[House Report 106-1013]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                    106-1013

======================================================================



 
          COMMON SENSE PROTECTIONS FOR ENDANGERED SPECIES ACT

                                _______
                                

October 26, 2000.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3160]

  The Committee on Resources, to whom was referred the bill 
(H.R. 3160) to reauthorize and amend the Endangered Species Act 
of 1973, having considered the same, report favorably thereon 
without amendment and recommend that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 3160 is to reauthorize and amend the 
Endangered Species Act of 1973.

                  Background and Need for Legislation

    H.R. 3160 amends the Endangered Species Act of 1973 (Public 
Law 93-295, codified at 16 U.S.C. 1531-1543) which was enacted 
to provide a means of preventing various forms of plants and 
animals from reaching the point of extinction. This law now 
imposes rigid and comprehensive regulations on federal 
agencies, state and local governments, and private citizens 
alike in order to protect species in the United States and to 
some extent foreign countries as well.
    The Endangered Species Act (ESA) is administered by two 
separate federal agencies: the Fish and Wildlife Service within 
the Department of Interior and the National Marine Fisheries 
Service within the Department of Commerce (``Services''). The 
basic framework of the ESA includes the listing of a species as 
either endangered or threatened, after which it is prohibited 
to ``take'' the species unless one obtains either a incidental 
take permit under Section 10(a) of the ESA for private actions 
or an incidental take statement for federal actions after what 
is commonly referred to as a Section 7 consultation.
    Section 9 of the ESA sets forth those actions which are 
prohibited or unlawful. It prohibits the ``taking'' of a 
species. ``Take'' is defined to mean to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect a species 
or attempt to engage in any of these activities. Regulations 
issued by the Services also define ``take'' to include 
significant adverse modification or destruction of a species' 
habitat. Section 9 take prohibitions only directly apply to 
fish and wildlife which are listed as endangered. The ESA 
authorizes the Secretaries to extend by regulations the 
``take'' prohibition to wildlife listed as ``threatened.''
    There are significant differences in the prohibitions that 
apply to endangered plants. There is no prohibition on the 
``take'' of a listed plant on one's own private property. 
However, regulatory authority to protect plants may be gained 
by the government if a private landowner needs a government 
permit to conduct certain activities, as when a Federal Water 
Pollution Control Act 404 permit is needed or an ESA Section 10 
permit is needed because of the presence of endangered 
wildlife.
    Section 7 identifies how all federal agencies will further 
the purposes of protecting endangered species through 
consultations with the Services. Every federal agency must 
insure that any action authorized, funded, or carried out is 
not likely to jeopardize the continued existence of a 
threatened or endangered species or result in destruction of or 
adverse modification of designated critical habitat. 
Consultation is the process which the federal agency engages in 
after a determination is made by that federal agency that its 
planned action may affect a listed species or critical habitat. 
After its initiation, consultation is concluded by the issuance 
of a biological opinion. The biological opinion must include 
the relevant Service's judgment as to whether the planned 
action will jeopardize the species (a ``jeopardy opinion''), or 
whether it will not (a ``no jeopardy opinion''). If a 
``jeopardy'' opinion is reached, then the Service must suggest 
reasonable and prudent alternatives to the action.
    The biological opinion is also the document which provides 
the ``incidental take statement.'' If, in the opinion of the 
Service, a ``take'' will occur, the Service prescribes 
``reasonable and prudent measures'' and sets forth the terms 
and conditions that the federal agency must meet or comply with 
to proceed with the project. There are, generally, two 
exceptions--hardship exemptions (which are very rare) and 
permits.
    Under Section 10 of the ESA, the Service can issue a permit 
to allow the incidental taking of species so that an action or 
project can proceed. The permits issued under Section 10 are 
usually associated with private landowners or state and local 
governments and are issued only after an applicant submits an 
approved conservation plan (known as a habitat conservation 
plan or HCP). There are criteria the applicant must meet, 
including what the probable impact to the species will be, what 
mitigation measures the applicant is taking to minimize the 
impacts to the species, what alternatives to the action the 
applicant has developed and considered. Finally, the applicant 
must follow other terms and conditions the Service may require.
    An added complication overlaying some ESA decisions is the 
permit required by Section 404 of the Federal Water Pollution 
Control Act (Public Law 92-500) commonly known as the Clean 
Water Act. Section 404, through the Army Corps of Engineers, 
generally regulates the discharge of dredged or fill material 
into navigable waters of the United States, would includes 
wetlands. Current interpretation of ``navigable'' waters can 
mean just about any wet land or in many cases dry land near 
water bodies. The Corps must consult under Section 7 of the ESA 
with the Services when processing a 404 permit if the Corps 
determines that a particular activity may affect a threatened 
or endangered species or modify critical habitat.
    Mitigation for impacts caused by activities on various 
environments is now regularly required by the Services to 
obtain a permit from a federal agency. Mitigation can be 
accomplished in many ways, but usually takes the form of 
setting aside nonfederal land or restricting activities on such 
lands, along with requiring various types of monetary payments. 
Mitigation measures can also be in the form of replanting trees 
or other vegetation that provides reciprocal habitat for the 
species or ecosystem impacted. Land involved in mitigation is 
often transferred to either a public or private entity for 
long- term maintenance. The entity may be a state or local 
agency or a private conservation group.
    Over the most recent three Congresses, the Committee on 
Resources has held many hearings specifically on the Endangered 
Species Act and its implementation. Testimony has been received 
from hundreds of citizens, including many elected state and 
local officials, federal officials, private property owners, 
public land users, and many others. Their total input resulted 
in many of the recommendations for changes to the Endangered 
Species Act embodied in H.R. 3160. These changes are designed 
to approach saving endangered species in a common sense manner 
that includes consideration of impacts on both humans and the 
natural world.
    As follows are hearings conducted by the Committee on 
Resources, through the ESA Task Force during the 104th 
Congress:
    1. March 13, 1995: Joint oversight hearing on ESA and 
wetlands issues in Belle Chase, Louisiana (Hearing Print 104-
6).
    2. March 20, 1995: Hearing on ESA in Boerne, Texas (Hearing 
Print 104-6)
    3. April 1, 1995: Hearing on ESA in New Bern, North 
Carolina (Hearing Print 104-7).
    4. April 17, 1995: Hearing on ESA in Bakersfield, 
California (Hearing Print 104-13).
    5. April 24, 1995: Hearing on ESA in Vancouver, Washington 
(Hearing Print 104-15).
    6. April 26, 1995: Hearing on ESA in Riverside, California 
(Hearing Print 104-11).
    7. April 28, 1995: Hearing on ESA in Stockton, California 
(Hearing Print 104-16).
    8. May 10, 1995: Hearing on ESA in Washington, D.C. 
(Hearing Print 104-10).
    9. May 18, 1995: Hearing on ESA in Washington, D.C. 
(Hearing Print 104-14).
    10. May 25, 1995: Hearing on ESA in Washington, D.C. 
(Hearing Print 104-18).
    As follows are hearings conducted by the Committee on 
Resources on the Endangered Species Act during the 104th 
Congress:
    1. September 20, 1995: Hearing on H.R. 2275 in Washington, 
D.C. (Hearing Print 104-37).
    2. March 20, 1996: Hearing on ``The Implementation of the 
ESA, Private Property Rights and Whether Present Policies Have 
Recovered Threatened or Endangered Wildlife.'' in Washington, 
D.C. (Hearing Print 104-59).
    3. April 17, 1996: Hearing on ``Examining the Expenditures 
of Agencies That Participate in the Efforts to Save Endangered 
and Threatened Species.'' in Washington, D.C. (Hearing Print 
104-65).
    4. June 25, 1996: Hearing on the ``Lifting of the 
Moratorium on Listing of Threatened or Endangered Species'' in 
Washington, D.C. (Hearing Print 104-89).
    5. July 24, 1996: Hearing on ``The ESA with Regard to 
Section 10(a) Permits (Habitat Conservation Plans) and Other 
Incentives'' in Washington, D.C. (Hearing Print 104-97).
    6. September 17, 1996: Hearing on ``Equal Access to the 
Courts Under the ESA'', in Washington, D.C. (Hearing Print 104-
100).
    As follows are hearings conducted by the Committee on 
Resources on the Endangered Species Act during the 105th 
Congress:
    1. April 10, 1997: Hearing on H.R. 478, to improve the 
ability of individuals and local, State, and federal agencies 
to comply with the ESA in building, operating, maintaining, or 
repairing existing flood control projects, facilities, or 
structures and to determine whether federal wildlife policies 
have impeded proper ongoing maintenance and repair of flood 
control structures. in Washington, D.C. and via teleconference 
in Sacramento, California (Hearing Print No. 105-12).
    2. March 5, 1998: Hearing on regional differences in the 
manner in which the ESA is implemented. in Washington, D.C. 
(Hearing Print 105-80).
    3. July 15, 1998: Oversight hearing on the implementation 
of the ESA in the Southwestern region of the United States in 
Washington, D.C. (Hearing Print 105-96).
    4. September 2 and 3, 1998: Oversight field hearings were 
held in Pasco, Washington and Boise, Idaho on the National 
Marine Fisheries Service role in implementing the ESA and on 
H.R. 4335 to transfer to the Secretary of the Interior the 
functions of the Secretary of Commerce and the National Marine 
Fisheries Services under the ESA (Hearing Print 105-111).
    5. October 26, 1998: Full Committee conducted a field 
hearing in Clovis, New Mexico, on how the ESA has been 
implemented in New Mexico (Hearing Print 105-118).
    As follows are hearings conducted on the ESA during the 
106th Congress:
    1. April 14, 1999: Hearing on H.R. 1142, to ensure that 
landowners receive treatment equal to that provided to the 
federal government when property must be used, Washington, D.C. 
(Hearing Print 106-23).
    2. May 26, 1999: Hearing on Land and Money Mitigation 
Requirements in Endangered Species Act Enforcement, Washington, 
D.C. (Hearing Print 106-34).
    3. July 9, 1999: Hearing on Enforcement of the Endangered 
Species Act in California in Hemet, California (Hearing Print 
No. 106-49).
    4. July 24, 1999: Hearing in Greeley, Colorado, on 
Implementation of the Endangered Species Act.
    5. February 2, 2000: Hearing on: H.R. 3160, to reauthorize 
and amend the Endangered Species Act of 1973.
    6. March 1, 2000: Hearing on: H.R. 3160, to reauthorize and 
amend the Endangered Species Act of 1973.
    7. April 27, 2000: Hearing on: Hydropower, River Management 
and Salmon Recovery Issues on the Columbia/Snake River.
    8. September 14, 2000: Hearing on: General Accounting 
Office (GAO) review of Endangered Species Act implementation in 
Southern California.
    H.R. 3160 specifically addresses many of the concerns 
identified by witnesses in these hearings. The changes address 
many procedural deficiencies and are designed to insure fair 
treatment of private citizens impacted by the ESA. The major 
problems identified during the many hearings held by the 
Committee on the ESA are as follows:
    1. The listing process: Many witnesses testified as to the 
lack of adequate scientific documentation, lack of scientific 
peer review, lack of adequate public notice and input; failure 
to involve the states and local governments in the listing 
process.
    2. The consultation and permitting processes: There was 
considerable testimony regarding the failure to meet current 
statutory deadlines for making consultation decisions and the 
lack of deadlines for making decisions on permits.
    3. The failure to comply with agreements: Many permit 
applicants testified that they cannot rely on representations 
and promises made by the Services.
    4. Arbitrary and capricious use of mitigation: The 
Committee received a great deal of testimony and documentation 
regarding the arbitrary and capricious use of mitigation to 
extract extremely large amounts of land and money mitigation 
for both Section 10 and Section 7 permit and consultation 
applications.
    5. Permit applicants and the Section 7 consultation 
process: Witnesses agreed that there is a lack of involvement 
of private permit applicants in the consultation process under 
Section 7.
    6. Delisting and recovery: One of the major failures of the 
current law is the failure to recover species and to delist 
those species who have either recovered or which no longer 
exist, according to many witnesses.
    7. No consideration of economic and social impacts: The 
lack of any consideration of economic and social impacts of the 
implementation of the ESA, including a failure to consider the 
impacts on public safety and public health of delays in 
decision making for important public safety related projects, 
was identified as a major weakness of the ESA.
    In addition, many witnesses testified that the ESA results 
in the taking of private property without the payment of just 
compensation as required by the 5th Amendment of the U.S. 
Constitution. This issue was addressed in a separate piece of 
legislation, H.R. 1142, the Landowners Equal Treatment Act.

                            Committee Action

    H.R. 3160 was introduced on October 27, 1999, by Resources 
Committee Chairman Don Young (R-AK). The bill was referred to 
the Committee on Resources. On February 2, 2000, and on March 
1, 2000, the Committee on Resources held hearings on H.R. 3160. 
On June 21, 2000, the Full Resources Committee met to consider 
H.R. 3160. Congressman Jim Saxton (R-NJ) offered and withdrew 
an amendment in the nature of a substitute. Congressman George 
Miller (D-CA) also offered and withdrew an amendment. No 
further amendments were offered and the bill was ordered 
favorably reported to the House of Representatives by a roll 
call vote of 25 to 15, as follows:


                      Section-by-Section Analysis


Section 1. Short title; table of contents

    This section provides the short title for the bill, the 
Common Sense Protections for Endangered Species Act, and the 
table of contents for the bill.

Section 2. References to the Endangered Species Act of 1973

    This section that amendments and repeals made by this bill 
are to the Endangered Species Act (ESA, 16 U.S.C. 1531 et 
seq.).

   TITLE I--IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND 
                               PROCEDURES


Section 101. Improving the validity and credibility of decisions

    Subsection (a) amends ESA Section 4 expanding the 
considerations upon which a listing of a species as endangered 
or threatened is made to allow the Secretary of the Interior 
and the Secretary of Commerce to consider not only the 
government regulatory mechanisms but also other proactive 
conservation programs and measures voluntarily undertaken. The 
designation of critical habitat is made part of the recovery 
planning process rather than a mandatory requirement during the 
listing process.
    Currently, the Secretaries make listing determinations 
solely on the basis of the best scientific and commercial data 
available after conducting a review of the status of the 
species. H.R. 3160 would require the Secretaries to solicit and 
fully consider data from any affected state or any interested 
non-federal person. The bill requires the Secretaries to give 
greater weight, consideration, and preference to empirical data 
rather than projections or other extrapolations developed 
through modeling.
    H.R. 3160 would allow the Secretaries, in making a listing 
decision, to consider the future conservation benefits to the 
species under habitat conservation plans prepared as part of 
the application for an incidental take permit or to any state 
or other management agreement or under any conservation 
agreement between the Secretaries and any other person.
    Within 18 months from enactment of H.R. 3160, the 
Secretaries would be required to adopt a regulation 
establishing scientifically valid standards for rendering 
taxonomic determinations of species and subspecies, requiring 
reproductive isolation from other subspecific population units 
and constituting an important component in the evolutionary 
legacy of the species.
    Subsection (b) of the section clarifies that decisions by 
the Secretaries on petitions to list, delist, or change the 
status of a species should be made consistent with the priority 
ranking system already established for listing species. It 
improves the petition process by requiring that when a petition 
to list isreceived by the Secretaries, the relevant Secretary 
shall publish a notice in the Federal Register. If the relevant 
Secretary finds that a petition is warranted, he shall begin the status 
review of the species and publish that warranted finding in the Federal 
Register.
    The bill establishes minimum requirements to be contained 
in listing petitions which includes:
          (1) Scientific documentation that the fish or 
        wildlife or plant is a species;
          (2) A description of all data on the range, 
        population, and distribution of the species, 
        explanation of how the data was obtained, and an 
        identification of the location where the data can be 
        reviewed;
          (3) Scientific evidence that the population has 
        declined beyond normal population fluctuations;
          (4) An appraisal of the data on the threats or causes 
        of decline;
          (5) An identification of the data that has been peer-
        reviewed or field-tested;
          (6) The reason that the petitioned action is 
        warranted;
          (7) A bibliography of scientific literature 
        supporting the petition;
          (8) The qualifications of any person cited in the 
        petition as an expert; and
          (9) At least one independent study or expert opinion 
        in support of the petition.
    H.R. 3160 requires that for positive findings on petitions, 
the relevant Secretary must send a copy of the petition to the 
Governor of a State in which the species is found and to 
affected tribes, and solicit the advice of the Governor and 
tribes as to whether the petitioned action is warranted. 
Thereafter, if the Secretary's decision is in direct conflict 
with the information submitted by the Governor or tribes, the 
finding shall not be final until the Secretary submits the 
finding to peer review for a period of 30 days. If the peer 
reviewers agree with the Secretary, he is to then prepare a 
record of decision which shall be submitted to the Governor or 
tribes.
    The bill also sets up a procedure for submitting a petition 
to change the status of a species or delist a species, if the 
current listing is no longer appropriate because of a change in 
the factors used for listing, where there is new data or a 
reinterpretation of prior data, where it is found that the 
species is extinct, where the recovery goals for the species 
have been achieved, or the original listing was not subject to 
adequate peer review.
    Under the current law, if the relevant Secretary finds that 
the petition may be warranted, he has one year to determine 
whether the listing is not warranted, warranted, or warranted 
but precluded. If he finds that the petition is warranted, H.R. 
3160 would require that he publish a notice in the Federal 
Register that he is commencing a status review that includes 
the following:
          (1) Any missing data that would support the 
        determination.
          (2) Any data necessary to make the determination.
          (3) Any data that may be necessary to ensure the 
        continued validity of the determination.
    Under the bill, if there is a warranted finding, the 
Secretary must hold (if requested) at least one public meeting 
within 30 days in each State in which the species occurs and a 
person making a request resides. Public meetings must be at a 
location that is as centrally located as possible to the areas 
believed to be habitat of the species, and in each rural area 
of the State that the Governor determines is affected by the 
decision.
    The bills continues to allow judicial review of negative 
findings on petitions and findings that petitions are not 
warranted or warranted but precluded, but that in any such 
suit, it allows any person to intervene of right if the person 
can demonstrate that a determination to list will have a direct 
economic impact on such person and requires the courts to give 
great weight to the finding of warranted but precluded.
    During the one-year status review, the bill requires 
greater solicitation of information regarding the status of the 
species from states and affected persons that may assist in 
making the determination whether to list. The relevant 
Secretary must allow not less than 180 days to submit data.
    Subsection (c) of the section adds additional notices 
during the proposed rule stage for Governors and affected 
tribes. At least 12 months before proposing the rule, the 
relevant Secretary is to notify the Governor of each State in 
which the species is believed to occur (and each affected 
tribe) and solicit their advice as to whether the determination 
is warranted. He shall consider the advice received and if a 
Governor or tribe provides scientific evidence that the 
determination is not warranted, the Secretary may not proceed 
unless he shows by a preponderance of scientific evidence that 
the information submitted is incorrect and that the proposal is 
warranted. The bills retains all other notice requirements to 
the states and requires that the Secretary give the Governors a 
record of decision including information which did not support 
the determination.
    The Secretary is to publish a summary of the proposed 
regulation in an area newspaper where the species occurs and 
upon request, not later than 45 days after publication of the 
notice, hold at least one public meeting in each affected 
State. The Secretary is not required to hold more than five 
public meetings.
    The Secretary is to identify and include with the proposal 
a description of data to be considered and which is yet to be 
collected or field verified; any necessary data that have not 
been collected and considered; deadlines to collect and 
consider the data; a description of additional scientific and 
commercial data that would assist in the preparation of a 
recovery plan; a list of known threats to the species and a 
description of the types of activities that may be affected by 
the determination and any restriction on use of property that 
may result; and other measures that may either at present or in 
the future contribute to the conservation of the species. Not 
later than the deadline published by the Secretary, he shall 
collect the data; provide an opportunity for public review and 
comment on the data; consider the data after that review and 
comment; and publish in the Federal Register the results of 
that consideration and a description of and schedule for any 
actions warranted by the data.
    Subsection (d) requires within 1 year from publication of 
the proposed rule, the Secretary shall publish in the Federal 
Register either a final regulation to implement the 
determination; a notice that period is being extended; or 
notice that the proposed regulation is being withdrawn.
    Subsection (e) requires that each proposal to list a 
species shall be based primarily and substantially on peer-
reviewed scientific information that has been to the maximum 
extent feasible verified by field testing.
    Subsection (f) requires that concurrently with a listing 
rule, the Secretary shall publish in the Federal Register an 
analysis of the economic, social, and other public health, 
safety, and welfare effects of the listing.
    Subsection (g) makes several definitional changes including 
the definition of the term ``species'' which would not include 
a distinct population which is listed as endangered or 
threatened under state law and where state law prohibits the 
unpermitted take of the species.

Section 102. Peer review

    This section establishes new requirements for peer review 
of decisions which must be based on scientific standards, 
including the determination to list or delist a species; the 
designation or revision of the designation of critical habitat; 
the determination that a proposed action is likely to 
jeopardize the continued existence of a listed species; the 
proposal of any reasonable and prudent alternatives by the 
Secretary; and the issuance of any regulation or criteria 
establishing specific mitigation obligations with respect to a 
species. Peer reviewers would have to be ``qualified 
individuals'' requiring expertise in the biological sciences. 
The bill prevents conflicts of interests by precluding those 
persons who are employed by or under contract to the Secretary 
or to the State where the species is located or who has 
actively participated in the prelisting or listing processes or 
advocated that a listing decision be made; a person whose 
employment is related to the action or species under 
consideration; or a person with or employed by someone with a 
direct financial interest in the decision.
    The relevant Secretary must seek nominations of persons who 
agree to peer review an action and maintain a list of qualified 
peer reviewers. Before any action shall become final, the 
Secretary appoints not more than two qualified individuals to 
review and report on the scientific information and analyses on 
which the proposed action is based. The Governor of each State 
in which the species is located may appoint up to two qualified 
individuals.
    The Secretary shall make available to each peer reviewer 
all scientific information available regarding the species. The 
peer reviewer shall give his or her opinion with regard to any 
technical or scientific deficiencies in the proposal, whether 
the methodology and analysis supporting the petition conform to 
the standards of the academic and scientific community, and 
whether the proposal is supported by sufficient credible 
evidence.
    The Secretary shall publish with any final regulation a 
summary of the peer review report which shall be included in 
the official record and available for public review.

Section 103. Making data public

    Subsection (a) makes all data used to list a species 
subject to the Freedom of Information Act (5 U.S.C. 552) unless 
the Secretary, for good cause, determines that the information 
must be kept confidential. The burden is on the Secretary to 
prove that such information shall be confidential. The 
Secretary shall not disclose the location of private property 
as habitat for a listed species unless he first notifies and 
receives the consent of the owner or the information is 
otherwise public information.
    Subsection (b) requires the Secretary to provide at least 
30 days notice of any hearing or public meeting at which public 
comment is accepted in the Federal Register and in a newspaper 
in the location of the hearing or public meeting. Each public 
meeting shall allow the public to make statements and receive 
information and answers from the agency regarding the matter 
that is the subject of the public meeting.

Section 104. Judicial review

    This section requires that any final listing decision shall 
be subject to de novo judicial review with the court 
determining whether the decision is supported by a 
preponderance of the evidence.

Section 105. State consultation on final determination

    If a Governor who consulted with the Secretary during the 
listing process files comments disagreeing with the proposed 
regulation, a final regulation in conflict with the Governor 
shall not be issued until the Secretary consults with the 
President. If a final regulation is adopted that is in conflict 
with comments made by the Governor or a regulation requested by 
a Governor is not adopted, the Secretary shall submit to the 
Governor a written justification for the failure to adopt 
regulations consistent with the comments or petition of the 
Governor.

Section 106. Determinations by the Secretary to delist

    This section requires the Secretary to conduct a review of 
all listed species every five years and determine whether any 
should be delisted, or have a change in listing status based on 
new data or a reinterpretation of prior data which is in error; 
where the species is extinct; or the recovery goal established 
for the species has been achieved. Upon such finding the 
process must begin within 90 days.

Section 107. Cooperation with the States

    The Secretary shall develop, in cooperation with the 
States, and publish in the Federal Register, agency guidelines 
to ensure that cooperation with the States is achieved 
efficiently and effectively.

         TITLE II--COMPLYING WITH ALL FEDERAL LAWS AND MISSIONS


Section 201. Balancing ESA with other laws and missions

    Section 7 of the ESA requires the relevant Secretary to use 
his programs to protect endangered species. This section 
retains that requirement but requires other federal agencies to 
utilize their authorities for the conservation of endangered 
and threatened species consistent with their primary missions 
and in consultation with the Secretary. It requires all federal 
agencies to initiate consultation within 15 days after the date 
on which a request is received from a permit or license 
applicant for consultation. If the Secretary asserts the 
applicability of ESA Section 7 to any property, the Secretary 
has the responsibility of demonstrating that a threatened or 
endangered species or its critical habitat is located in the 
area that is the subject of the consultation, and the proposed 
action will jeopardize the continued existence of a threatened 
or endangered species. This provision insures that the 
Secretary shall not issue a biological opinion that a proposed 
action will jeopardize the continued existence of a species 
where there is insufficient data on the impact of a proposed 
action on such species.
    Whenever a listing or a designation of critical habitat 
requires reinitiation of consultation on an already approved 
action, the consultation shall commence promptly, but not later 
than 90 days after the date of the listing or critical habitat 
designation rule, and shall be completed not later than 1 year 
after the date on which the consultation commenced. During that 
one-year period, any site specific actions may not be enjoined 
based on that listing. The federal agency implementing a land 
use plan or management plan may continue a site-specific, 
ongoing or previously scheduled action within the scope of the 
plan on the lands prior to completing consultation on the plan, 
if no consultation on the action is required; or consultation 
on the action is required and the Secretary issues or has 
issued a biological opinion, and the action satisfies the 
requirements of law.
    H.R. 3160 clarifies that the responsibilities of a federal 
agency under the ESA shall not supersede and shall be 
implemented in a manner consistent with duties assigned to the 
federal agency by any other laws or by any treaties. If a 
federal agency determines that its responsibilities and duties 
are in irreconcilable conflict with the ESA, the agency shall 
request the President to resolve the conflict. In determining a 
resolution, the President shall consider and choose the course 
of action that best meets the public interest and balances 
pursuit of the recovery objective or the purposes of the 
recovery plan with economic and social needs and the purposes 
of other laws or treaties.
    This provision insure that if consultation is not concluded 
and the written incidental take statement is not provided to 
the federal agency by the deadline established in the ESA, the 
requirements of the ESA shall be deemed met and the federal 
agency may proceed with the agency action.
    In conducting a consultation, the Secretary must 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: (1) 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 that the 
federal agency and the person can take to avoid violation; (2) 
must be given information, subject to the Privacy Act, on the 
status of the species, threats to the species, and conservation 
measures used by the Secretary to develop the biological 
opinion, including any incidental taking statements; and (3) 
receive a copy of the draft biological opinion and prior to 
issuance of the final biological opinion be allowed to submit 
comments on the draft and discuss with the federal agencies the 
basis for the draft biological opinion. If reasonable and 
prudent alternatives are proposed by a person and the Secretary 
does not include the alternatives in the final biological 
opinion, the Secretary shall explain, in writing, why those 
alternatives were not included.
    In the development of a biological opinion with respect to 
public lands, the Secretary shall solicit and utilize 
information and advice regarding those lands from the Governor 
of each State in which the lands are located. With respect to 
nonpublic lands, the Secretary shall solicit such advice only 
upon the request of the affected landowner.
    H.R. 3160 would prevent the Secretary from requiring 
another federal agency to impose in any biological opinion or 
take statement any restriction or obligation on the activity of 
any person that is not authorized, funded, carried out, or 
otherwise subject to regulation by the federal agency.
    Subsection (d) provides definitions, including a definition 
of ``reasonable and prudent alternative'' to mean an 
alternative to an agency action that can be implemented in a 
manner consistent with the purpose of the agency action or the 
activity of a non-federal person; that can be implemented 
consistent with the scope of the legal authority and 
jurisdiction of the agency; that is economically and 
technologically feasible; that the Secretary believes would 
avoid being likely to jeopardize the continued existence of the 
species; that does not exceed in nature, scope, and extent the 
effect of the proposed activity that is the subject of the 
consultation; and that prevents the agency action concerned 
from jeopardizing the continued existence of the species and 
imposes the least social and economic cost possible. It also 
defines ``likely to jeopardize the continued existence of'' to 
mean an action or activity that significantly diminishes the 
likelihood of the survival of the species by significantly 
reducing the numbers or distribution of the entire species.
    Subsection (e) requires the Secretary to provide to each 
applicant for a permit or license that is subject to 
consultation a written statement that shall guarantee that, so 
long as the project at issue is carried out consistent with the 
take statement, the applicant shall not be subject to new or 
additional requirements for the specific protection of any 
species beyond those in the take statement. All federal 
entities shall be bound by the Secretary's guarantee. The 
Secretary shall not refuse to provide an incidental take 
statement, unless the Secretary has provided to the agency and 
the permit applicant all conditions for issuance of the 
statement in writing, and an opportunity for the agency and the 
permit applicant to provide a written response to the 
conditions. Any refusal to provide an incidental take statement 
without first providing the written conditions and providing an 
opportunity to respond is deemed to be arbitrary and 
capricious. This section would prevent the Secretary from 
requiring measures to be taken that exceed in nature, scope, or 
effect the impact of the taking for which the statement is 
issued.

Section 202. Actions not requiring consultation and conferencing

    This section would clarify that further consultation and 
conferencing shall not be required for any agency action that 
is consistent with a final recovery plan, a cooperative 
management agreement, or an incidental taking permit; or 
consists of routine operation, maintenance, rehabilitation, 
repair, or replacement to a project or facility, including 
operation of a project or facility in accordance with a 
previously-issued federal license, permit, or other 
authorization.
    In addition, in order to respond to or to prevent or 
minimize damage from a natural event or other emergency, 
consultation could be waived for the repair or maintenance of a 
natural gas pipeline, hazardous liquid pipeline, flood control 
facility, or electrical distribution transmission, or 
substation facility, if the repair or maintenance is necessary 
to address a probable imminent threat to human lives or a 
probable and significant threat to the environment. If a 
consultation is required by the relevant Secretary for such 
repair or maintenance, it shall be completed within 10 days of 
any request by the applicant for consultation. Any measure 
required to be taken to avoid take for an activity that is the 
subject of such a waiver may not exceed in nature, scope, and 
extent the effect of the activity and shall not be required 
prior to the completion of the repair or maintenance action.
    An agency action shall not constitute a taking of a species 
if the action is consistent with the actions provided for in a 
final recovery plan; a cooperative management agreement or an 
incidental take permit; or the terms and conditions specified 
in an incidental take statement.

Section 203. Eliminating the exemption committee

    This section eliminates the exemption committee and 
provides for Presidential exemptions which include: (1) an 
exemption for any activity if the Secretary of Defense 
determines that the exemption of the activity is necessary for 
reasons of national security; and (2) in areas President has 
declared to be a major disaster area, for any project for the 
repair or replacement of a public facility substantially as the 
facility existed prior to the disaster if the President 
determines that the project is necessary to prevent the 
recurrence of such a natural disaster or to reduce the 
potential loss of human life, and involves an emergency 
situation that makes the application of the procedures of the 
ESA impractical.

                 TITLE III--PERMITTING AND ENFORCEMENT


Section 301. Protecting public health and safety

    This section insures that an action is not a taking of a 
listed species for which a private person or local government 
can be punished if the activity of that person: (1) addresses a 
critical threat to public health or safety or a catastrophic 
natural event, or is mandated by any government agency for 
public health or safety purposes; or (2) is incidental to, and 
not the purpose of, the carrying out of an otherwise lawful 
activity that consists of ongoing maintenance, routine 
operation or use, and emergency repair of existing pipelines, 
flood control facilities or projects, fire breaks, transmission 
and distribution lines, groundwater recharge facilities and 
areas, water storage and recycling facilities, water drainage 
or water conveyance structures and channels, and appurtenant 
facilities; or road and right-of-away maintenance, use, and 
repair; or emergency repair or restoration of any property or 
non-federal facility to the condition in which it existed or 
operated immediately before an emergency or disaster, meeting 
current standards.

Section 302. Intervention in citizen suits

    This section amends the law with regard to citizens suits 
to require that the person filing the suit must meet the 
Constitutional requirements for standing and insure standing 
for those who have suffered economic or other injury resulting 
from a violation of the law or to enjoin the federal government 
or any of its officials alleged to be in violation of the ESA, 
if the violation poses immediate and irreparable harm to a 
threatened or endangered species.
    This section would allow any person to intervene as a 
matter of right in any citizen suit brought if the suit 
represents a reasonable threat of economic injury to that 
person. The intervener would have the same right to present 
argument and to accept or reject potential settlements as the 
parties to the suit.

Section 303. Incidental take permits

    The Secretaries are authorized under current law to issue 
incidental take permits which allow the taking of a species or 
its habitat. To obtain a permit, the applicant must submit a 
plan that specifies (1) the impact on the species from the 
taking; (2) the steps the applicant can reasonably and 
economically take to minimize and mitigate the impacts, and the 
funding to implement those steps; and (3) the alternatives to 
the taking and why other alternatives would not be used.
    The relevant Secretary is to issue the permit if he finds 
that the taking will be incidental, the applicant will 
reasonably and economically minimize the impacts of the taking; 
the applicant will ensure that funding will be provided, the 
taking will not appreciably reduce the likelihood of the 
survival and recovery of the species, and these measures will 
be met. This section requires the Secretary to include terms 
and conditions in the permit that accomplish the goals of the 
law at the least cost to the permit applicant.
    This section limits the Secretary's authority to require 
applicants, as a condition of processing a permit: (1) to 
expand the application to include land, an interest in land, a 
right to use or receive water, or a proprietary water right not 
owned by the applicant or to address a species other than the 
species for which the application is made; (2) to carry out 
mitigation that exceeds in nature, scope, or effect the impacts 
of the taking for which the permit is issued; (3) to minimize 
and mitigate for loss of habitat resulting from activities 
under the permit in an area of land greater than the area of 
land that is subject to impacts for which the mitigation is 
required; or (4) to expend an aggregate amount greater than the 
cost of fencing and preserving current conditions of the land 
on which activities are conducted under the permit.
    This section places time limits on the Secretary for 
completing the processing of, and approving or denying, any 
application for a take permit within 90 days of the date of 
submission or within such period of time as mutually agreed to. 
It also clarifies that section 102(2) of the National 
Environmental Policy Act does not apply to preparation and 
issuance of an incidental take permit.
    This section requires that if the Secretary considers a 
conservation plan to be insufficient or incomplete, he must 
inform the applicant in writing within 30 days, stating why the 
application is incomplete or insufficient and stating any 
conditions that must be met to issuance of the permit. 
Otherwise the denial is deemed to be arbitrary and capricious.
    If the application is resubmitted, the Secretary shall have 
60 days to either: (1) issue the permit; (2) provide written 
reasons for denial; or (3) formally deny the permit, in 
writing, stating the reasons for the denial.
    This section clarifies that no consultation is required for 
any action by a permittee that is authorized by a permit; any 
action by the Secretary in implementing, enforcing, or 
monitoring compliance with a permit; or the issuance, 
amendment, or renewal of any permit, if the Secretary 
determines that his action will not appreciably reduce the 
likelihood of the survival and recovery of any species covered 
by the permit.
    This section would limit the authority of the Secretary to 
later require additional minimization or mitigation measures 
from a permittee who is in compliance with the permit or to 
make additional payments, or accept additional restrictions on 
land available for development or land management or any water 
or water-related rights under the permit, without the consent 
of the permittee.
    This section retains the authority of the Secretary to 
revoke permits for failure to comply with the permit, but only 
after providing a permittee notice and an opportunity to make 
appropriate corrections. It also limits lawsuits to challenge 
permits unless suit is filed within 45 days after publication 
in the Federal Register of notice of issuance of the permit.
    This section limits the ability of the Secretary to require 
as a condition of a permit that a permittee for a public 
project take any measures to minimize or mitigate impacts of a 
taking under the permit if the costs of implementing such 
measures will exceed 10 percent of the total project costs of 
the public project; or for any activity that occurred prior to 
the date of the issuance of the permit. Public projects in this 
section means any construction project that is carried out or 
funded (in whole or in part) by a federal, State, or local 
agency; and the term ``total project costs'' means the 
aggregate costs of acquiring land and carrying out 
construction.

Section 304. Safe Harbor Agreements

    This is a new provision that authorizes Safe Harbor 
Agreements, which are agreements with non-federal persons to 
benefit the conservation of listed species by creating, 
restoring, or improving habitat or by maintaining currently 
unoccupied habitat for endangered species or threatened 
species. These agreements would allow the take of listed 
species included 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, and does not 
violate certain baseline requirements established in the 
agreement.
    The Secretary is required to establish a baseline that is 
mutually agreed upon by the applicant and the Secretary at the 
time of the agreement that will, at a minimum, maintain 
existing conditions for the species covered by agreement.
    The Secretary is required to issue standards and guidelines 
for the development and approval of safe harbor agreements.
    The section authorizes the Secretary to provide grants of 
up to $10,000 to any individual private landowner to assist the 
landowner in carrying out a safe harbor agreement.

                      TITLE IV--RECOVERY PLANNING


Section 401. Recovery planning

    This section sets forth a new program to emphasize recovery 
of species. The Secretary, in cooperation with the States, is 
to develop and implement recovery plans for domestic endangered 
and threatened species unless he finds that a plan will not 
promote the conservation of the species or because an existing 
plan already serves as the functional equivalent to a recovery 
plan.
    To the maximum extent practicable, the Secretary is to give 
priority to recovery plans that: (1) address significant and 
immediate threats to the survival of an endangered or a 
threatened species, have the greatest likelihood of achieving 
recovery of the endangered or the threatened species, and will 
benefit species that are more taxonomically distinct; (2) will 
address multiple species; (3) reduce economic and development 
conflicts; and (4) reduce conflicts with military training and 
operations.
    Subsection (c) sets forth schedules for publishing recovery 
plans. The draft recovery plan must be published not later than 
18 months after the listing rule, and the final recovery plan 
must be published not later than 30 months after the listing 
rule.
    Not later than 60 days after listing a species, the 
Secretary is to appoint a recovery team to develop a plan or 
provide a notice that a recovery team will not be appointed 
along with the reasons therefore; and if requested by a 
Governor where the species occurs, the Secretary shall appoint 
a recovery team to develop a plan or delegate to the Governor 
the authority to develop a recovery plan for that State.
    This section sets forth the qualifications for the recovery 
team including scientific, economics, property law and 
regulation experts, and others from the private sector; a 
representative of affected States, representatives of affected 
local governments, and representatives of those directly 
economically impacted.
    Each recovery team shall submit to the Secretary the draft 
recovery plan, which shall include recovery strategies 
recommended by the team and alternatives to meet the recovery 
goal. The recovery team shall also advise the Secretary 
concerning the designation of critical habitat, if any. The 
recovery team shall assess the direct, indirect, and cumulative 
economic and social impacts on the public and private sectors 
that may result from the listing or from recovery strategies. 
The recovery team shall recommend measures to balance the 
achievement of the recovery goal for a species with protecting 
the economic well-being of the area affected by implementation 
of the recovery plan.
    This section provides that the Federal Advisory Committee 
Act shall not apply to the selection or activities of a 
recovery team except that meetings of the recovery team shall 
be open to the public.
    Within 180 days after their appointment, the recovery team 
is to establish and submit a recommended biological recovery 
goal which is to be expressed as objective and measurable 
population criteria, that when met, would result in the species 
removed from the endangered or threatened list. Each draft plan 
shall contain recommendations for federal agency compliance 
with Section 7 of the ESA; recommendations for avoiding a 
prohibited take and a list of activities that constitute a 
take; alternative strategies to achieve the recovery goal; and 
a description of economic and social impacts. The alternative 
strategies must achieve an appropriate balance between the 
effectiveness of the measures in meeting the recovery goal, the 
length of time in which the recovery goal is likely to be 
achieved; and minimizing the economic and social impacts on the 
public and private sectors. Each recovery plan under this 
section shall provide equitable treatment of each affected 
State and all other non-federal persons affected by the plan, 
and seek to minimize and fairly distribute the social and 
economic costs that may result from implementation of the plan.
    If the Secretary finds that the draft plan meets these 
requirements, he shall publish in the Federal Register and a 
newspaper a description of and a request for public comment on 
the draft recovery plan. Upon request, the Secretary shall hold 
at least one public meeting on each draft recovery plan in each 
State to which the plan would apply, except no more than five 
total meetings are mandated.
    After reviewing each plan, if the Secretary determines that 
the plan does not satisfy these requirements, he shall notify 
the recovery team and give the team an opportunity to address 
his concerns and resubmit a satisfactory plan. In each final 
plan the Secretary shall select recovery strategies that 
achieve the recovery goal and the benchmarks while achieving an 
appropriate balance, except that the Secretary shall select the 
recovery strategy that would impose the least costs and result 
in the least socioeconomic impacts in achieving the recovery 
goal. If the Secretary selects strategies other than those 
recommended by the recovery team, the Secretary shall publish 
with the final plan an explanation. The Secretary shall publish 
a notice of availability and summary of the final recovery 
plan, and include a response to significant comments received 
on the draft plan.
    No later than five years after date of enactment, the 
Secretary shall review recovery plans published prior to that 
date of enactment of H.R. 3160. The Secretary shall review each 
recovery plan first approved or revised under this section 
after the date of enactment not later than five years after the 
date of approval or revision of the plan and every five years 
thereafter.
    The Secretary shall revise a recovery plan if substantial 
new information indicates that the recovery goal will not 
achieve the conservation and recovery of the covered species. 
The Secretary shall convene a recovery team to develop the 
revisions, unless the Secretary has published a notice that a 
recovery team shall not be appointed. Otherwise the Secretary 
is not required to modify a recovery plan approved before 
enactment of H.R. 3160, or a recovery plan on which public 
notice and comment has been initiated before enactment of H.R. 
3160.
    Concurrent with the submission of the draft recovery plan, 
the recovery team appointed for the species shall provide the 
Secretary with a description of any area recommended for 
designation as critical habitat and any recommendations for 
special management considerations or protection. This section 
allows the Secretary, to the maximum extent prudent and 
determinable, to designate or revise an existing designation of 
critical habitat. Critical habitat may be designated at the 
time a species is listed if the Secretary determines that 
designation at that time is essential to avoid the imminent 
extinction of the species. The designation is to be made on the 
basis of the best 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. ``Economic impact'' as 
used here, means the cumulative economic effects (including 
costs) resulting from the listing of a species and the 
designation of critical habitat of the species for communities 
and industries that are located in the area designated as 
critical habitat or that receive revenue from use of the area.
    At the request of one or more Governors, the Secretary may 
delegate to a State the authority to develop and implement the 
recovery plans if the Secretary finds that the State has 
entered into a cooperative agreement with the Secretary and the 
State has submitted a statement to the Secretary demonstrating 
adequate authority and capability to carry out the requirements 
and schedules. If the Secretary finds that a State agency lacks 
any authority or capability, he shall notify the State and 
provide the State an opportunity to address his concerns.
    The Secretary, in cooperation with the States, shall 
publish standards and guidelines for the development of 
recovery plans by States. 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. Prior to 
publication of a notice of availability of a draft plan, the 
Secretary shall review each draft to determine whether it meets 
the requirements and shall give the State an opportunity to 
address any deficiencies. Thereafter, if the Secretary 
determines that the plan does not meet such requirements, he 
shall notify the State and, in cooperation with the State, 
develop a recovery plan in accordance with this section. On 
receipt of a draft plan transmitted by the State, the Secretary 
shall review and adopt the plan. The Secretary may withdraw the 
authority from a State if the actions of the State are not in 
accordance with the substantive and procedural requirements of 
this H.R. 3160. The Secretary shall give the State an 
opportunity to correct any deficiencies and may withdraw the 
authority from the State, unless the State within 60 days has 
corrected the deficiencies. Following withdrawal of authority, 
the Secretary shall within 18 months publish a draft plan for 
the State, and within 12 months after publication of the draft 
recovery plan, publish a final recovery plan for the State.
    The term ``State agency'' means a State agency entering 
into a cooperative request and the Pacific Northwest Electric 
Power and Conservation Planning Council.
    Within six months of enactment of H.R. 3160, the Secretary 
shall establish in the Fish and Wildlife Service a separate 
office, to be known as the Office of Species Recovery, and 
shall delegate to that Office authority to provide support 
services to recovery teams to develop, or where a recovery team 
cannot be appointed to develop, implement recovery plans; to 
seek the recovery of all endangered or threatened species; to 
make all delisting decisions; and to assist in the designation 
of critical habitat.

                         TITLE V--MISCELLANEOUS


Section 501. Authorizing increased appropriations

    Subsection (a) authorizes appropriations to the Department 
of the Interior $130 million for fiscal year (FY) 2001; $140 
million for FY 2002; $150 million for FY 2003; and $160 million 
for FY 2004. For the Department of Commerce, this subsection 
authorizes appropriations of $30 million for FY 2001; $35 
million for FY 2002; $40 million for FY 2003; and $45 million 
for FY 2004. Finally, this subsection authorizes appropriations 
for the Department of Agriculture of $4 million for each of FYs 
2001-2004.
    Subsection (b) authorizes appropriations to the Secretary 
of the Interior for international programs of $1 million for 
each of FYs 2001-2004.
    Subsection (c) authorizes $10 million for each of FYs 2001-
2004 for Safe Harbor Agreements.

            Committee Oversight Findings and Recommendations

    With respect to the requirements of clause 2(1)(3) of rule 
XI of the Rules of the House of Representatives, and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee on Resources' oversight findings and 
recommendations are reflected in the body of this report.

                  Federal Advisory Committee Statement

    The functions of the proposed advisory committee authorized 
in this bill are not currently being nor could they be 
performed by one or more agencies, an advisory committee 
already in existence or by enlarging the mandate of an existing 
advisory committee.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact H.R. 3160.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. The Committee on Resources 
believes that any costs incurred in carrying out this bill 
would not create a significant impact on the federal budget.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. Government Reform Oversight Findings. Under clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives, the Committee has received no report of 
oversight findings and recommendations from the Committee on 
Government Reform on this bill.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has requested but not received a cost 
estimate for this bill from the Director of the Congressional 
Budget Office.

                    Compliance With Public Law 104-4

    H.R. 3160 contains no unfunded mandates.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

ENDANGERED SPECIES ACT OF 1973

           *       *       *       *       *       *       *



                              definitions

  Sec. 3. For the purposes of this Act--
  (1) * * *

           *       *       *       *       *       *       *

  [(20) 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.]
          (20) The term ``threatened species'' means any 
        species that is likely to become an endangered species 
        within the foreseeable future throughout all or a 
        significant portion of its range, and the population of 
        which is declining or has declined from known historic 
        populations levels and beyond the normal population 
        fluctuations for the species.

           *       *       *       *       *       *       *

          (22) The term ``best scientific and commercial data 
        available'' means factual information, including but 
        not limited to peer reviewed scientific information and 
        genetic data, obtainable from any source, including 
        governmental and nongovernmental sources, which has 
        been to the maximum extent feasible verified by field 
        testing.
          (23) The term ``species'' includes any subspecies of 
        fish or wildlife or plants, and any distinct population 
        of any species of vertebrate fish or wildlife which 
        interbreeds when mature, unless such distinct 
        population is determined to be endangered or threatened 
        under the law of the State in which it is found and 
        such law prohibits the unpermitted take of such 
        species.
          (24) The term ``reasonable and prudent alternative'' 
        means an alternative to an agency action that--
                  (A) can be implemented in a manner consistent 
                with the intended purpose of the agency action 
                or the activity of a non-Federal person under 
                section 10;
                  (B) can be implemented consistent with the 
                scope of the legal authority and jurisdiction 
                of the Federal agency;
                  (C) is economically and technologically 
                feasible for the applicant or non-Federal 
                person to undertake;
                  (D) the Secretary believes would avoid being 
                likely to jeopardize the continued existence of 
                the species;
                  (E) does not exceed in nature, scope, and 
                extent the effect of the proposed activity that 
                is the subject of the consultation; and
                  (F) both prevents the agency action concerned 
                from jeopardizing the continued existence of 
                the species and imposes the least social and 
                economic cost possible.
          (25) The term ``likely to jeopardize the continued 
        existence of'', with respect to an action or activity 
        affecting an endangered species or a threatened 
        species, means an action or activity that significantly 
        diminishes the likelihood of the survival of the 
        species by significantly reducing the numbers or 
        distribution of the entire species.

           *       *       *       *       *       *       *


       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) * * *

           *       *       *       *       *       *       *

          [(D) the inadequacy of existing regulatory 
        mechanisms; or]
          (D) the inadequacy of existing Federal, State, and 
        local government regulatory mechanisms or other 
        proactive conservation programs or measures, including 
        programs and measures voluntarily undertaken;

           *       *       *       *       *       *       *

  [(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.]
  [(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.]
  (b) Secretarial Determinations.--
          (1) Basis for determination.--(A) The Secretary shall 
        make determinations required by subsection (a)(1) 
        solely on the basis of the best scientific and 
        commercial data available to the Secretary after 
        conducting a review of the status of the species and 
        after soliciting and fully considering the best 
        scientific and commercial data available concerning the 
        status of a species from any affected State or any 
        interested non-Federal person, and taking into account 
        those efforts being made by any State or foreign 
        nation, any political subdivision of a State or foreign 
        nation, or any non-Federal person or conservation 
        organization, 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, and 
        shall accord greater weight, consideration, and 
        preference to empirical data rather than projections or 
        other extrapolations developed through modeling.
          (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 as 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.
          (C) In making a determination whether a species is an 
        endangered species or threatened species under this 
        section, the Secretary shall consider the future 
        conservation benefits to be provided to the species 
        under any species conservation plans prepared pursuant 
        to section 10 or to any management agreement entered 
        into under section 6 or under any other agreement for 
        the conservation of any species entered into between 
        the Secretary and any other person.
          (2) Standards for determining species.--Within 18 
        months after the date of the enactment of the Common 
        Sense Protections for Endangered Species Act, the 
        Secretary shall promulgate a rule establishing 
        scientifically valid standards for rendering taxonomic 
        determinations of species and subspecies. The standards 
        shall provide that to be eligible for determination as 
        a subspecies under this Act, a subspecies must be 
        reproductively isolated from other subspecific 
        population units and constitute an important component 
        in the evolutionary legacy of the species.
          (3) Response to petitions.--
                  (A) Action may be warranted.--
                          (i) In general.--Consistent with the 
                        ranking system established by the 
                        Secretary under subsection (h)(3) and 
                        to the maximum extent practicable, 
                        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 
                        immediately publish in the Federal 
                        Register a notice of receipt of the 
                        petition and 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) scientific documentation 
                                from a published scientific 
                                source that the fish or 
                                wildlife or plant that is the 
                                subject of the petition is a 
                                species;
                                  (II) a description of all 
                                available data on the 
                                historical and current range, 
                                population, and distribution of 
                                the species, an explanation of 
                                the methodology used to collect 
                                the data, and an identification 
                                of the location where the data 
                                can be reviewed;
                                  (III) scientific evidence 
                                that the population of the 
                                species is declining or has 
                                declined from historic 
                                population levels and beyond 
                                normal population fluctuations 
                                for the species;
                                  (IV) an appraisal of the 
                                available data on the threats 
                                to the species or the causes of 
                                its decline;
                                  (V) an identification of the 
                                information contained or 
                                referred to in the petition 
                                that has been peer-reviewed or 
                                field-tested;
                                  (VI) the reason that the 
                                petitioned action is warranted, 
                                based on the factors 
                                established under subsection 
                                (a);
                                  (VII) a bibliography of 
                                scientific literature on the 
                                species, if any, in support of 
                                the petition;
                                  (VIII) the qualifications of 
                                any person cited in the 
                                petition as an expert on the 
                                species or the status of the 
                                species; and
                                  (IX) at least one study or 
                                credible expert opinion, by a 
                                person who is not affiliated 
                                with the petitioner, to support 
                                the action requested in the 
                                petition.
                          (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 Governor of each State 
                                in which the species is 
                                believed to occur and to 
                                affected tribes, and shall 
                                solicit the advice of each such 
                                Governor and tribe as to 
                                whether the petitioned action 
                                is warranted. Such advice shall 
                                be submitted to the Secretary 
                                not later than 90 days after 
                                the notification.
                                  (II) Peer review of certain 
                                determinations.--If the 
                                Secretary's determination that 
                                the petitioned action is 
                                warranted is in direct conflict 
                                with the information submitted 
                                by the Governor or tribe, the 
                                finding shall not be final 
                                until the Secretary submits the 
                                finding to peer review as 
                                provided in subsection (f). The 
                                peer reviewers shall have not 
                                more than 30 days to submit 
                                their findings and comments to 
                                the Secretary. If the peer 
                                reviewers and the Secretary 
                                find that the petition is 
                                warranted, the Secretary shall 
                                prepare a record of decision 
                                and shall submit the record to 
                                the Governor or tribe. Issuance 
                                of such record shall be final 
                                agency action for purposes of 
                                chapter 7 of title 5, United 
                                States Code (relating to 
                                judicial review).
                  (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;
                                  (III) the recovery goals 
                                established for the species in 
                                a recovery plan adopted under 
                                section 5 have been achieved; 
                                or
                                  (IV) the original listing of 
                                the species was not subject to 
                                adequate peer review as 
                                required by this Act.
                  (C) Determination.--Not later than the end of 
                the 1-year period beginning on the date the 
                Secretary receives 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, within 45 days after 
                        making the determination and before 
                        issuing any proposed rule to implement 
                        the determination, publish in the 
                        Federal Register a notice of a review 
                        of the status of the species that 
                        includes a description of the 
                        following:
                                  (I) Any missing data that, if 
                                obtained, would support the 
                                determination.
                                  (II) Data that are necessary 
                                to make the determination and 
                                that can be collected within 
                                the period available for making 
                                the determination.
                                  (III) Data that may be 
                                necessary in the future to 
                                ensure the continued validity 
                                of the determination, and the 
                                deadline or deadlines for 
                                collecting that data.
                          (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) Public meetings.--If requested by any 
                person within 30 days after the date of 
                publication of a finding under subparagraph (C) 
                regarding a species, the Secretary shall 
                conduct at least one public meeting on the 
                finding in each State in which the species is 
                believed to occur and a person making such a 
                request resides. Public meetings in a State 
                under this clause shall include--
                          (i) a public meeting at a location 
                        that is as centrally located as 
                        possible to the areas in the State 
                        believed by the Secretary to be habitat 
                        of the species; and
                          (ii) at least one public meeting in 
                        each rural area of the State that the 
                        Governor of the State determines is 
                        affected by the determination.
                  (E) 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.
                  (F) Judicial review.--(i) 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. In any suit for review brought under 
                this paragraph, any person may intervene as a 
                matter of right if the person can demonstrate 
                that a determination to list will have a direct 
                economic impact on such person.
                  (ii) In any action seeking judicial review of 
                a finding by the Secretary described in 
                subparagraph (C)(iii), the court shall give 
                great weight to the finding.
                  (G) Monitoring.--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.
                  (H) Data solicitation.--(i) The Secretary 
                shall, in the one-year period referred to in 
                subparagraph (C)--
                          (I) solicit, through publication in 
                        the Federal Register, information 
                        regarding the status of the species 
                        that may be the subject of a proposed 
                        rule, including current population, 
                        population trends, current habitat, 
                        other State or local governmental 
                        conservation efforts, Federal 
                        conservation lands that could provide 
                        habitat for the species, food sources, 
                        predators, breeding habits, captive 
                        breeding efforts, commercial, 
                        nonprofit, avocational, or voluntary 
                        conservation activities, or other 
                        pertinent information that may assist 
                        in making thedetermination referred to 
in subsection (a)(1); and
                          (II) collect and consider the data 
                        identified and described pursuant to 
                        subclause (I).
                  (ii) The solicitation shall establish a time 
                period within which to submit the information, 
                that shall be not less than 180 days. The 
                period shall be extended for an additional 60 
                days at the request of any person who submits a 
                request for such extension that includes a 
                statement of the reasons for the request. In 
                making the determination referred to in 
                subsection (a)(1), the Secretary shall give 
                equal weight to the information submitted in 
                accordance with this subparagraph.
          (H)(i) All data or information considered by the 
        Secretary in making the determination to list as 
        provided in this section, shall be considered public 
        information and shall be subject to section 552 of 
        title 5, United States Code (commonly referred to as 
        the `Freedom of Information Act') unless the Secretary, 
        for good cause, determines that the information must be 
        kept confidential. The burden shall be on the Secretary 
        to prove that such information shall be confidential 
        and such decision shall be reviewable by a district 
        court of competent jurisdiction, which shall review the 
        decision in chambers. Good cause can include that the 
        information is of a proprietary nature or that release 
        of the location of the species may endanger the species 
        further.
          (ii) The Secretary shall not publish or otherwise 
        publicly disclose the location of particular private 
        property as habitat for a species which is determined 
        to be an endangered species or threatened species or 
        proposed to be determined to be an endangered species 
        or threatened species, unless the Secretary first 
        notifies the owner thereof and receives the consent of 
        the owner, or the information is otherwise public 
        information.

           *       *       *       *       *       *       *

  [(5) With respect to any regulation proposed by the Secretary 
to implement a determination, designation, or revision referred 
to in subsection (a)(1) or (3), 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, 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.]
          (5) Proposed regulations and review.--With respect to 
        any regulation proposed by the Secretary to implement a 
        determination referred to in subsection (a)(1) of this 
        section, the Secretary shall perform the following:
                  (A) Not later than 12 months before 
                publishing the proposed regulation, the 
                Secretary shall--
                          (i) notify the Governor of each State 
                        in which the species is believed to 
                        occur and each affected tribe; and
                          (ii) solicit submission by each such 
                        Governor and tribe, by not later than 
                        90 days after the notification, of 
                        advice as to whether the determination 
                        is warranted.
                  (B) Before publication of the proposed 
                regulation, the Secretary shall consider advice 
                received from State Governors and tribes under 
                subparagraph (A)(ii). If a Governor or tribe 
                provides scientific evidence pursuant to 
                subparagraph (A)(ii) that the determination is 
                not warranted, the Secretary may not make the 
                determination with respect to that State or on 
                the lands of that tribe, respectively, unless 
                the Secretary shows by a preponderance of 
                scientific evidence that the information 
                submitted by the Governor or tribe is incorrect 
                and that the determination is warranted.
                  (C) 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 as 
                        provided in paragraph (8); and
                          (ii) give actual notice of the 
                        proposed regulation (including the 
                        complete text of the regulation) to the 
                        Governor of each State in which the 
                        species is believed to occur, and 
                        invite the determination of such State 
                        as to whether the action is warranted 
                        and if the Governor notifies the 
                        Secretary that the action is not 
                        warranted, the Secretary must provide 
                        to the Governor a record of decision 
                        for such determination, including 
                        information made available to the 
                        Secretary which did not support the 
                        determination, and the written reasons 
                        for the determination.
                  (D) 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 consult with such 
                nation thereon.
                  (E) Give notice of the proposed regulation to 
                any person who requests such notice, any person 
                who has submitted additional data, each State 
                and local government within which the species 
                is believed to occur or which is likely to 
                experience any effects of any measures to 
                protect the species under this Act, and such 
                professional scientific organizations as the 
                Secretary deems appropriate.
                  (F) 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.
                  (G) At the request of any person made not 
                later than 45 days after the date of 
                publication of general notice, promptly hold at 
                least one public meeting in each State that 
                would be affected by the proposed regulation 
                (including at least one public meeting in an 
                affected rural area, if any) except that the 
                Secretary shall not be required to hold more 
                than five public meetings under this 
                subparagraph.
                  (H) Identify and include with the proposed 
                rule a description of--
                          (i) all data that are to be 
                        considered in making the determination 
                        under subsection (a)(1) to which the 
                        proposed rule relates and that have yet 
                        to be collected or field verified;
                          (ii) any data that have not been 
                        collected and considered in the 
                        determination under subsection (a)(1) 
                        to which the rule relates and that are 
                        necessary to ensure the continued 
                        scientific integrity of the 
                        determination;
                          (iii) deadlines by which the 
                        Secretary shall collect and consider 
                        the data in accordance with 
                        subparagraph (I);
                          (iv) a description of additional 
                        scientific and commercial data that 
                        would assist in the preparation of a 
                        recovery plan for the species to which 
                        the rule relates;
                          (v) a list of known threats to the 
                        species and a description of the types 
                        of activities that may be affected by 
                        the determination under subsection 
                        (a)(1) andany restriction on use of 
property that may result from the determination; and
                          (vi) other State, local, or Federal 
                        regulatory or conservation measures 
                        that may either at present or in the 
                        future contribute to the conservation 
                        of the species.
                  (I) Not later than the deadline published by 
                the Secretary pursuant to subparagraph 
                (H)(iii), the Secretary shall--
                          (i) collect the data;
                          (ii) provide an opportunity for 
                        public review and comment on the data;
                          (iii) consider the data after that 
                        review and comment; and
                          (iv) publish in the Federal Register 
                        the results of that consideration and a 
                        description of and schedule for any 
                        actions warranted by the data.
  [(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 1-year period 
                beginning on the date on which general notice 
                is published in accordance with paragraph 
                (5)(A)(i) regarding a proposed regulation, the 
                Secretary shall publish in the Federal 
                Register--
                          (i) a final regulation to implement 
                        the determination;
                          (ii) notice that the 1-year period is 
                        being extended under subparagraph 
                        (B)(i); or
                          (iii) notice that the proposed 
                        regulation is being withdrawn under 
                        subparagraph (B)(ii), together with the 
                        finding on which 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.

           *       *       *       *       *       *       *

  (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.]

           *       *       *       *       *       *       *

  (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] the best scientific and commercial data 
available on which such regulation is based and 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. Each regulation proposed by the 
Secretary to implement a determination referred to in 
subsection (a)(1) shall be based primarily and substantially on 
peer-reviewed scientific information obtainable from any 
source, including governmental and nongovernmental sources, 
that has been to the maximum extent feasible verified by field 
testing. The Secretary shall identify any data that is used as 
a basis for such a determination and that has not been verified 
by field testing.
          (9) Analysis of economic and social costs.--(A) 
        Concurrently with a determination that a species 
        warrants listing as an endangered species or threatened 
        species, the Secretary shall publish in the Federal 
        Register with such determination an analysis of the 
        economic, social, and other public health, safety, and 
        welfare effects the listing may have.
          (B) The analysis shall include--
                  (i) an estimate of the effects the listing 
                may have on Federal, State, and local 
                expenditures and revenues;
                  (ii) the costs and benefits of the listing 
                for the private sector, including lost 
                opportunity costs; and
                  (iii) an identification of the geographic 
                area that may be affected by the listing.

           *       *       *       *       *       *       *

  (c) Lists.--(1) * * *
  [(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).]
  (2) The Secretary shall--
          (A) conduct, at least once every 5 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, which shall be 
                proposed within 90 days of the date upon which 
                it is determined that--
                          (I) new data or a reinterpretation of 
                        prior data indicates that the previous 
                        determination was in error;
                          (II) the species is extinct; or
                          (III) the recovery goal established 
                        for the species in a recovery plan 
                        under section 5(e) has been achieved;
                  (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 subsections (a) and (b) of 
this section.

           *       *       *       *       *       *       *

  [(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).]
  (f) Peer Review Requirement.--
          (1) Definitions.--In this subsection:
                  (A) The term ``action'' means--
                          (i) the determination that a species 
                        is an endangered species or a 
                        threatened species under subsection 
                        (a);
                          (ii) the determination under 
                        subsection (a) that an endangered 
                        species or a threatened species be 
                        removed from any list published under 
                        subsection (c)(1);
                          (iii) the designation, or revision of 
                        the designation, of critical habitat 
                        for an endangered species or a 
                        threatened species under section 5(k);
                          (iv) the determination that a 
                        proposed action is likely to jeopardize 
                        the continued existence of a listed 
                        species and the proposal of any 
                        reasonable and prudent alternatives by 
                        the Secretary under section 7(b)(3); 
                        and
                          (v) the issuance of any regulation or 
                        criteria establishing specific 
                        mitigation obligations with respect to 
                        a species.
                  (B) The term ``qualified individual'' means 
                an individual with expertise in the biological 
                sciences--
                          (i) who is by virtue of advanced 
                        education, training, or avocational, 
                        academic, commercial, research, or 
                        other experience competent to review 
                        the adequacy of any scientific 
                        methodology supporting the action, the 
                        validity of any conclusions drawn from 
                        the supporting data, and the competency 
                        of the individual who conducted the 
                        research or prepared the data;
                          (ii) who is not otherwise employed by 
                        or under contract to the Secretary or 
                        the State in which the species is 
                        located;
                          (iii) who has not actively 
                        participated in the prelisting or 
                        listing processes or advocated that a 
                        listing decision be made;
                          (iv) who has not been employed by or 
                        under contract to the Secretary or the 
                        State in which the species is located 
                        for work related to the action or 
                        species under consideration; and
                          (v) who has no direct financial 
                        interest, and is not employed by any 
                        person with a direct financial 
                        interest, in opposing the action under 
                        consideration.
          (2) List of peer reviewers.--In order to provide a 
        substantial list of individuals who on a voluntary 
        basis are available to participate in peer review of 
        actions, the Secretary shall, through the Federal 
        Register, through scientific and commercial journals, 
        and through the National Academy of Sciences and other 
        such institutions, seek nominations of persons who 
        agree to peer review an action upon appointment by the 
        Secretary.
          (3) Appointment of peer reviewers.--Before any action 
        shall become final, the Secretary shall appoint, from 
        among the list prepared in accordance with paragraph 
        (2), not more than 2 qualified individuals who shall 
        review, and report to the Secretary on, the scientific 
        information and analyses on which the proposed action 
        is based. The Governor of each State in which the 
        species is located that is the subject of the proposal, 
        may appoint up to 2 qualified individuals to conduct 
        peer review of the action. If any individual declines 
        the appointment, the Secretary or the Governor shall 
        appoint another individual to conduct the peer review.
          (4) Data provided to peer reviewer.--The Secretary 
        shall make available to each person conducting peer 
        review all scientific information available regarding 
        the species which is the subject of the peer review. 
        The Secretary shall not indicate to a peer reviewer the 
        name of any person that submitted a petition for 
        listing or delisting that is reviewed by the reviewer.
          (5) Opinion of peer reviewers.--The peer reviewer 
        shall give his or her opinion with regard to any 
        technical or scientific deficiencies in the proposal, 
        whether the methodology and analysis supporting the 
        petition conform to the standards of the academic and 
        scientific community, and whether the proposal is 
        supported by sufficient credible evidence.
          (6) Publication of peer review report.--The Secretary 
        shall publish with any final regulation implementing an 
        action a summary of the report of the peer review panel 
        noting points of disagreement between peer reviewers, 
        if any, and the response of the Secretary to the 
        report. The report of the peer reviewers shall be 
        included in the official record of the proposed action 
        and shall be available for public review prior to the 
        close of the comment period on the regulation.

           *       *       *       *       *       *       *

  (h) 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.] The Secretary shall develop in cooperation with 
the States, and publish in the Federal Register, agency 
guidelines to ensure that cooperation with the States is 
achieved efficiently and effectively. Such guidelines shall 
include, but are not limited to--
          (1) * * *

           *       *       *       *       *       *       *

  [(i) 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) Submission to State Agency of Justification for 
Regulations Inconsistent With State Agency's Comments or 
Petition.--If, in the case of any regulation proposed by the 
Secretary under the authority of this section, a Governor who 
consulted with the Secretary in accordance with subsection 
(b)(5)(A)(ii) files comments disagreeing with all or part of 
the proposed regulation, the Secretary shall not issue a final 
regulation that is in conflict with such comments until the 
Secretary further consults with the President. If the Secretary 
adopts a final regulation in conflict with comments made by the 
Governor of a State or fails to adopt a regulation pursuant to 
an action petitioned by a Governor under subsection (b)(3), the 
Secretary shall submit to the Governor a written justification 
for the failure of the Secretary to adopt regulations 
consistent with the comments or petition of the Governor.
  (j) Judicial Review of Determinations.--Any final 
determination that a species is a threatened species or 
endangered species shall be subject to a de novo judicial 
review with the court determining whether the decision is 
supported by a preponderance of the evidence.

           *       *       *       *       *       *       *



                             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.
  (b) Priorities.--To the maximum extent practicable, the 
Secretary, in developing recovery plans, shall give priority, 
without regard to taxonomic classification, to recovery plans 
that--
          (1) address significant and immediate threats to the 
        survival of an endangered species or a threatened 
        species, have the greatest likelihood of achieving 
        recovery of the endangered species or the threatened 
        species, and will benefit species that are more 
        taxonomically distinct;
          (2) address multiple species including (A) endangered 
        species, (B) threatened species, or (C) species that 
        the Secretary has identified as candidates or proposed 
        for listing under section 4 and that are dependent on 
        the same habitat as the endangered species or 
        threatened species covered by the plan;
          (3) reduce conflicts with construction, development 
        projects, jobs, agriculture, private property, or other 
        economic activities; and
          (4) reduce conflicts with military training and 
        operations.
  (c) Schedule.--For each species determined to be an 
endangered species or a threatened species after the date of 
enactment of 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.--(A) 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--
                  (i) appoint a recovery team to develop a 
                recovery plan for the species; or
                  (ii) provide to each affected State and 
                publish a notice that a recovery team will not 
                be appointed, stating the reasons for not 
                appointing a recovery team; and
          (B) Upon request by the Governor of any State in 
        which the species occurs made after publication of 
        notice under subparagraph (A)(ii), the Secretary shall, 
        as requested by the Governor--
                  (i) appoint a recovery team to develop a 
                recovery plan under this section; or
                  (ii) delegate to the Governor, under 
                subsection (l), the authority of the Secretary 
                to develop a recovery plan for the species for 
                that State.
          (2) Appointment of recovery team.--(A) The recovery 
        team shall consist of--
                  (i) experts in biology or pertinent 
                scientific fields, economics, property law and 
                regulation, and other appropriate disciplines, 
                including from the private sector;
                  (ii) a representative nominated by the 
                Governor of each affected State;
                  (iii) representatives nominated by each 
                affected local government, if the local 
                government agrees to the appointment of a 
                representative; and
                  (iv) representatives of persons who may be 
                directly, economically impacted by the 
                conservation plan.
          (B) The chairman of the team shall be selected by the 
        team from among its members who are representatives of 
        States or local governments.
          (3) Duties of the recovery team.--(A) Each recovery 
        team shall prepare and submit to the Secretary the 
        draft recovery plan, which shall include recovery 
        strategies 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.
          (B) The recovery team shall assess the direct, 
        indirect, and cumulative economic and social impacts on 
        the public and private sectors, including local 
        governments, that may result from the listing 
        determination or from potential recovery strategies 
        recommended under subparagraph (A), including--
                  (i) impacts on the cost of governmental 
                actions, tax and other revenues, employment, 
                the use and value of property, and other 
                social, cultural, and community values; and
                  (ii) commercial activity that might result in 
                a net benefit to the conservation of the 
                species.
          (C) The recovery team shall recommend to the 
        Secretary measures to balance the achievement of the 
        recovery goal for a species under subsection (e) with 
        protecting the economic well-being of the area affected 
        by implementation of the recovery plan for the species.
          (4) Travel expenses.--The Secretary may 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, except that 
        meetings of the recovery team shall be open to the 
        public as provided in that Act for meetings of advisory 
        committees.
  (e) Contents of Recovery Plans and Draft Recovery Plans.--
          (1) Biological recovery goal.--Not later than 180 
        days after the appointment of a recovery team under 
        this section, the recovery team 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 recovery goal shall be expressed as 
        objective and measurable population criteria. When the 
        goal is met, the Secretary shall initiate the 
        procedures under this Act to remove the species from 
        the list. The recovery team shall also report to the 
        Secretary the scientific feasibility of full recovery 
        of the species and the time frame in which recovery is 
        likely to occur.
          (2) Contents of draft plan.--
                  (A) In general.--Each draft recovery plan 
                shall contain the following:
                          (i) Recommendations for Federal 
                        agency compliance with section 7(a)(1) 
                        and 7(a)(2).
                          (ii) Recommendations for avoiding a 
                        taking of a listed species prohibited 
                        under section 9(a)(1) and a list of 
                        specific activities that would 
                        constitute a take under section 9.
                          (iii) Alternative strategies to 
                        achieve the recovery goal for the 
                        listed species, that range from a 
                        strategy requiring the least possible 
                        Federal management to achieve the 
                        recovery goal to a strategy involving 
                        more intensive Federal management to 
                        achieve the goal.
                          (iv) A description of economic and 
                        social impacts identified under 
                        subsection (d)(3)(B).
                  (B) Requirements for alternative 
                strategies.--The alternative strategies under 
                subparagraph (A)(iii) must achieve an 
                appropriate balance among the following 
                factors:
                          (i) The effectiveness of the measures 
                        in meeting the recovery goal.
                          (ii) The length of time in which the 
                        recovery goal is likely to be achieved 
                        if the time period within which the 
                        recovery goal is to be achieved will 
                        not pose a significant risk to recovery 
                        of the species.
                          (iii) Minimizing the economic and 
                        social impacts on the public and 
                        private sectors, including the impact 
                        on employment, the cost of government 
                        actions, tax and other revenues, the 
                        use and value of property, and other 
                        social, cultural, and community values.
          (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) Equitable treatment of affected states and other 
        non-federal persons.--Each recovery plan under this 
        section shall--
                  (A) provide equitable treatment of each 
                affected State and all other non-Federal 
                persons affected by the plan; and
                  (B) seek to minimize and fairly distribute 
                the social and economic costs that may result 
                from implementation of the plan.
  (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 areas in each affected State 
        that are located as close to the affected area as 
        possible, a notice of availability and a summary of, 
        and a request for public comment on, the draft recovery 
        plan. The notice shall include a description of the 
        activities that will require a permit under section 10, 
        a description of the economic and social impacts 
        referred to in subsection (d)(3)(B), and the 
        recommendations of the recovery team on the recovery 
        goal under subsection (e)(1).
          (2) Hearings.--At the request of any person, the 
        Secretary shall hold at least 1 public meeting on each 
        draft recovery plan in each State to which the plan 
        would apply (including at least 1 public meeting in an 
        affected rural area, if any), except that the Secretary 
        may not be required to hold more than 5 public meetings 
        under this paragraph.
  (g) Review and Selection by the Secretary.--
          (1) Review and approval.--The Secretary shall review 
        each plan submitted by a recovery team 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 strategies.--In each final 
        plan the Secretary shall select recovery strategies 
        that achieve the recovery goal and the benchmarks while 
        achieving an appropriate balance among the factors 
        described in subsection (e)(2)(B), except that the 
        Secretary shall select the recovery strategy that would 
        impose the least costs and result in the least 
        socioeconomic impacts in achieving the recovery goal.
          (3) Strategies recommended by recovery team.--If the 
        Secretary selects strategies other than those 
        recommended by the recovery team, the Secretary shall 
        publish with the final plan an explanation of why the 
        strategies recommended by the recovery team were not 
        selected for the final recovery plan.
          (4) Publication of notice on final plan.--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.
  (h) 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 that 
        date of enactment.
          (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 5 years after the date of approval or 
        revision of the plan and every 5 years thereafter.
  (i) Revision of Recovery Plans.--Notwithstanding any other 
provision of this section, the Secretary shall revise a 
recovery plan if the Secretary finds, based on the best 
scientific and commercial data available, that substantial new 
information, which may include failure to meet the benchmarks 
included in the plan, 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 published a notice 
that a recovery team shall not be appointed pursuant to 
subsection (d)(3).
  (j) Existing Plans.--Except as provided in subsection (i), 
nothing in this section shall require the modification of--
          (1) a recovery plan approved before the date of the 
        enactment of the Common Sense Protections for 
        Endangered Species Act; or
          (2) a recovery plan on which public notice and 
        comment has been initiated before that date of 
        enactment.
  (k) Critical Habitat Designation.--
          (1) Recommendation of the recovery team.--Concurrent 
        with the submission of the draft recovery plan for a 
        species to the Secretary, 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 recommendationsfor 
special management considerations or protection that are specific to 
the habitat.
          (2) Designation by the secretary.--
                  (A) In general.--The Secretary, to the 
                maximum extent prudent and determinable, may by 
                regulation designate or revise an existing 
                designation of critical habitat of each 
                endangered species or threatened species that 
                is indigenous to the United States or to waters 
                with respect to which the United States 
                exercises sovereign rights or jurisdiction.
                  (B) Emergency authority.--The Secretary may 
                publish a regulation designating critical 
                habitat for an endangered species or 
athreatened 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) Proposed and final regulations.--Any regulation 
        to designate critical habitat or implement a requested 
        revision shall be proposed and promulgated in the same 
        manner as a regulation to implement a determination 
        with respect to listing a species.
          (5) Economic impacts defined.--In this subsection, 
        the term ``economic impact'' means the cumulative 
        economic effects (including costs) resulting from the 
        listing of a species and the designation of critical 
        habitat of the species, for communities and industries 
        that are located in the area designated as critical 
        habitat or that receive revenue from use of the area.
  (l) 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 delegate to the State 
        agency, or to the State agencies of such States acting 
        jointly, respectively, the authority of the Secretary 
        to develop and implement 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 agency (or agencies, jointly) 
                has entered into a cooperative agreement with 
                the Secretary pursuant to section 6(c); and
                  (B) the State agency (or agencies, jointly) 
                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) Response to concerns of secretary.--If the 
        Secretary finds that a State agency lacks any authority 
        or capability required under paragraph (1)(B), the 
        Secretary shall notify the State agency and provide the 
        State agency with an opportunity to address the 
        concerns of the Secretary.
          (3) Standards and guidelines.--The Secretary, in 
        cooperation with the States, shall publish standards 
        and guidelines for the development of recovery plans by 
        State agencies under this subsection, including 
        standards and guidelines for interstate cooperation and 
        for the grant and withdrawal of authorization by the 
        Secretary under this subsection.
          (4) 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.
          (5) 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 
        and shall give the State an opportunity to address any 
        deficiencies in the plan. Thereafter, 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.
          (6) Review and approval of final plans.--On receipt 
        of a draft recovery plan transmitted by a State agency, 
        the Secretary shall review and adopt the plan in 
        accordance with subsection (g).
          (7) Withdrawal of authority.--(A) The Secretary may 
        withdraw the authority from a State that has been 
        delegated authority 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 may 
        withdraw the authority from the State unless the State 
        agency within 60 days has corrected the deficiencies 
        identified by the Secretary.
          (B) Following withdrawal of authority delegated to a 
        State pursuant to this subsection, the Secretary shall, 
        in accordance with this section--
                  (i) within 18 months after the date of that 
                withdrawal, publish a draft recovery plan for 
                the State; and
                  (ii) within 12 months after publication of 
                the draft recovery plan, publish a final 
                recovery plan for the State.
          (8) 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.).
  (m) Office of Recovery Planning.--
          (1) Establishment.--Not later than 6 months after the 
        date of the enactment of the Common Sense Protections 
        for Endangered Species Act, the Secretary shall 
        establish in the United States Fish and Wildlife 
        Service a separate office, to be known as the Office of 
        Species Recovery.
          (2) Authorities.--The Secretary, subject to 
        subsection (l), shall delegate to the head of the 
        Office of Species Recovery authority of the Secretary 
        under this Act to--
                  (A) provide support services to recovery 
                teams to develop, or where a recovery team 
                cannot be appointed to develop, implement 
                recovery plans under this section;
                  (B) otherwise seek the recovery of all 
                species listed under section 4(c) as endangered 
                species or threatened species;
                  (C) make all determinations to remove a 
                species from such a list; and
                  (D) assist in the designation of critical 
                habitat.

                            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) * * *

           *       *       *       *       *       *       *


                      cooperation with the states

  Sec. 6. (a) * * *

           *       *       *       *       *       *       *

  (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)] (G) of section 
4(b)(3) and recovered species pursuant to section 4(g). 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) * * *

           *       *       *       *       *       *       *


                        [interagency cooperation

  [Sec. 7. (a) Federal Agency Actions and Consultations.--(1) 
The Secretary shall review other programs administered by 
himand 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.]

SEC. 7. INTERAGENCY COOPERATION.

  (a) Federal Agency Actions and Consultations.--
          (1) Programs administered by the secretary of the 
        interior.--The Secretary shall review other programs 
        administered by the Secretary and utilize such programs 
        in furtherance of the purposes of this Act. Except as 
        provided in section 5(k)(2), all other Federal agencies 
        shall, consistent with their primary missions and 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.

           *       *       *       *       *       *       *

          (5) Initiation of consultation.--A Federal agency 
        that receives a request under paragraph (3) shall 
        initiate consultation within 15 days after the date on 
        which the request is received from the permit or 
        license applicant.
          (6) Demonstration by secretary required.--If the 
        Secretary asserts the applicability of section 7 to any 
        property, the Secretary shall have the responsibility 
        of demonstrating, based on the best information 
        available at the time any consultation under this 
        subsection is initiated, that--
                  (A) a threatened species or endangered 
                species or its respective critical habitat is 
                located in the geographic area that is the 
                subject of the consultation; and
                  (B) such proposed action will jeopardize the 
                continued existence of a threatened species or 
                endangered species.
          (7) Prohibition on opinions based on insufficient 
        data.--The Secretary shall not issue an opinion under 
        subsection (b) that a proposed action will jeopardize 
        the continued existence of a threatened species or 
        endangered species based on the insufficiency of 
        available data on the impact of a proposed action on 
        such species.
          (8) Effect of listing on existing plans.--
                  (A) Definition of action.--For the purposes 
                of this paragraph, the term ``action'' includes 
                the adoption of 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. 1600 (note)).
                  (B) Reinitiation of consultation.--Whenever a 
                determination to list a species as an 
                endangered species or a threatened species or a 
                designation of critical habitat requires 
                reinitiation of consultation on an already 
                approved action, 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 1 year after the date on which the 
                consultation is commenced. During that 1-year 
                period, the site specific actions referred to 
                in subparagraph (C) may not be enjoined under 
                this Act based on that listing.
                  (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 or has 
                        issued a biological opinion, and the 
                        action satisfies the requirements of 
                        this section.
          (9) Relationship to duties under other laws.--(A) The 
        responsibilities of a Federal agency under this Act 
        shall not supersede and shall be implemented in a 
        manner consistent with duties assigned to the Federal 
        agency by any other laws or by any treaties.
          (B)(i) If a Federal agency determines that the 
        responsibilities and duties described in subparagraph 
        (A) are in irreconcilable conflict, the action agency 
        shall request the President to resolve the conflict.
          (ii) In determining a resolution to such a conflict, 
        the President shall consider and choose the course of 
        action that best meets the public interest and, to the 
        extent possible, balances pursuit of the recovery 
        objective or the purposes of the recovery plan with 
        economic and social needs and pursuit of the purposes 
        of the other laws or treaties. The authority assigned 
        to the President by this subparagraph may not be 
        delegated to a member of the executive branch who has 
        not been confirmed by the Senate.

           *       *       *       *       *       *       *

  (b) Opinion of Secretary.--(1)(A) * * *

           *       *       *       *       *       *       *

          (C) If consultation is not concluded and the written 
        statement of the Secretary required under paragraph 
        (3)(A) is not provided to the Federal agency by the 
        applicable deadline established under this paragraph, 
        the requirements of subsection (a)(2) shall be deemed 
        met and the Federal agency may proceed with the agency 
        action.
  [(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.]
          (2) Opportunity to participate in consultations.--(A) 
        In conducting a consultation under subsection (a)(2), 
        the Secretary shall provide any person who has sought 
        authorizationor 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 under paragraph (3), 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.
          (B) If reasonable and prudent alternatives are 
        proposed by a person under subparagraph (A) and the 
        Secretary does not include the alternatives in the 
        final biological opinion under paragraph (3), the 
        Secretary shall explain, in writing, to the person why 
        those alternatives were not included in the opinion.
          (C) 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) * * *

           *       *       *       *       *       *       *

          (C) In the development of an opinion under this 
        paragraph with respect to public lands, the Secretary 
        shall solicit and utilize information and advice 
        regarding those lands from the Governor of each State 
        in which the lands are located. With respect to 
        nonpublic lands, the Secretary shall solicit such 
        advice only upon the request of the affected landowner.
          (D) Unless required by law other than subsections (a) 
        through (d), the Secretary, in any opinion or statement 
        under this subsection concerning an agency action 
        (including any reasonable and prudent alternative 
        suggested under subparagraph (A) or any reasonable and 
        prudent measure specified under clause (ii) of 
        paragraph (4)), and the head of the Federal agency 
        proposing the agency action, may not require, provide 
        for, or recommend the imposition of any restriction or 
        obligation on the activity of any person that is not 
        authorized, funded, carried out, or otherwise subject 
        to regulation by the Federal agency.

           *       *       *       *       *       *       *

  (5) The Secretary shall provide to each applicant for a 
permit or license that is subject to consultation under this 
section a written statement that shall guarantee that, so long 
as the project at issue is carried out consistent with the 
statement issued under paragraph (4), the applicant shall not 
be subject to new or additional requirements for the specific 
protection of any species identified in the statement beyond 
the requirements set forth in the statement. All Federal 
entities shall be bound by the Secretary's guarantee.
  (6)(A) The Secretary shall not refuse to provide an 
incidental take statement under paragraph (4), unless the 
Secretary has provided to the agency and the permit applicant--
          (i) all conditions for issuance of the statement, in 
        writing; and
          (ii) an opportunity for the agency and the permit 
        applicant to provide a written response to the 
        conditions.
  (B) Any refusal to provide an incidental take statement 
without first providing the written conditions therefore and 
providing an opportunity to respond in accordance with 
subparagraph (A), is deemed to be arbitrary and capricious.
  (7) The Secretary may not require any measures under 
subsection (b)(4) that exceed in nature, scope, or effect the 
impact of the taking for which the statement is issued.
  (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.]

           *       *       *       *       *       *       *

  [(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.
          [(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.
  [(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.]
  (e) Exemptions.--Notwithstanding any other provision of this 
Act--
          (1) the Secretary shall grant an exemption from this 
        Act for any activity if the Secretary of Defense 
        determines that the exemption of the activity is 
        necessary for reasons of national security; and
          (2) the President may grant an exemption from this 
        Act for any area that the President has declared to be 
        a major disaster area under The Robert T. Stafford 
        Disaster Relief and Emergency Assistance Act (42 U.S.C. 
        5121 et seq.) for any project for the repair or 
        replacement of a public facility substantially as the 
        facility existed prior to the disaster under section 
        405 or 406 of that Act (42 U.S.C. 5171 and 5172), if 
        the President determines that the project--
                  (A) is necessary to prevent the recurrence of 
                such a natural disaster or to reduce the 
                potential loss of human life; and
                  (B) involves an emergency situation that 
                makes the application of the procedures of this 
                Act (other than this subsection) impractical.
  [(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 willbe, 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.] (f) Exception for Taking in Accordance With 
Statement.--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] such section, 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) Actions Not Requiring Consultation and Conferencing.--
          (1) In general.--Consultation and conferencing under 
        paragraphs (2) and (4) of subsection (a) shall not be 
        required for any agency action that--
                  (A) is consistent with the provisions of a 
                final recovery plan under section 5;
                  (B) is consistent with a cooperative 
                management agreement under section 6 or an 
                incidental taking permit under section 10; or
                  (C) consists of routine operation, 
                maintenance, rehabilitation, repair, or 
                replacement to a Federal or non-Federal project 
                or facility, including operation of a project 
                or facility in accordance with a previously 
                issued Federal license, permit, or other 
                authorization.
          (2) Emergency consultations.--In response to, or to 
        prevent or minimize damage from, a natural event or 
        other emergency, consultation under subsection (a)(2) 
        may be waived by a Federal agency for the repair or 
        maintenance of a natural gas pipeline, hazardous liquid 
        pipeline, flood control facility, or electrical 
        distribution transmission, or substation facility, if 
        the repair or maintenance is necessary to address a 
        probable imminent threat to human lives or a probable 
        and significant threat to the environment. If a 
        consultation is required by the Secretary for such 
        repair or maintenance, it shall be completed within 10 
        days of any request by the applicant for consultation. 
        Any measure required to be taken to avoid take for an 
        activity that is the subject of such a waiver may not 
        exceed in nature, scope, and extent the effect of the 
        activity and shall not be required prior to the 
        completion of the repair or maintenance action.
          (3) Actions not prohibited.--An agency action shall 
        not constitute a taking of a species prohibited by this 
        Act or any regulation issued under this Act if the 
        action is consistent with--
                  (A) the actions provided for in a final 
                recovery plan under section 5;
                  (B) a cooperative management agreement or an 
                incidental take permit; or
                  (C) the terms and conditions specified in a 
                written statement provided under subsection 
                (b)(3) of this section.

           *       *       *       *       *       *       *


                            prohibited acts

  Sec. 9. (a) General.--(1) * * *

           *       *       *       *       *       *       *

          (3) Protecting public health and safety.--An activity 
        of a non-Federal person is not a taking of a species 
        for purposes of paragraph (1) if the activity--
                  (A) addresses a critical, probable threat to 
                public health or safety or a catastrophic 
                natural event, or is mandated by any Federal, 
                State, or local government agency for public 
                health or safety purposes; or
                  (B) is incidental to, and not the purpose of, 
                the carrying out of an otherwise lawful 
                activity that consists of--
                          (i) ongoing maintenance, routine 
                        operation or use, and emergency repair 
                        of existing pipelines, flood control 
                        facilities or projects, fire breaks, 
                        transmission and distribution lines, 
                        groundwater recharge facilities and 
                        areas, water storage and recycling 
                        facilities, water drainage or water 
                        conveyance structures and channels, and 
                        appurtenant facilities;
                          (ii) road and right-of-away 
                        maintenance, use, and repair; or
                          (iii) emergency repair or restoration 
                        of any property or non-Federal facility 
                        to the condition in which it existed or 
                        operated immediately before an 
                        emergency or disaster, meeting current 
                        standards.

           *       *       *       *       *       *       *


                               exceptions

  Sec. 10. (a) Permits.--(1) * * *

           *       *       *       *       *       *       *

  [(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 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.]
          (2) Species conservation plans.--(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 species conservation plan 
        that specifies--
                  (i) the impact on the species which will be 
                the likely result of the taking to be 
                permitted;
                  (ii) what steps the applicant can reasonably 
                and economically take consistent with the 
                purposes and objectives of the taking to 
                minimize and mitigate such impacts, and the 
                funding that will be available to implement 
                such steps; and
                  (iii) what alternative actions to such taking 
                the applicant considered and the reasons why 
                such alternatives are not being utilized.
          (B) If the Secretary finds, after opportunity for 
        public comment, with respect to a permit application 
        and the related species conservation plan that--
                  (i) the taking will be incidental;
                  (ii) the applicant will, to the extent 
                reasonable and economically practicable, 
                minimize 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; and
                  (v) the measures specified under subparagraph 
                (A)(ii) will be met;
        and the Secretary has received such other assurances as 
        the Secretary may require that the plan will be 
        implemented, the Secretary shall issue the permit. The 
        permit shall contain such reasonable and economically 
        practicable terms and conditions consistent with the 
        purposes and objectives of the activity as the 
        Secretary deems necessary to carry out the purposes of 
        this paragraph, including, but not limited to, such 
        reporting requirements as the Secretary deems necessary 
        for determining whether such terms and conditions are 
        being complied with. The Secretary shall include those 
        terms and conditions that accomplish the goals of this 
        section for the least cost to the permit applicant.
          (C) The Secretary may not require the applicant, as a 
        condition of processing the application or issuing the 
        permit--
                  (i) to expand the application to include 
                land, an interest in land, a right to use or 
                receive water, or a proprietary water right not 
                owned by the applicant or to address a species 
                other than the species for which the 
                application is made;
                  (ii) to carry out mitigation that exceeds in 
                nature, scope, or effect the impacts of the 
                taking for which the permit is issued;
                  (iii) to minimize and mitigate for loss of 
                habitat resulting from activities under the 
                permit, in an area of land greater than the 
                area of land that is subject to impacts for 
                which the mitigation is required; or
                  (iv) to expend an aggregate amount greater 
                than the cost of fencing and preserving current 
                conditions of the land on which activities are 
                conducted under the permit.
          (D)(i) The Secretary shall complete the processing 
        of, and approve or deny, any application fora permit 
under paragraph (1)(B) within 90 days of the date of submission of the 
application or within such other period of time after such date of 
submission to which the Secretary and the permit applicant mutually 
agree.
          (ii) The preparation and approval of a species 
        conservation plan and issuance of a permit with respect 
        to nonpublicly owned lands under paragraph (1)(B) shall 
        not be subject to section 102(2) of the National 
        Environmental Policy Act of 1969 (42 U.S.C. 4332(2)).
          (iii) If the Secretary considers a plan submitted 
        under subparagraph (A) to be insufficient or 
        incomplete, the Secretary shall respond in writing to 
        the applicant within 30 days after receiving the 
        application, stating why the application is incomplete 
        or insufficient and stating any additional conditions 
        that must be met for the issuance of the permit. Any 
        denial of a permit under paragraph (1)(B) without first 
        providing such conditions in writing is deemed to be 
        arbitrary and capricious.
          (iv) If the application is resubmitted after the 
        Secretary responds under clause (iii), the Secretary 
        shall, within 60 days after receiving the resubmitted 
        application--
                  (I) issue the permit;
                  (II) at the request of the permit applicant, 
                provide written reasons for refusal to complete 
                consideration of the application; or
                  (III) formally deny the permit, in writing, 
                stating the reasons for the denial.
          (E) No consultation is required under section 7 for--
                  (i) any action by a permittee under this 
                section that is authorized by the terms and 
                conditions of the permit;
                  (ii) any action by the Secretary in 
                implementing, enforcing, or monitoring 
                compliance with a permit under this section; or
                  (iii) the issuance, amendment, or renewal of 
                any permit under this section, if the Secretary 
                determines that the issuance, amendment, or 
                renewal, respectively, will not appreciably 
                reduce the likelihood of the survival and 
                recovery of any species that is authorized to 
                be taken under the permit.
          (F) No additional measures to minimize and mitigate 
        impacts on a species that is a subject of a permit 
        issued under paragraph (1)(B) shall be required of a 
        permittee that is in compliance with the permit. With 
        respect to any species that is a subject of such a 
        permit, under no circumstance shall a permittee in 
        compliance with the permit be required to make any 
        additional payment for any purpose, or accept any 
        additional restriction on any parcel of land available 
        for development or land management or any water or 
        water-related right under the permit, without the 
        consent of the permittee.
          (G) After providing a permittee notice and an 
        opportunity to make appropriate corrections, the 
        Secretary shall revoke a permit issued under this 
        paragraph if the Secretary finds that the permittee is 
        not complying with the terms and conditions of the 
        permit or the species conservation plan required for 
        the permit.
          (H) Notwithstanding any other provision of law, a 
        person may not commence any action or proceeding to 
        challenge the approval of a permit under this section 
        unless suit is filed within 45 days after publication 
        in the Federal Register of notice of issuance of the 
        permit.

           *       *       *       *       *       *       *

  (k) Limitation on Required Mitigation.--
          (1) In general.--Subsection (a)(2) does not require, 
        and the Secretary may not require as a term or 
        condition of a permit under subsection (a)(1)(B), that 
        a permittee for a public project take any measures to 
        minimize or mitigate impacts of a taking under the 
        permit--
                  (A) if the costs of implementing such 
                measures will exceed 10 percent of the total 
                project costs of the public project; or
                  (B) for any activity that occurred prior to 
                the date of the issuance of the permit.
          (2) Definitions.--In this subsection--
                  (A) the term ``public project'' means any 
                construction project that is carried out or 
                funded (in whole or in part) by a Federal, 
                State, or local agency; and
                  (B) the term ``total project costs'' means 
                the aggregate costs of acquiring land and 
                carrying out construction.
  (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, 
                and does not violate the baseline requirement 
                established under subparagraph (B).
                  (B) Baseline requirement.--For each agreement 
                under this subsection, the Secretary shall 
                establish a baseline requirement that is 
                mutually agreed upon by the applicant and the 
                Secretary at the time of the agreement that 
                will, at a minimum, maintain existing 
                conditions for the species covered by the 
                agreement on lands and waters that are subject 
                to the agreement. The baseline requirement may 
                be expressed in terms of the abundance or 
                distribution of endangered species 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 to carry out this section, 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.

           *       *       *       *       *       *       *


                       penalties and enforcement

  Sec. 11. (a) Civil Penalties.--(1) * * *

           *       *       *       *       *       *       *

  [(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]
  (g) Citizen Suits.--
          (1) In general.--Except as provided in paragraph (2), 
        a civil suit may be commenced by any person on his or 
        her own behalf, who satisfies the requirements of the 
        Constitution and who has suffered or is threatened with 
        economic or other injury resulting from the violation, 
        regulation, application, nonapplication, or failure to 
        act--
                  (A) to enjoin the United States or any agency 
                or official of the United States who is alleged 
                to be in violation of any provision of this Act 
                or regulation issued under the authority 
                thereof, if the violation poses immediate and 
                irreparable harm to a threatened species or 
                endangered species;

           *       *       *       *       *       *       *

          (6) Intervention.--Any person may intervene as a 
        matter of right in any civil suit brought under this 
        subsection if such suit presents a reasonable threat of 
        economic injury to such person. Any intervenor under 
        this paragraph shall have the same right to present 
        argument and to accept or reject potential settlements 
        as do the parties to the suit.

           *       *       *       *       *       *       *


                               [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 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 for each of fiscal year 1991 and 1992 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 for each of fiscal years 1991 and 1992, 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 7 (e), (g), and (h) not to exceed $600,000 for each of 
fiscal years 1988, 1989, 1990, 1991, and 1992.
  [(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 for each of 
fiscal years 1991 and 1992, and such sums shall remain 
available until expended.]

SEC. 14. PUBLIC HEARINGS AND PUBLIC MEETINGS.

  (a) In General.--Except as otherwise provided by this Act, 
the Secretary shall provide notice of any hearing or public 
meeting at which public comment is accepted under this Act by 
publication in the Federal Register and in a newspaper of 
general circulation in the location of the hearing or public 
meeting at least 30 days prior to the hearing or public 
meeting.
  (b) Public Meetings.--Each public meeting held pursuant to 
this Act shall provide an opportunity for the public to make 
statements and receive information and answers, respectively, 
from the agency regarding all aspects of and questions 
regarding the petition or other matter that is the subject of 
the public meeting. To the maximum extent practicable, the 
Secretary shall ensure that members of the public are provided 
with the information sought at the public meeting.

SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

  (a) In General.--There are authorized to be appropriated--
          (1) to the Department of the Interior to carry out 
        the duties of the Secretary of the Interior under this 
        Act $130,000,000 for fiscal year 2001, $140,000,000 for 
        fiscal year 2002, $150,000,000 for fiscal year 2003, 
        and $160,000,000 for fiscal year 2004;
          (2) to the Department of Commerce to carry out the 
        duties of the Secretary of Commerce under this Act 
        $30,000,000 for fiscal year 2001, $35,000,000 for 
        fiscal year 2002, $40,000,000 for fiscal year 2003, and 
        $45,000,000 for fiscal year 2004; and
          (3) to the Department of Agriculture to carry out the 
        duties of the Secretary of Agriculture under this Act 
        $4,000,000 for each of fiscal years 2001 through 2004.
  (b) Convention Implementation.--In addition to the other 
amounts authorized by this section, there are authorized to be 
appropriated to the Secretary of the Interior to carry out 
section 8A $1,000,000 for each of fiscal years 2001 through 
2004, to remain available until expended.
  (c) Safe Harbor Agreements.--In addition to the other amounts 
authorized by this section, there are authorized to be 
appropriated to the Secretary to carry out section 10(l) 
$10,000,000 for each of fiscal years 2001 through 2004, to 
remain available until expended.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We remain strongly opposed to H.R. 3160. We do not deny 
there are frustrations with the ESA and the manner in which it 
is implemented. We also all recognize that changes in the law 
could be made to address those frustrations. We agree that 
listing decisions should be made on the best science available 
and that states and local governments can and should play a 
role in recovery efforts; that there can and should provide 
more incentives for private landowners to protect species on 
their property; and that the law has not done enough to recover 
species and get them off the list. This bill, however, is not 
the answer to those needed changes.
    While H.R. 3160 purports to address the problems of 
recovery and the scientific integrity of the listing process, 
it goes far beyond those goals and makes broad sweeping changes 
to the Act that will fundamentally undermine the law's premise 
of protecting and recovering endangered species throughout the 
United States. Some of the most obvious concerns are discussed 
below, but by no means does this constitute a comprehensive 
litany of all the concerns regarding the legislation.
Changes to scientific requirements and listing procedures
    While the premise of these new requirements are valid, that 
listing decisions under the Act should be based on the best 
scientific information available, the bill also adds many other 
requirements that are so burdensome that the overall effect 
will be to greatly slow not only the listing process, but the 
delisting and critical habitat designations processes as well.
    For example, the bill requires peer reviews at each step of 
the regulatory process to protect species, including the 
listing decision, identification of critical habitat, jeopardy 
decisions, and for mitigation requirements under section 10 
HCPs. While peer review of FWS and NMFS decisions is warranted, 
this duplicative review requirement could simply delay it to 
the point where emergency listing is required or listing is no 
longer needed because the species is extinct. In addition, 
while the term peer review implies a review that is consistent 
with the academic peer review process, the process that is 
established in the bill is very different and could be quite 
difficult to implement.
    In addition, the legislation requires the Secretary to 
demonstrate by a preponderance of the scientific evidence that 
a species should be listed anytime a listing is challenged by 
the Governor or a tribe, but does not stipulate the quality of 
the evidence that must be provided to support the challenge. It 
also allows for petitions to delist any species currently 
listed, if such species was not subject to the new peer review 
requirements laid out in this bill. This could potentially 
result in a flood of delisting petitions with which the 
Secretary would be forced to contend.
    Finally, H.R. 3160 would preclude the federal listing of a 
distinct population of a species if it is already listed under 
a state plan and the state law prohibits the unpermitted take 
of such species. This provision will result in inconsistent 
protections for species between states and much weaker 
protection within states that have ESA programs which are not 
comparable to the Federal program.
Reduced Federal agency responsibility
    Perhaps even more significant and serious are the 
provisions of the bill that dramatically reduce the 
responsibility of Federal agencies to protect species. Under 
the current law, all federal agencies must consult with the FWS 
or NMFS to insure that their actions neither jeopardize the 
continued existence of endangered or threatened species nor 
adversely modify critical habitat. H.R. 3160 makes several 
significant changes to current law that greatly reduce the 
mandatory and paramount nature of the obligations imposed on 
federal agencies under Section 7 of the ESA to protect and 
recover species.
    First, the consultation requirement is qualified with the 
phrase ``consistent with their primary mission'', thereby 
requiring agencies to accommodate the needs of listed species 
only to the extent that they deem it to be consistent with 
their other duties. This shift in the burden of responsibility 
will greatly reduce the protection that these federal agencies 
are compelled to provide. In fact, this approach was first 
adopted in 1966 in the original ESA, but was soon revised 
because few if any federal agencies found the protection of 
species consistent with their primary mission.
    Second, the bill weakens the jeopardy standard. While 
maintaining the requirement that federal agencies insure their 
actions are not ``likely to jeopardize the continued existence 
of any endangered or threatened species'', it defines the term 
``likely to jeopardize the continued existence of'' to mean an 
action or activity that significantly diminishes the likelihood 
of survival of the species by significantly reducing the 
numbers or distribution of the entire species'', thereby 
undermining the effectiveness of the requirement. According to 
Administration comments on 1995 legislation which included the 
same language, this new definition of the jeopardy standard 
``would make it difficult, if not impossible, to find that any 
Federal action jeopardized any distinct population segment such 
as the bald eagle, any subspecies, or any species which, 
although endangered in the U.S. is found anywhere else in the 
world''. In addition, it would be difficult to find jeopardy in 
one part of the U.S. if the species occurred elsewhere in the 
country or possibly even in captivity.
    Finally, the bill exempts routine maintenance, repair or 
replacement of any Federal or non-Federal facility from the 
consultation requirements of the Act. Moreover, it does not 
define ``Federal or non-Federal facility''. With this latitude, 
it could potentially exempt the operation and maintenance of 
virtually everything from roads to dams from the requirements 
to protect species. The effect of this exemption is so broad 
and far reaching that, combined with the change in the jeopardy 
standard and theconsistency provision, it could effectively 
eliminate consideration and protection of listed species by federal 
agencies.

Changes in permitting and enforcement requirements

    While it might be assumed that the requirements to protect 
species would then fall to private land owners and non-Federal 
entities, the bill makes several changes to Section 9 of the 
Act that effectively undermine those protections as well.
    Currently, Section 9 prohibits activities that ``take'' 
listed species and require an incidental take permit that will 
minimize and mitigate impacts of such activities. Take is 
defined by the Act as any activity which would ``harm, harass, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect'' a 
listed species. Court rulings have interpreted this definition 
to include activities that would impact habitat of listed 
species. Exemptions from this permitting process are allowed in 
emergency situations. H.R. 3160, however, would exempt ongoing 
maintenance, routine operation or use, and emergency repair of 
pipelines, flood control facilities or projects, transmission 
and distribution lines, water storage, drainage, conveyance, or 
recycling facilities as well as road and right-of-way 
maintenance, use and repair from the take prohibition and make 
no requirement that they minimize and mitigate their impact on 
listed species.
    Similar to, but even broader than, legislation that was 
considered and rejected by the House in 1997 (H.R. 478), this 
could include a wide range of activities from the operation of 
a dam to the construction of a drainage ditch next to a road. 
This exemption would apply at any time, not just in emergency 
situations. While this would have clear negative impacts on 
listed species, it could also have unintended consequences as 
other interests, including fishermen, cattlemen, and loggers, 
would still be subject to the requirements of the Act. For 
example, operations of flood control and water conveyance, 
storage and irrigation systems in Northern California could be 
virtually exempt from the requirements to protect and recover 
species like salmon. At the same time, small boat fishermen, 
who have already seen their salmon harvest reduced to 
economically unsustainable levels to rebuild salmon stocks, 
will be forced to cut their harvest even more and possibly be 
shut down altogether. This is not fair and it does nothing to 
solve the problem of recovering species.
    H.R. 3160 also makes changes in conditions for issuing 
incidental take permits. In order to receive an ITP, an 
individual must demonstrate, among other things, that the take 
of the species will not ``appreciably reduce the likelihood of 
the survival and recovery of the species in the wild''. H.R. 
3160 amends this requirement by deleting the phrase ``in the 
wild'', potentially establishing a situation where species 
could exist in captivity and the take of the species in the 
wild would not be regarded as impacting the survival and 
recovery of the species. Clearly, this is a weaker standard 
than now exists.
    In conclusion, in the name of good science, the bill shifts 
the burden of proof for listing species, and creates a 
situation where the absence of perfect scientific knowledge 
delays listings indefinitely. The effect will be to delay 
listings to the point where they likely are not needed because 
the species is extinct.
    The bill also provides broad exemptions from the 
requirements to protect species for the routine operation, 
maintenance, rehabilitation, repair or replacement of any 
federal or non-federal facility, and stipulates that federal 
agencies must only protect species to the extent that it is 
consistent with their ``primary mission''. These changes will 
significantly reduce--if not elliminate--federal agencies' 
responsibilities to protect listed species.
    At the same time, the equally broad exemption from the take 
prohibition provisions of the law for the ongoing maintenance 
and routine operation or use of any water storage, drainage, 
conveyance or recycling facility as well as flood control 
facilities, transmission and distribution lines, and roads, may 
leave some wondering who will be subject to the ESA and the 
requirements to protect species. In fact, it will be fishermen 
and farmers, and perhaps grazers, who will be forced to bear an 
even greater responsibility for species conservation.
    If we are serious about our desire to reform the ESA and 
start recovering species, then let's do that. Let's work 
together to draft legislation that will have the support of the 
Administration, the environmental community, fishermen, and 
small landowners and achieves our common goal--an ESA that 
recovers species and works for landowners. This bill will not 
have that support or achieve that goal, and instead will be 
divisive and ultimately unsuccessful.

                                   George Miller.
                                   Frank Pallone, Jr.
                                   Mark Udall.
                                   Jim Saxton.
                                   Rush D. Holt.

                                
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