipality, or political 
subdivision of a State; or any other entity subject to the 
jurisdiction of the United States.
    [(14)] (15) The term ``plant'' means any member of the 
plant kingdom, including seeds, roots and other parts thereof.
    [(15)] (16) Reasonable and prudent alternatives.--The term 
``reasonable and prudent alternatives'' means alternative 
actions identified during consultation that can be implemented 
in a manner consistent with the intended purpose of the action, 
that can be implemented consistent with the scope of the legal 
authority and jurisdiction of the Federal agency, that are 
economically and technologically feasible, and that the 
Secretary believes would avoid the likelihood of jeopardizing 
the continued existence of listed species or resulting in the 
destruction or adverse modification of critical habitat.
    (17) Rural area.--The term ``rural area'' means a county or 
unincorporated area that has no city or town that has a 
population of more than 10,000 inhabitants.
    [(15)] (18) The term ``Secretary'' means, except as 
otherwise herein provided, the Secretary of the Interior or the 
Secretary of Commerce as program responsibilities are vested 
pursuant to the provisions of Reorganization Plan Numbered 4 of 
1970; except that with respect to the enforcement of the 
provisions of this Act and the Convention which pertain to the 
importation or exportation of terrestrial plants, the term also 
means the Secretary of Agriculture.
    [(16)] (19) The term ``species'' includes any subspecies of 
fish or wildlife or plants, and any distinct population segment 
of any species or vertebrate fish or wildlife which interbreeds 
when mature.
    [(17)] (20) The term ``State'' means any of the several 
States, the District of Columbia, the Commonwealth of Puerto 
Rico, American Samoa, the Virgin Islands, Guam, and the [Trust 
Territory of the Pacific Islands] Commonwealth of the Northern 
Mariana Island.
    [(18)] (21) The term ``State agency'' means any State 
agency, department, board, commission, or other governmental 
entity which is responsible for the management and conservation 
of fish, plant, or wildlife resources within a State.
    [(19)] (22) The term ``take'' means to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or 
to attempt to engage in any such conduct.
    (23) Territorial sea.--The term ``territorial sea'' means 
the 12-nautical-mile maritime zone set forth in Presidential 
Proclamation 5928, dated December 27, 1988.
    [(20)] (24) The term ``threatened species'' means any 
species which is likely to become an endangered species within 
the foreseeable future throughout all or a significant portion 
of its range.
    [(21)] (25) The term ``United States,'' when used in a 
geographical context, includes all States.

(16 U.S.C. 1532)

    (b) General Provisions.--
            (1) Best scientific and commercial data 
        available.--Where this Act requires the Secretary to 
        use the best scientific and commercial data available, 
        the Secretary, when evaluating comparable data, shall 
        give greater weight to scientific or commercial data 
        that is empirical or has been field-tested or peer-
        reviewed.
            (2) Freedom of information act exemption.--The 
        Secretary, and the head of any other Federal agency on 
        the recommendation of the Secretary, may withhold or 
        limit the availability of data requested to be released 
        pursuant to section 552 of title 5, United States Code, 
        if the data describe or identify the location of an 
        endangered species, a threatened species, or a species 
        that has been proposed to be listed as threatened or 
        endangered, and release of the data would be likely to 
        result in an increased taking of the species, except 
        that data shall not be withheld pursuant to this 
        paragraph in response to a request regarding the 
        presence of those species on private land by the owner 
        of that land.

       determination of endangered species and threatened species

    Sec. 4. (a) 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;
            (B) overutilization for commercial, recreational, 
        scientific, or educational purposes;
            (C) introduced species, competition, disease or 
        predation;
            (D) the inadequacy of existing Federal, State, and 
        local government and international regulatory 
        mechanisms; or
            (E) other natural or manmade factors affecting its 
        continued existence.
    (2) With respect to any species over which program 
responsibilities have been vested in the Secretary of Commerce 
pursuant to Reorganization Plan Numbered 4 of 1970--
            (A) in any case in which the Secretary of Commerce 
        determines that such species should--
                    (i) be listed as an endangered species or a 
                threatened species, or
                    (ii) be changed in status from a threatened 
                species to an endangered species, he shall so 
                inform the Secretary of the Interior, who shall 
                list such species in accordance with this 
                section;
            (B) in any case in which the Secretary of Commerce 
        determines that such species should--
                    (i) be removed from any list published 
                pursuant to subsection (c) of this section, or
                    (ii) be changed in status from an 
                endangered species to a threatened species, he 
                shall recommend such action to the Secretary of 
                the Interior, and the Secretary of the 
                Interior, if he concurs in the recommendation, 
                shall implement such action; and
            (C) the Secretary of the Interior may not list or 
        remove from any list any such species, and may not 
        change the status of any such species which are listed, 
        without a prior favorable determination made pursuant 
        to this section by the Secretary of Commerce.
    [(3) The Secretary, by regulation promulgated in accordance 
with subsection (b) and to the maximum extent prudent and 
determinable--
            [(A) shall, concurrently with making a 
        determination under paragraph (1) that a species is an 
        endangered species or a threatened species, designate 
        any habitat of such species which is then considered to 
        be critical habitat; and
            [(B) may, from time-to-time thereafter as 
        appropriate, revise such designation.]
    (b) Basis for Determinations.--(1)(A) The Secretary shall 
make determinations required by subsection (a)(1) solely on the 
basis of the best scientific and commercial data available to 
him after conducting a review of the status of the species and 
after taking into account those efforts, if any, being made by 
any State or foreign nation, or any political subdivision of a 
State or foreign nation, to protect such species, whether by 
predator control, protection of habitat and food supply, or 
other conservation practices, within any area under its 
jurisdiction, or on the high seas.
    (B) In carrying out this section, the Secretary shall give 
consideration to species which have been--
            (i) designated as requiring protection from 
        unrestricted commerce by any foreign nation, or 
        pursuant to any international agreement; or
            (ii) identified as in danger of extinction, or 
        likely to become so within the foreseeable future, by 
        any State agency or by any agency of a foreign nation 
        that is responsible for the conservation of fish or 
        wildlife or plants.
    (2) [The Secretary shall designate critical habitat, and 
make revisions thereto, under subsection (a)(3) on the basis of 
the best scientific data available and after taking into 
consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. 
The Secretary may exclude any area from critical habitat if he 
determines that the benefits of such exclusion outweight the 
benefits of specifying such area as part of the critical 
habitat, unless he determines, based on the best scientific and 
commercial data available, that the failure to designate such 
area as critical habitat will result in the extinction of the 
species concerned.]
    (2) Delisting.--The Secretary shall, in accordance with 
section 5 and on a determination that the goals of the recovery 
plan for a species have been met, initiate the procedures for 
determining, in accordance with subsection (a)(1), whether to 
remove the species from a list published under subsection (c).
    [(3)(A) To the maximum extent practicable, within 90 days 
after receiving the petition of an interested person under 
section 553(e) of title 5, United States Code, to add a species 
to, or to remove a species from, either of the lists published 
under subsection (c), the Secretary shall make a finding as to 
whether the petition presents substantial scientific or 
commercial information indicating that the petitioned action 
may be warranted. If such a petition is found to present such 
information, the Secretary shall promptly commence a review of 
the status of the species concerned. The Secretary shall 
promptly publish each finding made under this subparagraph in 
the Federal Register.
    [(B) Within 12 months after receiving a petition that is 
found under subparagraph (A) to present substantial information 
indicating that the petitioned action may be warranted, the 
Secretary shall make one of the following findings:
            [(i) The petitioned action is not warranted, in 
        which case the Secretary shall promptly publish such 
        finding in the Federal Register.
            [(ii) The petitioned action is warranted in which 
        case the Secretary shall promptly publish in the 
        Federal Register a general notice and the complete text 
        of a proposed regulation to implement such action in 
        accordance with paragraph (5).
            [(iii) The petitioned action is warranted but 
        that--
                    [(I) the immediate proposal and timely 
                promulgation of a final regulation implementing 
                the petitioned action in accordance with 
                paragraphs (5) and (6) is precluded by pending 
                proposals to determine whether any species is 
                an endangered species or a threatened species, 
                and
                    [(II) expeditious progress is being made to 
                add qualified species to either of the lists 
                published under subsection (c) and to remove 
                from such lists species for which the 
                protections of the Act are no longer necessary.
        in which case the Secretary shall promptly publish such 
        finding in the Federal Register, together with a 
        description and evaluation of the reasons and data on 
        which the finding is based.
    [(C)(i) A petition with respect to which a finding is made 
under subparagraph (B)(iii) shall be treated as a petition that 
is resubmitted to the Secretary under subparagraph (A) on the 
date of such finding and that presents substantial scientific 
or commercial information that the petitioned action may be 
warranted.
    [(ii) Any negative finding described in subparagraph (A) 
and any finding described in subparagraph (B)(i) or (iii) shall 
be subject to judicial review.
    [(iii) The Secretary shall implement a system to monitor 
effectively the status of all species with respect to which a 
finding is made under subparagraph (B)(iii) and shall make 
prompt use of the authority under paragraph 7 to prevent a 
significant risk to the well being of any such species.
    [(D)(i) To the maximum extent practicable, within 90 days 
after receiving the petition of an interested person under 
section 553(e) of title 5, United States Code, to revise a 
critical habitat designation, the Secretary shall make a 
finding as to whether the petition presents substantial 
scientific information indicating that the revision may be 
warranted. The Secretary shall promptly publish such finding in 
the Federal Register.
    [(ii) Within 12 months after receiving a petition that is 
found under clause (i) to present substantial information 
indicating that the requested revision may be warranted, the 
Secretary shall determine how he intends to proceed with the 
requested revision, and shall promptly publish notice of such 
intention in the Federal Register.]
    (3) Response to petitions.--
            (A) Action may be warranted.--
                    (i) In general.--To the maximum extent 
                practicable, not later than 90 days after 
                receiving the petition of an interested person 
                under section 553(e) of title 5, United States 
                Code, to--
                            (I) add a species to;
                            (II) remove a species from; or
                            (III) change the status of a 
                        species from a previous determination 
                        with respect to;
                either of the lists published under subsection 
                (c), the Secretary shall make a finding as to 
                whether the petition presents substantial 
                scientific or commercial information indicating 
                that the petitioned action may be warranted. If 
                a petition is found to present such 
                information, the Secretary shall promptly 
                commence a review of the status of the species 
                concerned. The Secretary shall promptly publish 
                each finding made under this subparagraph in 
                the Federal Register.
                    (ii) Minimum documentation.--A finding that 
                the petition presents the information described 
                in clause (i) shall not be made unless the 
                petition provides--
                            (I) documentation that the fish, 
                        wildlife, or plant that is the subject 
                        of the petition is a species;
                            (II) a description of the available 
                        data on the historical and current 
                        range and distribution of the species;
                            (III) an appraisal of the available 
                        data on the status and trends of 
                        populations of the species;
                            (IV) an appraisal of the available 
                        data on the threats to the species; and
                            (V) an identification of the 
                        information contained or referred to in 
                        the petition that has been peer-
                        reviewed or field-tested.
                    (iii) Notification to the states.--
                            (I) Petitioned actions.--If the 
                        petition is found to present the 
                        information described in clause (i), 
                        the Secretary shall notify and provide 
                        a copy of the petition to the State 
                        agency in each State in which the 
                        species is believed to occur and 
                        solicit the assessment of the agency, 
                        to be submitted to the Secretary not 
                        later than 90 days after the 
                        notification, as to whether the 
                        petitioned action is warranted.
                            (II) Other actions.--If the 
                        Secretary has not received a petition 
                        for a species and the Secretary is 
                        considering proposing to list such 
                        species as either threatened or 
                        endangered under subsection (a), the 
                        Secretary shall notify the State agency 
                        in each State in which the species is 
                        believed to occur and solicit the 
                        assessment of the agency, to be 
                        submitted to the Secretary not later 
                        than 90 days after the notification, as 
                        to whether the listing would be in 
                        accordance with subsection (a).
                            (III) Consideration of state 
                        assessments.--Prior to publication of a 
                        determination that a petitioned action 
                        is warranted or the issuance of a 
                        proposed regulation, the Secretary 
                        shall consider any State assessments 
                        submitted within the comment period 
                        established by subclause (I) or (II).
            (B) Petition to change status or delist.--A 
        petition may be submitted to the Secretary under 
        subparagraph (A) to change the status of a species or 
        to remove a species from either of the lists published 
        under subsection (c) in accordance with subsection 
        (a)(1), if--
                    (i) the current listing is no longer 
                appropriate because of a change in the factors 
                identified under subsection (a)(1); or
                    (ii) with respect to a petition to remove a 
                species from either of the lists--
                            (I) new data or a reinterpretation 
                        of prior data indicate that removal is 
                        appropriate;
                            (II) the species is extinct; or
                            (III) the recovery goals 
                        established for the species in a 
                        recovery plan approved under section 
                        5(h) have been achieved.
            (C) Determination.--Not later than one year after 
        receiving a petition that is found under subparagraph 
        (A)(i) to present substantial information indicating 
        that the petitioned action may be warranted, the 
        Secretary shall make one of the following findings:
                    (i) Not warranted.--The petitioned action 
                is not warranted, in which case the Secretary 
                shall promptly publish the finding in the 
                Federal Register.
                    (ii) Warranted.--The petitioned action is 
                warranted, in which case the Secretary shall 
                promptly publish in the Federal Register a 
                general notice and the complete text of a 
                proposed regulation to implement the action in 
                accordance with paragraph (5).
                    (iii) Warranted but precluded.--The 
                petitioned action is warranted, but--
                    (I) the immediate proposal and timely 
                promulgation of a final regulation implementing 
                the petitioned action in accordance with 
                paragraphs (5) and (6) is precluded by pending 
                proposals to determine whether any species is 
                an endangered species or a threatened species; 
                and
                    (II) expeditious progress is being made to 
                add qualified species to either of the lists 
                published under subsection (c) and to remove 
                from the lists species for which the 
                protections of this Act are no longer 
                necessary;
                in which case the Secretary shall promptly 
                publish the finding in the Federal Register, 
                together with a description and evaluation of 
                the reasons and data on which the finding is 
                based.
                    (D) Subsequent determination.--A petition 
                with respect to which a finding is made under 
                subparagraph (C)(iii) shall be treated as a 
                petition that is resubmitted to the Secretary 
                under subparagraph (A) on the date of the 
                finding and that presents substantial 
                scientific or commercial information that the 
                petitioned action may be warranted.
                    (E) Judicial review.--Any negative finding 
                described in subparagraph (A)(i) and any 
                finding described in clause (i) or (iii) of 
                subparagraph (C) shall be subject to judicial 
                review.
                    (F) Monitoring and emergency listing.--The 
                Secretary shall implement a system to monitor 
                effectively the status of each species with 
                respect to which a finding is made under 
                subparagraph (C)(iii) and shall make prompt use 
                of the authority under paragraph (7) to prevent 
                a significant risk to the well-being of the 
                species.
    (4) Except as provided in paragraphs (5) and (6) of this 
subsection, the provisions of section 553 of title 5, United 
States Code (relating to rulemaking procedures), shall apply to 
any regulation promulgated to carry out the purposes of this 
Act.
    [(5) With respect to any regulation] (5) Proposed 
regulations and review.--With respect to any regulation 
proposed by the Secretary to implement [a determination, 
designation, or revision] a determination or change in status 
referred to in subsection [(a)(1) or (3),] (a)(1), the 
Secretary shall--
            (A) not less than 90 days before the effective date 
        of the regulation--
                    (i) publish a general notice and the 
                complete text of the proposed regulation [in 
                the Federal Register,] in the Federal Register 
                as provided by paragraph (8), and
                    (ii) give actual notice of the proposed 
                regulation (including the complete text of the 
                regulation) to the State agency in each State 
                in which the species is believed to occur, and 
                to each county or equivalent jurisdiction in 
                which the species is believed to occur, and 
                invite the comment of such agency, and each 
                such jurisdiction, thereon;
            (B) insofar as practical, and in cooperation with 
        the Secretary of State, give notice of the proposed 
        regulation to each foreign nation in which the species 
        is believed to occur or whose citizens harvest the 
        species on the high seas, and invite the comment of 
        such nation thereon;
            (C) give notice of the proposed regulation to such 
        professional scientific organizations as he deems 
        appropriate;
            (D) publish a summary of the proposed regulation in 
        a newspaper of general circulation in each area of the 
        United States in which the species is believed to 
        occur; and
            [(E) promptly hold one public hearing on the 
        proposed regulation if any person files a request for 
        such a hearing within 45 days after the date of 
        publication of general notice.]
            (E) at the request of any person not later than 45 
        days after the date of publication of general notice, 
        promptly hold at least one public hearing in each State 
        that would be affected by the proposed regulation 
        (including at least one hearing in an affected rural 
        area, if any) except that the Secretary shall not be 
        required to hold more than five hearings under this 
        subparagraph.
    [(6)(A) Within the one-year period beginning on the date on 
which general notice is published in accordance with paragraph 
(5)(A)(i) regarding a proposed regulation, the Secretary shall 
publish in the Federal Register--
            (i) if a determination as to whether a species is 
        an endangered species or a threatened species, or a 
        revision of critical habitat, is involved, either--
                    (I) a final regulation to implement such 
                determination,
                    (II) a final regulation to implement such 
                revision or a finding that such revision should 
                not be made,
                    (III) notice that such one-year period is 
                being extended under subparagraph (B)(i), or
                    (IV) notice that the proposed regulation is 
                being withdrawn under subparagraph (B)(ii), 
                together with the finding on which such 
                withdrawal is based; or
            (ii) subject to subparagraph (C), if a designation 
        of critical habitat is involved, either--
                    (I) a final regulation to implement such 
                designation, or
                    (II) notice that such one-year period is 
                being extended under such subparagraph.]
    (6) Final regulations.--
            (A) In general.--Within the one-year period 
        beginning on the date on which general notice is 
        published in accordance with paragraph (5)(A)(i) 
        regarding a proposed regulation, the Secretary shall 
        publish in the Federal Register--
                    (i) a final regulation to implement the 
                determination;
                    (ii) notice that the 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 the 
                withdrawal is based.
    (B)(i) If the Secretary finds with respect to a proposed 
regulation referred to in subparagraph (A)(i) that there is 
substantial disagreement regarding the sufficiency or accuracy 
of the available data relevant to the determination [or 
revision] concerned, the Secretary may extend the one-year 
period specified in subparagraph (A) for not more than six 
months for purposes of soliciting additional data.
    (ii) If a proposed regulation referred to in subparagraph 
(A)(i) is not promulgated as a final regulation within such 
one-year period (or longer period if extension under clause (i) 
applies) because the Secretary finds that there is not 
sufficient evidence to justify the action proposed by the 
regulation, the Secretary shall immediately withdraw the 
regulation. The finding on which a withdrawal is based shall be 
subject to judicial review. The Secretary may not propose a 
regulation that has previously been withdrawn under this clause 
unless he determines that sufficient new information is 
available to warrant such proposal.
    (iii) If the one-year period specified in subparagraph (A) 
is extended under clause (i) with respect to a proposed 
regulation, then before the close of such extended period the 
Secretary shall publish in the Federal Register either a final 
regulation to implement the determination [or revision 
concerned, a finding that the revision should not be made,] or 
a notice of withdrawal of the regulation under clause (ii), 
together with the finding on which the withdrawal is based.
    (C) A final regulation designating critical habitat of an 
endangered species or a threatened species shall be published 
concurrently with the final regulation implementing the 
determination that such species is endangered or threatened, 
unless the Secretary deems that--
            (i) it is essential to the conservation of such 
        species that the regulation implementing such 
        determination be promptly published; or
            (ii) critical habitat of such species is not then 
        determinable, in which case the Secretary, with respect 
        to the proposed regulation to designate such habitat, 
        may extend the one-year period specified in 
        subparagraph (A) by not more than one additional year, 
        but not later than the close of such additional year 
        the Secretary must publish a final regulation, based on 
        such data as may be available at that time, 
        designating, to the maximum extent prudent, such 
        habitat.
    (7) Neither paragraph (4), (5), or (6) of this subsection 
nor section 553 of title 5, United States Code, shall apply to 
any regulation issued by the Secretary in regard to any 
emergency posing a significant risk to the well-being of any 
species of fish and wildlife or plants, but only if--
            (A) at the time of publication of the regulation in 
        the Federal Register the Secretary publishes therein 
        detailed reasons why such regulation is necessary; and
            (B) in the case such regulation applies to resident 
        species of fish or wildlife, or plants, the Secretary 
        gives actual notice of such regulation to the State 
        agency in each State in which such species is believed 
        to occur.
Such regulation shall, at the discretion of the Secretary, take 
effect immediately upon the publication of the regulation in 
the Federal Register. Any regulation promulgated under the 
authority of this paragraph shall cease to have force and 
effect at the close of the 240-day period following the date of 
publication unless, during such 240-day period, the rulemaking 
procedures which would apply to such regulation without regard 
to this paragraph are complied with. If at any time after 
issuing an emergency regulation the Secretary determines, on 
the basis of the best appropriate data available to him, that 
substantial evidence does not exist to warrant such regulation, 
he shall withdraw it.
    (8) The publication in the Federal Register of any proposed 
or final regulation which is necessary or appropriate to carry 
out the purposes of this Act shall include [a summary by the 
Secretary of the data] a summary by the Secretary of the best 
scientific and commercial data available on which such 
regulation [is based and shall] is based, shall show the 
relationship of such data to such [regulation; and if such 
regulation designates or revises critical habitat, such summary 
shall, to the maximum extent practicable, also include a brief 
description and evaluation of those activities (whether public 
or private) which, in the opinion of the Secretary, if 
undertaken may adversely modify such habitat, or may be 
affected by such designation.] regulation, and shall provide, 
to the degree that it is relevant and available, information 
regarding the status of the affected species, including current 
population, population trends, current habitat, food sources, 
predators, breeding habits, captive breeding efforts, 
governmental and nongovernmental conservation efforts, or other 
pertinent information.
    (9) Additional data._
            (A) In general.--The Secretary shall identify and 
        publish in the Federal Register with the notice of a 
        proposed regulation pursuant to paragraph (5)(A)(i) a 
        description of additional scientific and commercial 
        data that would assist in the preparation of a recovery 
        plan and--
                    (i) invite any person to submit the data to 
                the Secretary; and
                    (ii) describe the steps that the Secretary 
                plans to take for acquiring additional data.
            (B) Recovery planning.--Data identified and 
        obtained under subparagraph (A) shall be considered by 
        the recovery team and the Secretary in the preparation 
        of the recovery plan in accordance with section 5.
            (C) No delay authorized.--Nothing in this paragraph 
        waives or extends any deadline for publishing a final 
        rule to implement a determination (except for the 
        extension provided in paragraph (6)(B)(i)) or any 
        deadline under section 5.
    (10) Independent scientific review._
            (A) In general.--In the case of a regulation 
        proposed by the Secretary to implement a determination 
        under subsection (a)(1) that any species is an 
        endangered species or a threatened species or that any 
        species currently listed as an endangered species or a 
        threatened species should be removed from any list 
        published pursuant to subsection (c), the Secretary 
        shall provide for independent scientific peer review 
        by--
                    (i) selecting independent referees pursuant 
                to subparagraph (B); and
                    (ii) requesting the referees to conduct the 
                review, considering all relevant information, 
                and make a recommendation to the Secretary in 
                accordance with this paragraph not later than 
                150 days after the general notice is published 
                pursuant to paragraph (5)(A)(i).
            (B) Selection of referees.--For each independent 
        scientific review to be conducted pursuant to 
        subparagraph (A), the Secretary shall select three 
        independent referees from a list provided by the 
        National Academy of Sciences, who--
                    (i) through publication of peer-reviewed 
                scientific literature or other means, have 
                demonstrated scientific expertise on the 
                species or a similar species or other 
                scientific expertise relevant to the decision 
                of the Secretary under subsection (a);
                    (ii) do not have, or represent any person 
                with, a conflict of interest with respect to 
                the determination that is the subject of the 
                review; and
                    (iii) are not participants in a petition to 
                list, change the status of, or remove the 
                species under paragraph (3)(A)(i), the 
                assessment of a State for the species under 
                paragraph (3)(A)(iii), or the proposed or final 
                determination of the Secretary.
            (C) Final determination.--The Secretary shall take 
        one of the actions under paragraph (6)(A) not later 
        than one year after the date of publication of the 
        general notice of the proposed determination. If the 
        referees have made a recommendation in accordance with 
        subparagraph (A)(ii), the Secretary shall evaluate and 
        consider the information that results from the 
        independent scientific review and include in the final 
        determination--
                    (i) a summary of the results of the 
                independent scientific review; and
                    (ii) in a case in which the recommendation 
                of a majority of the referees who conducted the 
                independent scientific review under 
                subparagraph (A) is not followed, an 
                explanation as to why the recommendation was 
                not followed.
            (D) Federal advisory committee act.--The selection 
        and activities of referees selected pursuant to this 
        Act shall not be subject to the Federal Advisory 
        Committee Act (5 U.S.C. App.).
    (c) Lists.--(1) The Secretary of the Interior shall publish 
in the Federal Register a list of all species determined by him 
or the Secretary of Commerce to be endangered species and a 
list of all species determined by him or the Secretary of 
Commerce to be threatened species. Each list shall refer to the 
species contained therein by scientific and common name or 
names, if any, specify with respect to such species over what 
portion of its range it is endangered or threatened, and 
specify any designated critical habitat within such range. The 
Secretary shall from time to time revise each list published 
under the authority of this subsection to reflect recent 
[determinations, designations, and revisions] determinations 
made in accordance with subsections (a) and (b).
    (2) The Secretary shall--
            (A) conduct, at least once every five years, a 
        review of all species included in a list which is 
        published pursuant to paragraph (1) and which is in 
        effect at the time of such review; and
            (B) determine on the basis of such review 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.
Each determination under subparagraph (B) shall be made in 
accordance with the provisions of subsection (a) and (b).
    (d) Protective Regulations.--[Whenever any species is 
listed]
    (1) In general.--Whenever any species is listed as a 
threatened species pursuant to subsection (c) of this section, 
the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of such 
species. The Secretary may by regulation prohibit with respect 
to any threatened species any act prohibited under section 
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in 
the case of plants, with respect to endangered species; except 
that with respect to the taking of resident species of fish or 
wildlife, such, regulations shall apply in any State which has 
entered into a cooperative agreement pursuant to section 6(c) 
of this Act only to the extent that such regulations have also 
been adopted by such State.
    (2) New listings.--With respect to each species listed as a 
threatened species after the date of enactment of this 
paragraph, regulations applicable under paragraph (1) to the 
species shall be specific to that species by the date on which 
the Secretary is required to approve a recovery plan for the 
species pursuant to section 5(c) and may be subsequently 
revised.
    (e) Similarity of Appearance Cases.--The Secretary may, by 
regulation of commerce or taking, and to the extent he deems 
advisable, treat any species as an endangered species or 
threatened species even through it is not listed pursuant to 
section 4 of this Act if he finds that--
            (A) such species so closely resembles in 
        appearance, at the point in question, a species which 
        has been listed pursuant to such section that 
        enforcement personnel would have substantial difficulty 
        in attempting to differentiate between the listed and 
        unlisted species;
            (B) the effect of this substantial difficulty is an 
        additional threat to an endangered or threatened 
        species; and
            (C) such treatment of an unlisted species will 
        substantially facilitate the enforcement and further 
        the policy of this Act.
    [(f)(1) Recovery Plans.--The Secretary shall develop and 
implement plans (hereinafter in this subsection referred to as 
``recovery plans'') for the conservation and survival of 
endangered species and threatened species listed pursuant to 
this section, unless he finds that such a plan will not promote 
the conservation of the species. The Secretary, in development 
and implementing recovery plans, shall, to the maximum extent 
practicable--
            [(A) 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;
            [(B) incorporate in each plan--
                    [(i) a description of such site-specific 
                management actions as may be necessary to 
                achieve the plan's goal for the conservation 
                and survival of the species;
                    [(ii) objective, measurable criteria which, 
                when met, would result in a determination, in 
                accordance with the provisions of this section, 
                that the species be removed from the list; and
                    [(iii) estimates of the time required and 
                the cost to carry out those measures needed to 
                achieve the plan's goal and to achieve 
                intermediate steps toward that goal.
    [(2) The Secretary, in developing and implementing recovery 
plans, may procure the services of appropriate public and 
private agencies and institutions and other qualified persons. 
Recovery teams appointed pursuant to this subsection shall not 
be subject to the Federal Advisory Committee Act.
    [(3) The Secretary shall report every two years to the 
Committee on Environment and Public Works of the Senate and the 
Committee on Merchant Marine and Fisheries of the House of 
Representatives on the status of efforts to develop and 
implement recovery plans for all species listed pursuant to 
this section and on the status of all species for which such 
plans have been developed.
    [(4) 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.
    [(5) Each Federal agency shall, prior to implementation of 
a new or revised recovery plan, consider all information 
presented during the public comment period under paragraph 
(4).]
    [(g)] (f) 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 which 
have recovered to the point at which the measures provided 
pursuant to this Act are no longer necessary and which, in 
accordance with the provisions of this section, have been 
removed from either of the lists published under subsection 
(c).
    (2) The Secretary shall make prompt use of the authority 
under paragraph 7 \1\ of subsection (b) of this section to 
prevent a significant risk to the well being of any such 
recovered species.
---------------------------------------------------------------------------
    \1\ So in original. Probably should be paragraph ``(7)''.
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    [(h)] (g) Agency Guidelines.--The Secretary shall 
establish, and publish in the Federal Register, agency 
guidelines to insure that the purposes of this section are 
achieved efficiently and effectively. Such guidelines shall 
include, but are not limited to--
            (1) procedures for recording the receipt and the 
        disposition of petitions submitted under subsection 
        (b)(3) of this section;
          (2) criteria for making the findings required under 
        such subsection with respect to petitions;
            (3) a ranking system to assist in the 
        identification of species that should receive priority 
        review under subsection (a)(1) of the section; and
            (4) a system for developing and implementing, on a 
        priority basis, recovery plans under [subsection (f) of 
        this section] section 5. The Secretary shall provide to 
        the public notice of, and opportunity to submit written 
        comments on, any guideline (including any amendment 
        thereto) proposed to be established under this 
        subsection.
    [(i)] (h) If, in the case of any regulation proposed by the 
Secretary under the authority of this section, a State agency 
to which notice thereof was given in accordance with subsection 
(b)(5)(A)(ii) files comments disagreeing with all or part of 
the proposed regulation, and the Secretary issues a final 
regulation which is in conflict with such comments, or if the 
Secretary fails to adopt a regulation pursuant to an action 
petitioned by a State agency under subsection (b)(3), the 
Secretary shall submit to the State agency a written 
justification for his failure to adopt regulations consistent 
with the agency's comments or petition.
    (i) State Conservation Agreements.--The Secretary may enter 
into a conservation agreement with one or more States for a 
species that has been proposed for listing, is a candidate 
species, or is likely to become a candidate species in the near 
future within the State. The Secretary may approve an agreement 
if, after notice and opportunity for public comment, the 
Secretary finds that--
            (1) for species covered by the agreement, the 
        actions taken under the agreement, if undertaken by all 
        States within the range of the species, would produce a 
        conservation benefit that would be likely to eliminate 
        the need to list the species as threatened or 
        endangered under this section for the duration of the 
        agreement;
            (2) the actions taken under the agreement will not 
        adversely affect an endangered species or a threatened 
        species;
            (3) the agreement contains such other measures as 
        the Secretary may require as being necessary or 
        appropriate for the purposes of the agreement;
            (4) the State will ensure adequate funding and 
        enforcement to implement the agreement; and
            (5) the agreement includes such monitoring and 
        reporting requirements as the Secretary considers 
        necessary for determining whether the terms and 
        conditions of the agreement are being complied with.

(16 U.S.C. 1533)

                             recovery plans

    Sec. 5. (a) In General.--The Secretary, in cooperation with 
the States, and on the basis of the best scientific and 
commercial data available, shall develop and implement plans 
(referred to in this Act as ``recovery plans'') for the 
conservation and recovery of endangered species and threatened 
species that are indigenous to the United States or in waters 
with respect to which the United States exercises sovereign 
rights or jurisdiction, in accordance with the requirements and 
schedules described in this section, unless the Secretary 
finds, after notice and opportunity for public comment, that a 
plan will not promote the conservation of the species or 
because an existing plan or strategy to conserve the species 
already serves as the functional equivalent to a recovery plan. 
The Secretary may authorize a State agency to develop recovery 
plans pursuant to subsection (m).
    (b) Priorities.--
            (1) Criteria.--To the maximum extent practicable, 
        the Secretary, in developing recovery plans, shall give 
        priority, without regard to taxonomic classification, 
        to recovery plans that--
                    (A) address significant and immediate 
                threats to the survival of an endangered 
                species or a threatened species, have the 
                greatest likelihood of achieving recovery of 
                the endangered species or the threatened 
                species, and will benefit species that are more 
                taxonomically distinct;
                    (B) address multiple species including (i) 
                endangered species, (ii) threatened species, or 
                (iii) species that the Secretary has identified 
                as candidates or proposed for listing under 
                section 4 and that are dependent on the same 
                habitat as the endangered species or threatened 
                species covered by the plan;
                    (C) reduce conflicts with construction, 
                development projects, jobs, private property, 
                or other economic activities; and
                    (D) reduce conflicts with military training 
                and operations.
            (2) Priority system.--To carry out subsection (c) 
        of this section and section 3(e) of the Endangered 
        Species Recovery Act of 1997 in the most efficient and 
        effective manner practicable, the Secretary shall 
        develop and implement a priority ranking system for the 
        preparation of recovery plans based on all of the 
        factors described in subparagraphs (A) through (D) of 
        paragraph (1).
    (c) Schedule.--For each species determined to be an 
endangered species or a threatened species after the date of 
enactment of this subsection for which the Secretary is 
required to develop a recovery plan under subsection (a), the 
Secretary shall publish--
            (1) not later than 18 months after the date of the 
        publication under section 4 of the final regulation 
        containing the listing determination, a draft recovery 
        plan; and
            (2) not later than 30 months after the date of 
        publication under section 4 of the final regulation 
        containing the listing determination, a final recovery 
        plan.
    (d) Appointment and Role of Recovery Team.--
            (1) In general.--Not later than 60 days after the 
        date of the publication under section 4 of the final 
        regulation containing the listing determination for a 
        species, the Secretary, in cooperation with the 
        affected States, shall either appoint a recovery team 
        to develop a recovery plan for the species or publish a 
        notice pursuant to paragraph (3) that a recovery team 
        shall not be appointed. Recovery teams shall include 
        the Secretary and at least one representative from the 
        State agency of each of the affected States choosing to 
        participate and be broadly representative of the 
        constituencies with an interest in the species and its 
        recovery and in the economic or social impacts of 
        recovery including representatives of Federal agencies, 
        tribal governments, local governments, academic 
        institutions, private individuals and organizations, 
        and commercial enterprises. The recovery team members 
        shall be selected for their knowledge of the species or 
        for their expertise in the elements of the recovery 
        plan or its implementation.
            (2) Duties of the recovery team.--Each recovery 
        team shall prepare and submit to the Secretary the 
        draft recovery plan that shall include recovery 
        measures recommended by the team and alternatives, if 
        any, to meet the recovery goal under subsection (e)(1). 
        The recovery team may also be called on by the 
        Secretary to assist in the implementation, review, and 
        revision of recovery plans. The recovery team shall 
        also advise the Secretary concerning the designation of 
        critical habitat, if any.
            (3) Exception.--
                    (A) In general.--Notwithstanding paragraph 
                (1), the Secretary may, after notice and 
                opportunity for public comment, establish 
                criteria to identify species for which the 
                appointment of a recovery team would not be 
                required under this subsection, taking into 
                account the availability of resources for 
                recovery planning, the extent and complexity of 
                the expected recovery activities, and the 
                degree of scientific uncertainty associated 
                with the threats to the species.
                    (B) State option.--If the Secretary elects 
                not to appoint a recovery team, the Secretary 
                shall provide notice to each affected State and 
                shall provide the affected States the 
                opportunity to appoint a recovery team and 
                develop a recovery plan, in accordance with 
                subsection (m).
                    (C) Secretarial duty.--If a recovery team 
                is not appointed, the Secretary shall perform 
                all duties of the recovery team required by 
                this section.
            (4) Travel expenses.--The Secretary is authorized 
        to provide travel expenses (including per diem in lieu 
        of subsistence at the same level as authorized by 
        section 5703 of title 5, United States Code) to 
        recovery team members.
            (5) Federal advisory committee act.--The Federal 
        Advisory Committee Act (5 U.S.C. App.) shall not apply 
        to the selection or activities of a recovery team 
        appointed pursuant to this subsection or subsection 
        (m).
    (e) Contents of Recovery Plans.--Each recovery plan shall 
contain:
            (1) Biological recovery goal.--
                    (A) In general.--Not later than 180 days 
                after the appointment of a recovery team under 
                this section, those members of the recovery 
                team with relevant scientific expertise shall 
                establish and submit to the Secretary a 
                recommended biological recovery goal to 
                conserve and recover the species that, when 
                met, would result in the determination, in 
                accordance with section 4, that the species be 
                removed from the list. The goal shall be based 
                solely on the best scientific and commercial 
                data available. The recovery goal shall be 
                expressed as objective and measurable 
                biological criteria. When the goal is met, the 
                Secretary shall initiate the procedures for 
                determining whether, in accordance with section 
                4(a)(1), to remove the species from the list.
                    (B) Peer review.--The recovery team shall 
                promptly obtain independent scientific review 
                of the recommended biological recovery goal.
            (2) Recovery measures.--The recovery plan shall 
        incorporate recovery measures that will meet the 
        recovery goal.
                    (A) Measures.--The recovery measures may 
                incorporate general and site-specific measures 
                for the conservation and recovery of the 
                species such as--
                            (i) actions to protect and restore 
                        habitat;
                            (ii) research;
                            (iii) establishment of refugia, 
                        captive breeding, and releases of 
                        experimental populations;
                            (iv) actions that may be taken by 
                        Federal agencies, including actions 
                        that use, to the maximum extent 
                        practicable, Federal lands; and
                            (v) opportunities to cooperate with 
                        State and local governments and other 
                        persons to recover species, including 
                        through the development and 
                        implementation of conservation plans 
                        under section 10.
                    (B) Draft recovery plans.--
                            (i) In general.--In developing a 
                        draft recovery plan, the recovery team 
                        or, if there is no recovery team, the 
                        Secretary, shall consider alternative 
                        measures and recommend measures to meet 
                        the recovery goal and the benchmarks. 
                        The recovery measures shall achieve an 
                        appropriate balance among the following 
                        factors--
                                    (I) the effectiveness of 
                                the measures in meeting the 
                                recovery goal;
                                    (II) the period of time in 
                                which the recovery goal is 
                                likely to be achieved, provided 
                                that the time period within 
                                which the recovery goal is to 
                                be achieved will not pose a 
                                significant risk to recovery of 
                                the species; and
                                    (III) the social and 
                                economic impacts (both 
                                quantitative and qualitative) 
                                of the measures and the 
                                distribution of the impacts 
                                across regions and industries.
                            (ii) Description of alternatives.--
                        The draft plan shall include a 
                        description of any alternative recovery 
                        measures considered, but not included 
                        in the recommended measures, and an 
                        explanation of how any such measures 
                        considered were assessed and the 
                        reasons for their selection or 
                        rejection.
                            (iii) Description of economic 
                        effects.--If the recommended recovery 
                        measures identified in clause (i) would 
                        impose significant costs on a 
                        municipality, county, region, or 
                        industry, the recovery team shall 
                        prepare a description of the overall 
                        economic effects on the public and 
                        private sectors including, as 
                        appropriate, effects on employment, 
                        public revenues, and value of property 
                        as a result of the implementation of 
                        the recovery plan.
            (3) Benchmarks.--The recovery plan shall include 
        objective, measurable benchmarks expected to be 
        achieved over the course of the recovery plan to 
        determine whether progress is being made toward the 
        recovery goal. To the extent possible, current and 
        historical population estimates, along with other 
        relevant factors, should be considered in determining 
        whether progress is being made toward meeting the 
        recovery goal.
            (4) Federal agencies.--Each recovery plan for an 
        endangered species or a threatened species shall 
        identify Federal agencies that authorize, fund, or 
        carry out actions that are likely to have a significant 
        impact on recovery of the species.
    (f) Public Notice and Comment._
            (1) In general.--If the Secretary makes a 
        preliminary determination that the draft recovery plan 
        meets the requirements of this section, the Secretary 
        shall publish in the Federal Register and a newspaper 
        of general circulation in each affected State a notice 
        of availability and a summary of, and a request for 
        public comment on, the draft recovery plan including a 
        description of the economic effects prepared under 
        subsection (e)(2)(B)(iii) and the recommendations of 
        the independent referees on the recovery goal.
            (2) Hearings.--At the request of any person, the 
        Secretary shall hold at least one public hearing on 
        each draft recovery plan in each State to which the 
        plan would apply (including at least one hearing in an 
        affected rural area, if any), except that the Secretary 
        may not be required to hold more than five hearings 
        under this paragraph.
    (g) Procurement Authority.--In developing and implementing 
recovery plans, the Secretary may procure the services of 
appropriate public and private agencies and institutions and 
other qualified persons.
    (h) Review and Selection by the Secretary._
            (1) Review and approval.--The Secretary shall 
        review each plan submitted by a recovery team, 
        including a recovery team appointed by a State pursuant 
        to the authority of subsection (m), to determine 
        whether the plan was developed in accordance with the 
        requirements of this section. If the Secretary 
        determines that the plan does not satisfy such 
        requirements, the Secretary shall notify the recovery 
        team and give the team an opportunity to address the 
        concerns of the Secretary and resubmit a plan that 
        satisfies the requirements of this section. After 
        notice and opportunity for public comment on the 
        recommendations of the recovery team, the Secretary 
        shall adopt a final recovery plan that is consistent 
        with the requirements of this section.
            (2) Selection of recovery measures.--In each final 
        plan the Secretary shall select recovery measures that 
        meet the recovery goal and the benchmarks. The recovery 
        measures shall achieve an appropriate balance among the 
        factors described in subclauses (I) through (III) of 
        subsection (e)(2)(B)(i).
            (3) Measures recommended by recovery team.--If the 
        Secretary selects measures other than the measures 
        recommended by the recovery team, the Secretary shall 
        publish with the final plan an explanation of why the 
        measures recommended by the recovery team were not 
        selected for the final recovery plan.
            (4) Publication of notice on final plans.--The 
        Secretary shall publish in the Federal Register a 
        notice of availability, and a summary, of the final 
        recovery plan, and include in the final recovery plan a 
        response to significant comments that the Secretary 
        received on the draft recovery plan.
    (i) Review._
            (1) Existing plans.--Not later than five years 
        after date of enactment of this subsection, the 
        Secretary shall review recovery plans published prior 
        to such date.
            (2) Subsequent plans.--The Secretary shall review 
        each recovery plan first approved or revised under this 
        section after the date of enactment of this subsection, 
        not later than ten years after the date of approval or 
        revision of the plan and every ten years thereafter.
    (j) Revision of Recovery Plans.--Notwithstanding any other 
provision of this section, the Secretary shall revise a 
recovery plan if the Secretary finds that substantial new 
information, which may include failure to meet the benchmarks 
included in the plan, based on the best scientific and 
commercial data available, indicates that the recovery goal 
contained in the recovery plan will not achieve the 
conservation and recovery of the endangered species or 
threatened species covered by the plan. The Secretary shall 
convene a recovery team to develop the revisions required by 
this subsection, unless the Secretary has established an 
exception for the species pursuant to subsection (d)(3).
    (k) Existing Plans.--Nothing in this section shall require 
the modification of--
            (1) a recovery plan approved;
            (2) a recovery plan on which public notice and 
        comment has been initiated; or
            (3) a draft recovery plan on which significant 
        progress has been made;
prior to the date of enactment of this subsection until the 
recovery plan is revised by the Secretary in accordance with 
this section.
    (l) Implementation of Recovery Plans._
            (1) Implementation agreements.--The Secretary is 
        authorized to enter into agreements with Federal 
        agencies, affected States, Indian tribes, local 
        governments, private landowners, and organizations to 
        implement specified conservation measures identified by 
        an approved recovery plan that promote the recovery of 
        the species with respect to land or water owned by, or 
        within the jurisdiction of, each such party. The 
        Secretary may enter into such agreements, if the 
        Secretary, after notice and opportunity for public 
        comment, determines that--
                    (A) each non-Federal party to the agreement 
                has the legal authority and capability to carry 
                out the agreement;
                    (B) the agreement will be reviewed and 
                revised as necessary on a regular basis (which 
                shall be not less often than every five years) 
                by the parties to the agreement to ensure that 
                it meets the requirements of this section; and
                    (C) the agreement establishes a mechanism 
                for the Secretary to monitor and evaluate 
                implementation of the agreement.
            (2) Duty of federal agencies.--Each Federal agency 
        identified under subsection (e)(4) shall enter into an 
        implementation agreement with the Secretary not later 
        than two years after the date on which the Secretary 
        approves the recovery plan for the species. For 
        purposes of satisfying this section, the substantive 
        provisions of the agreement shall be within the sole 
        discretion of the Secretary and the head of the Federal 
        agency entering into the agreement.
            (3) Other requirements._
                    (A) Agency actions.--Any action authorized, 
                funded, or carried out by a Federal agency that 
                is specified in a recovery plan implementation 
                agreement between the Federal agency and the 
                Secretary to promote the recovery of the 
                species and for which the agreement provides 
                sufficient information on the nature, scope, 
                and duration of the action to determine the 
                effect of the action on any endangered species, 
                threatened species, or critical habitat shall 
                not be subject to the requirements of section 
                7(a)(2) for that species, if the action is to 
                be carried out during the term of the agreement 
                and the Federal agency is in compliance with 
                the agreement.
                    (B) Comprehensive agreements.--If a non-
                Federal person proposes to include in an 
                implementation agreement a site-specific action 
                that the Secretary determines meets the 
                requirements of subparagraph (A) and that 
                action would require authorization or funding 
                by one or more Federal agencies, the agencies 
                authorizing or funding the action shall 
                participate in the development of the agreement 
                and shall identify, at that time, all measures 
                for the species that would be required under 
                this Act as a condition of the authorization or 
                funding.
            (4) Financial assistance.--
                    (A) In general.--In cooperation with the 
                States and subject to the availability of 
                appropriations under section 15(f), the 
                Secretary may provide a grant of up to $25,000 
                to a private landowner to assist the landowner 
                in carrying out a recovery plan implementation 
                agreement under this subsection.
                    (B) Prohibition on assistance for required 
                activities.--The Secretary may not provide 
                assistance under this paragraph for any action 
                that is required by a permit issued under this 
                Act or that is otherwise required under this 
                Act or other Federal law.
                    (C) Other payments.--A grant provided to an 
                individual private landowner under this 
                paragraph shall be in addition to, and not 
                affect, the total amount of payments the 
                landowner is otherwise eligible to receive 
                under the conservation reserve program 
                established under subchapter B of chapter 1 of 
                subtitle D of title XII of the Food Security 
                Act of 1985 (16 U.S.C. 3831 et seq.), the 
                wetlands reserve program established under 
                subchapter C of that chapter (16 U.S.C. 3837 et 
                seq.), or the Wildlife Habitat Incentives 
                Program established under section 387 of the 
                Federal Agriculture Improvement and Reform Act 
                of 1996 (16 U.S.C. 3836a).
    (m) State Authority for Recovery Planning._
            (1) In general.--At the request of the Governor of 
        a State, or the Governors of several States in 
        cooperation, the Secretary may authorize the respective 
        State agency to develop the recovery plan for an 
        endangered species or a threatened species in 
        accordance with the requirements and schedules of 
        subsections (c), (d)(1), (d)(2), and (e) and this 
        subsection if the Secretary finds that--
                    (A) the State or States have entered into a 
                cooperative agreement with the Secretary 
                pursuant to section 6(c); and
                    (B) the State agency has submitted a 
                statement to the Secretary demonstrating 
                adequate authority and capability to carry out 
                the requirements and schedules of subsections 
                (c), (d)(1), (d)(2), and (e) and this 
                subsection.
            (2) Standards and guidelines.--The Secretary, in 
        cooperation with the States, shall publish standards 
        and guidelines for the development of recovery plans by 
        a State agency under this subsection, including 
        standards and guidelines for interstate cooperation and 
        for the grant and withdrawal of authorization by the 
        Secretary under this subsection.
            (3) Duties of recovery team.--The recovery team 
        shall prepare a draft recovery plan in accordance with 
        this section and shall transmit the draft plan to the 
        Secretary through the State agency authorized to 
        develop the recovery plan.
            (4) Review of draft plans.--Prior to publication of 
        a notice of availability of a draft recovery plan, the 
        Secretary shall review each draft recovery plan 
        developed pursuant to this subsection to determine 
        whether the plan meets the requirements of this 
        section. If the Secretary determines that the plan does 
        not meet such requirements, the Secretary shall notify 
        the State agency and, in cooperation with the State 
        agency, develop a recovery plan in accordance with this 
        section.
            (5) Review and approval of final plans.--On receipt 
        of a draft recovery plan transmitted by a State agency, 
        the Secretary shall review and approve the plan in 
        accordance with subsection (h).
            (6) Withdrawal of authority.--
                    (A) In general.--The Secretary may withdraw 
                the authority from a State that has been 
                authorized to develop a recovery plan pursuant 
                to this subsection if the actions of the State 
                agency are not in accordance with the 
                substantive and procedural requirements of 
                subsections (c), (d)(1), (d)(2), and (e) and 
                this subsection. The Secretary shall give the 
                State agency an opportunity to correct any 
                deficiencies identified by the Secretary and 
                shall withdraw the authority from the State 
                unless the State agency within 60 days has 
                corrected the deficiencies identified by the 
                Secretary. On withdrawal of State authority 
                pursuant to this subsection, the Secretary 
                shall have an additional 18 months to publish a 
                draft recovery plan and an additional 12 months 
                to publish a final recovery plan under 
                subsection 5(c).
                    (B) Petitions to withdraw.--Any person may 
                submit a petition requesting the Secretary to 
                withdraw the authority from a State on the 
                basis that the actions of the State agency are 
                not in accordance with the substantive and 
                procedural requirements described in 
                subparagraph (A). If the Secretary has not 
                acted on the petition pursuant to subparagraph 
                (A) within 90 days, the petition shall be 
                deemed to be denied and the denial shall be a 
                final agency action for the purposes of 
                judicial review.
            (7) Definition of state agency.--For purposes of 
        this subsection, the term ``State agency'' means--
                    (A) a State agency (as defined in section 
                3) of each State entering into a cooperative 
                request under paragraph (1); and
                    (B) for fish and wildlife, including 
                related spawning grounds and habitat, on the 
                Columbia River and its tributaries, the Pacific 
                Northwest Electric Power and Conservation 
                Planning Council established under the Pacific 
                Northwest Electric Power Planning and 
                Conservation Act (16 U.S.C. 839 et seq.).
    (n) Critical Habitat Designation._
            (1) Recommendation of the recovery team.--Not later 
        than nine months after the date of publication under 
        section 4 of a final regulation containing a listing 
        determination for a species, the recovery team 
        appointed for the species shall provide the Secretary 
        with a description of any habitat of the species that 
        is recommended for designation as critical habitat 
        pursuant to this subsection and any recommendations for 
        special management considerations or protection that 
        are specific to the habitat.
            (2) Designation by the secretary.--The Secretary, 
        to the maximum extent prudent and determinable, shall 
        by regulation designate any habitat that is considered 
        to be critical habitat of an endangered species or a 
        threatened species that is indigenous to the United 
        States or waters with respect to which the United 
        States exercises sovereign rights or jurisdiction.
                    (A) Designation._
                            (i) Proposal.--Not later than 18 
                        months after the date on which a final 
                        listing determination is made under 
                        section 4 for a species, the Secretary, 
                        after consultation and in cooperation 
                        with the recovery team, shall publish 
                        in the Federal Register a proposed 
                        regulation designating critical habitat 
                        for the species.
                            (ii) Promulgation.--The Secretary 
                        shall, after consultation and in 
                        cooperation with the recovery team, 
                        publish a final regulation designating 
                        critical habitat for a species not 
                        later than 30 months after the date on 
                        which a final listing determination is 
                        made under section 4 for the species.
                    (B) Other designations.--If a recovery plan 
                is not developed under this section for an 
                endangered species or a threatened species, the 
                Secretary shall publish a final critical 
                habitat determination for the endangered 
                species or threatened species not later than 
                three years after making a determination that 
                the species is an endangered species or a 
                threatened species.
                    (C) Additional authority.--The Secretary 
                may publish a regulation designating critical 
                habitat for an endangered species or a 
                threatened species concurrently with the final 
                regulation implementing the determination that 
                the species is endangered or threatened if the 
                Secretary determines that designation of such 
                habitat at the time of listing is essential to 
                avoid the imminent extinction of the species.
            (3) Factors to be considered.--The designation of 
        critical habitat shall be made on the basis of the best 
        scientific and commercial data available and after 
        taking into consideration the economic impact, impacts 
        to military training and operations, and any other 
        relevant impact, of specifying any particular area as 
        critical habitat. The Secretary shall describe the 
        economic impacts and other relevant impacts that are to 
        be considered under this subsection in the publication 
        of any proposed regulation designating critical 
        habitat.
            (4) Exclusions.--The Secretary may exclude any area 
        from critical habitat for a species if the Secretary 
        determines that the benefits of the exclusion outweigh 
        the benefits of designating the area as part of the 
        critical habitat, unless the Secretary determines that 
        the failure to designate the area as critical habitat 
        will result in the extinction of the species.
            (5) Revisions.--The Secretary may, from time-to-
        time and as appropriate, revise a designation. Each 
        area designated as critical habitat before the date of 
        enactment of this subsection shall continue to be 
        considered so designated, until the designation is 
        revised in accordance with this subsection.
            (6) Petitions.--
                    (A) Determination that revision may be 
                warranted.--To the maximum extent practicable, 
                not later than 90 days after receiving the 
                petition of an interested person under section 
                553(e) of title 5, United States Code, to 
                revise a critical habitat designation, the 
                Secretary shall make a finding as to whether 
                the petition presents substantial scientific or 
                commercial information indicating that the 
                revision may be warranted. The Secretary shall 
                promptly publish the finding in the Federal 
                Register.
                    (B) Notice of proposed action.--Not later 
                than one year after receiving a petition that 
                is found under subparagraph (A) to present 
                substantial information indicating that the 
                requested revision may be warranted, the 
                Secretary shall determine how to proceed with 
                the requested revision, and shall promptly 
                publish notice of the intention in the Federal 
                Register.
            (7) Proposed and final regulations.--Any regulation 
        to designate critical habitat or implement a requested 
        revision shall be proposed and promulgated in 
        accordance with paragraphs (4), (5), and (6) of section 
        4(b) in the same manner as a regulation to implement a 
        determination with respect to listing a species.
    (o) Reports.--The Secretary shall report every two years to 
the Committee on Environment and Public Works of the Senate and 
the Committee on Resources of the House of Representatives on 
the status of efforts to develop and implement recovery plans 
for all species listed pursuant to section 4 and on the status 
of all species for which the plans have been developed.

                            land acquisition

    Sec. [5] 5A. (a) Program.--The Secretary, and the Secretary 
of Agriculture with respect to the National Forest System, 
shall establish and implement a program to conserve fish, 
wildlife, and plants, including those which are listed as 
endangered species or threatened species pursuant to section 4 
of this Act. To carry out such a program, the appropriate 
Secretary--
            (1) shall utilize the land acquisition and other 
        authority under the Fish and Wildlife Act of 1956, as 
        amended, the Fish and Wildlife Coordination Act, as 
        amended, and the Migratory Bird Conservation Act, as 
        appropriate; and
            (2) is authorized to acquire by purchase, donation, 
        or otherwise, lands, waters, or interest therein, and 
        such authority shall be in addition to any other land 
        acquisition vested in him.
    (b) Acquisitions.--Funds made available pursuant to the 
Land and Water Conservation Fund Act of 1965, as amended, may 
be used for the purpose of acquiring lands, waters, or 
interests therein under subsection (a) of this section.

(16 U.S.C. 1534)

                      cooperation with the states

    Sec. 6. (a) General.--In carrying out the program 
authorized by this Act, the Secretary shall cooperate to the 
maximum extent practicable with the States. Such cooperation 
shall include consultation with the States concerned before 
acquiring any land or water, or interest therein, for the 
purpose of conserving any endangered species or threatened 
species.
    (b) Management Agreements.--The Secretary may enter into 
agreements with any State for the administration and management 
of any area established for the conservation of endangered 
species or threatened species. Any revenues derived from the 
administration of such areas under these agreements shall be 
subject to the provisions of section 401 of the Act of June 15, 
1935 (49 Stat. 383; 16 U.S.C. 715s).
    (c)(1) Cooperative Agreements.--In furtherance of the 
purposes of this Act, the Secretary is authorized to enter into 
a cooperative agreement in accordance with this section with 
any State which establishes and maintains an adequate and 
active program for the conservation of endangered species and 
threatened species. Within one hundred and twenty days after 
the Secretary receives a certified copy of such a proposed 
State program, he shall make a determination whether such 
program is in accordance with this Act. Unless he determines, 
pursuant to this paragraph, that the State program is not in 
accordance with this Act, he shall enter into a cooperative 
agreement with the State for the purpose of assisting in 
implementation of the State program. In order for a State 
program to be deemed an adequate and active program for the 
conservation of endangered species and threatened species, the 
Secretary must find, and annually thereafter reconfirm such 
finding, that under the State program--
            (A) authority resides in the State agency of 
        conserve resident species of fish or wildlife 
        determined by the State agency or the Secretary to be 
        endangered or threatened;
            (B) the State agency has established acceptable 
        conservation programs, consistent with the purposes and 
        policies of this Act, for all resident species of fish 
        or wildlife in the State which are deemed by the 
        Secretary to be endangered or threatened, and has 
        furnished a copy of such plan and program together with 
        all pertinent details, information, and data requested 
        to the Secretary;
            (C) the State agency is authorized to conduct 
        investigations to determine the status and requirements 
        for survival of resident species of fish and wildlife;
            (D) the State agency is authorized to establish 
        programs, including the acquisition of land or aquatic 
        habitat or interests therein, for the conservation of 
        resident endangered or threatened species of fish or 
        wildlife; and
            (E) provision is made for public participation in 
        designating resident species of fish or wildlife as 
        endangered or threatened, or that under the State 
        program--
            (i) the requirements set forth in paragraph (3), 
        (4), and (5) of this subsection are complied with, and
            (ii) plans are included under which immediate 
        attention will be given to those resident species of 
        fish and wildlife which are determined by the Secretary 
        or the State agency to be endangered or threatened and 
        which the Secretary and the State agency agree are most 
        urgently in need of conservation programs; except that 
        a cooperative agreement entered into with a State whose 
        program is deemed adequate and active pursuant to 
        clause (i) and this clause and this subparagraph shall 
        not affect the applicability of prohibitions set forth 
        in or authorized pursuant to section 4(d) or section 
        9(a)(1) with respect to the taking of any resident 
        endangered or threatened species.
    (2) In furtherance of the purposes of this Act, the 
Secretary is authorized to enter into a cooperative agreement 
in accordance with this section with any State which 
establishes and maintains an adequate and active program for 
the conservation of endangered species and threatened species 
of plants. Within one hundred and twenty days after the 
Secretary receives a certified copy of such a proposed State 
program, he shall make a determination whether such program is 
in accordance with this Act. Unless he determines, pursuant to 
this paragraph, that the State program is not in accordance 
with this Act, he shall enter into a cooperative agreement with 
the State for the purpose of assisting in implementation of the 
State program. In order for a State program to be deemed an 
adequate and active program for the conservation of endangered 
species of plants and threatened species of plants, the 
Secretary must find, and annually thereafter reconfirm such 
findings, that under the State program--
            (A) authority resides in the State agency to 
        conserve resident species of plants determined by the 
        State agency or the Secretary to be endangered or 
        threatened;
            (B) the State agency has established acceptable 
        conservation programs, consistent with the purposes and 
        policies of this Act, for all resident species of 
        plants in the State which are deemed by the Secretary 
        to be endangered or threatened, and has furnished a 
        copy of such plan and program together with all 
        pertinent details, information, and data requested to 
        the Secretary;
            (C) the State agency is authorized to conduct 
        investigations to determine the status and requirements 
        for survival of resident species of plants; and
            (D) provision is made for public participation in 
        designating resident species of plants as endangered or 
        threatened; or that under the State program--
                    (i) the requirements set forth in 
                subparagraphs (C) and (D) of this paragraph are 
                complied with, and
                    (ii) plans are included under which 
                immediate attention will be given to those 
                resident species of plants which are determined 
                by the Secretary or the State agency to be 
                endangered or threatened and which the 
                Secretary and the State agency agree are most 
                urgently in need of conservation programs; 
                except that a cooperative agreement entered 
                into with a State whose program is deemed 
                adequate and active pursuant to clause (i) and 
                this clause shall not affect the applicability 
                of prohibitions set forth in or authorized 
                pursuant to section 4(d) or section 9(a)(1) 
                with respect to the taking of any resident 
                endangered or threatened species.
    (d) Allocation of Funds.--(1) The Secretary is authorized 
to provide financial assistance to any State, through its 
respective State agency, which has entered into a cooperative 
agreement pursuant to subsection (c) of this section to assist 
in development of programs for the conservation of endangered 
and threatened species or to assist in monitoring the status of 
candidate species pursuant to [subparagraph (C)] subparagraph 
(F) of section 4(b)(3) and recovered species pursuant to 
[section 4(g)] section 4(f). The Secretary shall allocate each 
annual appropriation made in accordance with the provisions of 
subsection (i) of this section to such States based on 
consideration of--
            (A) the international commitments of the United 
        States to protect endangered species or threatened 
        species;
            (B) the readiness of a State to proceed with a 
        conservation program consistent with the objectives and 
        purposes of this Act;
            (C) the number of endangered species and threatened 
        species within a State;
            (D) the potential for restoring endangered species 
        and threatened species within a State;
            (E) the relative urgency to initiate a program to 
        restore and protect an endangered species or threatened 
        species in terms of survival of the species;
            (F) the importance of monitoring the status of 
        candidate species within a State to prevent a 
        significant risk to the well being of any such species; 
        and
            (G) the importance of monitoring the status of 
        recovered species within a State to assure that such 
        species do not return to the point at which the 
        measures provided pursuant to this Act are again 
        necessary.
    So much of the annual appropriation made in accordance with 
provisions of subsection (i) of this section allocated for 
obligation to any State for any fiscal year as remains 
unobligated at the close thereof is authorized to be made 
available to that State until the close of the succeeding 
fiscal year. Any amount allocated to any State which is 
unobligated at the end of the period during which it is 
available for expenditure is authorized to be made available 
for expenditure by the Secretary in conducting programs under 
this section.
    (2) Such cooperative agreements shall provide for (A) the 
actions to be taken by the Secretary and the States; (B) the 
benefits that are expected to be derived in connection with the 
conservation of endangered or threatened species; (C) the 
estimated cost of these actions; and (D) the share of such 
costs to be bore by the Federal Government and by the States; 
except that--
            (i) the Federal share of such program costs shall 
        not exceed 75 percent of the estimated program cost 
        stated in the agreement; and
            (ii) the Federal share may be increased to 90 
        percent whenever two or more States having a common 
        interest in one or more endangered or threatened 
        species, the conservation of which may be enhanced by 
        cooperation of such States, enter jointly into 
        agreement with the Secretary.
    The Secretary may, in his discretion, and under such rules 
and regulations as he may prescribe, advance funds to the State 
for financing the United States pro rata share agreed upon in 
the cooperative agreement. For the purposes of this section, 
the non-Federal share may, in the discretion of the Secretary, 
be in the form of money or real property, the value of which 
will be determined by the Secretary whose decision shall be 
final.
    (e) Review of State Programs.--Any action taken by the 
Secretary under this section shall be subject to his periodic 
review at no greater than annual intervals.
    (f) Conflicts Between Federal and State Laws.--Any State 
law or regulation which applies with respect to the importation 
or exportation of, or interstate or foreign commerce in, 
endangered specie or threatened species is void to the extent 
that it may effectively (1) permit what is prohibited by this 
Act of by any regulation which implements this Act, or (2) 
prohibit what is authorized pursuant to an exemption or permit 
provided for in this Act or in any regulation which implements 
this Act. This Act shall not otherwise be construed to void any 
State law or regulation which is intended to conserve 
migratory, resident, or introduced fish or wildlife, or to 
permit or prohibit sale of such fish or wildlife. Any State law 
or regulation respecting the taking of an endangered species or 
threatened species may be more restrictive than the exemptions 
or permits provided for in this Act or in any regulation which 
implements this Act but not less restrictive than the 
prohibitions so defined.
    (g) Transition.--(1) For purposes of this subsection, the 
term ``establishment period'' means, with respect to any State, 
the period beginning on the date of enactment of this Act and 
ending on whichever of the following dates first occurs: (A) 
the date of the close of the 120-day period following the 
adjournment of the first regular session of the legislative of 
such State which commences after such date of enactment, or (B) 
the date of the close of the 15-month period following such 
date of enactment.
    (2) The prohibitions set forth in or authorized pursuant to 
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with 
respect to the taking of any resident endangered species or 
threatened species (other than species listed in Appendix I to 
the Convention or otherwise specifically covered by any other 
treaty or Federal law) within any State--
            (A) which is then a party to a cooperative 
        agreement with the Secretary pursuant to section 6(c) 
        of this Act (except to the extent that the taking of 
        any such species is contrary to the law of such State); 
        or
            (B) except for any time within the establishment 
        period when--
                    (i) the Secretary applies such prohibition 
                to such species at the request of the State, or
                    (ii) the Secretary applies such prohibition 
                after he finds, and publishes his finding, that 
                an emergency exists posing a significant risk 
                to the well-being of such species and that the 
                prohibition must be applied to protect such 
                species. The Secretary's finding and 
                publication may be made without regard to the 
                public hearing or comment provisions of section 
                553 of title 5, United States Code, or any 
                other provision of this Act; but such 
                prohibition shall expire 90 days after the date 
                of its imposition unless the Secretary further 
                extends such prohibition by publishing notice 
                and a statement of justification of such 
                extension.
    (h) Regulations.--The Secretary is authorized to promulgate 
such regulations as may be appropriate to carry out the 
provisions of this section relating to financial assistance to 
States.
    (i) Appropriations.--(1) To carry out the provisions of 
this section for fiscal years after September 30, 1988, there 
shall be deposited into a special fund known as the cooperative 
endangered species conservation fund, to be administered by the 
Secretary, an amount equal to five percent of the combined 
amounts covered each fiscal year into the Federal aid to 
wildlife restoration fund under section 3 of the Act of 
September 2, 1937, and paid, transferred, or otherwise credited 
each fiscal year to the Sport Fishing Restoration Account 
established under 1016 of the Act of July 18, 1984.
    (2) Amounts deposited into the special fund are authorized 
to be appropriated annually and allocated in accordance with 
subsection (d) of this section.
    (3) Assistance to states for conservation activities.--
There are authorized to be appropriated to the Secretary such 
sums as are necessary for each of fiscal years 1998 through 
2003 to provide financial assistance to State agencies to carry 
out conservation activities under other sections of this Act, 
including the provision of technical assistance for the 
development and implementation of recovery plans.

(16 U.S.C. 1535)

                        interagency cooperation

    Sec. 7. (a) Federal Agency Actions and [Consultations.--(1) 
The] Consultations.--
    (1) In general.--
            (A) Other programs.--The Secretary shall review 
        other programs administered by him and utilize such 
        programs in furtherance of the purposes of this Act. 
        All other Federal agencies shall, in consultation with 
        and with the assistance of the Secretary, utilize their 
        authorities in furtherance of the purposes of this Act 
        by carrying out programs for the conservation of 
        endangered species and threatened species listed 
        pursuant to section 4 of this Act.
            (B) Inventory of species on federal lands.--The 
        head of each Federal agency that is responsible for the 
        management of land and water--
                    (i) shall, to the maximum extent 
                practicable, by not later than December 31, 
                2003, prepare and provide to the Secretary an 
                inventory of the presence or occurrence of 
                endangered species, threatened species, species 
                that have been proposed for listing, and 
                species that the Secretary has identified as 
                candidates for listing under section 4, that 
                are located on land or water owned or under the 
                control of the agency; and
                    (ii) shall, at least once every ten years 
                thereafter, update the inventory required by 
                clause (i) including newly listed species, 
                species proposed for listing, and candidate 
                species.
    (2) Each Federal agency shall, in consultation with and 
with the assistance of the Secretary, insure that any action 
authorized, funded, or carried out by such agency (hereinafter 
in this section referred to as an ``agency action'') is not 
likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or 
adverse modification of habitat of such species which is 
determined by the Secretary, after consultation as appropriate 
with affected States, to be critical, unless such agency has 
been granted an exemption for such action by the Committee 
pursuant to subsection (h) of this section. In fulfilling the 
requirements of this paragraph each agency shall use the best 
scientific and commercial data available.
    [(3) Subject to such guidelines as the Secretary may 
establish, a Federal agency shall consult with the Secretary on 
any prospective agency action at the request of, and in 
cooperation with, the prospective permit or license applicant 
if the applicant has reason to believe that an endangered 
species or a threatened species may be present in the area 
affected by his project and that implementation of such action 
will likely affect such species.]
    (3) Consultation._
            (A) Notification of actions.--Prior to commencing 
        any action, each Federal agency shall notify the 
        Secretary if the agency determines that the action may 
        affect an endangered species or a threatened species, 
        or critical habitat.
            (B) Agency determination._
                    (i) In general.--Each Federal agency shall 
                consult with the Secretary as required by 
                paragraph (2) on each action for which 
                notification is required under subparagraph (A) 
                unless--
                            (I) the Federal agency makes a 
                        determination based on the opinion of a 
                        qualified biologist that the action is 
                        not likely to adversely affect an 
                        endangered species, a threatened 
                        species, or critical habitat;
                            (II) the Federal agency notifies 
                        the Secretary that it has determined 
                        that the action is not likely to 
                        adversely affect any listed species or 
                        critical habitat and provides the 
                        Secretary, along with the notice, a 
                        copy of the information on which the 
                        agency based the determination; and
                            (III) the Secretary does not object 
                        in writing to the agency's 
                        determination within 60 days after the 
                        date such notice is received.
                    (ii) Public access to information.--The 
                Secretary shall maintain a list of notices 
                received from Federal agencies under clause 
                (i)(II) and shall make available to the public 
                the list and, on request (subject to the 
                exemptions specified in section 552(b) of title 
                5, United States Code), the information 
                received by the Secretary on which the agency 
                based its determination.
                    (iii) Actions excluded.--The Secretary may 
                by regulation identify categories of actions 
                with respect to specific endangered species or 
                threatened species that the Secretary 
                determines are likely to have an adverse effect 
                on the species or its critical habitat and, for 
                which, the procedures of clause (i) shall not 
                apply.
                    (iv) Basis for objection.--The Secretary 
                shall object to a determination made by a 
                Federal agency pursuant to clause (i), if--
                            (I) the Secretary determines that 
                        the action may have an adverse effect 
                        on an endangered species, a threatened 
                        species or critical habitat;
                            (II) the Secretary finds that there 
                        is insufficient information in the 
                        documentation accompanying the 
                        determination to evaluate the impact of 
                        the proposed action on endangered 
                        species, threatened species, or 
                        critical habitat; or
                            (III) the Secretary finds that, 
                        because of the nature of the action and 
                        its potential impact on an endangered 
                        species, a threatened species, or 
                        critical habitat, review cannot be 
                        completed in 60 days.
                    (v) Reports.--The Secretary shall report to 
                the Congress not less often than biennially 
                with respect to the implementation of this 
                subparagraph including in the report 
                information on the circumstances that resulted 
                in the Secretary making any objection to a 
                determination made by a Federal agency under 
                clause (i) and the availability of resources to 
                carry out this section.
            (C) Consultation at request of applicant.--Subject 
        to such guidelines as the Secretary may establish, a 
        Federal agency shall consult with the Secretary on any 
        prospective agency action at the request of, and in 
        cooperation with, the prospective permit or license 
        applicant if the applicant has reason to believe that 
        an endangered species or a threatened species may be 
        present in the area affected by the applicant's project 
        and that implementation of the action will likely 
        affect the species.
    (4) Each Federal agency shall confer with the Secretary on 
any agency action which is likely to jeopardize the continued 
existence of any species proposed to be listed under section 4 
or result in the destruction or adverse modification of 
critical habitat proposed to be designated for such species. 
This paragraph does not require a limitation on the commitment 
of resources as described in subsection (d).
    (5) Effect of listing on existing plans._
            (A) Definition of action.--For the purposes of 
        paragraph (2) and this paragraph, the term ``action'' 
        includes land use plans under the Federal Land Policy 
        and Management Act of 1976 (43 U.S.C. 1701 et seq.) and 
        land and resource management plans under the Forest and 
        Rangeland Renewable Resources Planning Act of 1974 (16 
        U.S.C. 1600 et seq.), as amended by the National Forest 
        Management Act of 1976 (16 U.S.C. 472a et seq.).
            (B) Reinitiation of consultation.--Whenever a 
        determination to list a species as an endangered 
        species or a threatened species or designation of 
        critical habitat requires reinitiation of consultation 
        under paragraph (2) on an already approved action as 
        defined under subparagraph (A), the consultation shall 
        commence promptly, but not later than 90 days after the 
        date of the determination or designation, and shall be 
        completed not later than one year after the date on 
        which the consultation is commenced.
            (C) Site-specific actions during consultation.--
        Notwithstanding subsection (d), the Federal agency 
        implementing the land use plan or land and resource 
        management plan under subparagraph (B) may authorize, 
        fund, or carry out a site-specific ongoing or 
        previously scheduled action within the scope of the 
        plan on the lands prior to completing consultation on 
        the plan under subparagraph (B) pursuant to the 
        consultation procedures of this section and related 
        regulations, if--
                    (i) no consultation on the action is 
                required; or
                    (ii) consultation on the action is 
                required, the Secretary issues a biological 
                opinion and the action satisfies the 
                requirements of this section.
    (6) Consolidation of consultation and conferencing._
            (A) Consultation with a single agency.--
        Consultation and conferencing under this subsection 
        between the Secretary and a Federal agency may, with 
        the approval of the Secretary, encompass a number of 
        related or similar actions by the agency to be carried 
        out within a particular geographic area.
            (B) Consultation with several agencies.--The 
        Secretary may consolidate requests for consultation or 
        conferencing from various Federal agencies the proposed 
        actions of which may affect the same endangered 
        species, threatened species, or species that have been 
        proposed for listing under section 4, within a 
        particular geographic area.
            (C) Use of state information.--In conducting a 
        consultation under subsection (a)(2), the Secretary 
        shall actively solicit and consider information from 
        the State agency in each affected State.
            (D) Opportunity to participate in consultations.--
                    (i) In general.--In conducting a 
                consultation under subsection (a)(2), the 
                Secretary shall provide any person who has 
                sought authorization or funding from a Federal 
                agency for an action that is the subject of the 
                consultation, the opportunity to--
                            (I) prior to the development of a 
                        draft biological opinion, submit and 
                        discuss with the Secretary and the 
                        Federal agency information relevant to 
                        the effect of the proposed action on 
                        the species and the availability of 
                        reasonable and prudent alternatives (if 
                        a jeopardy opinion is to be issued) 
                        that the Federal agency and the person 
                        can take to avoid violation of 
                        subsection (a)(2);
                            (II) receive information, on 
                        request, subject to the exemptions 
                        specified in section 552(b) of title 5, 
                        United States Code, on the status of 
                        the species, threats to the species, 
                        and conservation measures, used by the 
                        Secretary to develop the draft 
                        biological opinion and the final 
                        biological opinion, including the 
                        associated incidental taking 
                        statements; and
                            (III) receive a copy of the draft 
                        biological opinion from the Federal 
                        agency and, prior to issuance of the 
                        final biological opinion, submit 
                        comments on the draft biological 
                        opinion and discuss with the Secretary 
                        and the Federal agency the basis for 
                        any finding in the draft biological 
                        opinion.
                    (ii) Explanation.--If reasonable and 
                prudent alternatives are proposed by a person 
                under clause (i) and the Secretary does not 
                include the alternatives in the final 
                biological opinion, the Secretary shall explain 
                to the person why those alternatives were not 
                included in the opinion.
                    (iii) Public access to information.--
                Comments and other information submitted to, or 
                received from, any person (pursuant to clause 
                (i)) who seeks authorization or funding for an 
                action shall be maintained in a file for that 
                action by the Secretary and shall be made 
                available to the public (subject to the 
                exemptions specified in section 552(b) of title 
                5, United States Code).
    (b) Opinion of Secretary.--(1)(A) Consultation under 
subsection (a)(2) with respect to any agency action shall be 
concluded within the 90-day period beginning on the date on 
which initiated or, subject to subparagraph (B), within such 
other period of time as is mutually agreeable to the Secretary 
and the Federal agency.
    (B) In the case of an agency action involving a permit or 
license applicant, the Secretary and the Federal agency may not 
mutually agree to conclude consultation within a period 
exceeding 90 days unless the Secretary, before the close of the 
90th day referred to in subparagraph (A)--
            (i) if the consultation period proposed to be 
        agreed to will end before the 150th day after the date 
        on which consultation was initiated, submits to the 
        applicant a written statement setting forth--
                    (I) the reasons why a longer period is 
                required;
                    (II) the information that is required to 
                complete the consultation; and
                    (III) the estimated date on which 
                consultation will be completed; or
            (ii) if the consultation period proposed to be 
        agreed to will end 150 or more days after the date on 
        which consultation was initiated, obtains the consent 
        of the applicant to such period.
The Secretary and the Federal agency may mutually agree to 
extend a consultation period established under the preceding 
sentence if the Secretary, before the close of such period, 
obtains the consent of the applicant to the extension.
    (2) Consultation under subsection (a)(3) shall be concluded 
within such period as is agreeable to the Secretary, the 
Federal agency, and the applicant concerned.
    (3)(A) Promptly after conclusion of consultation under 
paragraph (2) or (3) of subsection (a), the Secretary shall 
provide to the Federal agency and the applicant, if any, a 
written statement setting forth the Secretary's opinion, and a 
summary of the information on which the opinion is based, 
detailing how the agency action affects the species or its 
critical habitat. If jeopardy or adverse modification is found, 
the Secretary shall suggest those reasonable and prudent 
alternatives which he believes would not violate subsection 
(a)(2) and can be taken by the Federal agency or applicant in 
implementing the agency action.
    (B) Consultation under subsection (a)(3), and an opinion 
based by the Secretary incident to such consultation, regarding 
an agency action shall be treated respectively as a 
consultation under subsection (a)(2), and as an opinion issued 
after consultation under such subsection, regarding that action 
if the Secretary reviews the action before it is commenced by 
the Federal agency and finds, and notifies such agency, that no 
significant changes have been made with respect to the action 
and that no significant change has occurred regarding the 
information used during the initial consultation.
    (4) If after consultation under subsection (a)(2) of this 
section, the Secretary concludes that--
            (A) the agency action will not violate such 
        subsection, or offers reasonable and prudent 
        alternatives which the Secretary believes would not 
        violate such subsection;
            (B) the taking of an endangered species or a 
        threatened species incidental to the agency action will 
        not violate such subsection; and
            (C) if an endangered species or threatened species 
        of a marine mammal is involved, the taking is 
        authorized pursuant to section 101(a)(5) of the Marine 
        Mammal Protection Act of 1972.
the Secretary shall provide the Federal agency and the 
applicant concerned, if any, with a written statement that--
            (i) specifies the impact of such incidental taking 
        on the species,
            (ii) specifies those reasonable and prudent 
        measures that the Secretary considers necessary or 
        appropriate to minimize and mitigate such impact,
            (iii) in the case of marine mammals, specifies 
        those measures that are necessary to comply with 
        section 101(a)(5) of the Marine Mammal Protection Act 
        of 1972 with regard to such taking, and
            (iv) sets forth the terms and conditions 
        (including, but not limited to, reporting requirements) 
        that must be complied with by the Federal agency or 
        applicant (if any), or both, to implement the measures 
        specified under clauses (ii) and (iii). For purposes of 
        this subsection, reasonable and prudent measures shall 
        be related both in nature and extent to the effect of 
        the proposed activity that is the subject of the 
        consultation.
    (c) Biological Assessment.--(1) To facilitate compliance 
with the requirements of subsection (a)(2) each Federal agency 
shall, with respect to any agency action of such agency for 
which no contract for construction has been entered into and 
for which no construction has begun on the date of enactment of 
the Endangered Species Act Amendments of 1978, request of the 
Secretary information whether any species which is listed or 
proposed to be listed may be present in the area of such 
proposed action. If the Secretary advises, based on the best 
scientific and commercial data available, that such species may 
be present, such agency shall conduct a biological assessment 
for the purpose of identifying any endangered species or 
threatened species which is likely to be affected by such 
action. Such assessment shall be completed within 180 days 
after the date on which initiated (or within such other period 
as in mutually agreed to by the Secretary and such agency, 
except that if a permit or license applicant is involved, the 
180-day period may not be extended unless such agency provides 
the applicant, before the close of such period, with a written 
statement setting forth the estimated length of the proposed 
extension and the reasons therefor) and, before any contract 
for construction is entered into and before construction is 
begun with respect to such action. Such assessment may be 
undertaken as part of a Federal agency's compliance with the 
requirements of section 102 of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332).
    (2) Any person who may wish to apply for an exemption under 
subsection (g) of this section for that action may conduct a 
biological assessment to identify any endangered species or 
threatened species which is likely to be affected by such 
action. Any such biological assessment must, however, be 
conducted in cooperation with the Secretary and under the 
supervision of the appropriate Federal agency.
    (d) Limitation on Commitment of Resources.--After 
initiation of consultation required under subsection (a)(2), 
the Federal agency and the permit or license applicant shall 
not make any irreversible or irretrievable commitment of 
resources with respect to the agency action which has the 
effect of foreclosing the formulation or implementation of any 
reasonable and prudent alternative measures which would not 
violate subsection (a)(2).
    (e)(1) Establishment of Committee.--There is established a 
committee to be known as the Endangered Species Committee 
(hereinafter in this section referred to as the ``Committee'').
    (2) The Committee shall review any application submitted to 
it pursuant to this section and determine in accordance with 
subsection (h) of this section whether or not to grant an 
exemption from the requirements of subsection (a)(2) of this 
action for the action set forth in such application.
    (3) The Committee shall be composed of seven members as 
follows:
            (A) The Secretary of Agriculture.
            (B) The Secretary of the Army.
            (C) The Chairman of the Council of Economic 
        Advisors.
            (D) The Administrator of the Environmental 
        Protection Agency. Agency. \1\
---------------------------------------------------------------------------
    \1\ So in law. At the end of section 7(e)(3)(D) of the Endangered 
Species Act of 1973, the second ``Agency.'' should had been stricken.
---------------------------------------------------------------------------
            (E) The Secretary of the Interior.
            (F) The Administrator of the National Oceanic and 
        Atmospheric Administration.
            (G) The President, after consideration of any 
        recommendations received pursuant to subsection 
        (g)(2)(B) shall appoint one individual from each 
        affected State, as determined by the Secretary, to be a 
        member of the Committee for the consideration of the 
        application for exemption for an agency action with 
        respect to which such recommendations are made, not 
        later than 30 days after an application is submitted 
        pursuant to this section.
    (4)(A) Members of the Committee shall receive no additional 
pay on account of their service on the Committee.
    (B) While away from their homes or regular places of 
business in the performance of services for the Committee, 
members of the Committee shall be allowed travel expenses, 
including per diem in lieu of subsistence, in the same manner 
as persons employed intermittently in the Government service 
are allowed expenses under section 5703 of title 5 of the 
United States Code \2\
---------------------------------------------------------------------------
    \2\ So in law. At the end of section 7(e)(4)(B) of the Endangered 
Species Act of 1973, the period at end of the paragraph was omitted.
---------------------------------------------------------------------------
    (5)(A) Five members of the Committee or their 
representatives shall constitute a quorum for the transaction 
of any function of the Committee, except that, in no case shall 
any representative be considered in determining the existence 
of a quorum for the transaction of any function of the 
Committee if that function involves a vote by the Committee on 
any matter before the Committee.
    (B) The Secretary of the Interior shall be the Chairman of 
the Committee.
    (C) The Committee shall meet at the call of the Chairman or 
five of its members.
  (D) All meetings and records of the Committee shall be open 
to the public.
    (6) Upon request of the Committee, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Committee to assist it 
in carrying out its duties under this section.
    (7)(A) The Committee may for the purpose of carrying out 
its duties under this section hold such hearings, sit and act 
at such times and places, take such testimony, and receive such 
evidence, as the Committee deems advisable.
    (B) When so authorized by the Committee, any member or 
agent of the Committee may take any action which the Committee 
is authorized to take by this paragraph.
    (C) Subject to the Privacy Act, the Committee may secure 
directly from any Federal agency information necessary to 
enable it to carry out its duties under this section. Upon 
request of the Chairman of the Committee, the head of such 
Federal agency shall furnish such information to the Committee.
    (D) The Committee may use the United States mails in the 
same manner and upon the same conditions as a Federal agency.
    (E) The Administrator of General Services shall provide to 
the Committee on a reimbursable basis such administrative 
support services as the Committee may request.
    (8) In carrying out its duties under this section, the 
Committee may promulgate and amend such rules, regulations, and 
procedures, and issue and amend such orders as it deems 
necessary.
    (9) For the purpose of obtaining information necessary for 
the consideration of an application for an exemption under this 
section the Committee may issue subpoenas for the attendance 
and testimony of witnesses and the production of relevant 
papers, books, and documents.
    (10) In no case shall any representative, including a 
representative of a member designated pursuant to paragraph 
(3)(G) of this subsection, be eligible to cast a vote on behalf 
of any member.
    (f) Regulations.--Not later than 90 days after the date of 
enactment of the Endangered Species Act Amendments of 1978, the 
Secretary shall promulgate regulations which set forth the form 
and manner in which applications for exemption shall be 
submitted to the Secretary and the information to be contained 
in such applications. Such regulations shall require that 
information submitted in an application by the head of any 
Federal agency with respect to any agency action include but 
not be limited to--
            (1) a description of the consultation process 
        carried out pursuant to subsection (a)(2) of this 
        section between the head of the Federal agency and the 
        Secretary; and
            (2) a statement describing why such action cannot 
        be altered or modified to conform with the requirements 
        of subsection (a)(2) of this section.
    (g) Application for Exemption and Report to the 
Committee.--(1) A Federal agency, the Governor of the State in 
which an agency action will occur, if any, or a permit or 
license applicant may apply to the Secretary for an exemption 
for an agency action of such agency if, after consultation 
under subsection (a)(2), the Secretary's opinion under 
subsection (b) indicates that the agency action would violate 
subsection (a)(2). An application for an exemption shall be 
considered initially by the Secretary in the manner provided 
for in this subsection, and shall be considered by the 
Committee for a final determination under subsection (h) after 
a report is made pursuant to paragraph (5). The applicant for 
an exemption shall be referred to as the ``exemption 
applicant'' in this section.
    (2)(A) An exemption applicant shall submit a written 
application to the Secretary, in a form prescribed under 
subsection (f), not later than 90 days after the completion of 
the consultation process; except that, in the case of any 
agency action involving a permit or license applicant, such 
application shall be submitted not later than 90 days after the 
date on which the Federal agency concerned takes final agency 
action with respect to the issuance of the permit or license. 
For purposes of the preceding sentence, the term ``final agency 
action'' means (i) a disposition by an agency with respect to 
the issuance of a permit or license that is subject to 
administrative review, whether or not such disposition is 
subject to judicial review; or (ii) if administrative review is 
sought with respect to such disposition, the decision resulting 
after such review. Such application shall set forth the reasons 
why the exemption applicant considers that the agency action 
meets the requirements for an exemption under this subsection.
    (B) Upon receipt of an application for exemption for an 
agency action under paragraph (1), the Secretary shall promptly 
(i) notify the Governor of each affected State, if any, as 
determined by the Secretary, and request the Governors so 
notified to recommend individuals to be appointed to the 
Endangered Species Committee for consideration of such 
application; and (ii) publish notice of receipt of the 
application in the Federal Register, including a summary of the 
information contained in the application and a description of 
the agency action with respect to which the application for 
exemption has been filed.
    (3) The Secretary shall within 20 days after the receipt of 
an application for exemption, or within such other period of 
time as is mutually agreeable to the exemption applicant and 
the Secretary--
            (A) determine that the Federal agency concerned and 
        the exemption applicant have--
                    (i) carried out the consultation 
                responsibilities described in subsection (a) in 
                good faith and made a reasonable and 
                responsible effort to develop and fairly 
                consider modifications or reasonable and 
                prudent alternatives to the proposed agency 
                action which would not violate subsection 
                (a)(2);
                    (ii) conducted any biological assessment 
                required by subsection (c); and
                    (iii) to the extent determinable within the 
                time provided herein, refrained from making any 
                irreversible or irretrievable commitment of 
                resources prohibited by subsection (d); or
            (B) deny the application for exemption because the 
        Federal agency concerned or the exemption applicant 
        have not met the requirements set forth in subparagraph 
        (A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be 
considered final agency action for purposes of chapter 7 of 
title 5, United States Code.
    (4) If the Secretary determines that the Federal agency 
concerned and the exemption applicant have met the requirements 
set forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in 
consultation with the Members of the Committee, hold a hearing 
on the application for exemption in accordance with sections 
554, 555, and 556 (other than subsection (b) (1) and (2) 
thereof) of title 5, United States Code, and prepare the report 
to be submitted pursuant to paragraph (5).
    (5) Within 140 days after making the determinations under 
paragraph (3) or within such other period of time as in 
mutually agreeable to the exemption applicant and the 
Secretary, the Secretary shall submit to the Committee a report 
discussing--
            (A) the availability and reasonable and prudent 
        alternatives to the agency action, and the nature and 
        extent of the benefits of the agency action and of 
        alternative courses of action consistent with 
        conserving the species of the critical habitat;
            (B) a summary of the evidence concerning whether or 
        not the agency action is in the public interest and is 
        of national or regional significance;
            (C) appropriate reasonable mitigation and 
        enhancement measures which should be considered by the 
        Committee; and
            (D) whether the Federal agency concerned and the 
        exemption applicant refrained from making any 
        irreversible or irretrievable commitment of resources 
        prohibited by subsection (d).
    (6) To the extent practicable within the time required for 
action under subsection (g) of this section, and except to the 
extent inconsistent with the requirements of this section, the 
consideration of any application for an exemption under this 
section and the conduct of any hearing under this subsection 
shall be in accordance with sections 554, 555, and 556 (other 
than subsection (b)(3) of section 556) of title 5, United 
States Code.
    (7) Upon request of the Secretary, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Secretary to assist him 
in carrying out his duties under this section.
    (8) All meetings and records resulting from activities 
pursuant to this subsection shall be open to the public.
    (h) Exemption.--(1) The Committee shall make a final 
determination whether or not to grant an exemption within 30 
days after receiving the report of the Secretary pursuant to 
subsection (g)(5). The Committee shall grant an exemption from 
the requirements of subsection (a)(2) for an agency action if, 
by a vote of not less than five of its members voting in 
person--
            (A) it determines on the record, based on the 
        report of the Secretary, the record of the hearing held 
        under subsection (g)(4), and on such other testimony or 
        evidence as it may receive, that--
                    (i) there are no reasonable and prudent 
                alternatives to the agency action;
                    (ii) the benefits of such action clearly 
                outweigh the benefits of alternative courses of 
                action consistent with conserving the species 
                or its critical habitat, and such action is in 
                the public interest;
                    (iii) the action is of regional or national 
                significance; and
                    (iv) neither the Federal agency concerned 
                nor the exemption applicant made any 
                irreversible or irretrievable commitment of 
                resources prohibited by subsection (d); and
            (B) it establishes such reasonable mitigation and 
        enhancement measures, including, but not limited to, 
        live propagation, transplantation, and habitat 
        acquisition and improvement, as are necessary and 
        appropriate to minimize the adverse effects of the 
        agency action upon the endangered species, threatened 
        species, or critical habitat concerned.
    Any final determination by Committee under this subsection 
shall be considered final agency action for purposes of chapter 
7 of title 5 of the United States Code.
    (2)(A) Except as provided in subparagraph (B), an exemption 
for an agency action granted under paragraph (1) shall 
constitute a permanent exemption with respect to all endangered 
or threatened species for the purposes of completing such 
agency action--
            (i) regardless whether the species was identified 
        in the biological assessment; and
            (ii) only if a biological assessment has been 
        conducted under subsection (c) with respect to such 
        agency action.
    (B) An exemption shall be permanent under subparagraph (A) 
unless--
            (i) the Secretary finds, based on the best 
        scientific and commercial data available, that such 
        exemption would result in the extinction of a species 
        that was not the subject of consultation under 
        subsection (a)(2) or was not identified in any 
        biological assessment conducted under subsection (c), 
        and
            (ii) the Committee determines within 60 days after 
        the date of the Secretary's finding that the exemption 
        should not be permanent.
    If the Secretary makes a finding described in clause (i), 
the Committee shall meet with respect to the matter within 30 
days after the date of the finding.
    (i) Review by Secretary of State.--Notwithstanding any 
other provision of this Act, the Committee shall be prohibited 
from considering for exemption any application made to it, if 
the Secretary of State, after a review of the proposed agency 
action and its potential implications, and after hearing, 
certifies, in writing, to the Committee within 60 days of any 
application made under this section that the granting of any 
such exemption and the carrying out of such action would be in 
violation of an international treaty obligation or other 
international obligation of the United States. The Secretary of 
State shall, at the time of such certification, publish a copy 
thereof in the Federal Register.
    (j) Notwithstanding any other provision of this Act, the 
Committee shall grant an exemption for any agency action if the 
Secretary of Defense finds that such exemption is necessary for 
reasons of national security.
    (k) Special Provisions.--An exemption decision by the 
Committee under this section shall not be a major Federal 
action for purposes of the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental 
impact statement which discusses the impacts upon endangered 
species or threatened species or their critical habitats shall 
have been previously prepared with respect to any agency action 
exempted by such order.
    (l) Committee Orders.--(1) If the Committee determines 
under subsection (h) that an exemption should be granted with 
respect to any agency action, the Committee shall issue an 
order granting the exemption and specifying the mitigation and 
enhancement measures established pursuant to subsection (h) 
which shall be carried out and paid for by the exemption 
applicant in implementing the agency action. All necessary 
mitigation and enhancement measures shall be authorized prior 
to the implementing of the agency action and funded 
concurrently with all other project features.
    (2) The applicant receiving such exemption shall include 
the costs of such mitigation and enhancement measures within 
the overall costs of continuing the proposed action. 
Notwithstanding the preceding sentence the costs of such 
measures shall not be treated as project costs for the purpose 
of computing benefit-cost or other ratios for the proposed 
action. Any applicant may request the Secretary to carry out 
such mitigation and enhancement measures. The costs incurred by 
the Secretary in carrying out any such measures shall be paid 
by the applicant receiving the exemption. No later than one 
year after the granting of an exemption, the exemption 
applicant shall submit to the Council on Environmental Quality 
a report describing its compliance with the mitigation and 
enhancement measures prescribed by this section. Such report 
shall be submitted annually until all such mitigation and 
enhancement measures have been completed. Notice of the public 
availability of such reports shall be published in the Federal 
Register by the Council on Environmental Quality.
    (m) Notice.--The 60-day notice requirement of section 11(g) 
of this Act shall not apply with respect to review of any final 
determination of the Committee under subsection (h) of this 
section granting an exemption from the requirements of 
subsection (a)(2) of this section.
    (n) Judicial Review.--Any person, [as defined by section 
3(13) of this Act,] may obtain judicial review, under chapter 7 
of title 5 of the United States Code, of any decision of the 
Endangered Species Committee under subsection (h) in the United 
States Court of Appeals for (1) any circuit wherein the agency 
action concerned will be, or is being, carried out, or (2) in 
any case in which the agency action will be, or is being, 
carried out outside of any circuit, the District of Columbia, 
by filing in such court within 90 days after the date of 
issuance of the decision, a written petition for review. A copy 
of such petition shall be transmitted by the clerk of the court 
to the Committee and the Committee shall file in the court the 
record in the proceeding, as provided in section 2112, of title 
28, United States Code. Attorneys designated by the Endangered 
Species Committee may appear for, and represent the Committee 
in any action for review under this subsection.
    (o) Exemption as Providing Exception on Taking of 
Endangered Species.--Notwithstanding sections 4(d) and 
9(a)(1)(B) and (C) of this Act, sections 101 and 102 of the 
Marine Mammal Protection Act of 1972, or any regulation 
promulgated to implement any such section--
            (1) any action for which an exemption is granted 
        under subsection (h) of this section shall not be 
        considered to be a taking of any endangered species or 
        threatened species with respect to any activity which 
        is necessary to carry out such action; and
            (2) any taking that is in compliance with the terms 
        and conditions specified in a written statement 
        provided under subsection (b)(4)(iv) of this section 
        shall not be considered to be a prohibited taking of 
        the species concerned.
    (p) Exemptions in Presidentially Declared Disaster Areas.--
In any area which has been declared by the President to be a 
major disaster area under the Disaster Relief and Emergency 
Assistance Act, the President is authorized to make the 
determinations required by subsections (g) and (h) of this 
section for any project for the repair or replacement of a 
public facility substantially as it existed prior to the 
disaster under section 405 or 406 of the Disaster Relief and 
Emergency Assistance Act, and which the President determines 
(1) is necessary to prevent the recurrence of such a natural 
disaster and to reduce the potential loss of human life, and 
(2) to involve an emergency situation which does not allow the 
ordinary procedures of this section to be followed. 
Notwithstanding any other provision of this section, the 
Committee shall accept the determinations of the President 
under this subsection.
    (q) Emergency Consultations.--In response to a natural 
disaster or other emergency, consultation under subsection 
(a)(2) may be deferred by a Federal agency for the emergency 
repair of a natural gas pipeline, hazardous liquid pipeline, or 
electrical transmission facility, if the repair is necessary to 
address an imminent threat to human lives or an imminent and 
significant threat to the environment. Consultation shall be 
initiated as soon as practicable after the threat to human 
lives or the environment has abated.

(16 U.S.C. 1536)

                       international cooperation

    Sec. 8. (a) Financial Assistance.--As a demonstration of 
the commitment of the United States to the worldwide protection 
of endangered species and threatened species, the President 
may, subject to the provisions of section 1415 of the 
Supplemental Appropriation Act, 1953 (31 U.S.C. 724), use 
foreign currencies accruing to the United States Government 
under the Agricultural Trade Development and Assistance Act of 
1954 or any other law to provide to any foreign county (with 
its consent) assistance in the development and management of 
programs in that country which the Secretary determines to be 
necessary or useful for the conservation of any endangered 
species or threatened species listed by the Secretary pursuant 
to section 4 of this Act. The President shall provide 
assistance (which includes, but is not limited to, the 
acquisition, by lease or otherwise, of lands, waters, or 
interests therein) to foreign countries under this section 
under such terms and conditions as he deems appropriate. 
Whenever foreign currencies are available for the provision of 
assistance under this section, such currencies shall be used in 
preference to funds appropriated under the authority of section 
15 of this Act.
    (b) Encouragement of Foreign Programs.--In order to carry 
out further the provisions of this Act, the Secretary, through 
the Secretary of State shall encourage--
            (1) foreign countries to provide for the 
        conservation of fish or wildlife and plants including 
        endangered species and threatened species listed 
        pursuant to section 4 of this Act;
            (2) the entering into of bilateral or multilateral 
        agreements with foreign countries to provide for such 
        conservation; and
            (3) foreign persons who directly or indirectly take 
        fish or wildlife or plants in foreign countries or on 
        the high seas for importation into the United States 
        for commercial or other purposes to develop and carry 
        out with such assistance as he may provide, 
        conservation practices designed to enhance such fish or 
        wildlife or plants and their habitat.
    (c) Personnel.--After consultation with the Secretary of 
State, the Secretary may--
            (1) assign or otherwise make available any officer 
        or employee of his department for the purpose of 
        cooperating with foreign countries and international 
        organizations in developing personnel resources and 
        programs which promote the conservation of fish or 
        wildlife or plants, and
            (2) conduct or provide financial assistance for the 
        educational training of foreign personnel, in this 
        country or abroad, in fish, wildlife, or plant 
        management, research and law enforcement and to render 
        professional assistance abroad in such matters.
    (d) Investigations.--After consultation with the Secretary 
of State and the Secretary of the Treasury, as appropriate, the 
Secretary may conduct or cause to be conducted such law 
enforcement investigations and research abroad as he deems 
necessary to carry out the purposes of this Act.

(16 U.S.C. 1537)

                       convention implementation

    Sec. 8A. (a) Management Authority and Scientific 
Authority.--The Secretary of the Interior (hereinafter in this 
section referred to as the ``Secretary'') is designated as the 
Management Authority and the Scientific Authority for purposes 
of the Convention and the respective functions of each such 
Authority shall be carried out through the United States Fish 
and Wildlife Service.
    (b) Management Authority Functions.--The Secretary shall do 
all things necessary and appropriate to carry out the functions 
of the Management Authority under the Convention.
    (c) Scientific Authority Functions.--(1) The Secretary 
shall do all things necessary and appropriate to carry out the 
functions of the Scientific Authority under the Convention.
    (2) The Secretary shall base the determinations and advice 
given by him under Article IV of the Convention with respect to 
wildlife upon the best available biological information derived 
from professionally accepted wildlife management practices; but 
is not required to make, or require any State to make, 
estimates of population size in making such determinations or 
giving such advice.
    (d) Reservations by the United States Under Convention.--If 
the United States votes against including any species in 
Appendix I or II of the Convention and does not enter a 
reservation pursuant to paragraph (3) of Article XV of the 
Convention with respect to that species, the Secretary of 
State, before the 90th day after the last day on which such a 
reservation could be entered, shall submit to the Committee on 
Merchant Marine and Fisheries of the House of Representatives, 
and to the Committee on the Environment and Public Works of the 
Senate, a written report setting forth the reasons why such a 
reservation was not entered.
    (e) Wildlife Preservation in Western Hemisphere.--(1) The 
Secretary of the Interior (hereinafter in this subsection 
referred to as the ``Secretary''), in cooperation with the 
Secretary of State, shall act on behalf of, and represent, the 
United States in all regards as required by the Convention on 
Nature Protection and Wildlife Preservation in the Western 
Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this 
subsection referred to as the ``Western Convention''). In the 
discharge of these responsibilities, the Secretary and the 
Secretary of State shall consult with the Secretary of 
Agriculture, the Secretary of Commerce, and the heads of other 
agencies with respect to matters relating to or affecting their 
areas of responsibility.
    (2) The Secretary and the Secretary of State shall, in 
cooperation with the contracting parties to the Western 
Convention and, to the extent feasible and appropriate, with 
the participation of State agencies, take such steps as are 
necessary to implement the Western Convention. Such steps shall 
include, but not be limited to--
            (A) cooperation with contracting parties and 
        international organizations for the purpose of 
        developing personnel resources and programs that will 
        facilitate implementation of the Western Convention;
            (B) identification of those species of birds that 
        migrate between the United States and other contracting 
        parties, and the habitats upon which those species 
        depend, and the implementation of cooperative measures 
        to ensure that such species will not become endangered 
        or threatened; and
            (C) identification of measures that are necessary 
        and appropriate to implement those provisions of the 
        Western Convention which address the protection of wild 
        plants.
    (3) No later than September 30, 1985, the Secretary and the 
Secretary of State shall submit a report to Congress describing 
those steps taken in accordance with the requirements of this 
subsection and identifying the principal remaining actions yet 
necessary for comprehensive and effective implementation of the 
Western Convention.
    (4) The provisions of this subsection shall not be 
construed as affecting the authority, jurisdiction, or 
responsibility of the several States to manage, control, or 
regulate resident fish or wildlife under State law or 
regulations.

(16 U.S.C. 1537a)

                            prohibited acts

    Sec. 9. (a) General.--(1) Except as provided in sections 
6(g)(2) and 10 of this Act, with respect to any endangered 
species of fish or wildlife listed pursuant to section 4 of 
this Act it is unlawful for any person subject to the 
jurisdiction of the United States to--
            (A) import any such species into, or export any 
        such species from the United States;
            (B) take any such species within the United States 
        or the territorial sea of the United States;
            (C) take any such species upon the high seas;
            (D) possess, sell, deliver, carry, transport, or 
        ship, by any means whatsoever, any such species taken 
        in violation of subparagraphs (B) and (C);
            (E) deliver, receive, carry, transport, or ship in 
        interstate or foreign commerce, by any means whatsoever 
        and in the course of a commercial activity, any such 
        species;
            (F) sell or offer for sale in interstate or foreign 
        commerce any such species; or
            (G) violate any regulation pertaining to such 
        species or to any threatened species of fish or 
        wildlife listed pursuant to section 4 of this Act and 
        promulgated by the Secretary pursuant to authority 
        provided by this Act.
    (2) Except as provided in sections 6(g)(2) and 10 of this 
Act, with respect to any endangered species of plants listed 
pursuant to section 4 of this Act, it is unlawful for any 
person subject to the jurisdiction of the United States to--
            (A) import any such species into, or export any 
        such species from, the United States;
            (B) remove and reduce to possession any such 
        species from areas under Federal jurisdiction; 
        maliciously damage or destroy any such species on any 
        such area; or remove cut, dig up, or damage or destroy 
        any such species on any other area in knowing violation 
        of any law or regulation of any state or in the course 
        of any violation of a state criminal trespass law;
            (C) deliver, receive, carry, transport, or ship in 
        interstate or foreign commerce, by any means whatsoever 
        and in the course of a commercial activity, any such 
        species;
            (D) sell or offer for sale in interstate or foreign 
        commerce any such species; or
            (E) violate any regulation pertaining to such 
        species or to any threatened species of plants listed 
        pursuant to section 4 of this Act and promulgated by 
        the Secretary pursuant to authority provided by this 
        Act.
    (b)(1) Species Held in Captivity or Controlled 
Environment.--The provisions of subsections (a)(1)(A) and 
(a)(1)(G) of this section shall not apply to any fish or 
wildlife which was held in captivity or in a controlled 
environment on (A) December 28, 1973, or (B) the date of the 
publication in the Federal Register of a final regulation 
adding such fish or wildlife species to any list published 
pursuant to subsection (c) of section 4 of this Act: Provided, 
That such holding and any subsequent holding or use of the fish 
or wildlife as not in the course of a commercial activity. With 
respect to any act prohibited by subsections (a)(1)(A) and 
(a)(1)(G) of this section which occurs after a period of 180 
days from (i) December 28, 1973, or (ii) the date of 
publication in the Federal Register of a final regulation 
adding such fish or wildlife species to any list published 
pursuant to subsection (c) of section 4 of this Act, there 
shall be a rebuttable presumption that the fish or wildlife 
involved in such act is not entitled to the exemption contained 
in this subsection.
    (2)(A) The provisions of subsections (a)(1) shall not apply 
to--
            (i) any raptor legally held in captivity or in a 
        controlled environment on the effective date of the 
        Endangered Species Act Amendments of 1978; or
            (ii) any progeny of any raptor described in clause 
        (i); until such time as any such raptor or progeny is 
        intentionally returned to a wild state.
    (B) Any person holding any raptor or progeny described in 
subparagraph (A) must be able to demonstrate that the raptor or 
progeny does, in fact, qualify under the provisions of this 
paragraph, and shall maintain and submit to the Secretary, on 
request, such inventories, documentation, and records as the 
Secretary may by regulation require as being reasonably 
appropriate to carry out the purposes of this paragraph. Such 
requirements shall not unnecessarily duplicate the requirements 
of other rules and regulations promulgated by the Secretary.
    (c) Violation of Convention.--(1) It is unlawful for any 
person subject to the jurisdiction of the United States to 
engage in any trade in any specimens contrary to the provisions 
of the Convention, or to possess any specimens traded contrary 
to the provisions of the Convention, including the definitions 
of terms in article I thereof.
    (2) Any importation into the United States of fish or 
wildlife shall, if--
            (A) such fish or wildlife is not an endangered 
        species listed pursuant to section 4 of this Act but is 
        listed in Appendix II of the Convention;
            (B) the taking and exportation of such fish or 
        wildlife is not contrary to the provisions of the 
        Convention and all other applicable requirements of the 
        Convention have been satisfied;
            (C) the applicable requirements of subsection (d), 
        (e), and (f) of this section have been satisfied; and
            (D) such importation is not made in the course of a 
        commercial activity;
be presumed to be an important not in violation of any 
provision of this Act or any regulation issued pursuant to this 
Act.
    (d) Imports and Exports.--
            (1) In general.--It is unlawful for any person, 
        without first having obtained permission from the 
        Secretary, to engage in business--
                    (A) as an importer or exporter of fish or 
                wildlife (other than shellfish and fishery 
                products which (i) are not listed pursuant to 
                section 4 of this Act as endangered species or 
                threatened species, and (ii) are imported for 
                purposes of human or animal consumption or 
                taken in waters under the jurisdiction of the 
                United States or on the high seas for 
                recreational purposes) or plants; or
            (B) as an importer or exporter of any amount of raw 
        or worked African elephant ivory.
            (2) Requirements.--Any person required to obtain 
        permission under paragraph (1) of this subsection 
        shall--
                    (A) keep such records as will fully and 
                correctly disclose each importation or 
                exportation of fish, wildlife, plants, or 
                African elephant ivory made by him and the 
                subsequent disposition, made by him with 
                respect to such fish, wildlife, plants, or 
                ivory;
                    (B) at all reasonable times upon notice by 
                a duly authorized representative of the 
                Secretary, afford such representative access to 
                his place of business, an opportunity to 
                examine his inventory of imported fish, 
                wildlife, plants, or African elephant ivory and 
                the records required to be kept under 
                subparagraph (A) of this paragraph, and to copy 
                such records; and
                    (C) file such reports as the Secretary may 
                require.
            (3) Regulations.--The Secretary shall prescribe 
        such regulations as are necessary and appropriate to 
        carry out the purposes of this subsection.
            (4) Restriction on consideration of value of amount 
        of african elephant ivory imported or exported.--In 
        granting permission under this subsection for 
        importation or exportation of African elephant ivory, 
        the Secretary shall not vary the requirements for 
        obtaining such permission on the basis of the value or 
        amount of ivory imported or exported under such 
        permission.
    (e) Reports.--It is unlawful for any person importing or 
exporting fish or wildlife (other than shellfish and fishery 
products which (1) are not listed pursuant to section 4 of this 
Act as endangered or threatened species, and (2) are imported 
for purposes of human or animal consumption or taken in waters 
under the jurisdiction of the United States or on the high seas 
for recreational purposes) or plants to fail to file any 
declaration or report as the Secretary deems necessary to 
facilitate enforcement of this Act or to meet the obligations 
of the Convention.
    (f) Designation of Ports.--(1) It is unlawful for any 
person subject to the jurisdiction of the United States to 
import into or export from the United States any fish or 
wildlife (other than shellfish and fishery products which (A) 
are not listed pursuant to section 4 of this Act as endangered 
species or threatened species, and (B) are imported for 
purposes of human or animal consumption or taken in waters 
under the jurisdiction of the United States or on the high seas 
for recreational purposes) or plants, except at a port of ports 
designated by the Secretary of the Interior. For the purposes 
of facilitating enforcement of this Act and reducing the costs 
thereof, the Secretary of the Interior, with approval of the 
Secretary of the Treasury and after notice and opportunity for 
public hearing, may, by regulation, designate ports and change 
such designations. The Secretary of the Interior, under such 
terms and conditions as he may prescribe, may permit the 
importation or exportation at nondesignated ports in the 
interest of the health or safety of the fish or wildlife or 
plants, or for other reasons if, in his discretion, he deems it 
appropriate and consistent with the purpose of this subsection.
    (2) Any port designated by the Secretary of the Interior 
under the authority of section 4(d) of the Act of December 5, 
1969 (16 U.S.C. 666cc-4(d), shall, if such designation is in 
effect on the day before the date of the enactment of this Act, 
be deemed to be a port designated by the Secretary under 
paragraph (1) of this subsection until such time as the 
Secretary otherwise provides.
    (g) Violations.--It is unlawful for any person subject to 
the jurisdiction of the United States to attempt to commit, 
solicit another to commit, or cause to be committed, any 
offense defined in this section.
    (h) No Taking Agreements.--The Secretary and a non-Federal 
property owner may, at the request of the property owner, enter 
into an agreement identifying activities of the property owner 
that, based on a determination of the Secretary, will not 
result in a violation of the prohibitions of paragraphs (1)(B), 
(1)(C), and (2)(B) of subsection (a). The Secretary shall 
respond to a request for an agreement submitted by a property 
owner within 90 days after receipt. Nothing in this subsection 
prevents the Secretary, the Attorney General, or any other 
person from commencing an enforcement action under section 11.

(16 U.S.C. 1538)

           [exceptions] conservation measures and exceptions

    Sec. 10. (a) Permits.--(1) The Secretary may permit, under 
such terms and conditions as he shall prescribe--
            (A) any act otherwise prohibited by section 9 for 
        scientific purposes or to enhance the propagation or 
        survival of the affected species, including, but not 
        limited to, acts necessary for the establishment and 
        maintenance of experimental populations pursuant 
        subsection (j); [or]
            (B) any taking otherwise prohibited by [section 
        9(a)(1)(B)] subparagraph (B) or (C) of section 9(a)(1) 
        if such taking is incidental to, and not the purpose 
        of, the carrying out of an otherwise lawful activity[.] 
        ; or
            (C) any taking incidental to, and not the purpose 
        of, the carrying out of an otherwise lawful activity 
        pursuant to a candidate conservation agreement entered 
        into under subsection (k).
    (2)(A) No permit may be issued by the Secretary authorizing 
any taking referred to in paragraph (1)(B) unless the applicant 
therefor submits to the Secretary a conservation plan that 
specifies--
            (i) the impact which will likely result from such 
        taking;
            (ii) what steps the applicant will take to minimize 
        and mitigate such impacts, and the funding that will be 
        available to implement such steps;
            (iii) what alternative actions to such taking the 
        applicant considered and the reasons why such 
        alternatives are not being utilized; and
            (iv) such other measures that the Secretary may 
        require as being necessary or appropriate for purposes 
        of the plan.
    (B) If the Secretary finds, after opportunity for public 
comment, with respect to a permit application and the related 
conservation plan that--
            (i) the taking will be incidental;
            (ii) the applicant will, to the maximum extent 
        practicable, minimize and mitigate the impacts of such 
        taking;
            (iii) the applicant will ensure that adequate 
        funding for the plan will be provided;
            (iv) the taking will not appreciably reduce the 
        likelihood of the survival and recovery of the species 
        in the wild; and
            (v) the measures, if any, required under 
        subparagraph (A)(iv) will be met;
and he has received such other assurances as he may require 
that the plan will be implemented, the Secretary shall issue 
the permit. The permit shall contain such terms and conditions 
as the Secretary deems necessary or appropriate to carry out 
the purposes of this paragraph, including, but not limited to, 
such [reporting] monitoring and reporting requirements as the 
Secretary deems necessary for determining whether such terms 
and conditions are being complied with.
    [(C) The Secretary shall revoke a permit issued under this 
paragraph if he finds that the permittee is not complying with 
the terms and conditions of the permit.]
    (3) Multiple species conservation plans.--
            (A) In general.--In addition to one or more listed 
        species, a conservation plan developed under paragraph 
        (2) may, at the request of the applicant, include 
        species proposed for listing under section 4(c), 
        candidate species, or other species found on lands or 
        waters owned or within the jurisdiction of the 
        applicant covered by the plan.
            (B) Approval criteria.--The Secretary shall approve 
        an application for a permit under paragraph (1)(B) that 
        includes species other than species listed as 
        endangered species or threatened species if, after 
        notice and opportunity for public comment, the 
        Secretary finds that the permit application and the 
        related conservation plan satisfy the criteria of 
        subparagraphs (A) and (B) of paragraph (2) with respect 
        to listed species, and that the permit application and 
        the related conservation plan with respect to other 
        species satisfy the following requirements--
                    (i) the impact on non-listed species 
                included in the plan will be incidental;
                    (ii) the applicant will, to the maximum 
                extent practicable, minimize and mitigate such 
                impacts;
                    (iii) the actions taken by the applicant 
                with respect to species proposed for listing or 
                candidates for listing included in the plan, if 
                undertaken by all similarly situated persons 
                within the range of such species, are likely to 
                eliminate the need to list the species as an 
                endangered species or a threatened species for 
                the duration of the agreement as a result of 
                the activities conducted by those persons;
                    (iv) the actions taken by the applicant 
                with respect to other non-listed species 
                included in the plan, if undertaken by all 
                similarly situated persons within the range of 
                such species, would not be likely to contribute 
                to a determination to list the species as an 
                endangered species or a threatened species for 
                the duration of the agreement; and
                    (v) the criteria of subparagraphs (A)(iv), 
                (B)(iii), and (B)(v) of paragraph (2);
        and the Secretary has received such other assurances as 
        the Secretary may require that the plan will be 
        implemented. The permit shall contain such terms and 
        conditions as the Secretary deems necessary or 
        appropriate to carry out the purposes of this 
        paragraph, including such monitoring and reporting 
        requirements as the Secretary deems necessary for 
        determining whether the terms and conditions are being 
        complied with.
            (C) Technical assistance and guidance.--To the 
        maximum extent practicable, the Secretary and the heads 
        of other Federal agencies, in cooperation with the 
        States, are authorized and encouraged to provide 
        technical assistance or guidance to any State or person 
        that is developing a multiple species conservation plan 
        under this paragraph. In providing technical assistance 
        or guidance, priority shall be given to landowners that 
        might otherwise encounter difficulty in developing such 
        a plan.
            (D) Deadlines.--A conservation plan developed under 
        this paragraph shall be reviewed and approved or 
        disapproved by the Secretary not later than one year 
        after the date of submission, or within such other 
        period of time as is mutually agreeable to the 
        Secretary and the applicant.
            (E) State and local law.--
                    (i) Other species.--Nothing in this 
                paragraph shall limit the authority of a State 
                or local government with respect to fish, 
                wildlife, or plants that have not been listed 
                as an endangered species or a threatened 
                species under section 4.
                    (ii) Compliance.--An action by the 
                Secretary, the Attorney General, or a person 
                under section 11(g) to ensure compliance with a 
                multiple species conservation plan and permit 
                under this paragraph may be brought only 
                against a permittee or the Secretary.
            (F) Effective date of permit for non-listed 
        species.--In the case of any species not listed as an 
        endangered species or a threatened species, but covered 
        by an approved multiple species conservation plan, the 
        permit issued under paragraph (1)(B) shall take effect 
        without further action by the Secretary at the time the 
        species is listed pursuant to section 4(c), and to the 
        extent that the taking is otherwise prohibited by 
        subparagraph (B) or (C) of section 9(a)(1).
    (4) Low effect activities.--
            (A) In general.--Notwithstanding paragraph (2)(A), 
        the Secretary may issue a permit for a low effect 
        activity authorizing any taking referred to in 
        paragraph (1)(B), if the Secretary determines that the 
        activity will have no more than a negligible effect, 
        both individually and cumulatively, on the species, any 
        taking associated with the activity will be incidental, 
        and the taking will not appreciably reduce the 
        likelihood of the survival and recovery of the species 
        in the wild. The permit shall require, to the extent 
        appropriate, actions to be taken by the permittee to 
        offset the effects of the activity on the species.
            (B) Applications.--The Secretary shall minimize the 
        costs of permitting to the applicant by developing, in 
        cooperation with the States, model permit applications 
        that will constitute conservation plans for low effect 
        activities.
            (C) Public comment; effective date.--On receipt of 
        a permit application for an activity that meets the 
        requirements of subparagraph (A), the Secretary shall 
        provide notice in a newspaper of general circulation in 
        the area of the activity not later than 30 days after 
        receipt and provide an opportunity for comment on the 
        permit. If the Secretary does not receive significant 
        adverse comment by the date that is 30 days after the 
        notice is published, the permit shall take effect 
        without further action by the Secretary 60 days after 
        the notice is published.
    (5) No surprises._
            (A) In general.--Each conservation plan developed 
        under this subsection shall include a no surprises 
        provision, as described in this paragraph.
            (B) No surprises.--A person who has entered into, 
        and is in compliance with, a conservation plan under 
        this subsection may not be required to undertake any 
        additional mitigation measures for species covered by 
        such plan if such measures would require the payment of 
        additional money, or the adoption of additional use, 
        development, or management restrictions on any land, 
        waters, or water-related rights that would otherwise be 
        available under the terms of the plan without the 
        consent of the permittee. The Secretary and the 
        applicant, by the terms of the conservation plan, shall 
        identify--
                    (i) other modifications to the plan; or
                    (ii) other additional measures;
        if any, that the Secretary may require under 
        extraordinary circumstances.
    (6) Permit revocation.--After notice and an opportunity for 
correction, as appropriate, the Secretary shall revoke a permit 
issued under this subsection if the Secretary finds that the 
permittee is not complying with the terms and conditions of the 
permit or the conservation plan.
    (7) Habitat conservation planning loan program.--
            (A) Establishment.--There is established a 
        ``Habitat Conservation Planning Loan Program'' 
        (referred to in this paragraph as the ``Program'') 
        under which the Secretary may make no-interest loans to 
        assist in the development of a conservation plan under 
        this section.
            (B) Eligibility.--Any State, county, municipality, 
        or other political subdivision of a State shall be 
        eligible to receive a loan under the Program.
            (C) Loan limits.--The amount of any loan may not 
        exceed the total financial contribution of the other 
        parties participating in the development of the plan.
            (D) Criteria.--In determining whether to make a 
        loan, the Secretary shall consider--
                    (i) the number of species covered by the 
                plan;
                    (ii) the extent to which there is a 
                commitment to participate in the planning 
                process from a diversity of interests 
                (including local governmental, business, 
                environmental, and landowner interests);
                    (iii) the likely benefits of the plan; and
                    (iv) such other factors as the Secretary 
                considers appropriate.
            (E) Term of the loan.--
                    (i) In general.--Except as provided in 
                clause (ii), a loan made under this paragraph 
                shall be for a term of ten years.
                    (ii) Advanced repayments.--If no 
                conservation plan is developed within three 
                years after the date of the loan, the loan 
                shall be for a term of four years. If no permit 
                is issued under paragraph (1)(B) with respect 
                to the conservation plan within four years 
                after the date of the loan, the loan shall be 
                for a term of five years.
    (b) Hardship Exemptions.--(1) If any person enters into a 
contract with respect to a species of fish or wildlife or plant 
before the date of the publication in the Federal Register of 
notice of consideration of that species as an endangered 
species and the subsequent listing of that species as an 
endangered species pursuant to section 4 of this Act will cause 
undue hardship to such person under the contract, the 
Secretary, in order to minimize such hardship, may exempt such 
person from the application of section 9(a) of this Act to the 
extent the Secretary deems appropriate if such person applies 
to him for such exemption and includes with such application 
such information as the Secretary may require to prove such 
hardship; except that (A) no such exemption shall be for a 
duration of more than one year from the date of publication in 
the Federal Register of notice of consideration of the species 
concerned, or shall apply to a quantity of fish or wildlife or 
plants in excess of that specified by the Secretary; (B) the 
one-year period for those species of fish or wildlife listed by 
the Secretary as endangered prior to the effective date of this 
Act shall expire in accordance with the terms of section 3 of 
the Act of December 5, 1969 (83 Stat. 275); and (C) no such 
exemption may be granted for the importation or exportation of 
a specimen listed in Appendix I of the Convention which is to 
be used in a commercial activity.
    (2) As used in this subsection, the term ``undue economic 
hardship'' shall include, but not be limited to:
            (A) substantial economic loss resulting from 
        inability caused by this Act to perform contracts with 
        respect to species of fish and wildlife entered into 
        prior to the date of publication in the Federal 
        Register of a notice of consideration of such species 
        as an endangered species;
            (B) substantial economic loss to persons who, for 
        the year prior to the notice of consideration of such 
        species as an endangered species, derived a substantial 
        portion of their income from the lawful taking of any 
        listed species, which taking would be made unlawful 
        under this Act; or
            (C) curtailment of subsistence taking made unlawful 
        under this Act by persons (i) not reasonably able to 
        secure other sources of subsistence; and (ii) dependent 
        to a substantial extent upon hunting and fishing for 
        subsistence; and (iii) who must engage in such 
        curtailed taking for subsistence purposes.
    (3) The Secretary may make further requirements for a 
showing of undue economic hardship as he deems fit. Exceptions 
granted under this section may be limited by the Secretary in 
his discretion as to time, area, or other factor of 
applicability.
    (c) Notice and Review.--The Secretary shall publish notice 
in the Federal Register of each application for an exemption or 
permit which is made under this section. Each notice shall 
invite the submission from interested parties, within [thirty] 
60 days after the date of the notice, of written data, views, 
or arguments with respect to the application; except that such 
[thirty]60-day period may be waived by the Secretary in an 
emergency situation where the health or life of an endangered 
animal is threatened and no reasonable alternative is available 
to the applicant, but notice of any such waiver shall be 
published by the Secretary in the Federal Register within ten 
days following the issuance of the exemption or permit. The 
Secretary may, with approval of the applicant, provide an 
opportunity, as early as practicable, for public participation 
in the development of a multiple species conservation plan and 
permit application. If a multiple species conservation plan and 
permit application have been developed without an opportunity 
for public participation, the Secretary shall extend the public 
comment period for an additional 30 days for interested parties 
to submit written data, views, or arguments on the plan and 
application. Information received by the Secretary as part of 
any application shall be available to the public as a matter of 
public record at every stage of the proceeding.
  (d) Permit and Exemption [Policy.--The] Policy._
            (1) In general.--The Secretary may grant exceptions 
        under subsections (a)(1)(A) and (b) of this section 
        only if he finds and publishes his finding in the 
        Federal Register that (1) such exceptions were applied 
        for in good faith, (2) if granted and exercised will 
        not operate to the disadvantage of such endangered 
        species, and (3) will be consistent with the purposes 
        and policy set forth in section 2 of this Act.
            (2) Scientific permits.--In granting permits for 
        scientific purposes or to enhance the propagation or 
        survival of an endangered species or a threatened 
        species listed under section 4(c), the Secretary may 
        authorize a single transaction, a series of 
        transactions, or a number of activities over a specific 
        period of time. In issuing or modifying such a permit, 
        the Secretary shall take into consideration the 
        expertise and facilities of the permit applicant and, 
        consistent with the conservation of the affected 
        species, maximize the efficiency of the permitting 
        process.
    (e) Alaska Natives.--(1) Except as provided in paragraph 
(4) of this subsection the provisions of this Act shall not 
apply with respect to the taking of any endangered species or 
threatened species, or the importation of any such species 
taken pursuant to this section, by--
            (A) any Indian, Aleut, or Eskimo who is an Alaskan 
        Native who resides in Alaska; or
            (B) any non-native permanent resident of an Alaska 
        native village;
if such taking is primarily for subsistence purposes. Non-
edible by-products of species taken pursuant to this section 
may be sold in interstate commerce when made into authentic 
native articles of handicrafts and clothing; except that the 
provisions of this subsection shall not apply to any non-native 
resident of an Alaskan native village found by the Secretary to 
be not primarily dependent upon the taking of fish and wildlife 
for consumption or for the creation and sale of authentic 
native articles of handicrafts and clothing.
    (2) Any taking under this subsection may not be 
accomplished in a wasteful manner.
    (3) As used in this subsection--
            (i) The term ``subsistence'' includes selling any 
        edible portion of fish or wildlife in native villages 
        and towns in Alaska for native consumption within 
        native villages or towns; and
    \1\ (ii) The term ``authentic native articles of 
handicrafts and clothing'' means items composed wholly or in 
some significant respect to natural materials, and which are 
produced, decorated or fashioned in the exercise of traditional 
native handicrafts without the use of pantographs, multiple 
carvers, or other mass copying devices. Traditional native 
handicrafts include, but are not limited to, weaving, carving, 
stitching, sewing, lacing, beading, drawing, and painting.
---------------------------------------------------------------------------
    \1\ So in law. Section 10(e)(3)(ii) of the Endangered Species Act 
of 1973 paragraph indention is incorrect. Indention should be same as 
10(e)(3)(i)
---------------------------------------------------------------------------
    (4) Notwithstanding the provisions of paragraph (l) of this 
subsection, whenever the Secretary determines that any species 
of fish or wildlife which is subject to taking under the 
provisions of this subsection is an endangered species or 
threatened species, and that such taking materially and 
negatively affects the threatened or endangered species, he may 
prescribe regulations upon the taking of such species by any 
such Indian, Aleut, Eskimo, or non-native Alaskan resident of 
an Alaskan native village. Such regulations may be established 
with reference to species, geographical description of the area 
included, the season for taking, or any other factors related 
to the reason for establishing such regulations and consistent 
with the policy of this Act. Such regulations shall be 
prescribed after a notice and hearings in the affected judicial 
districts of Alaska and as otherwise required by section 103 of 
the Marine Mammal Protection Act of 1972, and shall be removed 
as soon as the Secretary determines that the need for their 
impositions has disappeared.
    (f)(1) As used in this subsection--
            (A) The term ``pre-Act endangered species part'' 
        means--
                    (i) any sperm whale oil, including 
                derivatives thereof, which was lawfully held 
                within the United States on December 28, 1973, 
                in the course of a commercial activity; or
                    (ii) any finished scrimshaw product, if 
                such product or the raw material for such 
                product was lawfully held within the United 
                States on December 28, 1973, in the course of a 
                commercial activity.
            (B) The term ``scrimshaw product'' means any art 
        form which involves the substantial etching or 
        engraving of designs upon, or the substantial carving 
        of figures, patterns, or designs from, any bone or 
        tooth of any marine mammal of the order Cetacea. For 
        purposes of this subsection, polishing or the adding of 
        minor superficial markings does not constitute 
        substantial etching, engraving, or carving.
    (2) The Secretary, pursuant to the provisions of this 
subsection, may exempt, if such exemption is not in violation 
of the Convention, any pre-Act endangered species part from one 
or more of the following prohibitions.
            (A) The prohibition on exportation from the United 
        States set forth in section 9(a)(1)(A) of this Act.
            (B) Any prohibition set forth in section 9(a)(1) 
        (E) or (F) of this Act.
    (3) Any person seeking an exemption described in paragraph 
(2) of this subsection shall make application therefor to the 
Secretary in such form and manner as he shall prescribe, but no 
such application may be considered by the Secretary unless the 
application--
            (A) is received by the Secretary before the close 
        of the one-year period beginning on the date on which 
        regulations promulgated by the Secretary to carry out 
        this subsection first take effect;
            (B) contains a complete and detailed inventory of 
        all pre-Act endangered species parts for which the 
        applicant seeks exemption;
            (C) is accompanied by such documentation as the 
        Secretary may require to prove that any endangered 
        species part or product claimed by the applicant to a 
        pre-Act endangered species part is in fact such a part; 
        and
            (D) contains such other information as the 
        Secretary deems necessary and appropriate to carry out 
        the purposes of this subsection.
    (4) If the Secretary approves any application for exemption 
made under this subsection, he shall issue to the applicant a 
certificate of exemption which shall specify--
            (A) any prohibition in section 9(a) of this Act 
        which is exempted;
            (B) the pre-Act endangered species parts to which 
        the exemption applies;
            (C) the period of time during which the exemption 
        is in effect, but no exemption made under this 
        subsection shall have force and effect after the close 
        of the three-year period beginning on the date of 
        issuance of the certificate unless such exemption is 
        renewed under paragraph (8); and
            (D) any term or condition prescribed pursuant to 
        paragraph (5) (A) or (B), or both, which the Secretary 
        deems necessary or appropriate.
    (5) The Secretary shall prescribe such regulations as he 
deems necessary and appropriate to carry out the purposes of 
this subsection. [Such regulations may set forth--
            (A) terms and conditions which may be imposed on 
        applicants for exemptions under this subsection 
        (including, but not limited to, requirements that 
        applicants register, inventories, keep complete sales 
        records, permit duly authorized agents of the Secretary 
        to inspect such inventories and records, and 
        periodically file appropriate reports with the 
        Secretary); and
            (B) terms and conditions which may be imposed on 
        any subsequent purchaser of any pre-Act endangered 
        species part covered by an exemption granted under this 
        subsection;
to insure that any such part so exempted is adequately 
accounted for and not disposed of contrary to the provisions of 
this Act. No regulation prescribed by the Secretary to carry 
out the purposes of this subsection shall be subject to section 
4(f)(2)(A)(i) of this Act.]
    (6)(A) Any contract for the sale of pre-Act endangered 
species parts which is entered into by the Administrator of 
General Services prior to the effective date of this subsection 
and pursuant to the notice published in the Federal Register on 
January 9, 1973, shall not be rendered invalid by virtue of the 
fact that fulfillment of such contract may be prohibited under 
section 9(a)(1)(F).
    (B) In the event that this paragraph is held invalid, the 
validity of the remainder of the Act, including the remainder 
of this subsection, shall not be affected.
    (7) Nothing in this subsection shall be construed to--
            (A) exonerate any person from any act committed in 
        violation of paragraphs (1)(A), (1)(E), or (1)(F) of 
        section 9(a) prior to the date of enactment of this 
        subsection; or
            (B) immunize any person from prosecution for any 
        such act.
    (8)(A)(i) Any valid certificate of exemption which was 
renewed after October 13, 1982, and was in effect on March 31, 
1988, shall be deemed to be renewed for a 6-month period 
beginning on the date of enactment of the Endangered Species 
Act Amendments of 1988. Any person holding such a certificate 
may apply to the Secretary for one additional renewal of such 
certificate for a period not to exceed 5 years beginning on the 
date of such enactment.
    (B) If the Secretary approves any application for renewal 
of an exemption under this paragraph, he shall issue to the 
applicant a certificate of renewal of such exemption which 
shall provide that all terms, conditions, prohibitions, and 
other regulations made applicable by the previous certificate 
shall remain in effect during the period of the renewal.
    (C) No exemption or renewal of such exemption made under 
this subsection shall have force and effect after the 
expiration date of the certificate of renewal of such exemption 
issued under this paragraph.
    (D) No person may, after January 31, 1984, sell or offer 
for sale in interstate or foreign commerce, and pre-Act 
finished scrimshaw product unless such person holds a valid 
certificate of exemption issued by the Secretary under this 
subsection, and unless such product or the raw material for 
such product was held by such person on October 13, 1982.
    (g) In connection with any action alleging a violation of 
section 9, any person claiming the benefit of any exemption or 
permit under this Act shall have the burden of proving that the 
exemption or permit is applicable, has been granted, and was 
valid and in force at the time of the alleged violation.
    (h) Certain Antique Articles.--(1) Sections 4(d), 9(a), and 
9(c) do not apply to any article which--
            (A) is not less than 100 years of age;
            (B) is composed in whole or in part of any 
        endangered species or threatened species listed under 
        section 4;
            (C) has not been repaired or modified with any part 
        of any such species on or after the date of the 
        enactment of this Act; and
            (D) is entered at a port designated under paragraph 
        (3).
    (2) Any person who wishes to import an article under the 
exception provided by this subsection shall submit to the 
customs officer concerned at the time of entry of the article 
such documentation as the Secretary of the Treasury, after 
consultation with the Secretary of the Interior, shall by 
regulation require as being necessary to establish that the 
article meets the requirements set forth in paragraph (1) (A), 
(B), and (C).
    (3) the Secretary of the Treasury, after consultation with 
the Secretary of the Interior, shall designate one port within 
each customs region at which articles described in paragraph 
(1) (A), (B), and (C) must be entered into the customs 
territory of the United States.
    (4) Any person who imported, after December 27, 1973, and 
on or before the date of the enactment of the Endangered 
Species Act Amendments of 1978, any article described in 
paragraph (1) which--
            (A) was not repaired or modified after the date of 
        importation with any part of any endangered species or 
        threatened species listed under section 4;
            (B) was forfeited to the United States before such 
        date of the enactment, or is subject to forfeiture to 
        the United States on such date of enactment, pursuant 
        to the assessment of a civil penalty under section 11; 
        and
            (C) is in the custody of the United States on such 
        date of enactment;
may, before the close of the one-year period beginning on such 
date of enactment make application to the Secretary for return 
of the article. Application shall be made in such form and 
manner, and contain such documentation, as the Secretary 
prescribes. If on the basis of any such application which is 
timely filed, the Secretary is satisfied that the requirements 
of this paragraph are met with respect to the article 
concerned, the Secretary shall return the article to the 
applicant and the importation of such article shall, on and 
after the date of return, be deemed to be a lawful importation 
under this Act.
    (i) Noncommercial Transshipments.--Any importation into the 
United States of fish or wildlife shall, if--
            (1) such fish or wildlife was lawfully taken and 
        exported from the country of origin and country of 
        reexport, if any;
            (2) such fish or wildlife is in transit or 
        transshipment through any place subject to the 
        jurisdiction of the United States en route to a country 
        where such fish or wildlife may be lawfully imported 
        and received;
            (3) the exporter or owner of such fish or wildlife 
        gave explicit instructions not to ship such fish or 
        wildlife through any place subject to the jurisdiction 
        of the United States, or did all that could have 
        reasonably been done to prevent transshipment, and the 
        circumstances leading to the transshipment were beyond 
        the exporter's or owner's control;
            (4) the applicable requirements of the Convention 
        have been satisfied; and
            (5) such importation is not made in the course of a 
        commercial activity,
be an importation not in violation of any provision of this Act 
or any regulation issued pursuant to this Act while such fish 
or wildlife remains in the control of the United States Customs 
Service.
    (j) Experimental Populations.--(1) For purposes of this 
subsection, the term ``experimental population'' means any 
population (including any offspring arising solely therefrom) 
authorized by the Secretary for release under paragraph (2), 
but only when, and at such times as, the population is wholly 
separate geographically from nonexperimental populations of the 
same species.
    (2)(A) The Secretary may authorize the release (and the 
related transportation) of any population (including eggs, 
propagules, or individuals) of an endangered species or a 
threatened species outside the current range of such species if 
the Secretary determines that such release will further the 
conservation of such species.
    (B) Before authorizing the release of any population under 
subparagraph (A), the Secretary shall by regulation identify 
the population and determine, on the basis of the best 
available information, whether or not such population is 
essential to the continued existence of an endangered species 
or a threatened species.
    (C) For the purposes of this Act, each member of an 
experimental population shall be treated as a threatened 
species; except that--
            (i) solely for purposes of section 7 (other than 
        subsection (a)(1) thereof), an experimental population 
        determined under subparagraph (B) to be not essential 
        to the continued existence of a species shall be 
        treated, except when it occurs in an area within the 
        National Wildlife Refuge System or the National Park 
        System, as a species proposed to be listed under 
        section 4; and
            (ii) critical habitat shall not be designated under 
        this Act for any experimental population determined 
        under subparagraph (B) to be not essential to the 
        continued existence of a species.
    (3) The Secretary, with respect to population of endangered 
species or threatened species that the Secretary authorized, 
before the date of the enactment of this subsection, for 
release in geographical areas separate from the other 
populations of such species, shall determine by regulation 
which of such populations are an experimental population for 
the purposes of this subsection and whether or not each is 
essential to the continued existence of an endangered species 
or a threatened species.
    (k) Candidate Conservation Agreements.--
            (1) In general.--At the request of any non-Federal 
        person, the Secretary may enter into a candidate 
        conservation agreement with the person for a species 
        that has been proposed for listing under section 
        4(c)(1), is a candidate species, or is likely to become 
        a candidate species in the near future on property 
        owned or under the jurisdiction of the person 
        requesting such an agreement.
            (2) Review by the secretary._
                    (A) Submission to the secretary.--A non-
                Federal person may submit a candidate 
                conservation agreement developed under 
                paragraph (1) to the Secretary for review at 
                any time prior to the listing described in 
                section 4(c)(1) of a species that is the 
                subject of the agreement.
                    (B) Criteria for approval.--The Secretary 
                may approve an agreement and issue a permit 
                under subsection (a)(1)(C) for the agreement 
                if, after notice and opportunity for public 
                comment, the Secretary finds that--
                            (i) for species proposed for 
                        listing, candidates for listing, or 
                        species that are likely to become a 
                        candidate species in the near future, 
                        that are included in the agreement, the 
                        actions taken under the agreement, if 
                        undertaken by all similarly situated 
                        persons, would produce a conservation 
                        benefit that would be likely to 
                        eliminate the need to list the species 
                        under section 4(c) as a result of the 
                        activities of those persons during the 
                        duration of the agreement;
                            (ii) the actions taken under the 
                        agreement will not adversely affect an 
                        endangered species or a threatened 
                        species;
                            (iii) the agreement contains such 
                        other measures that the Secretary may 
                        require as being necessary or 
                        appropriate for the purposes of the 
                        agreement;
                            (iv) the person will ensure 
                        adequate funding to implement the 
                        agreement; and
                            (v) the agreement includes such 
                        monitoring and reporting requirements 
                        as the Secretary deems necessary for 
                        determining whether the terms and 
                        conditions of the agreement are being 
                        complied with.
            (3) Effective date of permit.--A permit issued 
        under subsection (a)(1)(C) shall take effect at the 
        time the species is listed pursuant to section 4(c), if 
        the permittee is in full compliance with the terms and 
        conditions of the agreement.
            (4) Assurances.--A person who has entered into a 
        candidate conservation agreement under this subsection, 
        and is in compliance with the agreement, may not be 
        required to undertake any additional measures for 
        species covered by such agreement if the measures would 
        require the payment of additional money, or the 
        adoption of additional use, development, or management 
        restrictions on any land, waters, or water-related 
        rights that would otherwise be available under the 
        terms of the agreement without the consent of the 
        person entering into the agreement. The Secretary and 
        the person entering into a candidate conservation 
        agreement, by the terms of the agreement, shall 
        identify--
                    (A) other modifications to the agreement; 
                or
                    (B) other additional measures;
        if any, that the Secretary may require under 
        extraordinary circumstances.
    (l) Safe Harbor Agreements._
            (1) Agreements._
                    (A) In general.--The Secretary may enter 
                into agreements with non-Federal persons to 
                benefit the conservation of endangered species 
                or threatened species by creating, restoring, 
                or improving habitat or by maintaining 
                currently unoccupied habitat for endangered 
                species or threatened species. Under an 
                agreement, the Secretary shall permit the 
                person to take endangered species or threatened 
                species included under the agreement on lands 
                or waters that are subject to the agreement if 
                the taking is incidental to, and not the 
                purpose of, carrying out of an otherwise lawful 
                activity, except that the Secretary may not 
                permit through an agreement any incidental 
                taking below the baseline requirement specified 
                pursuant to subparagraph (B).
                    (B) Baseline.--For each agreement under 
                this subsection, the Secretary shall establish 
                a baseline requirement that is mutually agreed 
                on by the applicant and the Secretary at the 
                time of the agreement that will, at a minimum, 
                maintain existing conditions for the species 
                covered by the agreement on lands and waters 
                that are subject to the agreement. The baseline 
                may be expressed in terms of the abundance or 
                distribution of endangered or threatened 
                species, quantity or quality of habitat, or 
                such other indicators as appropriate.
            (2) Standards and guidelines.--The Secretary shall 
        issue standards and guidelines for the development and 
        approval of safe harbor agreements in accordance with 
        this subsection.
            (3) Financial assistance._
                    (A) In general.--In cooperation with the 
                States and subject to the availability of 
                appropriations under section 15(d), the 
                Secretary may provide a grant of up to $10,000 
                to any individual private landowner to assist 
                the landowner in carrying out a safe harbor 
                agreement under this subsection.
                    (B) Prohibition on assistance for required 
                activities.--The Secretary may not provide 
                assistance under this paragraph for any action 
                that is required by a permit issued under this 
                Act or that is otherwise required under this 
                Act or other Federal law.
                    (C) Other payments.--A grant provided to an 
                individual private landowner under this 
                paragraph shall be in addition to, and not 
                affect, the total amount of payments that the 
                landowner is otherwise eligible to receive 
                under the conservation reserve program 
                established under subchapter B of chapter 1 of 
                subtitle D of title XII of the Food Security 
                Act of 1985 (16 U.S.C. 3831 et seq.), the 
                wetlands reserve program established under 
                subchapter C of that chapter (16 U.S.C. 3837 et 
                seq.), or the Wildlife Habitat Incentives 
                Program established under section 387 of the 
                Federal Agriculture Improvement and Reform Act 
                of 1996 (16 U.S.C. 3836a).
    (m) Habitat Reserve Agreements.--
            (1) Program.--The Secretary shall establish a 
        habitat reserve program to be implemented through 
        contracts or easements of a mutually agreed on duration 
        to assist non-Federal property owners to preserve and 
        manage suitable habitat for endangered species and 
        threatened species.
            (2) Agreements.--The Secretary may enter into a 
        habitat reserve agreement with a non-Federal property 
        owner to protect, manage, or enhance suitable habitat 
        on private property for the benefit of endangered 
        species or threatened species. Under an agreement, the 
        Secretary shall make payments in an agreed on amount to 
        the property owner for carrying out the terms of the 
        habitat reserve agreement, if the activities undertaken 
        pursuant to the agreement are not otherwise required by 
        this Act.
            (3) Standards and guidelines.--The Secretary shall 
        issue standards and guidelines for the development and 
        approval of habitat reserve agreements in accordance 
        with this subsection. Agreements shall, at a minimum, 
        specify the management measures, if any, that the 
        property owner will implement for the benefit of 
        endangered species or threatened species, the 
        conditions under which the property may be used, the 
        nature and schedule for any payments agreed on by the 
        parties to the agreement, and the duration of the 
        agreement.
            (4) Payments.--Any payment received by a property 
        owner under a habitat reserve agreement shall be in 
        addition to and shall not affect the total amount of 
        payments that the property owner is otherwise entitled 
        to receive under the Agricultural Market Transition Act 
        (7 U.S.C. 7201 et seq.) or the Agricultural Act of 1949 
        (7 U.S.C. 1421 et seq.).
            (5) Authorization of appropriations.--There are 
        authorized to be appropriated to the Secretary of the 
        Interior $27,500,000 and the Secretary of Commerce 
        $13,333,333 for each of fiscal years 1998 through 2003 
        to assist non-Federal property owners to carry out the 
        terms of habitat reserve programs under this 
        subsection.
    (n) Habitat Conservation Insurance Program.--
            (1) Establishment.--There is established a Habitat 
        Conservation Insurance Program.
            (2) Use.--The Program shall be used to pay the cost 
        of additional mitigation measures not otherwise 
        required under an existing conservation plan under 
        subsection (a) or a candidate conservation agreement 
        under subsection (k) to minimize or mitigate adverse 
        effects to a species covered by the plan or agreement, 
        to the extent that the adverse effects were not 
        anticipated and addressed at the time the plan or 
        agreement was approved by the Secretary.
            (3) Grants.--In carrying out the Program, the 
        Secretary may make grants to any person who is a party 
        to a conservation plan under subsection (a) or a 
        candidate conservation agreement under subsection (k).

(16 U.S.C. 1539)

                       penalties and enforcement

    Sec. 11. (a) Civil Penalties.--(1) Any person who knowingly 
violates, and any person engaged in business as an importer or 
exporter of fish, wildlife, or plants who violates, any 
provision of this Act, or any provision of any permit or 
certificate issued hereunder, or of any regulation issued in 
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or 
(F), (a)(2(A), (B), (C), or (D), (c), (d), (other than 
regulation relating to recordkeeping or filing or reports), 
(f), or (g) of section 9 of this Act, may be assessed a civil 
penalty by the Secretary of not more than $25,000 for each 
violation. Any person who knowingly violates, and any person 
engaged in business as an importer or exporter of fish, 
wildlife, or plants who violates, any provision of any other 
regulation issued under this Act may be assessed a civil 
penalty by the Secretary of not more than $12,000 for each such 
violation. Any person who otherwise violates any provision of 
this Act, or any regulation, permit, or certificate issued 
hereunder, may be assessed a civil penalty by the Secretary of 
not more than $500 for each such violation. No penalty may be 
assessed under this subsection unless such person is given 
notice and opportunity for a hearing with respect to such 
violation. Each violation shall be a separate offense. Any such 
civil penalty may be remitted or mitigated by the Secretary. 
Upon any failure to pay a penalty assessed under this 
subsection, the Secretary may request the Attorney General to 
institute a civil action in a district court of the United 
States for any district in which such person is found, resides, 
or transacts business to collect the penalty and such court 
shall have jurisdiction to hear and decide any such action. The 
court shall hear such action on the record made before the 
Secretary and shall sustain his action if it is supported by 
substantial evidence on the record considered as a whole.
    (2) Hearings held during proceedings for the assessment of 
civil penalties by paragraph (1) of this subsection shall be 
conducted in accordance with section 554 of title 5, United 
States Code. The Secretary may issue subpoenas for the 
attendance and testimony of witnesses and the production of 
relevant papers, books, and documents, and administer oaths. 
Witnesses summoned shall be paid the same fees and mileage that 
are paid to witnesses in the courts of the United States. In 
case of contumacy or refusal to obey a subpoena served upon any 
person pursuant to this paragraph, the district court of the 
United States for any district in which such person is found or 
resides or transacts business, upon application by the United 
States and after notice to such person, shall have jurisdiction 
to issue an order requiring such person to appear and give 
testimony before the Secretary or to appear and produce 
documents before the Secretary, or both, and any failure to 
obey such order of the court may be punished by such court as a 
contempt thereof.
    (3) Notwithstanding any other provision of this Act, no 
civil penalty shall be imposed if it can be shown by a 
preponderance of the evidence that the defendant committed an 
act based on a good faith belief that he was acting to protect 
himself or herself, a member of his or her family, or any other 
individual from bodily harm, from any endangered or threatened 
species.
    (b) Criminal Violations.--(1) Any person who knowingly 
violates any provision of this Act, of any permit or 
certificate issued hereunder, or of any regulation issued in 
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or 
(F); (a)(2)(A), (B), (C), or (D), (c), (d) (other than a 
regulation relating to recordkeeping, or filing of reports), 
(f), or (g) of section 9 of this Act shall, upon conviction, be 
fined not more than $50,000 or imprisoned for not more than one 
year, or both. Any person who knowingly violates any provision 
of any other regulation issued under this Act shall, upon 
conviction, be fined not more than $25,000 or imprisoned for 
not more than six months, or both.
    (2) The head of any Federal agency which has issued a 
lease, license, permit, or other agreement authorizing a person 
to import or export fish, wildlife, or plants, or to operate a 
quarantine station for imported wildlife, or authorizing the 
use of Federal lands, including grazing of domestic livestock, 
to any person who is convicted of a criminal violation of this 
Act or any regulation, permit, or certificate issued hereunder 
may immediately modify, suspend, or revoke each lease, license, 
permit, or other agreement. The Secretary shall also suspend 
for a period of up to one year, or cancel, any Federal hunting 
or fishing permits or stamps issued to any person who is 
convicted of a criminal violation of any provision of this Act 
or any regulation, permit, or certificate issued hereunder. The 
United States shall not be liable for the payments of any 
compensation, reimbursement, or damages in connection with the 
modification, suspension, or revocation of any leases, licenses 
permits stamps, or other agreements pursuant to this section.
    (3) Notwithstanding any other provision of this Act, it 
shall be a defense to prosecution under this subsection if the 
defendant committed the offense based on a good faith belief 
that he was acting to protect himself or herself, a member of 
his or her family, or any other individual, from bodily harm 
from any endangered or threatened species.
    (c) District Court Jurisdiction.--The several district 
courts of the United States; including the courts enumerated in 
section 460 of title 28, United States Code, shall have 
jurisdiction over any actions arising under this Act. For the 
purpose of this Act, American Samoa shall be included within 
the judicial district of the District Court of the United 
States for the District of Hawaii.
    (d) Rewards and Certain Incidental Expenses.--The Secretary 
or the Secretary of the Treasury shall pay, from sums received 
as penalties, fines, or forfeitures of property for any 
violations of this chapter or any regulation issued hereunder 
(1) a reward to any person who furnishes information which 
leads to an arrest, a criminal conviction, civil penalty 
assessment, or forfeiture of property for any violation of this 
chapter or any regulation issued hereunder, and (2) the 
reasonable and necessary costs incurred by any person in 
providing temporary care for any fish, wildlife, or plant 
pending the disposition of any civil or criminal proceeding 
alleging a violation of this chapter with respect to that fish, 
wildlife, or plant. The amount of the reward, if any, is to be 
designated by the Secretary or the Secretary of the Treasury, 
as appropriate. Any officer or employee of the United States or 
any State or local government who furnishes information or 
renders service in the performance of his official duties is 
ineligible for payment under this subsection. Whenever the 
balance of sums received under this section and section 6(d) of 
the Act of November 16, 1981 (16 U.S.C. 3375(d)) as penalties 
or fines, or from forfeitures of property, exceed $500,000, the 
Secretary of the Treasury shall deposit an amount equal to such 
excess balance in the cooperative endangered species 
conservation fund established under section 6(i) of this Act.
    (e) Enforcement.--(1) The provisions of this Act and any 
regulations or permits issued pursuant thereto shall be 
enforced by the Secretary, the Secretary of the Treasury, or 
the Secretary of the Department in which the Coast Guard is 
operating, or all such Secretaries. Each such Secretary may 
utilize by agreement, with or without reimbursement, the 
personnel, services, and facilities of any other Federal agency 
or any State agency for purposes of enforcing this Act.
    (2) The judges of the district courts of the United States 
and the United States magistrates may within their respective 
jurisdictions, upon proper oath or affirmation showing probable 
cause, issue such warrants or other process as may be required 
for enforcement of this Act and any regulation issued 
thereunder.
    (3) Any person authorized by the Secretary, the Secretary 
of the Treasury, or the Secretary of the Department in which 
the Coast Guard is operating, to enforce this Act may detain 
for inspection and inspect any package, crate, or other 
container, including its contents, and all accompanying 
documents, upon importation or exportation. Such persons may 
make arrests without a warrant for any violation of this Act if 
he has reasonable grounds to believe that the person to be 
arrested is committing the violation in his presence or view 
and may execute and serve any arrest warrant, search warrant, 
or other warrant or civil or criminal process issued by any 
officer or court of competent jurisdiction for enforcement of 
this Act. Such person so authorized may search and seize, with 
or without a warrant, as authorized by law. Any fish, wildlife, 
property, or item so seized shall be held by any person 
authorized by the Secretary, the Secretary of the Treasury, or 
the Secretary of the Department in which the Coast Guard is 
operating pending disposition of civil or criminal proceedings, 
or the institution of an action in rem for forfeiture of such 
fish, wildlife, property, or item pursuant to paragraph (4) of 
the subsection; except that the Secretary may, in lieu of 
holding such fish, wildlife, property, or item, permit the 
owner or consignee to post a bond or other surety satisfactory 
to the Secretary, but upon forfeiture of any such property to 
the United States, or the abandonment or waiver of any claim to 
any such property, it shall be disposed of (other than by sale 
to the general public) by the Secretary in such a manner, 
consistent with the purposes of this Act, as the Secretary 
shall by regulation prescribe.
    (4)(A) All fish or wildlife or plants taken, possessed, 
sold, purchased, offered for sale or purchase, transported, 
delivered, received, carried, shipped, exported, or imported 
contrary to the provisions of this Act, any regulation made 
pursuant thereto, or any permit or certificate issued hereunder 
shall be subject to forfeiture to the United States.
    (B) All guns, traps, nets, and other equipment, vessels, 
vehicles, aircraft, and other means of transportation used to 
aid the taking, possessing, selling, purchasing, offering for 
sale or purchase, transporting, delivering, receiving, 
carrying, shipping, exporting, or importing of any fish or 
wildlife or plants in violation of this Act, any regulation 
made pursuant thereto, or any permit or certificate issued 
thereunder shall be subject to forfeiture to the United States 
upon conviction of a criminal violation pursuant to section 
11(b)(1) of this Act.
    (5) All provisions of law relating to the seizure, 
forfeiture, and condemnation of a vessel for violation of the 
customs laws, the disposition of such vessel or the proceeds 
from the sale thereof, and the remission or mitigation of such 
forfeiture, shall apply to the seizures and forfeitures 
incurred, or alleged to have been incurred, under the 
provisions of this Act, insofar as such provisions of law are 
applicable and not inconsistent with the provisions of this 
Act; except that all powers, rights, and duties conferred or 
imposed by the customs laws upon any officer or employee of the 
Treasury Department shall, for the purposes of this Act, be 
exercised or performed by the Secretary or by such persons as 
he may designate.
    (6) The Attorney General of the United States may seek to 
enjoin any person who is alleged to be in violation of any 
provision of this Act or regulation issued under authority 
thereof.
    (f) Regulations.--The Secretary, the Secretary of the 
Treasury, and the Secretary of the Department in which the 
Coast Guard is operating, are authorized to promulgate such 
regulations as may be appropriate to enforce this Act, and 
charge reasonable fees for expenses to the Government connected 
with permits or certificates authorized by this Act including 
processing applications and reasonable inspections, and with 
the transfer, board, handling, or storage of fish or wildlife 
or plants and evidentiary items seized and forfeited under this 
Act. All such fees collected pursuant to this subsection shall 
be deposited in the Treasury to the credit of the appropriation 
which is current and chargeable for the cost of furnishing the 
services. Appropriated funds may be expended pending 
reimbursement from parties in interest.
    (g) Citizen Suits.--(1) Except as provided in paragraph (2) 
of this subsection any person may commence a civil suit on his 
own behalf--
            (A) to enjoin any person, including the United 
        States and any other governmental instrumentality or 
        agency (to the extent permitted by the eleventh 
        amendment to the Constitution), who is alleged to be in 
        violation of any provision of this Act or regulation 
        issued under the authority thereof; or
            (B) to compel the Secretary to apply, pursuant to 
        section 6(g)(2)(B)(ii) of this Act, the prohibitions 
        set forth in or authorized pursuant to section 4(d) or 
        section 9(a)(1)(B) of this Act with respect to the 
        taking of any resident endangered species or threatened 
        species within any State; or
            (C) against the Secretary where there is alleged a 
        failure of the Secretary to perform any act or duty 
        under section 4 or section 5 which is not discretionary 
        with the Secretary.
    The district courts shall have jurisdiction, without regard 
to the amount in controversy or the citizenship of the parties, 
to enforce any such provision or regulation or to order the 
Secretary to perform such act or duty, as the case may be. In 
any civil suit commenced under subparagraph (B) the district 
court shall compel the Secretary to apply the prohibition 
sought if the court finds that the allegation that an emergency 
exists is supported by substantial evidence.
    (2)(A) No action may be commenced under subparagraph (1)(A) 
of this section--
            (i) prior to sixty days after written notice of the 
        violation has been given to the Secretary, and to any 
        alleged violator of any such provision or regulation;
            (ii) if the Secretary has commenced action to 
        impose a penalty pursuant to subsection (a) of this 
        section; or
            (iii) if the United States has commenced and is 
        diligently prosecuting a criminal action in a court of 
        the United States or a State to redress a violation of 
        any such provision or regulation.
    (B) No action may be commenced under subparagraph (1)(B) of 
this section--
            (i) prior to sixty days after written notice has 
        been given to the Secretary setting forth the reasons 
        why an emergency is thought to exist with respect to an 
        endangered species or a threatened species in the State 
        concerned; or
            (ii) if the Secretary has commenced and is 
        diligently prosecuting action under section 
        6(g)(2)(B)(ii) of this Act to determine whether any 
        such emergency exists.
    (C) No action may be commenced under subparagraph (1)(C) of 
this section prior to sixty days after written notice has been 
given to the Secretary; except that such action may be brought 
immediately after such notification in the case of an action 
under this section respecting an emergency posing a significant 
risk to the well-being of any species of fish or wildlife or 
plants.
    (3) Incidental taking.--In any action under this subsection 
against any person for an alleged taking incidental to the 
carrying out of an otherwise lawful activity, the person 
commencing the action must establish, using pertinent evidence 
based on scientifically valid principles, that the acts of the 
person alleged to be in violation of section 9(a)(1) have 
caused, or will cause, the taking, of--
            (A) an endangered species; or
            (B) a threatened species the taking of which is 
        prohibited pursuant to a regulation issued under 
        section 4(d).
    [(3)](4)(A) Any suit under this subsection may be brought 
in the judicial district in which the violation occurs.
    (B) In any such suit under this subsection in which the 
United States is not a party, the Attorney General, at the 
request of the Secretary, may intervene on behalf of the United 
States as a matter of right.
    [(4)](5) The court, in issuing any final order in any suit 
brought pursuant to paragraph (1) of this subsection, may award 
costs of litigation (including reasonable attorney and expert 
witness fees) to any party, whenever the court determines such 
award is appropriate.
    [(5)](6) The injunctive relief provided by this subsection 
shall not restrict any right which any person (or class of 
persons) may have under any statute or common law to seek 
enforcement of any standard or limitation or to seek any other 
relief (including relief against the Secretary or a State 
agency).
    (h) Incidental Taking.--In any action under subsection (a), 
(b), or (e)(6) against any person for an alleged taking 
incidental to the carrying out of an otherwise lawful activity, 
the Secretary or the Attorney General must establish, using 
pertinent evidence based on scientifically valid principles, 
that the acts of such person have caused, or will cause, the 
taking, of--
            (1) an endangered species; or
            (2) a threatened species the taking of which is 
        prohibited pursuant to a regulation issued under 
        section 4(d).
    [(h)] (i) Coordination With Other Laws.--The Secretary of 
Agriculture and the Secretary shall provide for appropriate 
coordination of the administration of this Act with the 
administration of the animal quarantine laws (21 U.S.C. 101-
105, 111-135b, and 612-614) and section 306 of the Tariff Act 
of 1930 (19 U.S.C. 1306). Nothing in this Act or any amendment 
made by this Act shall be construed as superseding or limiting 
in any manner the functions of the Secretary of Agriculture 
under any other law relating to prohibited or restricted 
importations or possession of animals and other articles and no 
proceeding or determination under this Act shall preclude any 
proceeding or be considered determinative of any issue of fact 
or law in any proceeding under any Act administered by the 
Secretary of Agriculture. Nothing in this Act shall be 
construed as superseding or limiting in any manner the 
functions and responsibilities of the Secretary of the Treasury 
under the Tariff Act of 1930, including, without limitation, 
section 527 of that Act (19 U.S.C. 1527), relating to the 
importation of wildlife taken, killed, possessed, or exported 
to the United States in violation of the laws or regulations of 
a foreign country.

(16 U.S.C. 1540)

                           endangered plants

    Sec. 12. The Secretary of the Smithsonian Institution, in 
conjunction with other affected agencies, is authorized and 
directed to review (1) species of plants which are now or may 
become endangered, or threatened and (2) methods of adequately 
conserving such species, and to report to Congress, within one 
year after the date of the enactment of this Act, the results 
of such review including recommendations for new legislation or 
the amendment of existing legislation.

(16 U.S.C. 1541)

                         [conforming amendments

    [Sec. 13. (a) Subsection 4(c) of the Act of October 15, 
1966 (80 Stat. 928, 16 U.S.C. 668dd(c)), is further amended by 
revising the second sentence thereof to read as follows: ``With 
the exception of endangered species and threatened species 
listed by the Secretary pursuant to section 4 of the Endangered 
Species Act of 1973 in States wherein a cooperative agreement 
does not exist pursuant to section 6(c) of that Act, nothing in 
this Act, shall be construed to authorize the Secretary to 
control or regulate hunting or fishing of resident fish and 
wildlife on lands not within the system.''
    [(b) Subsection 10(a) of the Migratory Bird Conservation 
Act (45 Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of 
the Act of June 15, 1935 (49 Stat. 383, 16 U.S.C. 715s(a)) are 
each amended by striking out ``threatened with extinction,'' 
and inserting in lieu thereof the following: ``listed pursuant 
to section 4 of the Endangered Species Act of 1973 as 
endangered species or threatened species.''
    [(c) Section 7(a)(1) of the Land and Water Conservation 
Fund Act of 1965 (16 U.S.C. 4601-9(a)(1)) is amended by 
striking out:
            [``Threatened Species.--For any national area which 
        may be authorized for the preservation of species of 
        fish or wildlife that are threatened with extinction.'' 
        and inserting in lieu thereof the following:
            [``Endangered Species and Threatened Species.--For 
        lands, waters, or interests therein, the acquisition of 
        which is authorized under section 5(a) of the 
        Endangered Species Act of 1973, needed for the purpose 
        of conserving endangered or threatened species of fish 
        or wildlife or plants.''
    [(d) The first sentence of section 2 of the Act of 
September 28, 1962, amended (76 Stat. 653, 16 U.S.C. 460k-1), 
is amended to read as follows:
            [``The Secretary is authorized to acquire areas of 
        land, or interests therein, which are suitable for--
            [``(1) incidental fish and wildlife-oriented 
        recreational development;
            [``(2) the protection of natural resources;
            [``(3) the conservation of endangered species or 
        threatened species listed by the Secretary pursuant to 
        section 4 of the Endangered Species Act of 1973; or
            [``(4) carrying out two or more of the purposes set 
        forth in paragraphs (1) through (3) of this section, 
        and are adjacent to, or within, the said conservation 
        areas, except that the acquisition of any land or 
        interest therein pursuant to this section shall be 
        accomplished only with such funds as may be 
        appropriated therefor by the Congress or donated for 
        such purposes, but such property shall not be acquired 
        with funds obtained from the sale of Federal migratory 
        bird hunting stamps.''
    [(e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 
1361-1407) is amended--
            [(1) by striking out ``Endangered Species 
        Conservation Act of 1969'' in section 3(1)(B) thereof 
        and inserting in lieu thereof the following: 
        ``Endangered Species Act of 1973'';
            [(2) by striking out ``pursuant to the Endangered 
        Species Conservation Act of 1969'' in section 
        101(a)(3)(B) thereof and inserting in lieu thereof the 
        following: ``or threatened species pursuant to the 
        Endangered Species Act of 1973''.
            [(3) by striking out ``endangered under the 
        Endangered Species Conservation Act of 1969'' in 
        section 102(b)(3) thereof and inserting in lieu thereof 
        the following: ``an endangered species or threatened 
        species pursuant to the Endangered Species Act of 
        1973''; and
            [(4) by striking out ``of the Interior and 
        revisions of the Endangered Species List, authorized by 
        the Endangered Species Conservation Act of 1969,'' in 
        section 202(a)(6) thereof and inserting in lieu thereof 
        the following: ``such revisions of the endangered 
        species list and threatened species list published 
        pursuant to section 4(c)(1) of the Endangered Species 
        Act of 1973''.
    [(f) Section 2(1) of the Federal Environmental Pesticide 
Control Act of 1972 (Public Law 92-516) is amended by striking 
out the words ``by the Secretary of the Interior under Public 
Law 91-135'' and inserting in lieu thereof the words ``or 
threatened by the Secretary pursuant to the Endangered Species 
Act of 1973''.]

   private property owners education and technical assistance program

    Sec. 13. (a) In General.--In cooperation with the States 
and other Federal agencies, the Secretary shall develop and 
implement a private property owners education and technical 
assistance program to--
            (1) inform the public about this Act;
            (2) respond to requests for technical assistance 
        from the private property owners interested in 
        conserving species listed or proposed for listing under 
        section 4(c)(1) and candidate species on the property 
        of the property owners; and
            (3) recognize exemplary efforts to conserve species 
        on private land.
    (b) Elements of the Program.--Under the program, the 
Secretary shall--
            (1) publish educational materials and conduct 
        workshops for private property owners and other members 
        of the public on the role of this Act in conserving 
        endangered species and threatened species, the 
        principal mechanisms of this Act for achieving species 
        recovery, and potential sources of technical and 
        financial assistance;
            (2) assist field offices in providing timely advice 
        to property owners on how to comply with this Act;
            (3) provide technical assistance to State and local 
        governments and private property owners interested in 
        developing and implementing recovery plan 
        implementation agreements, conservation plans, and safe 
        harbor agreements;
            (4) serve as a focal point for questions, requests, 
        and suggestions from property owners and local 
        governments concerning policies and actions of the 
        Secretary in the implementation of this Act;
            (5) provide training for Federal personnel 
        responsible for implementing this Act on concerns of 
        private property owners, to avoid unnecessary 
        conflicts, and improving implementation of this Act on 
        private property; and
            (6) nominate for national recognition by the 
        Secretary property owners that are exemplary managers 
        of land for the benefit of species listed or proposed 
        for listing under section 4(c)(1) or candidate species.

                                repealer

    Sec. 14. The Endangered Species Conservation Act of 1969 
(sections 1 through 3 of the Act of October 15, 1966, and 
sections 1 through 6 of the Act of December 5, 1969; 16 U.S.C. 
668aa--668cc-6), is repealed.

                    authorization of appropriations

    Sec. 15. (a) In General.--Except as provided in subsection 
(b), (c), and (d), there are authorized to be appropriated--
            (1) not to exceed $35,000,000 for fiscal year 1988, 
        $36,500,000 for fiscal year 1989, $38,000,000 for 
        fiscal year 1990, $39,500,000 for fiscal year 1991, 
        [and $41,500,000 for fiscal year 1992] $41,500,000 for 
        fiscal year 1992, $90,000,000 for fiscal year 1998, 
        $120,000,000 for fiscal year 1999, $140,000,000 for 
        fiscal year 2000, $160,000,000 for fiscal year 2001, 
        $165,000,000 for fiscal year 2002, and $165,000,000 for 
        fiscal year 2003 to enable the Department of the 
        Interior to carry out such functions and 
        responsibilities as it may have been given under this 
        Act;
            (2) not to exceed $5,750,000 for fiscal year 1988, 
        $6,250,000 for each of fiscal years 1989 and 1990, [and 
        $6,750,000] $6,750,000 for each of fiscal year 1991 and 
        1992, $35,000,000 for fiscal year 1998, $50,000,000 for 
        fiscal year 1999, $60,000,000 for fiscal year 2000, 
        $65,000,000 for fiscal year 2001, $65,000,000 for 
        fiscal year 2002, and $70,000,000 for fiscal year 2003 
        to enable the Department of Commerce to carry out such 
        functions and responsibilities as it may have been 
        given under this Act; and
            (3) not to exceed $2,200,000 for fiscal year 1988, 
        $2,400,000 for each of fiscal years 1989 and 1990, [and 
        $2,600,000] $2,600,000 for each of fiscal years 1991 
        and 1992, and $4,000,000 for each of fiscal years 1998 
        through 2003 to enable the Department of Agriculture to 
        carry out its functions and responsibilities with 
        respect to the enforcement of this Act and the 
        Convention which pertain to the importation or 
        exportation of plants.
    (b) Exemptions From Act.--There are authorized to be 
appropriated to the Secretary to assist him and the Endangered 
Species Committee in carrying out their functions under 
sections \1\ 7 (e), (g), and (h) not to exceed $600,000 for 
each of fiscal year 1988, 1989, 1990, 1991, and 1992, and 
$625,000 for each of fiscal years 1998 through 2003.
---------------------------------------------------------------------------
    \1\ So in original. Probably should be ``section''.
---------------------------------------------------------------------------
    (c) Convention Implementation.--There are authorized to be 
appropriated to the Department of the Interior for purposes of 
carrying out section 8A(e) not to exceed $400,000 for each of 
fiscal years 1988, 1989, and 1990, [and $500,000] $500,000 for 
each of fiscal years 1991 and 1992, and $1,000,000 for each 
fiscal year 1998 through 2003 and such sums shall remain 
available until expended.
    (d) Financial Assistance for Safe Harbor Agreements.--There 
are authorized to be appropriated to the Secretary of the 
Interior $10,000,000 and the Secretary of Commerce $5,000,000 
for each of fiscal years 1998 through 2003 to carry out section 
10(l).
    (e) Habitat Conservation Planning Loan Program.--There are 
authorized to be appropriated to the Habitat Conservation 
Planning Loan Program established by section 10(a)(7) 
$10,000,000 for each of fiscal years 1998 through 2000 and 
$5,000,000 for each of fiscal years 2001 and 2002 to assist in 
the development of conservation plans.
    (f) Financial Assistance for Recovery Plan 
Implementation.--There are authorized to be appropriated to the 
Secretary of the Interior $30,000,000 and the Secretary of 
Commerce $15,000,000 for each of the fiscal years 1998 through 
2003 to carry out section 5(l)(4).
    (g) Habitat Conservation Insurance Program.--
            (1) In general.--Of the amounts appropriated for a 
        fiscal year under subsections (d), (e), and (f), five 
        percent shall be available for the Habitat Conservation 
        Insurance Program established under section 10(n).
            (2) Limitation.--If, at the end of any fiscal year, 
        the balance allocated for the Habitat Conservation 
        Insurance Program exceeds $10,000,000, paragraph (1) 
        shall not apply during the subsequent fiscal year.
    (h) Availability.--Amounts made available under this 
section shall remain available until expended.
    (i) Limitation on Use of Funds.--Of the funds made 
available to carry out section 5 for any fiscal year, not less 
than $32,000,000 shall be available to the Secretary of the 
Interior and not less than $13,500,000 to the Secretary of 
Commerce to implement actions to recover listed species. Of the 
funds made available to the Secretary of the Interior and the 
Secretary of Commerce in each fiscal year to list species, the 
Secretary of the Interior and the Secretary of Commerce shall 
use not less than ten percent of those funds in each fiscal 
year for delisting species. If any of the funds made available 
by the previous sentence are not needed in that fiscal year for 
delisting eligible species, those funds shall be available for 
listing.
    (j) Accounting and Strategic Management Plan.--Not later 
than November 30, 1998, the Secretary of the Interior and the 
Secretary of Commerce shall each submit to the Committee on 
Environment and Public Works of the Senate and the Committee on 
Resources of the House of Representatives--
            (1) an accounting for fiscal year 1998 of funds 
        expended by the Department of the Interior and the 
        Department of Commerce, respectively, to carry out the 
        Department's functions and responsibilities under this 
        Act; and
            (2) a management plan describing the projected 
        future uses by the respective Department of authorized 
        funds for fiscal years 1999 through 2003.

(16 U.S.C. 1542)

                             effective date

    Sec. 16. This Act shall take effect on the date of its 
enactment.

                  marine mammal protection act of 1972

    Sec. 17. Except as otherwise provided in this Act, no 
provision of this Act shall take precedence over any more 
restrictive conflicting provision of the Marine Mammal 
Protection Act of 1972.

(16 U.S.C. 1543)

    Sec. 18. On or before January 15, 1990, and each January 15 
thereafter, the Secretary of the Interior, acting through the 
Fish and Wildlife Service, shall submit to the Congress an 
annual report covering the preceding fiscal year which shall 
contain--
            (1) an accounting on a species by species basis of 
        all reasonably unidentifiable Federal expenditures made 
        primarily for the conservation of endangered or 
        threatened species pursuant to this Act; and
            (2) an accounting on a species by species basis for 
        all reasonably identifiable expenditures made primarily 
        for the conservation of endangered or threatened 
        species pursuant to this Act by states receiving grants 
        under section 6.

(16 U.S.C. 1544)

           * * * * * * *

            LAND AND WATER CONSERVATION FUND ACT OF 1965 \1\

       [As amended through December 31, 1996, Public Law 104-333]

 AN ACT To establish a land and water conservation fund to assist the 
   States and Federal agencies in meeting present and future outdoor 
  recreation demands and needs of the American people, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled,
---------------------------------------------------------------------------
    \1\ The Land and Water Conservation Fund Act of 1965 (16 U.S.C. 
460l-4--460l-11), as set forth herein, consists of Public Law 88-578 
(Sept. 3, 1964) and amendments thereto. Pursuant to section 2(b) of the 
Act of August 8, 1953 (16 U.S.C. 1c(b)), the provisions of the Land and 
Water Conservation Fund Act of 1965 apply to all areas of the National 
Park System to the extent the provisions are not in conflict with 
specific provisions applicable to a particular unit of the National 
Park System.
---------------------------------------------------------------------------

            TITLE I--LAND AND WATER CONSERVATION PROVISIONS

                 short title and statement of purposes

    Section 1. * * *
           * * * * * * *

               allocation of moneys for federal purposes

    Sec. 7. [16 U.S.C 460l-9] (a) Moneys appropriated from the 
fund for Federal purposes shall, unless otherwise allotted in 
the appropriation Act making them available, be allotted by the 
President to the following purposes and subpurposes:
    (1) For the acquisition of land, waters, or interests in 
land or waters as follows:
            National park system; recreation areas.--Within the 
        exterior boundaries of areas of the National Park 
        System now or hereafter authorized or established and 
        of areas now or hereafter authorized to be administered 
        by the Secretary of the Interior for outdoor recreation 
        purposes.
            National forest system.--Inholdings within (a) 
        wilderness areas of the National Forest System, and (b) 
        other areas of national forests as the boundaries of 
        those forests exist on the effective date of this Act, 
        or purchase units approved by the National Forest 
        Reservation Commission subsequent to the date of this 
        Act, all of which other areas are primarily of value 
        for outdoor recreation purposes: Provided, That lands 
        outside of but adjacent to an existing national forest 
        boundary, not to exceed three thousand acres in the 
        case of any one forest, which would comprise an 
        integral part of a forest recreational management area 
        may also be acquired with moneys appropriated from this 
        fund: Provided further, That except for areas 
        specifically authorized by Act of Congress, not more 
        than 15 per centum of the acreage added to the National 
        Forest System pursuant to this section shall be west of 
        the 100th meridian.
            National wildlife refuge system.--Acquisition for 
        (a) endangered species and threatened species 
        authorized under [section 5(a)] section 5A(a) of the 
        Endangered Species Act of 1973; (b) areas authorized by 
        section 2 of the Act of September 28, 1962, as amended 
        (16 U.S.C. 460k-1); (c) national wildlife refuge areas 
        under section 7(a)(5) of the Fish and Wildlife Act of 
        1956 (16 U.S.C. 742f(a)(4)) and wetlands acquired under 
        section 304 of the Emergency Wetlands Resources Act of 
        1986; (d) any areas authorized for the National 
        Wildlife Refuge System by specific Acts.

           * * * * * * *

                              ----------                              


           * * * * * * *

                THE MARINE MAMMAL PROTECTION ACT OF 1972

           [As Amended Through P.L. 105-42, August 15, 1997]

    AN ACT To protect marine mammals; to establish a Marine Mammal 
                    Commission; for other purposes.

    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That this 
Act, with the following table of contents, may be cited as the 
``Marine Mammal Protection Act of 1972''.

           * * * * * * *

    Sec. 104. (a) * * *

           * * * * * * *

    (c)(1) * * *

           * * * * * * *

    (4)(A) A permit may be issued for enhancing the survival or 
recovery of a species or stock only with respect to a species 
or stock for which the Secretary, after consultation with the 
Marine Mammal Commission and after notice and opportunity for 
public comment, has first determined that--
            (i) taking or importation is likely to contribute 
        significantly to maintaining or increasing distribution 
        or numbers necessary to ensure the survival or recovery 
        of the species or stock; and
            (ii) taking or importation is consistent (I) with 
        any conservation plan adopted by the Secretary under 
        section 115(b) of this title or any recovery plan 
        developed under [section 4(f)] section 5 of the 
        Endangered Species Act of 1973 for the species or 
        stock, or (II) if there is no conservation or recovery 
        plan in place, with the Secretary's evaluation of 
        actions required to enhance the survival or recovery of 
        the species or stock in light to the factors that would 
        be addressed in a conservation plan or a recovery plan.

           * * * * * * *

    Sec. 115. (a)(1) * * *

           * * * * * * *

    (b)(1) The Secretary shall prepare conservation plans--
            (A) by December 31, 1989, for North Pacific fur 
        seals;
            (B) by December 31, 1990, for Steller sea lions; 
        and
            (C) as soon as possible, for any species or stock 
        designated as depleted under this title, except that a 
        conservation plan need not be prepared if the Secretary 
        determines that it will not promote the conservation of 
        the species or stock.
    (2) Each plan shall have the purpose of conserving and 
restoring the species or stock to its optimum sustainable 
population. The Secretary shall model such plans on recovery 
plans required under [section 4(f)] section 5 of the Endangered 
Species Act of 1973 [(16 U.S.C. 1533(f))].

           * * * * * * *

SEC. 118. TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL FISHING 
                    OPERATIONS.

    (a) In General.--(1) * * *

           * * * * * * *

    (f) Take Reduction Plans.--(1) * * *

           * * * * * * *

    (11) Take reduction plans developed under this section for 
a species or stock listed as a threatened species or endangered 
species under the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) shall be consistent with any recovery plan 
developed for such species or stock under [section 4] section 5 
of such Act.


           * * * * * * *

                              ----------                              


           * * * * * * *

                          [Public Law 103-64]

AN ACT To establish the Snake River Birds of Prey National Conservation 
            Area in teh State of Idaho, and other purposes.

    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled,
    Section 1. Findings.

           * * * * * * *

    Sec. 5. Additions.
            (a) Acquisitions.--(1) * * *

           * * * * * * *

            (b) Purchase of lands.--In addition to the 
        authority in section 318(d) of the Fedeal Land Policy 
        and Management Act of 1976 (43 U.S.C. 1748) and 
        notwithstanding section 7(a) of the Land and Water 
        Conservation Fund Act of 1964 (16 U.S.C. 4601-9(a)), 
        monies appropriated from the Land and Water 
        Conservation Fund may be used as authorized in [section 
        5(b) of the Endangered Species Act of 1973 (16 U.S.C. 
        1534(b))] section 5A(b) of the Endangered Species Act 
        of 1973, for purposes of acquiring lands or interests 
        therein within the conservation area for administration 
        as public lands as part of the conservation area.

           * * * * * * *

                                
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