[Senate Report 106-126]
[From the U.S. Government Publishing Office]
Calendar No. 237
106th Congress Report
SENATE
1st Session 106-126
======================================================================
AMENDMENTS TO THE CRITICAL HABITAT REQUIREMENTS OF THE ENDANGERED
SPECIES ACT OF 1973
_______
July 28, 1999.--Ordered to be printed
_______
Mr. Chafee, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
[to accompany S. 1100]
together with
ADDITIONAL VIEWS
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred the bill (S. 1100) to amend the Endangered Species Act
of 1973 to provide that the designation of critical habitat for
endangered and threatened species be required as part of the
development of recovery plans for those species, having
considered the same, reports favorably thereon with an
amendment, and recommends that the bill, as amended, do pass.
General Statement and Background
Critical Habitat Designations
Congress enacted the Endangered Species Act in 1973 (ESA)
to establish a program to identify and protect species of fish,
wildlife and plants that are endangered or threatened. Section
4(b) of the ESA establishes a process for the Secretary (the
Fish and Wildlife Service or the National Marine Fisheries
Service) to determine whether a species is endangered or
threatened. Concurrently with this determination, the Secretary
is also required, to the maximum extent prudent and
determinable, to designate critical habitat for the species. If
the Secretary finds that critical habitat is indeterminable at
the time of listing, the Secretary may delay the designation by
one year.
The ESA defines critical habitat occupied by the species as
the area containing biological and physical features essential
to the conservation of the species and requiring special
management considerations or protections. Critical habitat not
occupied by the species may be designated upon a determination
by the Secretary that it is essential for the conservation of
the species. The Secretary is required to base the designation
on the best scientific data available, 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 upon a
determination that the benefits of exclusion outweigh the
benefits of designating the specific area, unless failure to do
so will result in the extinction of the species.
Once critical habitat is designated for a listed species,
each Federal agency is required under section 7 to ensure that
any action it funds, authorizes or carries out is not likely to
jeopardize the continued existence of the species or result in
the destruction or adverse modification of its critical
habitat. Through regulations codified at 50 CFR 402.02, the
Secretary has defined ``likely to jeopardize the continued
existence of'' as ``engag[ing] in an action that reasonably
would be expected, directly or indirectly, to reduce
appreciably the likelihood of survival and recovery of a listed
species in the wild,'' and has defined ``destruction or adverse
modification of critical habitat'' as ``a direct or indirect
alteration that appreciably diminishes the value of critical
habitat for both the survival and recovery of a listed
species.''
The designation of critical habitat for endangered and
threatened species has proven to be one of the most vexing,
complicated and controversial provisions of the ESA. Of almost
1,200 species listed as endangered or threatened by the Fish
and Wildlife Service, only 113--nine percent--have critical
habitat designated. Indeed, of the 256 species listed since
April 1996, the Service has designated critical habitat for
only two. As a result, numerous lawsuits have been recently
brought against the Service for failure to designate critical
habitat. According to the Fish and Wildlife Service, currently
17 active lawsuits are pending, with 15 already decided--all
but one against the Service (see e.g., Conservation Council for
Hawaii v. Babbitt, 24 F. Supp. 2d 1074 (D. Hi. 1998))--and
prospective challenges on critical habitat for another 123
species are on the horizon.
Problems with critical habitat have been chronic over the
life of the ESA. In 1978, this committee noted in its report
accompanying S. 2899 that ``[i]n many cases the Fish and
Wildlife Service has been unable to explain fully or predict
what the impacts of a critical habitat designation are going to
be on activities which occur within a designated critical
habitat.'' For this reason, Congress required an economic
analysis and public participation as part of the designation
process. However, in 1982, this committee observed, in its
report accompanying S. 2309, that the 1978 amendment ``burdened
the listing process.'' It went on to state: ``The designation
of critical habitat has failed on two grounds. First, it is not
being designated. Second, it has improperly delayed listings.''
As a result, Congress enacted the strict timetables for
listings and designations that exist in the law today. As the
recent statistics demonstrate, neither of these amendments to
the ESA have achieved their desired effect.
Indeed, during a hearing before the Subcommittee on
Fisheries, Wildlife and Drinking Water on May 27, 1999, not one
witness endorsed the current law with respect to the
designation requirement. While each offered reasons why the
current process was problematic, there was a fundamental
disagreement on the basic concept of critical habitat. The
Honorable Jamie Clark, Director of the Fish and Wildlife
Service, stated that ``[f]or almost all Federal actions, the
adverse modification of critical habitat and jeopardy to the
species are the same, resulting in critical habitat designation
being no more than regulatory process that duplicates the
protection already provided by the jeopardy standard.'' At the
same time, John F. Kostyack of the National Wildlife Federation
argued that critical habitat augments protections afforded by
the jeopardy standard with respect to unoccupied habitat, and
further stated that critical habitat is ``a vital tool for
protecting, managing and restoring habitats of listed
species.'' Charles T. DuMars of the University of New Mexico
School of Law also believed that critical habitat designations
had significant consequences, and noted that ``not only does
the critical habitat designation place individual[s]. . . at
risk for civil and criminal penalties if they alter critical
habitat. . . it governs all future operations of all Federal
agencies. . . .'' As William R. Murray of American Forest and
Paper Association observed, there is ``overall disarray of the
critical habitat concept and the lack of support from the
expert agencies.'' A recent report by the Congressional
Research Service notes the importance of critical habitat and
comments that the Service's conclusions that designations
provide little additional protection to listed species and
consumes significant funding and staff time ``seem to have
resulted from how the FWS has interpreted certain aspects of
the ESA.'' See CRS, The Role of Designation of Critical Habitat
under the Endangered Species Act, July 16, 1999.
The reasons for the problems with critical habitat
designations become evident with an analysis of the statutory
and regulatory structure outlined above. The root of the
problems lies in the fact that the designation is required
concurrently with the listing, although the information
required for designations is different from the information
required for listings. In determining whether a species is
threatened or endangered, the Secretary must consider
population numbers, distributions and trends, as well as
immediate and future threats to the species; however, in
designating habitat as critical, the Secretary must know the
conservation needs of the species, as well as special
management considerations for the species and its habitat. This
difference is a question of degree: information for designation
generally requires more knowledge of the species and its
habitat and the natural and human impacts to them, which is
unavailable, or not well known, to the Secretary during the
listing process. Both the listings and designations are
required to be based on the best available scientific and
commercial data. With respect to designations, however, even
the best available data at the time of listing are often poor
because the data are generally ascertained in developing the
recovery plan for the species. Consequently, more
scientifically sound decisions regarding designation can be
made at the time of recovery planning than at the time of
listing.
The disjunction between listings and designations also
arises because of the different requirements regarding an
economic analysis for each action. Specifically, designation of
critical habitat requires an analysis of the economic impact,
and any other relevant impact, resulting from the designation,
whereas the listing of a species as endangered or threatened
must be based upon solely the best scientific and commercial
data available. With the strict deadlines and limited
information available during the listing process, the Secretary
frequently has conducted a cursory analysis of the economic
impacts of the designation, even after invoking the 1-year
extension in designating habitat allowed by statute. As with
information on the conservation needs of the species,
information on the economic costs of management measures for
the species is prepared as part of the recovery plan.
The problems are compounded by the similarity in standards
applied to species and critical habitat. Because ``jeopardy''
is so closely related to ``adverse modification,'' the
Secretary has concluded that they mean virtually the same
thing. As Director Clark mentioned in her testimony before the
Subcommittee on Fisheries, Wildlife and Drinking Water, ``the
Service believes that the protection conveyed by designation of
critical habitat is duplicative of the prohibition against
jeopardy for most species.'' Consequently, the Service has
decided, in many instances, that critical habitat is ``not
prudent'' because it affords no additional protections to the
species. For the 256 species listed by the Fish and Wildlife
Service since April 1996, it has determined that critical
habitat is ``not prudent'' 228 times. The authority to
determine that critical habitat is ``not prudent'' was intended
for a different circumstance, to be exercised only rarely. Also
because of the Service's position, it often prepares no
economic analysis of a designation, insisting that there are no
economic impacts attributed exclusively to the designation.
However, when Congress enacted the 1978 amendments relating to
critical habitat, it envisioned that the designation may have
certain impacts on the area so designated, and further observed
that protection of the habitat of listed species was the key to
protection of the species themselves.
Recovery Plans
Under section 4(f) of the ESA, the Secretary is required to
develop and implement recovery plans for listed species, unless
the Secretary finds that the plan will not promote the
conservation of the species. The Secretary must incorporate in
each plan the following: a description of the site-specific
management actions to achieve the plan's goal; objective,
measurable criteria that, when met, would result in the
delisting of the species; and estimates of the time and cost
for carrying out the measures needed to achieve the plan's
goal. For the species, recovery plans serve as blueprints for
long-term conservation strategies leading to recovery; for the
landowners, recovery plans provide an opportunity to develop
sound scientific information, an indication of activities that
affect recovery, and estimated costs of recovery actions, which
gives some certainty with respect to future requirements.
However, there is no deadline for the Secretary to develop
recovery plans, which undermines these purposes. In recent
years, the Fish and Wildlife Service has undertaken great
efforts to prepare plans for listed species, and has
significantly reduced the backlog of listed species that do not
have recovery plans. Nevertheless, at present, according to the
Service, 269 species do not have final recovery plans--23
percent of the total number of listed species. Of these 269
species, 41 have been listed for longer than 3 years.
Once the Secretary does prepare a plan, it can be many
years before that plan will be revised with new scientific and
economic information. Of the 890 species with existing plans,
438 species have plans that were developed 5 years ago or
longer, with 216 of these species covered by plans developed 10
years ago or longer without being revised at all.
It is against the backdrop of these statistics that the
recovery planning provisions must be viewed. The purpose of the
ESA is to conserve, recover and delist species, so that the
often costly and contentious protections afforded by the Act
are no longer necessary. The ESA's ultimate goal is thus to
make itself obsolete. The linchpin of recovery is the recovery
plan. The first step toward recovery, therefore, is to ensure
that recovery plans are developed in a timely manner, with the
best scientific information available.
Objectives and Summary of the Legislation
The purpose of this bill is to amend the Endangered Species
Act of 1973 to provide that the designation of critical habitat
for endangered and threatened species be required as part of
development of recovery plans for those species.
The bill moves the requirement to designate critical
habitat from the time of listing to the time of recovery plan
development. This will enable the Secretary to better assess
both the conservation needs and the economic impacts relating
to the designation. The bill also makes the designation a
component of the recovery plan, which will alleviate some of
the regulatory burdens and litigation pressures on the
Secretary. In the event that the Secretary determines that
designation is necessary to avoid the imminent extinction of
the species, the bill requires the Secretary to designate
critical habitat concurrently with listing. The bill also
requires the Secretary to seek additional information at the
time of listing to assist both the Secretary and the recovery
team in developing the recovery plan and designating critical
habitat. In sum, the bill seeks to make the designation of
critical habitat a meaningful and workable part of the law.
With respect to recovery planning, the bill provides a
deadline for development of recovery plans, no later than 30
months after listing. The bill also requires the Secretary to
appoint a recovery team, unless the Secretary decides, after
public notice and opportunity for comment, that one will not be
appointed. The bill identifies the parameters for selecting the
team. In sum, the bill seeks to jump-start the recovery process
for listed species.
As a related matter, the bill addresses the substantial
backlog in critical habitat designations and recovery plans,
particularly by the Fish and Wildlife Service. It provides a
framework for species listed prior to date of enactment based
on four criteria: whether a final recovery plan has been
prepared before the date of enactment; whether the Secretary
decides to revise an existing plan within 10 years after
enactment; whether critical habitat has been designated for the
species; and whether the failure to designate has been subject
to a court order.
Section-By-Section Analysis
Section 1. Recovery Plans
Summary
This section amends section 4(f) of the ESA. Section 1(1)
of the bill amends section 4(f)(1) to provide that recovery
plans are not required to be developed by the Secretary for
species that are not indigenous to the United States or waters
with respect to which the United States exercises sovereign
rights or jurisdiction.
Section 1(2) of the bill amends section 4(f)(2) of the ESA,
relating to the appointment of recovery team. Not later than
120 days after the date of publication of a final determination
that a species is a threatened or endangered species under
subsection 4(b) of the ESA, the Secretary shall appoint a
recovery team to develop a recovery plan for the species. The
Secretary may, after public notice and opportunity for comment,
determine that a recovery team shall not be appointed, in which
case the Secretary shall perform all the duties of the recovery
team. New section 4(f)(2)(D) provides that each recovery team
shall include the Secretary and at least one representative
from each affected State that chooses to participate, and shall
have balanced representation among constituencies with an
interest in the species and its recovery, and with an interest
in the economic or social impacts of recovery. This includes
Federal agencies, tribal governments, local governments,
academic institutions, private individuals (including
landowners), conservation and other organizations, and
commercial enterprises. When a recovery plan or critical
habitat designation will have a significant impact on private
land, the Secretary shall invite at least one landowner or one
representative of an organization representing landowners to
serve on the team. The recovery team members shall be selected
for their knowledge of the species or for their expertise in
the elements of the recovery plan or its implementation.
Section 1(3) of the bill amends section 4(f)(4) of the ESA,
so that when a final recovery plan has been published, the
Secretary shall respond to comments received during the comment
period.
Section 1(4) of the bill mandates deadlines for developing
recovery plans. Specifically, under new section 4(f)(6), for
each species for which the Secretary is required to develop a
recovery plan, the Secretary shall publish, not later than 18
months after the date of the publication under subsection (b)
of the final regulation containing the listing determination, a
draft recovery plan; and not later than 30 months after the
date of publication under subsection (b) of the final
regulation containing the listing determination, a final
recovery plan.
Discussion
As noted earlier, recovery of species is the paramount
objective of the ESA, and recovery plans serve as the
blueprints for recovery. As a first step, then, recovery plans
must be developed in a timely manner. The bill requires
recovery teams to be appointed no later than 120 days after
listing, draft recovery plans to be published no later than 18
months after listing, and final recovery plans to be published
no later than 30 months after listing. These deadlines are
consistent with the administrative policies of both the Fish
and Wildlife Service and the National Marine Fisheries Service.
The next step in promoting recovery is to develop
scientifically sound recovery plans that have the support of
the various stakeholders interested in the species and recovery
efforts. For this reason, the Secretary is generally required
to appoint a recovery team, although the Secretary maintains
the ability to not appoint a team after public notice and
opportunity for comment.
The recovery team should be broad-based and well-balanced.
At the same time, it should not be so large that it becomes
cumbersome and unwieldy. At a minimum, each team must have a
balanced representation among constituencies with an interest
in the species and its recovery, and with an interest in the
economic or social impacts of recovery. When a recovery plan or
critical habitat designation will have a significant impact on
private land, the Secretary shall invite at least one landowner
or one representative of an organization representing
landowners to serve on the team. All members must have
knowledge of the species or expertise in the elements of the
recovery plan or its implementation. The Secretary may appoint
members from among Federal agencies, tribal governments, local
governments, academic institutions, private individuals,
conservation and other organizations, and commercial
enterprises. In selecting members, the Secretary shall give
preference to qualified local individuals of these entities.
Section 2. Critical Habitat Designations
Summary
Section 2(a) amends the ESA by adding a new section 4(f)(7)
relating to critical habitat designations. New subparagraph (A)
provides that the Secretary, to the extent prudent, shall
designate habitat that is considered critical habitat of an
endangered or threatened species that is indigenous to the
United States or waters with respect to which the United States
exercises sovereign rights or jurisdiction. Specifically, under
new clause (i), the Secretary shall designate proposed critical
habitat as part of the draft recovery plan, and final critical
habitat as part of the final recovery plan, both after
consultation and in cooperation with the recovery team. Under
new clause (ii), if the Secretary does not prepare a plan, the
Secretary must designate critical habitat by regulation not
later than 3 years after making a determination that the
species is endangered or threatened.
Under new clause (iii), the Secretary shall designate
critical habitat for an endangered or threatened species
concurrently with the listing if the Secretary determines that
the designation of such habitat at the time of listing is
essential to avoid the imminent extinction of the species. When
designating at the time of listing, the Secretary must provide
public notice and opportunity for comment prior to the
designation, respond to such comments, and publish responses
and the designation in the Federal Register. The designation
shall be considered a final agency action for purposes of
judicial review, although the recovery team and the Secretary
shall review and revise, as appropriate, the designation during
the development of the recovery plan for the species.
New subparagraph (B) states that the critical habitat
designation 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. These impacts must be
described in the draft and final recovery plans (or
regulations).
New subparagraph (C) states that the Secretary may exclude
any area from critical habitat if the Secretary determines that
the benefits of the exclusion outweigh the benefits of
designating the area as part of the critical habitat, unless
the Secretary determines, based on the best scientific and
commercial data available, that the failure to designate the
area as critical habitat will result in the extinction of the
species.
New subparagraph (D) provides that, at the time of a
determination that a species is endangered or threatened, the
Secretary undertake efforts to attain additional data for
designations and recovery plans. Specifically, the Secretary
shall publish a description of additional scientific and
commercial data that would assist in the preparation of a
recovery plan and designation of critical habitat, invite any
person to submit data to the Secretary, and describe the steps
that the recovery team and the Secretary will take to acquire
additional data.
New subparagraph (E) states that, in accordance with
section 11(g), any person may bring a civil action against the
Secretary regarding the designation of critical habitat.
Section 2(b) of the bill addresses the backlog of recovery
plans and designations for species listed prior to the date of
enactment of the bill. Paragraph (1) relates to recovery plans.
Paragraph (1)(A) requires the Secretary to develop a plan for
any species listed, but without a final recovery plan, on the
date of enactment. Plans for not less than half the species
must be completed no later than 36 months after that date, and
for the remaining species not later than 60 months after that
date.
Paragraph (1)(B) provides that the Secretary shall publish,
not later than 270 days after the date of enactment, a list of
the species for which the Secretary will revise recovery plans
developed prior to the date of enactment, and the schedule for
revising the plans.
Paragraph (1)(C) requires that the Secretary of the
Interior and the Secretary of Commerce each, after providing
notice and opportunity for public comment, develop and
implement a priority ranking system for the development and
revision of recovery plans under the law, in the most efficient
and effective manner practicable. In developing the priority
ranking System, the Secretary shall be consistent with the
criteria set forth in section 4(f)(1)(A) of the ESA and shall
take into account the scientifically based biological needs of
the species.
Paragraph (1)(D) establishes a schedule for revising
recovery plans identified on the list established under
subparagraph (B), with \1/3\ of the species required to have
recovery plans completed not later than 4 years after date of
enactment, \2/3\ of the species required to have recovery plans
completed not later than 7 years after date of enactment, and
the remaining balance required to have recovery plans not later
than 10 years after date of enactment.
Paragraph (1)(E) states that no person may bring a civil
action under title 5 of the U.S. Code (the Administrative
Procedure Act) or the ESA, alleging failure to develop a
recovery plan or to designate critical habitat for the
following: any listed species before 270 days after date of
enactment; any species for which a recovery plan is required to
be developed under subparagraph (A) before sixty months after
date of enactment; or any species on a list established under
subparagraph (B) before the date on which the recovery plan and
designation are required to be completed in accordance with the
schedule established under subparagraph (D).
Paragraph (2) relates to critical habitat designations.
Paragraph (2)(A) states that the Secretary shall review, and
revise as necessary, any designation for a listed species when
the Secretary develops or revises the final recovery plan for
the species. Each area designated as critical habitat before
date of enactment shall continue to be considered until the
designation is revised in accordance with this subsection, at
which point the regulation designating critical habitat shall
be withdrawn.
Paragraph (2)(B)(i) states that if the Secretary has not
designated critical habitat for a listed species, the Secretary
shall designate critical habitat for the species as part of the
development or revision of the recovery plan. Paragraph
(2)(B)(ii) provides an exception from this requirement in one
of two cases: one in which court has issued, prior to the date
of enactment, an order relating to critical habitat
designation; or one in which a court issues an order in an
action for which a complaint was filed before July 1, 1999
regarding the designation of critical habitat. Such
designations, however, are subject to revisions under
subparagraph (A). Nothing in this clause affects the right of
any party to appeal a court order relating to a designation.
Discussion
As mentioned earlier, Congress has repeatedly tried to
address chronic problems regarding critical habitat
designations, and yet those problems persist. By moving the
designation from listing to recovery planning and making it
non-regulatory, this bill offers a solution that should benefit
both species and landowners. These changes to the designation
process were generally supported by the witnesses at the May 27
hearing. The substantive requirements in designating critical
habitat change only slightly, and the section 7 mandate with
respect to destruction or adverse modification does not change
at all.
The new provisions for critical habitat are moved to a new
section 4(f)(7) of the ESA. Subparagraph (A) of this new
section lays out the general requirement, but in doing so,
makes several clarifications and changes. First, the Secretary
has exercised discretion in finding that, for species in
foreign countries, designation is not prudent and recovery
plans do not promote the species' conservation. Consistent with
this practice, this bill requires recovery plans and
designations only for those species that are indigenous to the
United States or waters with respect to which the United States
exercises sovereign rights or jurisdiction.
Second, this subparagraph eliminates the authority for the
Secretary to find the critical habitat is indeterminable. This
authority gave the Secretary some breathing room in the context
of the strict deadlines associated with the listing petition
process. Given the changes made by this bill, there is no need
for this excuse to not designate critical habitat.
Third, the Secretary's authority to determine that
designation is not prudent is retained, although it is with the
express understanding that this authority is to be exercised
only in rare situations. In finding that designation is not
prudent in 228 out of 256 instances since April 1996, the Fish
and Wildlife Service has made the designation of critical
habitat the exception rather than the rule. This is
inconsistent with the original purpose of a ``not prudent''
finding, well stated in the 1978 report by the former House
Committee on Merchant Marine and Fisheries:
The phrase . . . is intended to give the Secretary
the discretion to decide not to designate critical
habitat concurrently with the listing where it would
not be in the best interests of the species to do so.
As an example, the designation of critical habitat for
some endangered plants may only encourage individuals
to collect these plants to the species [sic] ultimate
detriment. The committee intends that in most
situations the Secretary will, in fact designate
critical habitat . . . . It is only in rare
circumstances where the specification of critical
habitat concurrently with the listing would not be
beneficial to the species.
Subparagraph (A) also requires the Secretary to designate
critical habitat for species concurrently with the
determination that the species is endangered or threatened, if
the Secretary determines that the designation at the time of
listing is essential to avoid the imminent extinction of the
species. This provision is expected to be rarely used, only in
those instances in which the designation is the difference
between survival and extinction.
As provided by subparagraphs (B) and (C), the basis for the
designation and any exclusions is generally unchanged from
existing law. There is one change in the factors that the
Secretary must consider in designating critical habitat: the
Secretary must take into consideration any impacts to military
training and operations.
In deciding whether to exclude any lands from the
designation under subparagraph (C), the Secretary should apply
the principles of the Administration's ``Ten Point Plan'' on
the ESA, published March 6, 1995. The Plan provides that the
ESA must be administered in a manner that assures fair and
considerate treatment for those whose use of property is
affected by its programs. The Plan further emphasizes the
importance of having each Federal agency fully meet its
responsibilities for conserving species in order to reduce
impacts to private lands.
Addressing the backlog of critical habitat designations and
recovery plans for species already listed has been one of the
most challenging aspects of this bill. Section 2(b) of the bill
establishes a framework to allow the Secretary an opportunity
to catch up on overdue designations and recovery plans without
incurring additional litigation exposure. This framework
creates two broad categories.
The first category concerns species listed prior to the
date of enactment and for which no final recovery plan has been
developed. Under paragraph (1)(A) of section 2(b) of the bill,
the Secretary shall complete recovery plans for no less than
half the number of such species no later than 36 months after
that date, and for the remaining species no later than 60
months after that date. The term ``Secretary'' has the same
meaning as it does in section 3 of the ESA.
The second category concerns species listed prior to the
date of enactment that do have final recovery plans. Many of
these plans are outdated. The bill provides an opportunity for
the Secretary to revise these plans, according to certain
schedules and requirements, but in exchange, the Secretary is
shielded from lawsuits while the revisions are being made. This
structure is intended to encourage the Secretary to freely
revise plans so that they are based on sound, accurate science.
Specifically, paragraph (1)(B) requires the Secretary to
publish, not later than 270 days after the date of enactment, a
list of species for which the Secretary will revise recovery
plans, as well as a schedule for revising the plans. Paragraph
(1)(D) provides that, in establishing the schedule, the
Secretary shall require that recovery plans for \1/3\ of the
species on the list be completed not later than 4 years after
date of enactment, \2/3\ of the species on the list be
completed not later than 7 years after that date, and all
species on the list be completed not later than 10 years after
that date.
Paragraph (1)(E) provides a bar to lawsuits under the
Administrative Procedure Act or the ESA alleging a failure to
develop a recovery plan or to designate critical habitat for
certain periods. Under clause (i), no challenge regarding
failure to designate habitat or prepare or revise a recovery
plan can be brought for any threatened or endangered species
prior to 270 days after the date of enactment. This allows the
Secretary an opportunity to prepare the lists, develop the
priority ranking system, and put together the schedule for all
species that either do not have plans or for which plans should
be revised. Under clause (ii), no challenge can be brought for
any species prior to 60 months after the date of enactment for
which a recovery plan is required to be developed during that
time. Under clause (iii), no challenge can be brought for any
species prior to the date on which the plan and designation are
required to be completed in accordance with the schedule. This
bar to litigation applies only to these explicit categories.
Nothing in this provision prohibits any person from commencing
a civil action alleging the failure to revise a recovery plan
or designate critical habitat for a species that is not
included in the list published by the Secretary pursuant to
paragraph 1(B).
The backlog for critical habitat designations is folded
into the framework for developing or revising recovery plans.
Under paragraph (2)(A) of section 2(b) of the bill, the
Secretary shall review, and revise as necessary, any
designation of critical habitat for a species listed, but for
which no final recovery plan exists, prior to date of
enactment. If the designation is revised, it must be done in
accordance with the new requirements provided in the bill.
Until then, any critical habitat previously designated remains
valid.
Under paragraph 2(B), for any species that does not have
critical habitat, the Secretary shall designate critical
habitat, in accordance with the new requirements provided in
the bill, as part of the development or revision of the
recovery plan. An exception is provided for cases in which a
court has issued, prior to date of enactment, an order relating
to a designation, or in which a complaint relating to a
designation was filed prior to July 1, 1999, and a court order
is subsequently entered.
This framework thus provides that in all cases in which the
Secretary develops or revises a recovery plan, the Secretary
shall at least review existing designations, and make new
designations if none exist. In cases in which the Secretary
chooses not to revise a recovery plan, any obligation to
designate critical habitat exists as it did under the law prior
to the date of enactment. The Secretary remains susceptible to
any legal challenge with respect to those designations under
the existing law prior to date of enactment.
It should be noted that, when Congress established the duty
to designate critical habitat, in the 1978 amendments to the
ESA, designation was required only for those species listed
after the date of enactment of those amendments. Designation of
critical habitat for species listed prior to that date was
discretionary on the part of the Secretary. Nothing in this
bill seeks to change that premise. In requiring critical
habitat for species listed prior to the date of enactment to be
designated or revised under the new procedures, this bill
applies only to those species for which the designation of
critical habitat is already required.
Section 3. Authorization of Appropriations
Summary
Section 3 authorizes appropriations to carry out the bill,
the amendments to the ESA made by the bill, and section 4(f) of
the ESA. Annual appropriations to the Secretary of the Interior
are authorized from fiscal year 2000 through 2004 as follows:
$42 million, $46 million, $50 million, $55 million, and $60
million. This section also authorizes appropriations to the
Secretary of Commerce of $30 million annually from fiscal year
2000 through 2004.
Discussion
The level of authorized appropriations for both the
Secretary of the Interior and the Secretary of Commerce is
derived from estimates as to the costs of the bill that they
have provided. However, those estimates were received by the
committee from the Administration shortly before the business
meeting to consider the bill. Justification for the estimates
was still being reviewed by the Office of Management and Budget
at the time of the business meeting. Consequently, there has
been no opportunity to study these estimates, and they are
included in the bill as placeholders. Based on the overall
funding for ESA implementation, these estimates seem high,
particularly in light of the facts that the Secretary has
already budgeted for the development of recovery plans
(although there is no mandatory deadline for completing these
plans), and that the bill streamlines the requirements for
designations by making them non-regulatory. The Congressional
Budget Office, as noted below, estimates that less than $20
million for both the FWS and NMFS will be spent in fiscal year
1999 for the development of recovery plans. The committee
intends to review the authorization levels further, and if
necessary, revise them.
At the same time, the Administration will certainly incur
additional costs in complying with the new deadlines, and
curing the backlog of uncompleted recovery plans and
designations. Additional funding will be necessary to address
these costs, which is the purpose for the new authorization of
appropriations. This authorization is strictly for the
procedural requirements contained in the bill and in developing
plans under section 4(f); it is not intended to be used for
implementation of recovery plans.
Hearings
The Subcommittee on Fisheries, Wildlife, and Drinking Water
of the Senate Committee on the Environment and Public Works
held a hearing on S. 1100 on May 27, 1999. Testimony was
received from Senator Pete Dominici of New Mexico; Ms. Jamie
Clark, Director of the United States Fish and Wildlife Service;
Mr. William R. Murray, Natural Resources Counsel of American
Forest and Paper Association; Mr. Charles T. DuMars, Professor
of Law, University of New Mexico School of Law, Albuquerque,
New Mexico; and Mr. John Kostyack, Counsel, National Wildlife
Federation.
Legislative History
On May 20, 1999, Senator Chafee introduced S. 1100, which
was referred to the Committee on Environment and Public Works.
On Tuesday, June 29, 1999, the committee held a business
meeting to consider this bill. Senator Chafee offered an
amendment in the nature of a substitute, which was adopted by
voice vote, and Senator Hutchison offered an amendment, with a
second-degree amendment by Senator Chafee, that was adopted by
voice vote. S. 1100, as amended, was favorably reported out of
the committee by voice vote.
Regulatory Impact
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee makes this
evaluation of the regulatory impact of the reported bill.
The bill does not create any additional regulatory burdens,
nor will it cause any adverse impact on the personal privacy of
individuals. The current law states that ``each Federal Agency.
. . shall insure that any action authorized, funded or carried
out by such Agency. . . is not likely to. . . result in the
destruction or adverse modification of [critical] habitat.''
This provision may apply to private persons whose actions
involve Federal authorization, funding or implementation,
although this provision is not affected by the bill.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee finds that this bill would
impose no Federal intergovernmental unfunded mandates on State,
local, or tribal governments. While the bill does not directly
impose any private sector mandate, it prohibits certain civil
lawsuits against the Secretary during periods specified by the
bill.
Cost of Legislation
Section 403 of the Congressional Budget and Impoundment
Control Act requires that a statement of the cost of the
reported bill, prepared by the Congressional Budget Office, be
included in the report. That statement follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 19, 1999.
Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1100, a bill to
amend the Endangered Species Act of 1973 to provide that the
designation of critical habitat for endangered and threatened
species be required as part of the development of recovery
plans for those species.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Deborah
Reis (for Federal costs), who can be reached at 226-2860, and
Patrice Gordon (for the impact on the private sector), who can
be reached at 226-2940.
Sincerely,
Dan L. Crippen.
----------
Congressional Budget Office Cost Estimate
S. 1100, A bill to amend the Endangered Species Act of 1973 to provide
that the designation of critical habitat for endangered and
threatened species be required as part of the development of
recovery plans for those species, As ordered reported by the
Senate Committee on Environment and Public Works on June 29,
1999
Summary
Assuming appropriation of the authorized amounts, CBO
estimates that implementing S. 1100 would cost the Federal
Government about $380 million over the 2000-2004 period.
Enacting this legislation would not affect direct spending or
receipts; therefore, pay-as-you-go procedures would not apply.
S. 1100 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on State, local, or tribal governments. S. 1100 would
impose a mandate on the private sector, but CBO expects that
the private sector would not likely incur any direct costs as a
result.
S. 1100 would amend provisions of the Endangered Species
Act (ESA) that govern the designation of critical habitat and
the development of recovery plans for threatened or endangered
species. The bill also would authorize funding for these
activities for each of fiscal years 2000 through 2004.
Specifically, the bill would authorize $30 million annually for
the National Marine Fisheries Service (NMFS) of the Department
of Commerce and between $42 million and $60 million per year
for the U.S. Fish and Wildlife Service (USFWS) of the
Department of the Interior. The bill also would amend
provisions of the ESA that govern these activities.
Estimated Cost to the Federal Government
The estimated budgetary impact of S. 1100 is shown in the
following table. The costs of the bill fall within budget
function 300 (natural resources and environment). For purposes
of this estimate, CBO assumes that the entire amounts
authorized will be appropriated for each fiscal year. Outlays
are estimated on the basis of historical spending patterns for
ongoing ESA programs.
by Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
2000 2001 2002 2003 2004
------------------------------------------------------------------------
SPENDING SUBJECT TO
APPROPRIATION
Authorization Level............. 72 76 80 85 90
Estimated Outlays............... 40 82 83 85 89
------------------------------------------------------------------------
The amounts authorized by the bill would be available
solely to develop recovery plans and to designate critical
habitat for threatened or endangered species. For fiscal year
1999, the NMFS and the USFWS received appropriations of about
$29 million and $47 million respectively for species recovery
and designation of critical habitat. Of these amounts, about $2
million in total was allocated to habitat designation. CBO
cannot determine the exact portion of the remaining amounts
allocated to the development of recovery plans (rather than to
implementation, which is not addressed by this legislation). We
estimate, however, that less than $20 million (in total for
both agencies) will be made available during 1999 for that
purpose, because over 70 percent of all listed species already
have recovery plans.
Pay-As-You-Go Considerations: None.
Estimated Impact on State, Local, and Tribal Governments:
S. 1100 contains no intergovernmental mandates as defined in
UMRA and would impose no costs on State, local, or tribal
governments.
Estimated Impact on the Private Sector
S. 1100 would impose a mandate on the private sector by
prohibiting certain civil lawsuits against the Federal
Government during the first 9 months after enactment and during
periods specified by the bill to allow the government time to
assess recovery plans and critical habitat designations for
listed species. Under current law, Federal agencies are
supposed to designate a critical habitat at the same time that
a species is listed as endangered or threatened. The bill would
allow Federal agencies to designate critical habitat at a later
stage of the process as part of the planning for the recovery
of listed species.
According to sources in the government and the private
sector, currently most suits filed under the Endangered Species
Act are to force the government to designate a critical
habitat. The bill would not impose any direct costs on the
private sector by delaying such civil suits against the
government.
Estimate Prepared By: Federal Costs: Deborah Reis (226-
2860); Impact on the Private Sector: Patrice Gordon (226-2940).
Estimate Approved By: Robert A. Sunshine, Deputy Assistant
Director for Budget Analysis.
ADDITIONAL VIEWS OF SENATOR THOMAS
Recently I introduced S. 1305, a bill that addresses
recovery planning and a number of other Endangered Species Act
issues. My legislation represents a different approach to
critical habitat designation and recovery plans. I offer this
statement to explain and clarify my views on the timing of
critical habitat designation and recovery plan development.
Under S. 1305, critical habitat designation would remain
concurrent with listing, and recovery plans would be issued at
the time of listing as well.
The information needed to support a listing determination,
critical habitat designation or a recovery may not be exactly
the same. However, in my view, if one has gathered information
sufficient to support with confidence any one of the three
actions, then one also must have obtained a great deal of
information that is relevant to the other two.
More specifically, if the Secretary, at the time of
listing, does not have enough information to provide
substantial direction with regard to critical habitat and
recovery, one should question whether the Secretary really
knows enough about the species to support a listing
determination. For example, suppose that the Secretary asserts
that he understands species population numbers, distributions
and trends sufficiently to list a species as endangered. Let's
also assume that, as required by the ESA, he has considered
threats to the species' habitat and other factors affecting the
continuing existence of the species. I find it difficult to see
how the Secretary could obtain this information without
conducting a thorough analysis of the area inhabited by the
species and without determining, with a high degree of
confidence, what habitat is critical and what should be done to
encourage recovery.
Among my primary concerns is the fact that the listing of a
species can impose burdens on land owners and others. In my
State, I strongly believe that the Fish and Wildlife Service
needs to be as certain as possible of the need for listing
before imposing these burdens on those in the local areas
affected. If a listing is necessary, it is only fair that the
Service inform the public as quickly as possible what lands are
involved and how they will be affected. Critical habitat
designations and recovery plans serve this function, so if they
must be prepared, I believe they should be provided to the
public at the earliest possible time.
S. 1100 reflects a judgment to delay critical habitat
designation and recovery planning to allow among other things,
more time to obtain information. S. 1305 would require all the
information to be gathered before listing. I recognize that
reasonable people can disagree on the precise timing of
critical habitat designation and recovery planning. I do share
the underlying desire of the committee to make the critical
habitat and recovery planning processes more meaningful. In
particular, I strongly support provisions in the legislation to
provide greater balance on the recovery team, and I associate
myself with the statement in the committee report that the
Secretary must provide priority for local persons in the
recovery planning process.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law 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 1
---------------------------------------------------------------------------
\1\ As amended by P.L. 94-325, June 30, 1976; P.L. 94-359, July 12,
1976; P.L. 95-212, December 19, 1977; P.L. 95-632, November 10, 1978;
P.L. 96-159, December 28, 1979; 97-304, October 13, 1982; P.L. 98-327,
June 25, 1984; and P.L. 100-478, October 7, 1988; P.L. 100-653,
November 14, 1988; and P.L. 100-707, November 23, 1988.
---------------------------------------------------------------------------
[As Amended Through P.L. 104-333, Nov. 12, 1996]
AN ACT To provide for the conservation of endangered and threatened
species of fish, wildlife, and plants, and for other purposes.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
this Act may be cited as the ``Endangered Species Act of
1973''.
* * * * * * *
definitions
Sec. 3. For the purposes of this Act--
(1) * * *
* * * * * * *
(5)(A) The term ``critical habitat'' for a threatened or
endangered species means--
(i) the specific areas within the geographical area
occupied by the species, [at the time it is listed in
accordance with the provisions of section 4 of this
Act,] on which are found those physical or biological
features (I) essential to the conservation of the
species and (II) which may require special management
considerations or protection; and
(ii) specific areas outside the geographical area
occupied by the species [at the time it is listed in
accordance with the provisions of section 4 of this
Act,] upon a determination by the Secretary that such
areas are essential for the conservation of the
species.
(B) Critical habitat may be established for those species
now listed as threatened or endangered species for which no
critical habitat has heretofore been established as set forth
in subparagraph (A) of this paragraph.
(C) Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire
geographical area which can be occupied by the threatened or
endangered species.
* * * * * * *
determination of endangered species and threatened species
Sec. 4. (a) General.--(1) The Secretary shall by regulation
promulgated in accordance with subsection (b) determine whether
any species is an endangered species or a threatened species
because of any of the following factors:
(A) the present or threatened destruction,
modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational,
scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory
mechanisms; or
(E) other natural or manmade factors affecting its
continued existence.
(2) With respect to any species over which program
responsibilities have been vested in the Secretary of Commerce
pursuant to Reorganization Plan Numbered 4 of 1970--
(A) in any case in which the Secretary of Commerce
determines that such species should--
(i) be listed as an endangered species or a
threatened species, or
(ii) be changed in status from a threatened
species to an endangered species, he shall so
inform the Secretary of the Interior, who shall
list such species in accordance with this
section;
(B) in any case in which the Secretary of Commerce
determines that such species should--
(i) be removed from any list published
pursuant to subsection (c) of this section, or
(ii) be changed in status from an
endangered species to a threatened species, he
shall recommend such action to the Secretary of
the Interior, and the Secretary of the
Interior, if he concurs in the recommendation,
shall implement such action; and
(C) the Secretary of the Interior may not list or
remove from any list any such species, and may not
change the status of any such species which are listed,
without a prior favorable determination made pursuant
to this section by the Secretary of Commerce.
[(3) The Secretary, by regulation promulgated in accordance
with subsection (b) and to the maximum extent prudent and
determinable--
[(A) shall, concurrently with making a
determination under paragraph (1) that a species is an
endangered species or a threatened species, designate
any habitat of such species which is then considered to
be critical habitat; and
[(B) may, from time-to-time thereafter as
appropriate, revise such designation.]
(b) Basis for Determinations.--(1)(A) The Secretary shall
make determinations required by subsection (a)(1) solely on the
basis of the best scientific and commercial data available to
him after conducting a review of the status of the species and
after taking into account those efforts, if any, being made by
any State or foreign nation, or any political subdivision of a
State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or
other conservation practices, within any area under its
jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give
consideration to species which have been--
(i) designated as requiring protection from
unrestricted commerce by any foreign nation, or
pursuant to any international agreement; or
(ii) identified as in danger of extinction, or
likely to become so within the foreseeable future, by
any State agency or by any agency of a foreign nation
that is responsible for the conservation of fish or
wildlife or plants.
[(2) The Secretary shall designate critical habitat, and
make revisions thereto, under subsection (a)(3) on the basis of
the best scientific data available and after taking into
consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat.
The Secretary may exclude any area from critical habitat if he
determines that the benefits of such exclusion outweight the
benefits of specifying such area as part of the critical
habitat, unless he determines, based on the best scientific and
commercial data available, that the failure to designate such
area as critical habitat will result in the extinction of the
species concerned.]
[(8)] (2) 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 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.
(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 \1\ to prevent a
significant risk to the well being of any such species.
---------------------------------------------------------------------------
\1\ So in original. Probably should be paragraph ``(7)''.
---------------------------------------------------------------------------
[(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.]
(4) Except as provided in paragraphs (5) and (6) of this
subsection, the provisions of section 553 of title 5, United
States Code (relating to rulemaking procedures), shall apply to
any regulation promulgated to carry out the purposes of this
Act.
(5) With respect to any regulation 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.
[(6)(A) Within the one-year period beginning on the date on
which general notice is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the Secretary shall
publish in the Federal Register--
[(i) if a determination as to whether a species is
an endangered species or a threatened species, or a
revision of critical habitat, is involved, either--
[(I) a final regulation to implement such
determination,
[(II) a final regulation to implement such
revision or a finding that such revision should
not be made,
[(III) notice that such one-year period is
being extended under subparagraph (B)(i), or
[(IV) notice that the proposed regulation
is being withdrawn under subparagraph (B)(ii),
together with the finding on which such
withdrawal is based; or
[(ii) subject to subparagraph (C), if a designation
of critical habitat is involved, either--
[(I) a final regulation to implement such
designation, or
[(II) notice that such one-year period is
being extended under such subparagraph.]
(6) Final regulations.--
(A) In general.--Within the one-year period
beginning on the date on which general notice
is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the
Secretary shall publish in the Federal
Register--
(i) a final regulation to implement
the determination;
(ii) notice that the one-year
period is being extended under
subparagraph (B)(i); or
(iii) notice that the proposed
regulation is being withdrawn under
subparagraph (B)(ii), together with the
finding on which the withdrawal is
based.
(B)(i) If the Secretary finds with respect to a proposed
regulation referred to in subparagraph (A)(i) that there is
substantial disagreement regarding the sufficiency or accuracy
of the available data relevant to the determination [or
revision] concerned, the Secretary may extend the one-year
period specified in subparagraph (A) for not more than six
months for purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph
(A)(i) is not promulgated as a final regulation within such
one-year period (or longer period if extension under clause (i)
applies) because the Secretary finds that there is not
sufficient evidence to justify the action proposed by the
regulation, the Secretary shall immediately withdraw the
regulation. The finding on which a withdrawal is based shall be
subject to judicial review. The Secretary may not propose a
regulation that has previously been withdrawn under this clause
unless he determines that sufficient new information is
available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A)
is extended under clause (i) with respect to a proposed
regulation, then before the close of such extended period the
Secretary shall publish in the Federal Register either a final
regulation to implement the determination [or revision
concerned, a finding that the revision should not be made,] or
a notice of withdrawal of the regulation under clause (ii),
together with the finding on which the withdrawal is based.
[(C) A final regulation designating critical habitat of an
endangered species or a threatened species shall be published
concurrently with the final regulation implementing the
determination that such species is endangered or threatened,
unless the Secretary deems that--
[(i) it is essential to the conservation of such
species that the regulation implementing such
determination be promptly published; or
[(ii) critical habitat of such species is not then
determinable, in which case the Secretary, with respect
to the proposed regulation to designate such habitat,
may extend the one-year period specified in
subparagraph (A) by not more than one additional year,
but not later than the close of such additional year
the Secretary must publish a final regulation, based on
such data as may be available at that time,
designating, to the maximum extent prudent, such
habitat.]
(7) Neither paragraph (4), (5), or (6) of this subsection
nor section 553 of title 5, United States Code, shall apply to
any regulation issued by the Secretary in regard to any
emergency posing a significant risk to the well-being of any
species of fish and wildlife or plants, but only if--
(A) at the time of publication of the regulation in
the Federal Register the Secretary publishes therein
detailed reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident
species of fish or wildlife, or plants, the Secretary
gives actual notice of such regulation to the State
agency in each State in which such species is believed
to occur.
Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in
the Federal Register. Any regulation promulgated under the
authority of this paragraph shall cease to have force and
effect at the close of the 240-day period following the date of
publication unless, during such 240-day period, the rulemaking
procedures which would apply to such regulation without regard
to this paragraph are complied with. If at any time after
issuing an emergency regulation the Secretary determines, on
the basis of the best appropriate data available to him, that
substantial evidence does not exist to warrant such regulation,
he shall withdraw it.
(c) Lists.--(1) The Secretary of the Interior shall publish
in the Federal Register a list of all species determined by him
or the Secretary of Commerce to be endangered species and a
list of all species determined by him or the Secretary of
Commerce to be threatened species. Each list shall refer to the
species contained therein by scientific and common name or
names, if any, specify with respect to such species over what
portion of its range it is endangered or threatened, and
specify any designated critical habitat within such range. The
Secretary shall from time to time revise each list published
under the authority of this subsection to reflect recent
[determinations, designations, and revisions] determinations
made in accordance with subsections (a) and (b).
(2) The Secretary shall--
(A) conduct, at least once every five years, a
review of all species included in a list which is
published pursuant to paragraph (1) and which is in
effect at the time of such review; and
(B) determine on the basis of such review whether
any such species should--
(i) be removed from such list;
(ii) be changed in status from an
endangered species to a threatened species; or
(iii) be changed in status from a
threatened species to an endangered species.
Each determination under subparagraph (B) shall be made in
accordance with the provisions of subsection (a) and (b).
(d) Protective Regulations.--Whenever any species is listed
as a threatened species pursuant to subsection (c) of this
section, the Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation of such
species. The Secretary may by regulation prohibit with respect
to any threatened species any act prohibited under section
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in
the case of plants, with respect to endangered species; except
that with respect to the taking of resident species of fish or
wildlife, such, regulations shall apply in any State which has
entered into a cooperative agreement pursuant to section 6(c)
of this Act only to the extent that such regulations have also
been adopted by such State.
(e) Similarity of Appearance Cases.--The Secretary may, by
regulation of commerce or taking, and to the extent he deems
advisable, treat any species as an endangered species or
threatened species even through it is not listed pursuant to
section 4 of this Act if he finds that--
(A) such species so closely resembles in
appearance, at the point in question, a species which
has been listed pursuant to such section that
enforcement personnel would have substantial difficulty
in attempting to differentiate between the listed and
unlisted species;
(B) the effect of this substantial difficulty is an
additional threat to an endangered or threatened
species; and
(C) such treatment of an unlisted species will
substantially facilitate the enforcement and further
the policy of this Act.
(f)(1) Recovery Plans.--The Secretary shall develop and
implement plans (hereinafter in this subsection referred to as
``recovery plans'') for the conservation and survival of
endangered species and threatened species listed pursuant to
this section, unless he finds that such a plan will not promote
the conservation of the [species.] species, or that the species
is not indigenous to the United States or waters with respect
to which the United States exercises sovereign rights or
jurisdiction. 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,]
(2) Recovery teams.--
(A) In general.--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.
(B) Appointment of a team.--Not later than
120 days after the date of publication under
subsection (b) of a final determination that a
species is an endangered species or a
threatened species, the Secretary, in
cooperation with any State affected by the
determination, shall--
(i) appoint a recovery team to
develop a recovery plan for the
species; or
(ii) after public notice and
opportunity for comment, determine that
a recovery team shall not be appointed.
(C) No recovery team appointed.--If a
recovery team is not appointed by the
Secretary, the Secretary shall perform all
duties of the recovery team required under this
subsection.
(D) Composition of recovery team.--Each
recovery team shall include the Secretary and
at least 1 representative from each affected
State that chooses to participate, and shall
have balanced representation among
constituencies with an interest in the species
and its recovery and with an interest in the
economic or social impacts of recovery,
including Federal agencies, tribal governments,
local governments, academic institutions,
private individuals (including landowners),
conservation and other organizations, and
commercial enterprises. When a recovery plan or
critical habitat designation will have a
significant impact on private land, the
Secretary shall invite at least one landowner
or one representative of an organization
representing landowners to serve on the
recovery team. The recovery team members shall
be selected for their knowledge of the species
or for their expertise in the elements of the
recovery plan or its implementation.
(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 and shall,
when the Secretary publishes a final recovery plan, respond to
comments received during the comment period.
(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).
(6) Schedule.--For each species determined to be an
endangered species or a threatened species after the
date of enactment of this paragraph for which the
Secretary is required to develop a recovery plan under
paragraph (1), the Secretary shall publish--
(A) not later than 18 months after the date
of publication under subsection (b) of the
final regulation containing the listing
determination, a draft recovery plan; and
(B) not later than 30 months after the date
of publication under subsection (b) of the
final regulation containing the listing
determination, a final recovery plan.
(7) Critical habitat designations.--
(A) In general.--The Secretary, to the
extent prudent, shall designate any habitat
that is considered to be critical habitat of an
endangered species or a threatened species that
is indigenous to the United States or waters
with respect to which the United States
exercises sovereign rights or jurisdiction.
(i) Designation.--
(I) Proposal.--As part of a
draft recovery plan, the
Secretary, after consultation
and in cooperation with the
recovery team, shall designate
proposed critical habitat for
the species.
(II) Final.--As part of a
final recovery plan, the
Secretary, after consultation
and in cooperation with the
recovery team, shall designate
critical habitat for the
species.
(ii) Other designations.--If the
Secretary determines that a recovery
plan will not promote the conservation
of an endangered species or a
threatened species, the Secretary shall
publish in the Federal Register, in
accordance with paragraphs (4), (5),
and (6) of subsection (b), a regulation
designating critical habitat for the
species not later than three years
after making a determination that the
species is an endangered species or a
threatened species.
(iii) Additional authority.--The
Secretary shall, after providing public
notice and opportunity for comment,
designate critical habitat for an
endangered species or a threatened
species concurrently with the final
regulation implementing the
determination that the species is an
endangered species or a threatened
species if the Secretary determines
that designation of such habitat at the
time of listing is essential to avoid
the imminent extinction of the species.
Such designation, in addition to
responses to comments received by the
Secretary, shall be published in the
Federal Register and shall be
considered to be a final agency action
for the purposes of judicial review.
The recovery team and the Secretary
shall review and revise, as
appropriate, the designation during the
development of the recovery plan for
the species.
(B) 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 in the draft and final recovery plans
(or in the proposed and final regulations) the
economic impacts and other relevant impacts
considered under this paragraph in any
designation of critical habitat.
(C) Exclusions.--The Secretary may exclude
any area from critical habitat for a species if
the Secretary determines that the benefits of
the exclusion outweigh the benefits of
designating the area as part of the critical
habitat, unless the Secretary determines, based
on the best scientific and commercial data
available, that the failure to designate the
area as critical habitat will result in the
extinction of the species.
(D) Additional information.--At the time
that the Secretary determines that a species is
an endangered species or a threatened species,
the Secretary shall--
(i) publish a description of
additional scientific and commercial
data that would assist in the
preparation of a recovery plan and
designation of critical habitat;
(ii) invite any person to submit
data to the Secretary; and
(iii) describe the steps that the
recovery team and the Secretary will
take to acquire additional data.
(E) Civil actions.--In accordance with
section 11(g), any person may bring a civil
action against the Secretary regarding the
designation of critical habitat for a species.
(g) Monitoring.--(1) The Secretary shall implement a system
in cooperation with the States to monitor effectively for not
less than five years the status of all species which have
recovered to the point at which the measures provided pursuant
to this Act are no longer necessary and which, in accordance
with the provisions of this section, have been removed from
either of the lists published under subsection (c).
(2) The Secretary shall make prompt use of the authority
under paragraph 7 \1\ of subsection (b) of this section to
prevent a significant risk to the well being of any such
recovered species.
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\1\ So in original. Probably should be paragraph ``(7)''.
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(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. Such guidelines shall include, but are not limited
to--
(1) procedures for recording the receipt and the
disposition of petitions submitted under subsection
(b)(3) of this section;
(2) criteria for making the findings required under
such subsection with respect to petitions;
(3) a ranking system to assist in the
identification of species that should receive priority
review under subsection (a)(1) of the section; and
(4) a system for developing and implementing, on a
priority basis, recovery plans under subsection (f) of
this section. The Secretary shall provide to the public
notice of, and opportunity to submit written comments
on, any guideline (including any amendment thereto)
proposed to be established under this subsection.
(i) 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.
(16 U.S.C. 1533)
* * * * * * *
exceptions
Sec. 10. (a) Permits.--(1) The Secretary may permit, under
such terms and conditions as he shall prescribe--
* * * * * * *
(f)(1) As used in this subsection--
* * * * * * *
(5) The Secretary shall prescribe such regulations as he
deems necessary and appropriate to carry out the purposes of
this subsection. Such regulations may set forth--
(A) terms and conditions which may be imposed on
applicants for exemptions under this subsection
(including, but not limited to, requirements that
applicants register, inventories, keep complete sales
records, permit duly authorized agents of the Secretary
to inspect such inventories and records, and
periodically file appropriate reports with the
Secretary); and
(B) terms and conditions which may be imposed on
any subsequent purchaser of any pre-Act endangered
species part covered by an exemption granted under this
subsection;
to insure that any such part so exempted is adequately
accounted for and not disposed of contrary to the provisions of
this Act. [No regulation prescribed by the Secretary to carry
out the purposes of this subsection shall be subject to section
4(f)(2)(A)(i) of this Act.]
* * * * * * *