    [House Report 109-237]
    [From the U.S. Government Publishing Office]

    109th Congress                                                   Report
                            HOUSE OF REPRESENTATIVES
     1st Session                                                    109-237

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

             THREATENED AND ENDANGERED SPECIES RECOVERY ACT OF 2005

                                    _______

     September 27, 2005.--Committed to the Committee of the Whole House on
                the State of the Union and ordered to be printed

                                    _______

      Mr. Pombo, from the Committee on Resources, submitted the following

                                  R E P O R T

                                 together with

                        ADDITIONAL AND DISSENTING VIEWS

                            [To accompany H.R. 3824]

          [Including cost estimate of the Congressional Budget Office]

      The Committee on Resources, to whom was referred the bill
    (H.R. 3824) to amend and reauthorize the Endangered Species Act
    of 1973 to provide greater results conserving and recovering
    listed species, and for other purposes, having considered the
    same, report favorably thereon with an amendment and recommend
    that the bill as amended do pass.

      The amendment is as follows:
      Strike all after the enacting clause and insert the
    following:

    SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

      (a) Short Title.--This Act may be cited as the ``Threatened and
    Endangered Species Recovery Act of 2005''.
      (b) Table of Contents.--The table of contents for this Act is as
    follows:

    Sec. 1. Short title; table of contents.
    Sec. 2. Amendment references.
    Sec. 3. Definitions.
    Sec. 4. Determinations of endangered species and threatened species.
    Sec. 5. Repeal of critical habitat requirements.
    Sec. 6. Petitions and procedures for determinations and revisions.
    Sec. 7. Reviews of listings and determinations.
    Sec. 8. Secretarial guidelines; State comments.
    Sec. 9. Recovery plans and land acquisitions.
    Sec. 10. Cooperation with States and Indian tribes.
    Sec. 11. Interagency cooperation and consultation.
    Sec. 12. Exceptions to prohibitions.
    Sec. 13. Private property conservation.
    Sec. 14. Public accessibility and accountability.
    Sec. 15. Annual cost analyses.
    Sec. 16. Reimbursement for depredation of livestock by reintroduced
    species.
    Sec. 17. Authorization of appropriations.
    Sec. 18. Miscellaneous technical corrections.
    Sec. 19. Clerical amendment to table of contents.
    Sec. 20. Certain actions deemed in compliance.

    SEC. 2. AMENDMENT REFERENCES.

      Except as otherwise expressly provided, whenever in this Act an
    amendment or repeal is expressed in terms of an amendment to, or repeal
    of, a section or other provision, the reference shall be considered to
    be made to such section or other provision of the Endangered Species
    Act of 1973 (16 U.S.C. 1531 et seq.).

    SEC. 3. DEFINITIONS.

      (a) Best Available Scientific Data.--Section 3 (16 U.S.C. 1532) is
    amended by redesignating paragraphs (2) through (21) in order as
    paragraphs (3), (4), (5), (6), (7), (8), (9), (10), (11), (13), (14),
    (15), (16), (17), (18), (19), (20), (21), and (22), respectively, and
    by inserting before paragraph (3), as so redesignated, the following:
      ``(2)(A) The term `best available scientific data' means scientific
    data, regardless of source, that are available to the Secretary at the
    time of a decision or action for which such data are required by this
    Act and that the Secretary determines are the most accurate, reliable,
    and relevant for use in that decision or action.
      ``(B) Not later than one year after the date of the enactment of the
    Threatened and Endangered Species Recovery Act of 2005, the Secretary
    shall issue regulations that establish criteria that must be met to
    determine which data constitute the best available scientific data for
    purposes of subparagraph (A).
      ``(C) If the Secretary determines that data for a decision or action
    do not comply with the criteria established by the regulations issued
    under subparagraph (B), do not comply with guidance issued under
    section 515 of the Treasury and General Government Appropriations Act,
    2001 (Public Law 106-554; 114 Stat. 2763A-171) by the Director of the
    Office of Management and Budget and the Secretary, do not consist of
    any empirical data, or are found in sources that have not been subject
    to peer review in a generally acceptable manner--
              ``(i) the Secretary shall undertake the necessary measures to
            assure compliance with such criteria or guidance; and
              ``(ii) the Secretary may--
                      ``(I) secure such empirical data;
                      ``(II) seek appropriate peer review; and
                      ``(III) reconsider the decision or action based on
                    any supplemental or different data provided or any peer
                    review conducted pursuant to this subparagraph.''.
      (b) Permit or License Applicant.--Section 3 (16 U.S.C. 1532) is
    further amended by amending paragraph (13), as so redesignated, to read
    as follows:
      ``(13) The term `permit or license applicant' means, when used with
    respect to an action of a Federal agency that is subject to section
    7(a) or (b), any person that has applied to such agency for a permit or
    license or for formal legal approval to perform an act.''.
      (c) Jeopardize the Continued Existence.--Section 3 (16 U.S.C. 1532)
    is further amended by inserting after paragraph (11) the following:
      ``(12) The term `jeopardize the continued existence' means, with
    respect to an agency action (as that term is defined in section
    7(a)(2)), that the action reasonably would be expected to significantly
    impede, directly or indirectly, the conservation in the long-term of
    the species in the wild.''.
      (d) Conforming Amendment.--Section 7(n) (16 U.S.C. 1536(n)) is
    amended by striking ``section 3(13)'' and inserting ``section 3(14)''.

    SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND THREATENED SPECIES.

      (a) Requirement to Make Determinations.--Section 4 (16 U.S.C. 1533)
    is amended by striking so much as precedes subsection (a)(3) and
    inserting the following:
          ``determination of endangered species and threatened species
      ``Sec. 4. (a) In General.--(1) The Secretary shall by regulation
    promulgated in accordance with subsection (b) determine whether any
    species is an endangered species or a threatened species because of any
    of the following factors:
              ``(A) The present or threatened destruction, modification, or
            curtailment of its habitat or range by human activities,
            competition from other species, drought, fire, or other
            catastrophic natural causes.
              ``(B) Overutilization for commercial, recreational,
            scientific, or educational purposes.
              ``(C) Disease or predation.
              ``(D) The inadequacy of existing regulatory mechanisms,
            including any efforts identified pursuant to subsection (b)(1).
              ``(E) Other natural or manmade factors affecting its
            continued existence.
      ``(2) The Secretary shall use the authority provided by paragraph (1)
    to determine any distinct population of any species of vertebrate fish
    or wildlife to be an endangered species or a threatened species only
    sparingly.''.
      (b) Basis for Determination.--Section 4(b)(1)(A) (16 U.S.C.
    1533(b)(1)(A)) is amended--
              (1) by striking ``best scientific and commercial data
            available to him'' and inserting ``best available scientific
            data''; and
              (2) by inserting ``Federal agency, any'' after ``being made
            by any''.
      (c) Lists.--Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to read
    as follows:
      ``(2)(A) The Secretary shall--
                      ``(i) conduct, at least once every 5 years, based on
                    the information collected for the biennial reports to
                    the Congress required by paragraph (3) of subsection
                    (f), a review of all species included in a list that is
                    published pursuant to paragraph (1) and that is in
                    effect at the time of such review; and
                      ``(ii) determine on the basis of such review and any
                    other information the Secretary considers relevant
                    whether any such species should--
                              ``(I) be removed from such list;
                              ``(II) be changed in status from an
                            endangered species to a threatened species; or
                              ``(III) be changed in status from a
                            threatened species to an endangered species.
              ``(B) Each determination under subparagraph (A)(ii) shall be
            made in accordance with subsections (a) and (b).''.

    SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS.

      (a) Repeal of Requirement.--Section 4(a) (16 U.S.C. 1533(a)) is
    amended by striking paragraph (3).
      (b) Conforming Amendments.--
              (1) Section 3 (16 U.S.C. 1532), as amended by section 3 of
            this Act, is further amended by striking paragraph (6) and by
            redesignating paragraphs (7) through (22) in order as
            paragraphs (6) through (21).
              (2) Section 4(b) (16 U.S.C. 1533(b)), as otherwise amended by
            this Act, is further amended by striking paragraph (2), and by
            redesignating paragraphs (3) through (8) in order as paragraphs
            (2) through (7), respectively.
              (3) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
            paragraph (2), as redesignated by paragraph (2) of this
            subsection, by striking subparagraph (D).
              (4) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
            paragraph (4), as redesignated by paragraph (2) of this
            subsection, by striking ``determination, designation, or
            revision referred to in subsection (a)(1) or (3)'' and
            inserting ``determination referred to in subsection (a)(1)''.
              (5) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
            paragraph (7), as redesignated by paragraph (2) of this
            subsection, by striking ``; and if such regulation'' and all
            that follows through the end of the sentence and inserting a
            period.
              (6) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended--
                      (A) in the second sentence--
                              (i) by inserting ``and'' after ``if any'';
                            and
                              (ii) by striking ``, and specify any'' and
                            all that follows through the end of the
                            sentence and inserting a period; and
                      (B) in the third sentence by striking ``,
                    designations,''.
              (7) Section 5 (16 U.S.C. 1534), as amended by section 9(a)(3)
            of this Act, is further amended in subsection (j)(2) by
            striking ``section 4(b)(7)'' and inserting ``section 4(b)(6)''.
              (8) Section 6(c) (16 U.S.C. 1535(c)), as amended by section
            10(1) of this Act, is further amended in paragraph (3) by
            striking ``section 4(b)(3)(B)(iii)'' each place it appears and
            inserting ``section 4(b)(2)(B)(iii)''.
              (9) Section 7 (16 U.S.C. 1536) is amended--
                      (A) in subsection (a)(2) in the first sentence by
                    striking ``or result in the destruction or adverse
                    modification of any habitat of such species'' and all
                    that follows through the end of the sentence and
                    inserting a period;
                      (B) in subsection (a)(4) in the first sentence by
                    striking ``or result'' and all that follows through the
                    end of the sentence and inserting a period; and
                      (C) in subsection (b)(3)(A) by striking ``or its
                    critical habitat''.
              (10) Section 10(j)(2)(C)) (16 U.S.C. 1539(j)(2)(C)), as
            amended by section 12(c) of this Act, is further amended--
                      (A) by striking ``that--'' and all that follows
                    through ``(i) solely'' and inserting ``that solely'';
                    and
                      (B) by striking ``; and'' and all that follows
                    through the end of the sentence and inserting a period.

    SEC. 6. PETITIONS AND PROCEDURES FOR DETERMINATIONS AND REVISIONS.

      (a) Treatment of Petitions.--Section 4(b) (16 U.S.C. 1533(b)) is
    amended in paragraph (2), as redesignated by section 5(b)(2) of this
    Act, by adding at the end of subparagraph (A) the following: ``The
    Secretary shall not make a finding that the petition presents
    substantial scientific or commercial information indicating that the
    petitioned action may be warranted unless the petitioner provides to
    the Secretary a copy of all information cited in the petition.''.
      (b) Implementing Regulations.--
              (1) Proposed regulations.--Section 4(b) (16 U.S.C. 1533(b))
            is amended--
                      (A) in paragraph (4)(A), as redesignated by section
                    5(b)(2) of this Act--
                              (i) in clause (i) by striking ``, and'' and
                            inserting a semicolon;
                              (ii) in clause (ii) by striking ``to the
                            State agency in'' and inserting ``to the
                            Governor of, and the State agency in,'';
                              (iii) in clause (ii) by striking ``such
                            agency'' and inserting ``such Governor or
                            agency'';
                              (iv) in clause (ii) by inserting ``and''
                            after the semicolon at the end; and
                              (v) by adding at the end the following:
              ``(iii) maintain, and shall make available, a complete record
            of all information concerning the determination or revision in
            the possession of the Secretary, on a publicly accessible
            website on the Internet, including an index to such
            information.''; and
                      (B) by adding at the end the following:
              ``(8)(A) Information maintained and made available under
            paragraph (5)(A)(iii) shall include any status review, all
            information cited in such a status review, all information
            referred to in the proposed regulation and the preamble to the
            proposed regulation, and all information submitted to the
            Secretary by third parties.
              ``(B) The Secretary shall withhold from public review under
            paragraph (5)(A)(iii) any information that may be withheld
            under 552 of title 5, United States Code.''.
              (2) Final regulations.--Paragraph (5) of section 4(b) (16
            U.S.C. 1533(b)), as amended by section 5(b)(2) of this Act, is
            further amended--
                      (A) in subparagraph (A) by striking clauses (i) and
                    (ii) and inserting the following:
              ``(i) a final regulation to implement such a determination of
            whether a species is an endangered species or a threatened
            species;
              ``(ii) notice that such one-year period is being extended
            under subparagraph (B)(i); or
              ``(iii) notice that the proposed regulation is being
            withdrawn under subparagraph (B)(ii), together with the finding
            on which such withdrawal is based.'';
                      (B) in subparagraph (B)(i) by striking ``subparagraph
                    (A)(i)'' and inserting ``subparagraph (A)'';
                      (C) in subparagraph (B)(ii) by striking
                    ``subparagraph (A)(i)'' and inserting ``subparagraph
                    (A)''; and
                      (D) by striking subparagraph (C).
              (3) Emergency determinations.--Paragraph (6) of section 4(b)
            (16 U.S.C. 1533(b)), as redesignated by section 5(b)(2) of this
            Act, is further amended--
                      (A) in the matter preceding subparagraph (A), by
                    inserting ``with respect to a determination of a
                    species to be an endangered species or a threatened
                    species'' after ``any regulation''; and
                      (B) in subparagraph (B), by striking ``the State
                    agency in'' and inserting ``the Governor of, and State
                    agency in,''.

    SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS.

      Section 4(c) (16 U.S.C. 1533(c)) is amended by inserting at the end
    the following:
      ``(3) Each determination under paragraph (2)(B) shall consider one of
    the following:
              ``(A) Except as provided in subparagraph (B) of this
            paragraph, the criteria in the recovery plan for the species
            required by section 5(c)(1)(A) or (B).
              ``(B) If the recovery plan is issued before the criteria
            required under section 5(c)(1)(A) and (B) are established or if
            no recovery plan exists for the species, the factors for
            determination that a species is an endangered species or a
            threatened species set forth in subsections (a)(1) and (b)(1).
              ``(C) A finding of fundamental error in the determination
            that the species is an endangered species, a threatened
            species, or extinct.
              ``(D) A determination that the species is no longer an
            endangered species or threatened species or in danger of
            extinction, based on an analysis of the factors that are the
            basis for listing under section 4(a)(1).''.

    SEC. 8. SECRETARIAL GUIDELINES; STATE COMMENTS.

      Section 4 (16 U.S.C. 1533) is amended--
              (1) by striking subsections (f) and (g) and redesignating
            subsections (h) and (i) as subsections (f) and (g),
            respectively;
              (2) in subsection (f), as redesignated by paragraph (1) of
            this subsection--
                      (A) in the heading by striking ``Agency'' and
                    inserting ``Secretarial'';
                      (B) in the matter preceding paragraph (1), by
                    striking ``the purposes of this section are achieved''
                    and inserting ``this section is implemented'';
                      (C) by redesignating paragraph (4) as paragraph (5);
                      (D) in paragraph (3) by striking ``and'' after the
                    semicolon at the end, and by inserting after paragraph
                    (3) the following:
              ``(4) the criteria for determining best available scientific
            data pursuant to section 3(2); and''; and
                      (E) in paragraph (5), as redesignated by subparagraph
                    (C) of this paragraph, by striking ``subsection (f) of
                    this section'' and inserting ``section 5'';
              (3) in subsection (g), as redesignated by paragraph (1) of
            this section--
                      (A) by inserting ``Comments.--'' before the first
                    sentence;
                      (B) by striking ``a State agency'' the first place it
                    appears and inserting ``a Governor, State agency,
                    county (or equivalent jurisdiction), or unit of local
                    government'';
                      (C) by striking ``a State agency'' the second place
                    it appears and inserting ``a Governor, State agency,
                    county (or equivalent jurisdiction), or unit of local
                    government'';
                      (D) by striking ``the State agency'' and inserting
                    ``the Governor, State agency, county (or equivalent
                    jurisdiction), or unit of local government,
                    respectively''; and
                      (E) by striking ``agency's''.

    SEC. 9. RECOVERY PLANS AND LAND ACQUISITIONS.

      (a) In General.--Section 5 (16 U.S.C. 1534) is amended--
              (1) by redesignating subsections (a) and (b) as subsections
            (k) and (l), respectively;
              (2) in subsection (l), as redesignated by paragraph (1) of
            this section, by striking ``subsection (a) of this section''
            and inserting ``subsection (k)''; and
              (3) by striking so much as precedes subsection (k), as
            redesignated by paragraph (1) of this section, and inserting
            the following:
                     ``recovery plans and land acquisition
      ``Sec. 5. (a) Recovery Plans.--The Secretary shall, in accordance
    with this section, develop and implement a plan (in this subsection
    referred to as a `recovery plan') for the species determined under
    section 4(a)(1) to be an endangered species or a threatened species,
    unless the Secretary finds that such a plan will not promote the
    conservation and survival of the species.
      ``(b) Development of Recovery Plans.--(1) Subject to paragraphs (2)
    and (3), the Secretary, in developing recovery plans, shall, to the
    maximum extent practicable, give priority to those endangered species
    or threatened species, without regard to taxonomic classification, that
    are most likely to benefit from such plans, particularly those species
    that are, or may be, in conflict with construction or other development
    projects or other forms of economic activity.
      ``(2) In the case of any species determined to be an endangered
    species or threatened species after the date of the enactment of the
    Threatened and Endangered Species Recovery Act of 2005, the Secretary
    shall publish a final recovery plan for a species within 2 years after
    the date the species is listed under section 4(c).
      ``(3)(A) For those species that are listed under section 4(c) on the
    date of enactment of the Threatened and Endangered Species Recovery Act
    of 2005 and are described in subparagraph (B) of this paragraph, the
    Secretary, after providing for public notice and comment, shall--
              ``(i) not later than 1 year after such date, publish in the
            Federal Register a priority ranking system for preparing or
            revising such recovery plans that is consistent with paragraph
            (1) and takes into consideration the scientifically based needs
            of the species; and
              ``(ii) not later than 18 months after such date, publish in
            the Federal Register a list of such species ranked in
            accordance with the priority ranking system published under
            clause (i) for which such recovery plans will be developed or
            revised, and a tentative schedule for such development or
            revision.
      ``(B) A species is described in this subparagraph if--
              ``(i) a recovery plan for the species is not published under
            this Act before the date of enactment of the Threatened and
            Endangered Species Recovery Act of 2005 and the Secretary finds
            such a plan would promote the conservation and survival of the
            species; or
              ``(ii) a recovery plan for the species is published under
            this Act before such date of enactment and the Secretary finds
            revision of such plan is warranted.
      ``(C)(i) The Secretary shall, to the maximum extent practicable,
    adhere to the list and tentative schedule published under subparagraph
    (A)(ii) in developing or revising recovery plans pursuant to this
    paragraph.
      ``(ii) The Secretary shall provide the reasons for any deviation from
    the list and tentative schedule published under subparagraph (A)(ii),
    in each report to the Congress under subsection (e).
      ``(4) The Secretary, using the priority ranking system required under
    paragraph (3), shall prepare or revise such plans within 10 years after
    the date of the enactment of the Threatened and Endangered Species
    Recovery Act of 2005.
      ``(c) Plan Contents.--(1)(A) Except as provided in subparagraph (E),
    a recovery plan shall be based on the best available scientific data
    and shall include the following:
              ``(i) Objective, measurable criteria that, when met, would
            result in a determination, in accordance with this section,
            that the species to which the recovery plan applies be removed
            from the lists published under section 4(c) or be reclassified
            from an endangered species to a threatened species.
              ``(ii) A description of such site-specific or other measures
            that would achieve the criteria established under clause (i),
            including such intermediate measures as are warranted to effect
            progress toward achievement of the criteria.
              ``(iii) Estimates of the time required and the costs to carry
            out those measures described under clause (ii), including, to
            the extent practicable, estimated costs for any
            recommendations, by the recovery team, or by the Secretary if
            no recovery team is selected, that any of the areas identified
            under clause (iv) be acquired on a willing seller basis.
              ``(iv) An identification of those specific areas that are of
            special value to the conservation of the species.
      ``(B) Those members of any recovery team appointed pursuant to
    subsection (d) with relevant scientific expertise, or the Secretary if
    no recovery team is appointed, shall, based solely on the best
    available scientific data, establish the objective, measurable criteria
    required under subparagraph (A)(i).
      ``(C)(i) If the recovery team, or the Secretary if no recovery team
    is appointed, determines in the recovery plan that insufficient best
    available scientific data exist to determine criteria or measures under
    subparagraph (A) that could achieve a determination to remove the
    species from the lists published under section 4(c), the recovery plan
    shall contain interim criteria and measures that are likely to improve
    the status of the species.
      ``(ii) If a recovery plan does not contain the criteria and measures
    provided for by clause (i) of subparagraph (A), the recovery team for
    the plan, or by the Secretary if no recovery team is appointed, shall
    review the plan at intervals of no greater than 5 years and determine
    if the plan can be revised to contain the criteria and measures
    required under subparagraph (A).
      ``(iii) If the recovery team or the Secretary, respectively,
    determines under clause (ii) that a recovery plan can be revised to add
    the criteria and measures provided for under subparagraph (A), the
    recovery team or the Secretary, as applicable, shall revise the
    recovery plan to add such criteria and measures within 2 years after
    the date of the determination.
      ``(D) In specifying measures in a recovery plan under subparagraph
    (A), a recovery team or the Secretary, as applicable, shall--
              ``(i) whenever possible include alternative measures; and
              ``(ii) in developing such alternative measures, the Secretary
            shall seek to identify, among such alternative measures of
            comparable expected efficacy, the alternative measures that are
            least costly.
      ``(E) Estimates of time and costs pursuant to subparagraph (A)(iii),
    and identification of the least costly alternatives pursuant to
    subparagraph (D)(ii), are not required to be based on the best
    available scientific data.
      ``(2) Any area that, immediately before the enactment of the
    Threatened and Endangered Species Recovery Act of 2005, is designated
    as critical habitat of an endangered species or threatened species
    shall be treated as an area described in subparagraph (A)(iv) until a
    recovery plan for the species is developed or the existing recovery
    plan for the species is revised pursuant to subsection (b)(3).
      ``(d) Recovery Teams.--(1) The Secretary shall promulgate regulations
    that provide for the establishment of recovery teams for development of
    recovery plans under this section.
      ``(2) Such regulations shall--
              ``(A) establish criteria and the process for selecting the
            members of recovery teams, and the process for preparing
            recovery plans, that ensure that each team--
                      ``(i) is of a size and composition to enable timely
                    completion of the recovery plan; and
                      ``(ii) includes sufficient representation from
                    constituencies with a demonstrated direct interest in
                    the species and its conservation or in the economic and
                    social impacts of its conservation to ensure that the
                    views of such constituencies will be considered in the
                    development of the plan;
              ``(B) include provisions regarding operating procedures of
            and recordkeeping by recovery teams;
              ``(C) ensure that recovery plans are scientifically rigorous
            and that the evaluation of costs required by paragraphs
            (1)(A)(iii) and (1)(D) of subsection (c) are economically
            rigorous; and
              ``(D) provide guidelines for circumstances in which the
            Secretary may determine that appointment of a recovery team is
            not necessary or advisable to develop a recovery plan for a
            specific species, including procedures to solicit public
            comment on any such determination.
      ``(3) The Federal Advisory Committee Act (5 App. U.S.C.) shall not
    apply to recovery teams appointed in accordance with regulations issued
    by the Secretary under this subsection.
      ``(e) Reports to Congress.--(1) The Secretary shall report every two
    years to the Committee on Resources of the House of Representatives and
    the Committee on Environment and Public Works of the Senate on the
    status of all domestic endangered species and threatened species and
    the status of efforts to develop and implement recovery plans for all
    domestic endangered species and threatened species.
      ``(2) In reporting on the status of such species since the time of
    its listing, the Secretary shall include--
              ``(A) an assessment of any significant change in the well-
            being of each such species, including--
                      ``(i) changes in population, range, or threats; and
                      ``(ii) the basis for that assessment; and
              ``(B) for each species, a measurement of the degree of
            confidence in the reported status of such species, based upon a
            quantifiable parameter developed for such purposes.
      ``(f) Public Notice and Comment.--The Secretary shall, prior to final
    approval of a new or revised recovery plan, provide public notice and
    an opportunity for public review and comment on such plan. The
    Secretary shall consider all information presented during the public
    comment period prior to approval of the plan.
      ``(g) State Comment.--The Secretary shall, prior to final approval of
    a new or revised recovery plan, provide a draft of such plan and an
    opportunity to comment on such draft to the Governor of, and State
    agency in, any State to which such draft would apply. The Secretary
    shall include in the final recovery plan the Secretary's response to
    the comments of the Governor and the State agency.
      ``(h) Consultation to Ensure Consistency With Development Plan.--(1)
    The Secretary shall, prior to final approval of a new or revised
    recovery plan, consult with any pertinent State, Indian tribe, or
    regional or local land use agency or its designee.
      ``(2) For purposes of this Act, the term `Indian tribe' means--
      ``(A) with respect to the 48 contiguous States, any federally
    recognized Indian tribe, organized band, pueblo, or community; and
      ``(B) with respect to Alaska, the Metlakatla Indian Community.
      ``(i) Use of Plans.--(1) Each Federal agency shall consider any
    relevant best available scientific data contained in a recovery plan in
    any analysis conducted under section 102 of the National Environmental
    Policy Act of 1969 (42 U.S.C. 4332).
      ``(2)(A)(i) The head of any Federal agency may enter into an
    agreement with the Secretary specifying the measures the agency will
    carry out to implement a recovery plan.
      ``(ii) Each such agreement shall be published in draft form with
    notice and an opportunity for public comment.
      ``(iii) Each such final agreement shall be published, with responses
    by the head of the Federal agency to any public comments submitted on
    the draft agreement.
      ``(B) Nothing in a recovery plan shall be construed to establish
    regulatory requirements.
      ``(j) Monitoring.--(1) The Secretary shall implement a system in
    cooperation with the States to monitor effectively for not less than
    five years the status of all species that have recovered to the point
    at which the measures provided pursuant to this Act are no longer
    necessary and that, in accordance with this section, have been removed
    from the lists published under section 4(c).
      ``(2) The Secretary shall make prompt use of the authority under
    section 4(b)(7) to prevent a significant risk to the well-being of any
    such recovered species.''.
      (b) Recovery Plans for Species Occupying More Than One State.--
    Section 6 (16 U.S.C. 1535) is amended by adding at the end the
    following:
      ``(j) Recovery Plans for Species Occupying More Than One State.--Any
    recovery plan under section 5 for an endangered species or a threatened
    species that occupies more than one State shall identify criteria and
    actions pursuant to subsection (c)(1) of section 5 for each State that
    are necessary so that the State may pursue a determination that the
    portion of the species found in that State may be removed from lists
    published under section 4(c).''.
      (c) Threatened and Endangered Species Incentives Program.--
              (1) Agreements authorized.--Section 5 (16 U.S.C. 1534) is
            further amended by adding at the end the following:
      ``(m) Threatened and Endangered Species Incentives Program.--(1) The
    Secretary may enter into species recovery agreements pursuant to
    paragraph (2) and species conservation contract agreements pursuant to
    paragraph (3) with persons, other than agencies or departments of the
    Federal Government or State governments, under which the Secretary is
    obligated, subject to the availability of appropriations, to make
    annual payments or provide other compensation to the persons to
    implement the agreements.
      ``(2)(A) The Secretary and persons who own or control the use of
    private land may enter into species recovery agreements with a term of
    not less than 5 years that meet the criteria set forth in subparagraph
    (B) and are in accordance with the priority established in subparagraph
    (C).
      ``(B) A species recovery agreement entered into under this paragraph
    by the Secretary with a person--
              ``(i) shall require that the person shall carry out, on the
            land owned or controlled by the person, activities that--
                      ``(I) protect and restore habitat for covered species
                    that are species determined to be endangered species or
                    threatened species pursuant to section 4(a)(1);
                      ``(II) contribute to the conservation of one or more
                    covered species; and
                      ``(III) specify and implement a management plan for
                    the covered species;
              ``(ii) shall specify such a management plan that includes--
                      ``(I) identification of the covered species;
                      ``(II) a description of the land to which the
                    agreement applies; and
                      ``(III) a description of, and a schedule to carry
                    out, the activities under clause (i);
              ``(iii) shall provide sufficient documentation to establish
            ownership or control by the person of the land to which the
            agreement applies;
              ``(iv) shall include the amounts of the annual payments or
            other compensation to be provided by the Secretary to the
            person under the agreement, and the terms under which such
            payments or compensation shall be provided; and
              ``(v) shall include--
                      ``(I) the duties of the person;
                      ``(II) the duties of the Secretary;
                      ``(III) the terms and conditions under which the
                    person and the Secretary mutually agree the agreement
                    may be modified or terminated; and
                      ``(IV) acts or omissions by the person or the
                    Secretary that shall be considered violations of the
                    agreement, and procedures under which notice of and an
                    opportunity to remedy any violation by the person or
                    the Secretary shall be given.
      ``(C) In entering into species recovery agreements under this
    paragraph, the Secretary shall accord priority to agreements that apply
    to any areas that are identified in recovery plans pursuant to
    subsection (c)(1)(A)(iv).
      ``(3)(A) The Secretary and persons who own private land may enter
    into species conservation contract agreements with terms of 30 years,
    20 years, or 10 years that meet the criteria set forth in subparagraph
    (B) and standards set forth in subparagraph (D) and are in accordance
    with the priorities established in subparagraph (C).
      ``(B) A species conservation contract agreement entered into under
    this paragraph by the Secretary with a person--
              ``(i) shall provide that the person shall, on the land owned
            by the person--
                      ``(I) carry out conservation practices to meet one or
                    more of the goals set forth in clauses (i) through
                    (iii) of subparagraph (C) for one or more covered
                    species, that are species that are determined to be
                    endangered species or threatened species pursuant to
                    section 4(a)(1), species determined to be candidate
                    species pursuant to section 4(b)(3)(B)(iii), or species
                    subject to comparable designations under State law; and
                      ``(II) specify and implement a management plan for
                    the covered species;
              ``(ii) shall specify such a management plan that includes--
                      ``(I) identification of the covered species;
                      ``(II) a description in detail of the conservation
                    practices for the covered species that the person shall
                    undertake;
                      ``(III) a description of the land to which the
                    agreement applies; and
                      ``(IV) a schedule of approximate deadlines, whether
                    one-time or periodic, for undertaking the conservation
                    practices described pursuant to subclause (II);
                      ``(V) a description of existing or future economic
                    activities on the land to which the agreement applies
                    that are compatible with the conservation practices
                    described pursuant to subclause (II) and generally with
                    conservation of the covered species;
              ``(iii) shall specify the term of the agreement; and
              ``(iv) shall include--
                      ``(I) the duties of the person;
                      ``(II) the duties of the Secretary;
                      ``(III) the terms and conditions under which the
                    person and the Secretary mutually agree the agreement
                    may be modified or terminated;
                      ``(IV) acts or omissions by the person or the
                    Secretary that shall be considered violations of the
                    agreement, and procedures under which notice of and an
                    opportunity to remedy any violation by the person or
                    the Secretary shall be given; and
                      ``(V) terms and conditions for early termination of
                    the agreement by the person before the management plan
                    is fully implemented or termination of the agreement by
                    the Secretary in the case of a violation by the person
                    that is not remedied under subclause (IV), including
                    any requirement for the person to refund all or part of
                    any payments received under subparagraph (E) and any
                    interest thereon.
      ``(C) The Secretary shall establish priorities for the selection of
    species conservation contract agreements, or groups of such agreements
    for adjacent or proximate lands, to be entered into under this
    paragraph that address the following factors:
              ``(i) The potential of the land to which the agreement or
            agreements apply to contribute significantly to the
            conservation of an endangered species or threatened species or
            a species with a comparable designation under State law.
              ``(ii) The potential of such land to contribute significantly
            to the improvement of the status of a candidate species or a
            species with a comparable designation under State law.
              ``(iii) The amount of acreage of such land.
              ``(iv) The number of covered species in the agreement or
            agreements.
              ``(v) The degree of urgency for the covered species to
            implement the conservation practices in the management plan or
            plans under the agreement or agreements.
              ``(vi) Land in close proximity to military test and training
            ranges, installations, and associated airspace that is affected
            by a covered species.
      ``(D) The Secretary shall enter into a species conservation contract
    agreement submitted by a person, if the Secretary finds that the person
    owns such land or has sufficient control over the use of such land to
    ensure implementation of the management plan under the agreement.
      ``(E)(i) Upon entering into a species conservation contract agreement
    with the Secretary pursuant to this paragraph, a person shall receive
    the financial assistance provided for in this subparagraph.
      ``(ii) If the person is implementing fully the agreement, the person
    shall receive from the Secretary--
              ``(I) in the case of a 30-year agreement, an annual contract
            payment in an amount equal to 100 percent of the person's
            actual costs to implement the conservation practices described
            in the management plan under the terms of the agreement;
              ``(II) in the case of a 20-year agreement, an annual contract
            payment in an amount equal to 80 percent of the person's actual
            costs to implement the conservation practices described in the
            management plan under the terms of the agreement; and
              ``(III) in the case of a 10-year agreement, an annual
            contract payment in an amount equal to 60 percent of the
            person's actual costs to implement the conservation practices
            described in the management plan under the terms of the
            agreement.
      ``(iii)(I) If the person receiving contract payments pursuant to
    clause (ii) receives any other State or Federal funds to defray the
    cost of any conservation practice, the cost of such practice shall not
    be eligible for such contract payments.
      ``(II) Contributions of agencies or organizations to any conservation
    practice other than the funds described in subclause (I) shall not be
    considered as costs of the person for purposes of the contract payments
    pursuant to clause (iii).
      ``(4)(A) Upon request of a person seeking to enter into an agreement
    pursuant to this subsection, the Secretary may provide to such person
    technical assistance in the preparation, and management training for
    the implementation, of the management plan for the agreement.
      ``(B) Any State agency, local government, nonprofit organization, or
    federally recognized Indian tribe may provide assistance to a person in
    the preparation of a management plan, or participate in the
    implementation of a management plan, including identifying and making
    available certified fisheries or wildlife biologists with expertise in
    the conservation of species for purposes of the preparation or review
    and approval of management plans for species conservation contract
    agreements under paragraph (3)(D)(iii).
      ``(5) Upon any conveyance or other transfer of interest in land that
    is subject to an agreement under this subsection--
              ``(A) the agreement shall terminate if the agreement does not
            continue in effect under subparagraph (B);
              ``(B) the agreement shall continue in effect with respect to
            such land, with the same terms and conditions, if the person to
            whom the land or interest is conveyed or otherwise transferred
            notifies the Secretary of the person's election to continue the
            agreement by no later than 30 days after the date of the
            conveyance or other transfer and the person is determined by
            the Secretary to qualify to enter into an agreement under this
            subsection; or
              ``(C) the person to whom the land or interest is conveyed or
            otherwise transferred may seek a new agreement under this
            subsection.
      ``(6) An agreement under this subsection may be renewed with the
    mutual consent of the Secretary and the person who entered into the
    agreement or to whom the agreement has been transferred under paragraph
    (5).
      ``(7) The Secretary shall make annual payments under this subsection
    as soon as possible after December 31 of each calendar year.
      ``(8) An agreement under this subsection that applies to an
    endangered species or threatened species shall, for the purpose of
    section 10(a)(4), be deemed to be a permit to enhance the propagation
    or survival of such species under section 10(a)(1), and a person in
    full compliance with the agreement shall be afforded the protection of
    section 10(a)(4).
      ``(9) The Secretary, or any other Federal official, may not require a
    person to enter into an agreement under this subsection as a term or
    condition of any right, privilege, or benefit, or of any action or
    refraining from any action, under this Act.''.
              (2) Subsection (e)(2) of section 7 (16 U.S.C. 1536) (as
            redesignated by section 11(d)(2) of this Act) is amended by
            inserting ``or in an agreement under section 5(m)'' after
            ``section''.
      (d) Conforming Amendments.--
              (1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by
            striking ``section 4(g)'' and inserting ``section 5(j)''.
              (2) The Marine Mammal Protection Act of 1972 is amended--
                      (A) in section 104(c)(4)(A)(ii) (16 U.S.C.
                    1374(c)(4)(A)(ii)) by striking ``section 4(f)'' and
                    inserting ``section 5''; and
                      (B) in section 115(b)(2) (16 U.S.C. 1383b(b)(2)) by
                    striking ``section 4(f) of the Endangered Species Act
                    of 1973 (16 U.S.C. 1533(f))'' and inserting ``section 5
                    of the Endangered Species Act of 1973''.

    SEC. 10. COOPERATION WITH STATES AND INDIAN TRIBES.

      Section 6 (16 U.S.C. 1535) is further amended--
              (1) in subsection (c), by adding at the end the following:
      ``(3)(A) Any cooperative agreement entered into by the Secretary
    under this subsection may also provide for development of a program for
    conservation of species determined to be candidate species pursuant to
    section 4(b)(3)(B)(iii) or any other species that the State and the
    Secretary agree is at risk of being determined to be an endangered
    species or threatened species under section 4(a)(1) in that State. Upon
    completion of consultation on the agreement pursuant to subsection
    (e)(2), any incidental take statement issued on the agreement shall
    apply to any such species, and to the State and any landowners enrolled
    in any program under the agreement, without further consultation
    (except any additional consultation pursuant to subsection (e)(2)) if
    the species is subsequently determined to be an endangered species or a
    threatened species and the agreement remains an adequate and active
    program for the conservation of endangered species and threatened
    species.
      ``(B) Any cooperative agreement entered into by the Secretary under
    this subsection may also provide for monitoring or assistance in
    monitoring the status of candidate species pursuant to section
    4(b)(3)(C)(iii) or recovered species pursuant to section 5(j).
      ``(C) The Secretary shall periodically review each cooperative
    agreement under this subsection and seek to make changes the Secretary
    considers necessary for the conservation of endangered species and
    threatened species to which the agreement applies.
      ``(4) Any cooperative agreement entered into by the Secretary under
    this subsection that provides for the enrollment of private lands or
    water rights in any program established by the agreement shall ensure
    that the decision to enroll is voluntary for each owner of such lands
    or water rights.
      ``(5)(A) The Secretary may enter into a cooperative agreement under
    this subsection with an Indian tribe in substantially the same manner
    in which the Secretary may enter into a cooperative agreement with a
    State.
      ``(B) For the purposes of this paragraph, the term `Indian tribe'
    means--
              ``(i) with respect to the 48 contiguous States, any federally
            recognized Indian tribe, organized band, pueblo, or community;
            and
              ``(ii) with respect to Alaska, the Metlakatla Indian
            Community.'';
              (2) in subsection (d)(1)--
                      (A) by striking ``pursuant to subsection (c) of this
                    section'';
                      (B) by striking ``or to assist'' and all that follows
                    through ``section 5(j)'' and inserting ``pursuant to
                    subsection (c)(1) and (2) or to address candidate
                    species or other species at risk and recovered species
                    pursuant to subsection (c)(3)''; and
                      (C) in subparagraph (F), by striking ``monitoring the
                    status of candidate species'' and inserting
                    ``developing a conservation program for, or monitoring
                    the status of, candidate species or other species
                    determined to be at risk pursuant to subsection
                    (c)(3)''; and
              (3) in subsection (e)--
                      (A) by inserting ``(1)'' before the first sentence;
                      (B) in paragraph (1), as designated by subparagraph
                    (A) of this paragraph, by striking ``at no greater than
                    annual intervals'' and inserting ``every 3 years''; and
                      (C) by adding at the end the following:
      ``(2) Any cooperative agreement entered into by the Secretary under
    subsection (c) shall be subject to section 7(a)(2) through (d) and
    regulations implementing such provisions only before--
              ``(A) the Secretary enters into the agreement; and
              ``(B) the Secretary approves any renewal of, or amendment to,
            the agreement that--
                      ``(i) addresses species that are determined to be
                    endangered species or threatened species, are not
                    addressed in the agreement, and may be affected by the
                    agreement; or
                      ``(ii) new information about any species addressed in
                    the agreement that the Secretary determines--
                              ``(I) constitutes the best available
                            scientific data; and
                              ``(II) indicates that the agreement may have
                            adverse effects on the species that had not
                            been considered previously when the agreement
                            was entered into or during any revision thereof
                            or amendment thereto.
      ``(3) The Secretary may suspend any cooperative agreement established
    pursuant to subsection (c), after consultation with the Governor of the
    affected State, if the Secretary finds during the periodic review
    required by paragraph (1) of this subsection that the agreement no
    longer constitutes an adequate and active program for the conservation
    of endangered species and threatened species.
      ``(4) The Secretary may terminate any cooperative agreement entered
    into by the Secretary under subsection (c), after consultation with the
    Governor of the affected State, if--
              ``(A) as result of the procedures of section 7(a)(2) through
            (d) undertaken pursuant to paragraph (2) of this subsection,
            the Secretary determines that continued implementation of the
            cooperative agreement is likely to jeopardize the continued
            existence of endangered species or threatened species, and the
            cooperative agreement is not amended or revised to incorporate
            a reasonable and prudent alternative offered by the Secretary
            pursuant to section 7(b)(3); or
              ``(B) the cooperative agreement has been suspended under
            paragraph (3) of this subsection and has not been amended or
            revised and found by the Secretary to constitute an adequate
            and active program for the conservation of endangered species
            and threatened species within 180 days after the date of the
            suspension.''.

    SEC. 11. INTERAGENCY COOPERATION AND CONSULTATION.

      (a) Consultation Requirement.--Section 7(a) (16 U.S.C. 1536(a)) is
    amended--
              (1) in paragraph (1) in the second sentence, by striking
            ``endangered species'' and all that follows through the end of
            the sentence and inserting ``species determined to be
            endangered species and threatened species under section 4.'';
              (2) in paragraph (2)--
                      (A) in the first sentence by striking ``action'' the
                    first place it appears and all that follows through
                    ``is not'' and inserting ``agency action authorized,
                    funded, or carried out by such agency is not'';
                      (B) in the first sentence by striking ``, unless''
                    and all that follows through the end of the sentence
                    and inserting a period;
                      (C) in the second sentence, by striking ``best
                    scientific and commercial data available'' and
                    inserting ``best available scientific data''; and
                      (D) by inserting ``(A)'' before the first sentence,
                    and by adding at the end the following:
      ``(B) The Secretary may identify specific agency actions or
    categories of agency actions that may be determined to meet the
    standards of this paragraph by alternative procedures to the procedures
    set forth in this subsection and subsections (b) through (d), except
    that subsections (b)(4) and (e) may apply only to an action that the
    Secretary finds, or concurs, does meet such standards, and the
    Secretary shall suggest, or concur in any suggested, reasonable and
    prudent alternatives described in subsection (b)(3) for any action
    determined not to meet such standards. Any such agency action or
    category of agency actions shall be identified, and any such
    alternative procedures shall be established, by regulation promulgated
    prior or subsequent to the date of the enactment of this Act.'';
              (3) in paragraph (4)--
                      (A) by striking ``listed under section 4'' and
                    inserting ``an endangered species or a threatened
                    species''; and
                      (B) by inserting ``, under section 4'' after ``such
                    species''; and
              (4) by adding at the end the following:
      ``(5) Any Federal agency or the Secretary, in conducting any analysis
    pursuant to paragraph (2), shall consider only the effects of any
    agency action that are distinct from a baseline of all effects upon the
    relevant species that have occurred or are occurring prior to the
    action.''.
      (b) Opinion of Secretary.--Section 7(b) (16 U.S.C. 1536(b)) is
    amended--
              (1) in paragraph (1)(B)(i) by inserting ``permit or license''
            before ``applicant'';
              (2) in paragraph (2) by inserting ``permit or license''
            before ``applicant'';
              (3) in paragraph (3)(A)--
                      (A) in the first sentence--
                              (i) by striking ``Promptly after'' and
                            inserting ``Before'';
                              (ii) by inserting ``permit or license''
                            before ``applicant''; and
                              (iii) by inserting ``proposed'' before
                            ``written statement''; and
                      (B) by striking all after the first sentence and
                    inserting the following: ``The Secretary shall consider
                    any comment from the Federal agency and the permit or
                    license applicant, if any, prior to issuance of the
                    final written statement of the Secretary's opinion. The
                    Secretary shall issue the final written statement of
                    the Secretary's opinion by providing the written
                    statement to the Federal agency and the permit or
                    license applicant, if any, and publishing notice of the
                    written statement in the Federal Register. If jeopardy
                    is found, the Secretary shall suggest in the final
                    written statement those reasonable and prudent
                    alternatives, if any, that the Secretary believes would
                    not violate subsection (a)(2) and can be taken by the
                    Federal agency or applicant in implementing the agency
                    action. The Secretary shall cooperate with the Federal
                    agency and any permit or license applicant in the
                    preparation of any suggested reasonable and prudent
                    alternatives.'';
              (4) in paragraph (4)--
                      (A) by redesignating subparagraphs (A), (B), and (C)
                    as clauses (i), (ii), and (iii), respectively;
                      (B) by inserting ``(A)'' after ``(4)'';
                      (C) by striking ``the Secretary shall provide'' and
                    all that follows through ``with a written statement
                    that--'' and inserting the following: ``the Secretary
                    shall include in the written statement under paragraph
                    (3), a statement described in subparagraph (B) of this
                    paragraph.
      ``(B) A statement described in this subparagraph--''; and
              (5) by adding at the end the following:
      ``(5)(A) Any terms and conditions set forth pursuant to paragraph
    (4)(B)(iv) shall be roughly proportional to the impact of the
    incidental taking identified pursuant to paragraph (4) in the written
    statement prepared under paragraph (3).
      ``(B) If various terms and conditions are available to comply with
    paragraph (4)(B)(iv), the terms and conditions set forth pursuant to
    that paragraph--
              ``(i) must be capable of successful implementation; and
              ``(ii) must be consistent with the objectives of the Federal
            agency and the permit or license applicant, if any, to the
            greatest extent possible.''.
      (c) Biological Assessments.--Section 7(c) (16 U.S.C. 1536(c)) is
    amended--
              (1) by striking ``(1)'';
              (2) by striking paragraph (2);
              (3) in the first sentence, by striking ``which is listed''
            and all that follows through the end of the sentence and
            inserting ``that is determined to be an endangered species or a
            threatened species, or for which such a determination is
            proposed pursuant to section 4, may be present in the area of
            such proposed action.''; and
              (4) in the second sentence, by striking ``best scientific and
            commercial data available'' and inserting ``best available
            scientific data''.
      (d) Elimination of Endangered Species Committee Process.--Section 7
    (16 U.S.C. 1536) is amended--
              (1) by repealing subsections (e), (f), (g), (h), (i), (j),
            (k), (l), (m), and (n);
              (2) by redesignating subsections (o) and (p) as subsections
            (e) and (f), respectively;
              (3) in subsection (e), as redesignated by paragraph (2) of
            this subsection--
                      (A) in the heading, by striking ``Exemption as
                    Providing''; and
                      (B) by striking ``such section'' and all that follows
                    through ``(2)'' and inserting ``such section,''; and
              (4) in subsection (f), as redesignated by paragraph (2) of
            this subsection--
                      (A) in the first sentence, by striking ``is
                    authorized'' and all that follows through ``of this
                    section'' and inserting ``may exempt an agency action
                    from compliance with the requirements of subsections
                    (a) through (d) of this section before the initiation
                    of such agency action,''; and
                      (B) by striking the second sentence.

    SEC. 12. EXCEPTIONS TO PROHIBITIONS.

      (a) Incidental Take Permits.--Section 10(a)(2) (16 U.S.C. 1539(a)(2))
    is amended--
              (1) in subparagraph (A) by striking ``and'' after the
            semicolon at the end of clause (iii), by redesignating clause
            (iv) as clause (vii), and by inserting after clause (iii) the
            following:
              ``(iv) objective, measurable biological goals to be achieved
            for species covered by the plan and specific measures for
            achieving such goals consistent with the requirements of
            subparagraph (B);
              ``(v) measures the applicant will take to monitor impacts of
            the plan on covered species and the effectiveness of the plan's
            measures in achieving the plan's biological goals;
              ``(vi) adaptive management provisions necessary to respond to
            all reasonably foreseeable changes in circumstances that could
            appreciably reduce the likelihood of the survival and recovery
            of any species covered by the plan; and'';
              (2) in subparagraph (B) by striking ``and'' after the
            semicolon at the end of clause (iv), by redesignating clause
            (v) as clause (vi), and by inserting after clause (iv) the
            following:
              ``(v) the term of the permit is reasonable, taking into
            consideration--
                      ``(I) the period in which the applicant can be
                    expected to diligently complete the principal actions
                    covered by the plan;
                      ``(II) the extent to which the plan will enhance the
                    conservation of covered species;
                      ``(III) the adequacy of information underlying the
                    plan;
                      ``(IV) the length of time necessary to implement and
                    achieve the benefits of the plan; and
                      ``(V) the scope of the plan's adaptive management
                    strategy; and''; and
              (3) by striking subparagraph (C) and inserting the following:
      ``(3) Any terms and conditions offered by the Secretary pursuant to
    paragraph (2)(B) to reduce or offset the impacts of incidental taking
    shall be roughly proportional to the impact of the incidental taking
    specified in the conservation plan pursuant to in paragraph (2)(A)(i).
    This paragraph shall not be construed to limit the authority of the
    Secretary to require greater than acre-for-acre mitigation where
    necessary to address the extent of such impacts. In any case in which
    various terms and conditions are available, the terms and conditions
    shall be capable of successful implementation and shall be consistent
    with the objective of the applicant to the greatest extent possible.
      ``(4)(A) If the holder of a permit issued under this subsection for
    other than scientific purposes is in compliance with the terms and
    conditions of the permit, and any conservation plan or agreement
    incorporated by reference therein, the Secretary may not require the
    holder, without the consent of the holder, to adopt any new
    minimization, mitigation, or other measure with respect to any species
    adequately covered by the permit during the term of the permit, except
    as provided in subparagraphs (B) and (C) to meet circumstances that
    have changed subsequent to the issuance of the permit.
      ``(B) For any circumstance identified in the permit or incorporated
    document that has changed, the Secretary may, in the absence of consent
    of the permit holder, require only such additional minimization,
    mitigation, or other measures as are already provided in the permit or
    incorporated document for such changed circumstance.
      ``(C) For any changed circumstance not identified in the permit or
    incorporated document, the Secretary may, in the absence of consent of
    the permit holder, require only such additional minimization,
    mitigation, or other measures to address such changed circumstance that
    do not involve the commitment of any additional land, water, or
    financial compensation not otherwise committed, or the imposition of
    additional restrictions on the use of any land, water or other natural
    resources otherwise available for development or use, under the
    original terms and conditions of the permit or incorporated document.
      ``(D) The Secretary shall have the burden of proof in demonstrating
    and documenting, with the best available scientific data, the
    occurrence of any changed circumstances for purposes of this paragraph.
      ``(E) All permits issued under this subsection on or after the date
    of the enactment of the Threatened and Endangered Species Recovery Act
    of 2005, other than permits for scientific purposes, shall contain the
    assurances contained in subparagraphs (B) through (D) of this paragraph
    and paragraph (5)(A) and (B). Permits issued under this subsection on
    or after March 25, 1998, and before the date of the enactment of the
    Threatened and Endangered Species Recovery Act of 2005, other than
    permits for scientific purposes, shall be governed by the applicable
    sections of parts 17.22(b), (c), and (d), and 17.32(b), (c), and (d) of
    title 50, Code of Federal Regulations, as the same exist on the date of
    the enactment of the Threatened and Endangered Species Act of 2005.
      ``(5)(A) The Secretary shall revoke a permit issued under paragraph
    (2) if the Secretary finds that the permittee is not complying with the
    terms and conditions of the permit.
      ``(B) Any permit subject to paragraph (4)(A) may be revoked due to
    changed circumstances only if--
              ``(i) the Secretary determines that continuation of the
            activities to which the permit applies would be inconsistent
            with the criteria in paragraph (2)(B)(iv);
              ``(ii) the Secretary provides 60 days notice of revocation to
            the permittee; and
              ``(iii) the Secretary is unable to, and the permittee chooses
            not to, remedy the condition causing such inconsistency.''.
      (b) Extension of Period for Public Review and Comment on
    Applications.--Section 10(c) (16 U.S.C. 1539(c)) is amended in the
    second sentence by striking ``thirty'' each place it appears and
    inserting ``45''.
      (c) Experimental Populations.--Section 10(j) (16 U.S.C. 1539(j)) is
    amended--
              (1) in paragraph (1), by striking ``For purposes'' and all
            that follows through the end of the paragraph and inserting the
            following: ``For purposes of this subsection, the term
            `experimental population' means any population (including any
            offspring arising therefrom) authorized by the Secretary for
            release under paragraph (2), but only when such population is
            in the area designated for it by the Secretary, and such area
            is, at the time of release, wholly separate geographically from
            areas occupied by nonexperimental populations of the same
            species. For purposes of this subsection, the term `areas
            occupied by nonexperimental populations' means areas
            characterized by the sustained and predictable presence of more
            than negligible numbers of successfully reproducing individuals
            over a period of many years.'';
              (2) in paragraph (2)(B), by striking ``information'' and
            inserting ``scientific data''; and
              (3) in paragraph (2)(C)(i), by striking ``listed'' and
            inserting ``determined to be an endangered species or a
            threatened species''.
      (d) Written Determination of Compliance.--Section 10 (16 U.S.C. 1539)
    is amended by adding at the end the following:
      ``(k) Written Determination of Compliance.--(1) A property owner (in
    this subsection referred to as a `requester') may request the Secretary
    to make a written determination that a proposed use of the owner's
    property that is lawful under State and local law will comply with
    section 9(a), by submitting a written description of the proposed
    action to the Secretary by certified mail.
      ``(2) A written description of a proposed use is deemed to be
    sufficient for consideration by the Secretary under paragraph (1) if
    the description includes--
              ``(A) the nature, the specific location, the lawfulness under
            State and local law, and the anticipated schedule and duration
            of the proposed use, and a demonstration that the property
            owner has the means to undertake the proposed use; and
              ``(B) any anticipated adverse impact to a species that is
            included on a list published under 4(c)(1) that the requestor
            reasonably expects to occur as a result of the proposed use.
      ``(3) The Secretary may request and the requestor may supply any
    other information that either believes will assist the Secretary to
    make a determination under paragraph (1).
      ``(4) If the Secretary does not make a determination pursuant to a
    request under this subsection because of the omission from the request
    of any information described in paragraph (2), the requestor may submit
    a subsequent request under this subsection for the same proposed use.
      ``(5)(A) Subject to subparagraph (B), the Secretary shall provide to
    the requestor a written determination of whether the proposed use, as
    proposed by the requestor, will comply with section 9(a), by not later
    than expiration of the 180-day period beginning on the date of the
    submission of the request.
      ``(B) The Secretary may request, and the requestor may grant, a
    written extension of the period under subparagraph (A).
      ``(6) If the Secretary fails to provide a written determination
    before the expiration of the period under paragraph (5)(A) (or any
    extension thereof under paragraph (5)(B)), the Secretary is deemed to
    have determined that the proposed use complies with section 9(a).
      ``(7) This subsection shall not apply with respect to agency actions
    that are subject to consultation under section 7.
      ``(8) Any use or action taken by the property owner in reasonable
    reliance on a written determination of compliance under paragraph (5)
    or on the application of paragraph (6) shall not be treated as a
    violation of section 9(a).
      ``(9) Any determination of compliance under this subsection shall
    remain effective--
              ``(A) in the case of a written determination provided under
            paragraph (5)(A), for the 10-year period beginning on the date
            the written determination is provided; or
              ``(B) in the case of a determination that under paragraph (6)
            the Secretary is deemed to have made, the 5-year period
            beginning on the first date the Secretary is deemed to have
            made the determination.
      ``(10) The Secretary may withdraw a determination of compliance under
    this section only if the Secretary determines that, because of
    unforeseen changed circumstances, the continuation of the use to which
    the determination applies would preclude conservation measures
    essential to the survival of any endangered species or threatened
    species. Such a withdrawal shall take effect 10 days after the date the
    Secretary provides notice of the withdrawal to the requester.
      ``(11) The Secretary may extend the period that applies under
    paragraph (5) by up to 180 days if seasonal considerations make a
    determination impossible within the period that would otherwise
    apply.''.
      (e) National Security Exemption.--Section 10 (16 U.S.C. 1539) is
    further amended by adding at the end the following:
      ``(l) National Security.--The President, after consultation with the
    appropriate Federal agency, may exempt any act or omission from the
    provisions of this Act if such exemption is necessary for national
    security.''.
      (f) Disaster Declaration and Protection.--Section 10 (16 U.S.C. 1539)
    is further amended by adding at the end the following:
      ``(m) Disaster Declaration and Protection.--(1) The President may
    suspend the application of any provision of this Act in any area for
    which a major disaster is declared under the Robert T. Stafford
    Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
      ``(2) The Secretary shall, within one year after the date of the
    enactment of the Threatened and Endangered Species Recovery Act of
    2005, promulgate regulations regarding application of this Act in the
    event of an emergency (including circumstances other than a major
    disaster referred to in paragraph (1)) involving a threat to human
    health or safety or to property, including regulations--
              ``(A) determining what constitutes an emergency for purposes
            of this paragraph; and
              ``(B) to address immediate threats through expedited
            consideration under or waiver of any provision of this Act.''.

    SEC. 13. PRIVATE PROPERTY CONSERVATION.

      Section 13 (consisting of amendments to other laws, which have
    executed) is amended to read as follows:
                        ``private property conservation
      ``Sec. 13. (a) In General.--The Secretary may provide conservation
    grants (in this section referred to as `grants') to promote the
    voluntary conservation of endangered species and threatened species by
    owners of private property and shall provide financial conservation aid
    (in this section referred to as `aid') to alleviate the burden of
    conservation measures imposed upon private property owners by this Act.
    The Secretary may provide technical assistance when requested to
    enhance the conservation effects of grants or aid.
      ``(b) Awarding of Grants and Aid.--Grants to promote conservation of
    endangered species and threatened species on private property--
              ``(1) may not be used to fund litigation, general education,
            general outreach, lobbying, or solicitation;
              ``(2) may not be used to acquire leases or easements of more
            than 50 years duration or fee title to private property;
              ``(3) must be designed to directly contribute to the
            conservation of an endangered species or threatened species by
            increasing the species' numbers or distribution; and
              ``(4) must be supported by any private property owners on
            whose property any grant funded activities are carried out.
      ``(c) Priority.--Priority shall be accorded among grant requests in
    the following order:
              ``(1) Grants that promote conservation of endangered species
            or threatened species on private property while making
            economically beneficial and productive use of the private
            property on which the conservation activities are conducted.
              ``(2) Grants that develop, promote, or use techniques to
            increase the distribution or population of an endangered
            species or threatened species on private property.
              ``(3) Other grants that promote voluntary conservation of
            endangered species or threatened species on private property.
      ``(d) Eligibility for Aid.--(1) The Secretary shall award aid to
    private property owners who--
              ``(A) received a written determination under section 10(k)
            finding that the proposed use of private property would not
            comply with section 9(a); or
              ``(B) receive notice under section 10(k)(10) that a written
            determination has been withdrawn.
      ``(2) Aid shall be in an amount no less than the fair market value of
    the use that was proposed by the property owner if--
              ``(A) the owner has foregone the proposed use;
              ``(B) the owner has requested financial aid--
                      ``(i) within 180 days of the Secretary's issuance of
                    a written determination that the proposed use would not
                    comply with section 9(a); or
                      ``(ii) within 180 days after the property owner is
                    notified of a withdrawal under section 10(k)(10); and
              ``(C) the foregone use would be lawful under State and local
            law and the property owner has demonstrated that the property
            owner has the means to undertake the proposed use.
      ``(e) Distribution of Grants and Aid.--(1) The Secretary shall pay
    eligible aid--
              ``(A) within 180 days after receipt of a request for aid
            unless there are unresolved questions regarding the
            documentation of the foregone proposed use or unresolved
            questions regarding the fair market value; or
              ``(B) at the resolution of any questions concerning the
            documentation of the foregone use established under subsection
            (f) or the fair market value established under subsection (g).
      ``(2) All grants provided under this section shall be paid on the
    last day of the fiscal year. Aid shall be paid based on the date of the
    initial request.
      ``(f) Documentation of the Foregone Use.--Within 30 days of the
    request for aid, the Secretary shall enter into negotiations with the
    property owner regarding the documentation of the foregone proposed use
    through such mechanisms such as contract terms, lease terms, deed
    restrictions, easement terms, or transfer of title. If the Secretary
    and the property owner are unable to reach an agreement, then, within
    60 days of the request for aid, the Secretary shall determine how the
    property owner's foregone use shall be documented with the least impact
    on the ownership interests of the property owner necessary to document
    the foregone use.
      ``(g) Fair Market Value.--For purposes of this section, the fair
    market value of the foregone use of the affected portion of the private
    property, including business losses, is what a willing buyer would pay
    to a willing seller in an open market. Fair market value shall take
    into account the likelihood that the foregone use would be approved
    under State and local law. The fair market value shall be determined
    within 180 days of the documentation of the foregone use. The fair
    market value shall be determined jointly by 2 licensed independent
    appraisers, one selected by the Secretary and one selected by the
    property owner. If the 2 appraisers fail to agree on fair market value,
    the Secretary and the property owner shall jointly select a third
    licensed appraiser whose appraisal within an additional 90 days shall
    be binding on the Secretary and the private property owner. Within one
    year after the date of enactment of the Threatened and Endangered
    Species Recovery Act of 2005, the Secretary shall promulgate
    regulations regarding selection of the jointly selected appraisers
    under this subsection.
      ``(h) Limitation on Aid Availability.--Any person receiving aid under
    this section may not receive additional aid under this section for the
    same foregone use of the same property and for the same period of time.
      ``(i) Annual Reporting.--The Secretary shall by January 15 of each
    year provide a report of all aid and grants awarded under this section
    to the Committee on Resources of the House of Representatives and the
    Environment and Public Works Committee of the Senate and make such
    report electronically available to the general public on the website
    required under section 14.''.

    SEC. 14. PUBLIC ACCESSIBILITY AND ACCOUNTABILITY.

      Section 14 (relating to repeals of other laws, which have executed)
    is amended to read as follows:
                   ``public accessibility and accountability
      ``Sec. 14. The Secretary shall make available on a publicly
    accessible website on the Internet--
              ``(1) each list published under section 4(c)(1);
              ``(2) all final and proposed regulations and determinations
            under section 4;
              ``(3) the results of all 5-year reviews conducted under
            section 4(c)(2)(A);
              ``(4) all draft and final recovery plans issued under section
            5(a), and all final recovery plans issued and in effect under
            section 4(f)(1) of this Act as in effect immediately before the
            enactment of the Threatened and Endangered Species Recovery Act
            of 2005;
              ``(5) all reports required under sections 5(e) and 16, and
            all reports required under sections 4(f)(3) and 18 of this Act
            as in effect immediately before the enactment of the Threatened
            and Endangered Species Recovery Act of 2005; and
              ``(6) data contained in the reports referred to in paragraph
            (5) of this section, and that were produced after the date of
            enactment of the Threatened and Endangered Species Recovery Act
            of 2005, in the form of databases that may be searched by the
            variables included in the reports.''.

    SEC. 15. ANNUAL COST ANALYSES.

      (a) Annual Cost Analyses.--Section 18 (16 U.S.C. 1544) is amended to
    read as follows:
       ``annual cost analysis by united states fish and wildlife service
      ``Sec. 18. (a) In General.--On or before January 15 of each year, the
    Secretary shall submit to the Congress an annual report covering the
    preceding fiscal year that contains an accounting of all reasonably
    identifiable expenditures made primarily for the conservation of
    species included on lists published and in effect under section 4(c).
      ``(b) Specification of Expenditures.--Each report under this section
    shall specify--
              ``(1) expenditures of Federal funds on a species-by-species
            basis, and expenditures of Federal funds that are not
            attributable to a specific species;
              ``(2) expenditures by States for the fiscal year covered by
            the report on a species-by-species basis, and expenditures by
            States that are not attributable to a specific species; and
              ``(3) based on data submitted pursuant to subsection (c),
            expenditures voluntarily reported by local governmental
            entities on a species-by-species basis, and such expenditures
            that are not attributable to a specific species.
      ``(c) Encouragement of Voluntary Submission of Data by Local
    Governments.--The Secretary shall provide a means by which local
    governmental entities may--
              ``(1) voluntarily submit electronic data regarding their
            expenditures for conservation of species listed under section
            4(c); and
              ``(2) attest to the accuracy of such data.''.
      (b) Eligibility of States for Financial Assistance.--Section 6(d) (16
    U.S.C. 1535(d)) is amended by adding at the end the following:
      ``(3) A State shall not be eligible for financial assistance under
    this section for a fiscal year unless the State has provided to the
    Secretary for the preceding fiscal year information regarding the
    expenditures referred to in section 16(b)(2).''.

    SEC. 16. REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED
                        SPECIES.

      The Endangered Species Act of 1973 is further amended--
              (1) by striking sections 15 and 16;
              (2) by redesignating sections 17 and 18 as sections 15 and
            16, respectively; and
              (3) by adding after section 16, as so redesignated, the
            following:
      ``reimbursement for depredation of livestock by reintroduced species
      ``Sec. 17. (a) In General.--The Secretary of the Interior, acting
    through the Director of the United States Fish and Wildlife Service,
    may reimburse the owner of livestock for any loss of livestock
    resulting from depredation by any population of a species if the
    population is listed under section 4(c) and includes or derives from
    members of the species that were reintroduced into the wild.
      ``(b) Eligibility for and Amount.--Eligibility for, and the amount
    of, reimbursement under this section shall not be conditioned on the
    presentation of the body of any animal for which reimbursement is
    sought.
      ``(c) Limitation on Requirement to Present Body.--The Secretary may
    not require the owner of livestock to present the body of individual
    livestock as a condition of payment of reimbursement under this
    section.
      ``(d) Use of Donations.--The Secretary may accept and use donations
    of funds to pay reimbursement under this section.
      ``(e) Availability of Appropriations.--The requirement to pay
    reimbursement under this section is subject to the availability of
    funds for such payments.''.

    SEC. 17. AUTHORIZATION OF APPROPRIATIONS.

      (a) Authorization.--The Endangered Species Act of 1973 is further
    amended by adding at the end the following:
                       ``authorization of appropriations
      ``Sec. 18. (a) In General.--There are authorized to be appropriated
    to carry out this Act, other than section 8A(e)--
              ``(1) to the Secretary of the Interior to carry out functions
            and responsibilities of the Department of the Interior under
            this Act, such sums as are necessary for fiscal years 2006
            through 2010; and
              ``(2) to the Secretary of Agriculture to carry out functions
            and responsibilities of the Department of the Interior with
            respect to the enforcement of this Act and the convention which
            pertain the importation of plants, such sums as are necessary
            for fiscal year 2006 through 2010.
      ``(b) Convention Implementation.--There is authorized to be
    appropriated to the Secretary of the Interior to carry out section
    8A(e) such sums as are necessary for fiscal years 2006 through 2010.''.
      (b) Conforming Amendment.--Section 8(a) (16 U.S.C. 1537(a)) is
    amended by striking ``section 15'' and inserting ``section 18''.

    SEC. 18. MISCELLANEOUS TECHNICAL CORRECTIONS.

      (a) International Cooperation.--Section 8 (16 U.S.C. 1537) is
    amended--
              (1) in subsection (a) in the first sentence by striking ``any
            endangered species or threatened species listed'' and inserting
            ``any species determined to be an endangered species or a
            threatened species''; and
              (2) in subsection (b) in paragraph (1), by striking
            ``endangered species and threatened species listed'' and
            inserting ``species determined to be endangered species and
            threatened species''.
      (b) Management Authority and Scientific Authority.--Section 8A (16
    U.S.C. 1537a)) is amended--
              (1) in subsection (a), by striking ``of the Interior
            (hereinafter in this section referred to as the `Secretary')'';
              (2) in subsection (d), by striking ``Merchant Marine and
            Fisheries'' and inserting ``Resources''; and
              (3) in subsection (e)--
                      (A) in paragraph (1), by striking ``of the Interior
                    (hereinafter in this subsection referred to as the
                    `Secretary')''; and
                      (B) by striking paragraph (3) and redesignating
                    paragraph (4) as paragraph (3).
      (c) Prohibited Acts.--Section 9 (16 U.S.C. 1538) is amended--
              (1) in subsection (a)--
                      (A) in paragraph (1), in the matter preceding
                    subparagraph (A), by striking ``of this Act, with
                    respect to any endangered species of fish or wildlife
                    listed pursuant to section 4 of this Act'' and
                    inserting ``, with respect to any species of fish or
                    wildlife determined to be an endangered species under
                    section 4'';
                      (B) in paragraph (1)(G), by striking ``threatened
                    species of fish or wildlife listed pursuant to section
                    4 of this Act'' and inserting ``species of fish or
                    wildlife determined to be a threatened species under
                    section 4'';
                      (C) in paragraph (2), in the matter preceding
                    subparagraph (A) by striking ``of this Act, with
                    respect to any endangered species of plants listed
                    pursuant to section 4 of this Act'' and inserting ``,
                    with respect to any species of plants determined to be
                    an endangered species under section 4''; and
                      (D) in paragraph (2)(E), by striking ``listed
                    pursuant to section 4 of this Act'' and inserting
                    ``determined to be a threatened species under section
                    4'';
              (2) in subsection (b)--
                      (A) by striking ``(1)'' before ``Species'' and
                    inserting ``(1)'' before the first sentence;
                      (B) in paragraph (1), in the first sentence, by
                    striking ``adding such'' and all that follows through
                    ``: Provided, That'' and inserting ``determining such
                    fish or wildlife species to be an endangered species or
                    a threatened species under section 4, if''; and
                      (C) in paragraph (1), in the second sentence, by
                    striking ``adding such'' and all that follows through
                    ``this Act'' and inserting ``determining such fish or
                    wildlife species to be an endangered species or a
                    threatened species under section 4'';
              (3) in subsection (c)(2)(A), by striking ``an endangered
            species listed'' and inserting ``a species determined to be an
            endangered species'';
              (4) in subsection (d)(1)(A), by striking clause (i) and
            inserting the following: ``(i) are not determined to be
            endangered species or threatened species under section 4,
            and'';
              (5) in subsection (e), by striking clause (1) and inserting
            the following: ``(1) are not determined to be endangered
            species or threatened species under section 4, and''; and
              (6) in subsection (f)--
                      (A) in paragraph (1), in the first sentence, by
                    striking clause (A) and inserting the following: ``(A)
                    are not determined to be endangered species or
                    threatened species under section 4, and''; and
                      (B) by striking ``Secretary of the Interior'' each
                    place it appears and inserting ``Secretary''.
      (d) Hardship Exemptions.--Section 10(b) (16 U.S.C. 1539(b)) is
    amended--
              (1) in paragraph (1)--
                      (A) by striking ``an endangered species'' and all
                    that follows through ``section 4 of this Act'' and
                    inserting ``an endangered species or a threatened
                    species and the subsequent determination that the
                    species is an endangered species or a threatened
                    species under section 4'';
                      (B) by striking ``section 9(a) of this Act'' and
                    inserting ``section 9(a)''; and
                      (C) by striking ``fish or wildlife listed by the
                    Secretary as endangered'' and inserting ``fish or
                    wildlife determined to be an endangered species or
                    threatened species by the Secretary''; and
              (2) in paragraph (2)--
                      (A) by inserting ``or a threatened species'' after
                    ``endangered species'' each place it appears; and
                      (B) in subparagraph (B), by striking ``listed
                    species'' and inserting ``endangered species or
                    threatened species''.
      (e) Permit and Exemption Policy.--Section 10(d) (16 U.S.C. 1539(d))
    is amended--
              (1) by inserting ``or threatened species'' after ``endangered
            species''; and
              (2) by striking ``of this Act''.
      (f) Pre-Act Parts and Scrimshaw.--Section 10(f) (16 U.S.C. 1539(f))
    is amended--
              (1) by inserting after ``(f)'' the following: ``Pre-Act Parts
            and Scrimshaw.--''; and
              (2) in paragraph (2), by striking ``of this Act'' each place
            it appears.
      (g) Burden of Proof in Seeking Exemption or Permit.--Section 10(g)
    (16 U.S.C. 1539(g)) is amended by inserting after ``(g)'' the
    following: ``Burden of Proof in Seeking Exemption or Permit.--''.
      (h) Antique Articles.--Section 10(h)(1)(B) (16 U.S.C. 1539(h)(1)(B))
    is amended by striking ``endangered species or threatened species
    listed'' and inserting ``species determined to be an endangered species
    or a threatened species''.
      (i) Penalties and Enforcement.--Section 11 (16 U.S.C. 1540) is
    amended in subsection (e)(3), in the second sentence, by striking
    ``Such persons'' and inserting ``Such a person''.
      (j) Substitution of Gender-Neutral References.--
              (1) ``secretary'' for ``he''.--The following provisions are
            amended by striking ``he'' each place it appears and inserting
            ``the Secretary'':
                      (A) Paragraph (4)(C) of section 4(b), as redesignated
                    by section 5(b)(2) of this Act.
                      (B) Paragraph (5)(B)(ii) of section 4(b), as
                    redesignated by section 5(b)(2) of this Act.
                      (C) Section 4(b)(7) (16 U.S.C. 1533(b)(7)), in the
                    matter following subparagraph (B).
                      (D) Section 6 (16 U.S.C. 1535).
                      (E) Section 8(d) (16 U.S.C. 1537(d)).
                      (F) Section 9(f) (16 U.S.C. 1538(f)).
                      (G) Section 10(a) (16 U.S.C. 1539(a)).
                      (H) Section 10(b)(3) (16 U.S.C. 1539(b)(3)).
                      (I) Section 10(d) (16 U.S.C. 1539(d)).
                      (J) Section 10(e)(4) (16 U.S.C. 1539(e)(4)).
                      (K) Section 10(f)(4), (5), and (8)(B) (16 U.S.C.
                    1599(f)(4), (5), (8)(B)).
                      (L) Section 11(e)(5) (16 U.S.C. 1540(e)(5)).
              (2) ``president'' for ``he''.--Section 8(a) (16 U.S.C.
            1537(a)) is amended in the second sentence by striking ``he''
            and inserting ``the President''.
              (3) ``secretary of the interior'' for ``he''.--Section
            8(b)(3) (16 U.S.C. 1537(b)(3)) is amended by striking ``he''
            and inserting ``the Secretary of the Interior''.
              (4) ``person'' for ``he''.--The following provisions are
            amended by striking ``he'' each place it appears and inserting
            ``the person'':
                      (A) Section 10(f)(3) (16 U.S.C. 1539(f)(3)).
                      (B) Section 11(e)(3) (16 U.S.C. 1540(e)(3)).
              (5) ``defendant'' for ``he''.--The following provisions are
            amended by striking ``he'' each place it appears and inserting
            ``the defendant''.
                      (A) Section 11(a)(3) (16 U.S.C. 1540(a)(3)).
                      (B) Section 11(b)(3) (16 U.S.C. 1540(b)(3)).
              (6) References to ``him''.--
                      (A) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended
                    by striking ``him or the Secretary of Commerce'' each
                    place it appears and inserting ``the Secretary''.
                      (B) Paragraph (6) of section 4(b) (16 U.S.C.
                    1533(b)), as redesignated by section 5(b)(2) of this
                    Act, is further amended in the matter following
                    subparagraph (B) by striking ``him'' and inserting
                    ``the Secretary''.
                      (C) Section 5(k)(2), as redesignated by section
                    9(a)(1) of this Act, is amended by striking ``him'' and
                    inserting ``the Secretary''.
                      (D) Section 7(a)(1) (16 U.S.C. 1536(a)(1)) is amended
                    in the first sentence by striking ``him'' and inserting
                    ``the Secretary''.
                      (E) Section 8A(c)(2) (16 U.S.C. 1537a(c)(2)) is
                    amended by striking ``him'' and inserting ``the
                    Secretary''.
                      (F) Section 9(d)(2)(A) (16 U.S.C. 1538(d)(2)(A)) is
                    amended by striking ``him'' each place it appears and
                    inserting ``such person''.
                      (G) Section 10(b)(1) (16 U.S.C. 1539(b)(1)) is
                    amended by striking ``him'' and inserting ``the
                    Secretary''.
              (7) References to ``himself or herself''.--Section 11 (16
            U.S.C. 1540) is amended in subsections (a)(3) and (b)(3) by
            striking ``himself or herself'' each place it appears and
            inserting ``the defendant''.
              (8) References to ``his''.--
                      (A) Section 4(g)(1), as redesignated by section 8(1)
                    of this Act, is amended by striking ``his'' and
                    inserting ``the''.
                      (B) Section 6 (16 U.S.C. 1535) is amended--
                              (i) in subsection (d)(2) in the matter
                            following clause (ii) by striking ``his'' and
                            inserting ``the Secretary's''; and
                              (ii) in subsection (e)(1), as designated by
                            section 10(3)(A) of this Act, by striking ``his
                            periodic review'' and inserting ``periodic
                            review by the Secretary''.
                      (C) Section 7(a)(3) (16 U.S.C. 1536(a)(3)) is amended
                    by striking ``his'' and inserting ``the applicant's''.
                      (D) Section 8(c)(1) (16 U.S.C. 1537(c)(1)) is amended
                    by striking ``his'' and inserting ``the Secretary's''.
                      (E) Section 9 (16 U.S.C. 1538) is amended in
                    subsection (d)(2)(B) and subsection (f) by striking
                    ``his'' each place it appears and inserting ``such
                    person's''.
                      (F) Section 10(b)(3) (16 U.S.C. 1539(b)(3)) is
                    amended by striking ``his'' and inserting ``the
                    Secretary's''.
                      (G) Section 10(d) (16 U.S.C. 1539(d)) is amended by
                    striking ``his'' and inserting ``the''.
                      (H) Section 11 (16 U.S.C. 1540) is amended--
                              (i) in subsection (a)(1) by striking ``his''
                            and inserting ``the Secretary's'';
                              (ii) in subsections (a)(3) and (b)(3) by
                            striking ``his or her'' each place it appears
                            and inserting ``the defendant's'';
                              (iii) in subsection (d) by striking ``his''
                            and inserting ``the officer's or employee's'';
                              (iv) in subsection (e)(3) in the second
                            sentence by striking ``his'' and inserting
                            ``the person's''; and
                              (v) in subsection (g)(1) by striking ``his''
                            and inserting ``the person's''.

    SEC. 19. CLERICAL AMENDMENT TO TABLE OF CONTENTS.

      The table of contents in the first section is amended--
              (1) by striking the item relating to section 5 and inserting
            the following:

    ``Sec. 5. Recovery plans and land acquisition.''
              (2) by striking the items relating to sections 13 through 17
            and inserting the following:

    ``Sec. 13. Private property conservation.
    ``Sec. 14. Public accessibility and accountability.
    ``Sec. 15. Marine Mammal Protection Act of 1972.
    ``Sec. 16. Annual cost analysis by United States Fish and Wildlife
    Service.
    ``Sec. 17. Reimbursement for depredation of livestock by reintroduced
    species.
    ``Sec. 18. Authorization of appropriations.''.

    SEC. 20. CERTAIN ACTIONS DEEMED IN COMPLIANCE.

      (a) Actions Deemed in Compliance.--During the period beginning on the
    date of the enactment of this Act and ending on the date described in
    subsection (b), any action that is taken by a Federal agency, State
    agency, or other person and that complies with the Federal Insecticide,
    Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.) is deemed to
    comply with sections 7(a)(2) and 9(a)(1)(B) of the Endangered Species
    Act of 1973 (16 U.S.C. 1536(a)(2), 1538(a)(1)(B)) (as amended by this
    Act) and regulations issued under section 4(d) of such Act (16 U.S.C.
    1533(d)).
      (b) Termination Date.--The date referred to in subsection (a) is the
    earlier of--
              (1) the date that is 5 years after the date of the enactment
            of this Act; and
              (2) the date of the completion of any procedure required
            under subpart D of part 402 of title 50, Code of Federal
            Regulations, with respect to the action referred to in
            subsection (a).
      (c) Limitation on Application.--This section shall not affect any
    procedure pursuant to part 402 of title 50, Code of Federal
    Regulations, that is required by any court order issued before the date
    of the enactment of this Act.

                              Purpose of the Bill

        The purpose of H.R. 3824 is to amend and reauthorize the
    Endangered Species Act of 1973 to provide greater results
    conserving and recovering listed species, and for other
    purposes.

                      Background and Need for Legislation

        Prior to 1966, authority for wildlife protection rested
    primarily with the States, except where the wildlife was highly
    migratory or where wildlife was taken in violation of State or
    federal law or was transported across State boundaries. In
    response to a concern that various species had become or were
    in danger of becoming extinct, the federal government began to
    enact legislation protecting endangered and threatened fish,
    wildlife and plants. Congress' efforts culminated in 1973 with
    the passage of the Endangered Species Act of 1973 (ESA, Public
    Law 93-205, 16 U.S.C. 1531 et seq.) which has become our
    Nation's strictest and most stringent environmental law. In
    conjunction with the Convention on International Trade in
    Endangered Species of Wild Flora and Fauna, the ESA embodies a
    rigid and comprehensive approach to species protection in the
    United States and throughout the world.
        The ESA was passed by Congress with the intent to protect
    and preserve species that have been identified as threatened or
    endangered. Over the past 32 years more than 1800 species have
    been listed for protection. Under the ESA, the Secretary of the
    Department of the Interior, though the U.S. Fish and Wildlife
    Service, has responsibility for plants, wildlife and inland
    fishes. The Secretary of Commerce through the National Marine
    Fisheries Service, is responsible for implementing the ESA with
    respect to ocean-going fish and marine animals. In addition,
    the Department of Agriculture's Animal and Plant Health
    Inspection Service (APHIS) oversees the import and export of
    endangered species from foreign countries through the Nation's
    ports.
        Once a species is listed as endangered or threatened, ESA
    section 4 requires the relevant Secretary to declare ``critical
    habitat'' for an endangered species which limits uses of the
    declared lands or waters. Different protection standards can be
    issued for threatened species. Section 6 of the ESA authorizes
    the Secretary to enter into cooperative or management
    agreements with States for conservation of listed species.
    Under ESA section 7, federal agencies whose actions (including
    actions authorized, funded or directly carried out by the
    agency) are ``likely to jeopardize the continued existence'' of
    an endangered or threatened species must consult with the
    Secretary. After the consultation, the Secretary is to issue a
    written ``jeopardy opinion'' detailing how the proposed agency
    action affects the species or its critical habitat, and the
    Secretary may suggest reasonable alternatives to the proposed
    action which will not jeopardize the species or its habitat.
    The Secretary may also conclude that the agency action does not
    violate the ESA or results only in `` incidental take'' of the
    species. Section 9 of the ESA prohibits various actions
    regarding the species, including the ``take'' of a species,
    which includes harassment, harm, pursuit, capture or killing.
    Section 7 also establishes the Endangered Species Committee to
    resolve conflicts in the administration of and grant exemptions
    from ESA. Under ESA section 10, the Secretary may permit any
    act that would otherwise violate ESA section 9 for scientific
    purposes or if the ``taking'' of the species is incidental to
    and not the purpose of an otherwise lawful activity.
        The ESA has been marked by conflict, litigation and
    cumbersome processes and failed to produce the goal all
    Americans share, recovering and endangered species. According
    to the U.S. Fish and Wildlife Service, only 10 (or less than
    1%) of the roughly 1300 domestic species listed as endangered
    or threatened have been recovered in the ESA's 34-year history.
    What is the status of the remaining listed species? According
    to the Fish and Wildlife Service data: 39 percent of the ESA's
    listed species are classified as being in ``unknown'' status,
    which could include extinction; 21 percent are classified as
    ``declining;'' 3 percent are classified as ``believed to be
    extinct,'' though they remain on the list; 30 percent are
    classified as ``stable,'' though for many species in this
    category, this classification is a result of corrections to
    original data error, rather than actual accomplishments of the
    ESA; and only 6 percent are classified by the Fish and Wildlife
    Service as ``improving.'' Moreover, according to official Fish
    and Wildlife Service data, 77 percent of all the listed species
    have only achieved somewhere between zero and one quarter of
    their recovery goals.\1\ These are not the statistics of a
    successful law after more than three decades of implementation.
    ---------------------------------------------------------------------------
        \1\ In fairness, this number includes the species in the
    ``unknown'' category because of the inability to gauge their status.
    ---------------------------------------------------------------------------
        H.R. 3824, the Threatened and Endangered Species Recovery
    Act of 2005 (TESRA), will place a new emphasis on conservation
    and recovery, eliminates the dysfunctional critical habitat
    provisions that the last two Administrations have recognized as
    ineffective for conservation, removes the conservation burden
    that has been unfairly imposed on private property owners and
    reestablishes a meaningful distinction between endangered and
    threatened species. It also provides for more transparency in
    the ESA program, accountability, and stronger scientific
    safeguards, improves numerous aspects of the consultation
    program and provides incentives and larger roles for States,
    local governments and Indian tribes.
        Among TESRA's provisions are those aimed at fostering
    recovery of endangered species, drawing not only on those who
    have knowledge and skills essential to guide effective
    conservation efforts but also those who have property or
    livelihoods affected by species--where any successful program
    must be made to work--to foster collaborative rather than
    confrontational recovery programs.
        TESRA provides new tools like Threatened and Endangered
    Species Incentives Program to enlist private property owners as
    allies in species conservation. The bill provides landowners
    who participate in Habitat Conservation Plans assurances
    against surprises. TESRA requires the Secretary of the Interior
    to provide a clear answer for landowners whether a proposed
    property use would violate the ESA. In those cases where there
    is a conflict, TESRA provides for conservation aid that reduces
    the burden of regulation on property owners when use of their
    private property has been restricted for conservation, thus
    ensuring that individual property owners are not forced to
    shoulder the financial burden of conserving endangered and
    threatened species for all Americans.
        Section 4(d) of the ESA authorizes the Secretaries of the
    Interior and Commerce ``by regulation'' to apply to ``any
    threatened species'' any of the prohibitions (most notably the
    ``take'' prohibition) that section 9 of the ESA establishes for
    endangered species. The fundamental purpose of this provision
    is to allow each Secretary to tailor prohibitions for any less
    imperiled threatened species that the ESA automatically applies
    to all of the more imperiled endangered species. While the
    Secretary of Commerce has interpreted this language to mean
    that he or she is to issue individual rules tailoring whatever
    prohibitions are needed to each specific threatened species,
    the Secretary of the Interior has issued a blanket rule that
    applies all of the ESA section 9 prohibitions automatically to
    virtually all of the threatened species whenever they have been
    or will be listed.
        Section 8 of TESRA, as introduced, would have directed the
    Secretaries to take the approach followed by the Secretary of
    Commerce. The provision would have required that the underlying
    intent of ESA section 4(d)--to require the tailoring of, and
    application to, threatened species on a species-specific basis
    any of the general statutory prohibitions for endangered
    species--be accomplished by the elimination of the Secretary of
    the Interior's blanket applicability approach and the
    application of any ESA section 9 prohibitions to any threatened
    species by the issuance of individual rules for particular
    threatened species (or groups of threatened species whose
    specific threats or biological conditions are sufficiently
    similar towarrant application of identical prohibitions). An
    amendment striking TESRA section 8 was adopted when members of the
    Committee pointed out that the problem that section addressed was
    created by a single U.S. Fish and Wildlife Service rule which could be
    remedied by rulemaking without statutory change. The amendment striking
    section 8 was agreed to on that basis. The Committee expects and
    directs the Secretary of the Interior to conduct promptly a rulemaking
    to reconsider and eliminate or restructure the U.S. Fish and Wildlife
    Service rule--50 CFR 17.31(a)--in light of this report and legislative
    history.

                                Committee Action

        Committee on Resources Chairman Richard Pombo (R-CA)
    introduced H.R. 3824 on September 19, 2005, along with
    Congressman Dennis Cardoza (D-CA), Congressman Joe Baca (D-CA),
    Congressman Marion Berry (D-AR), Congressman Henry E. Brown,
    Jr. (R-SC), Congressman Jim Costa (D-CA), Congresswoman Barbara
    Cubin (R-WY), Congressman Jim Gibbons (R-NV), Congressman Sam
    Graves (R-MO), Congresswoman Cathy McMorris (R-WA), Congressman
    George Radanovich (R-CA), Congressman Mike Ross (D-AR),
    Congressman Bennie G. Thompson (D-MS), Congressman Greg Walden
    (R-OR), Congressman Chris Cannon (R-UT), Delegate Madeleine
    Bordallo (D-GU), Congressman Ken Calvert (R-CA), Congresswoman
    Thelma Drake (R-VA), Congressman Rick Renzi (R-AZ), Congressman
    Don Young (R-AK), Congressman Louie Gohmert (R-TX), Congressman
    Henry Bonilla (R-TX), Congressman Tom G. Tancredo (R-CO),
    Congressman Dan Boren (D-OK), Congressman K. Michael Conaway
    (R-TX), Congressman Randy Neugebauer (R-TX), Congressman Daniel
    E. Lungren (R-CA), Congresswoman Marsha Blackburn (R-TN),
    Congressman C.L. ``Butch'' Otter (R-ID), Congressman Mac
    Thornberry (R-TX), Congressman John T. Doolittle (R-CA),
    Congressman Collin C. Peterson (D-MN), Congressman John B.
    Shadegg (R-AZ), Congressman Dennis R. Rehberg (R-MT),
    Congressman Geoff Davis (R-KY), Congressman Ron Lewis (R-KY),
    Congressman John J. Duncan, Jr. (R-TN), Congressman John
    Sullivan (R-OK), Congressman Michael K. Simpson (R-ID),
    Congressman Randy ``Duke'' Cunningham (R-CA), Congressman
    Duncan Hunter (R-CA), Congressman Devin Nunes (R-CA),
    Congressman William M. Thomas (R-CA), Congressman Steve King
    (R-IA), Congressman Darrell E. Issa (R-CA), Congressman Bobby
    Jindal (R-LA), Congressman John E. Peterson (R-PA), Congressman
    Sanford D. Bishop, Jr. (D-GA), Resident Commissioner Luis G.
    Fortuno (R-PR), Congressman J.D. Hayworth (R-AZ), Congressman
    Stevan Pearce (R-NM), Congresswoman Marilyn N. Musgrave (R-CO),
    Congressman Jeff Flake (R-AZ), Congressman Howard P. ``Buck''
    McKeon (R-CA), Delegate Eni F. H. Faleomavaega (D-AS),
    Congressman Charlie Melancon (D-LA), Congressman Mark E. Souder
    (R-IN), Congressman Jack Kingston (R-GA), Congresswoman Jo Ann
    Emerson (R-MO), Congressman Dave Weldon (R-FL), Congressman
    Kevin Brady (R-TX), Congressman Frank D. Lucas (R-OK),
    Congresswoman Virginia Foxx (R-NC), Congressman John Kline (R-
    MN), Congressman David Scott (D-GA), Congressman Dana
    Rohrabacher (R-CA), Congressman Bill Shuster (R-PA),
    Congressman Gary Miller (R-CA), Congressman Michael T. McCaul
    (R-TX), Congressman Wally Herger (R-CA), Congressman Mark R.
    Kennedy (R-MN), Congressman Charlie Norwood (R-GA), Congressman
    William L. Jenkins (R-TN), Congressman Don Sherwood (R-PA),
    Congressman Trent Franks (R-AZ), Congressman John Boozman (R-
    AZ), Congressman Tom Cole (R-OK), Congressman Charles W.
    ``Chip'' Pickering (R-MS), Congressman Joe Barton (R-TX),
    Congressman Solomon P. Ortiz (D-TX), Congressman Spencer Bachus
    (R-AL), Congressman Chet Edwards (D-TX), Congressman Artur
    Davis (D-AL), Congressman Jim Ryun (R-KS), Congressman Richard
    H. Baker (R-LA), Mike Rogers (R-AL), Terry Everett (R-AL),
    Congressman Jo Bonner (R-AL), Congressman Phil Gingrey (R-GA),
    Congressman Robert B. Aderholt (R-AL), Congressman Lamar Smith
    (R-TX), Congressman Mike McIntyre (D-NC), Congressman Robert E.
    ``Bud'' Cramer (D-AL), Congressman Ruben Hinojosa (D-TX),
    Congressman Tom Osborne (R-NE), Congresswoman Ginny Brown-Waite
    (R-FL), Congresswoman Eddie Bernice Johnson (D-TX), and
    Congresswoman Sheila Jackson-Lee (D-TX) (as of the preparation
    of this report).
        The bill was referred to the Committee on Resources. On
    September 21, 2005, the Committee held a hearing on the bill.
    On September 22, 2005, the Committee met to mark up the bill.
    The following amendments were offered:
        Resources Committee Chairman Richard Pombo (R-CA) offered
    an en bloc set of technical amendments to sections 10 and 13 of
    the bill. They were adopted by voice vote.
        Congressman Tom Udall (D-NM) offered an amendment to strike
    the definition of ``best available scientific data'' from
    section 3 of the ESA. The amendment failed by voice vote.
        Congressman Greg Walden (R-OR) offered and withdrew an
    amendment regarding the application of ``jeopardize the
    continued existence.''
        Congresswoman Stephanie Herseth (D-SD) offered and withdrew
    an amendment regarding peer review.
        Congressman Peter DeFazio (D-OR) offered an amendment to
    strike the determination of distinct population of vertebrate
    fish or wildlife only sparingly. The amendment failed by voice
    vote.
        Congressman Jay Inslee (D-WA) offered an amendment to deem
    a species as endangered or threatened if the Secretary of the
    Interior fails to make a determination within 180 days of the
    species being proposed. The amendment failed by voice vote.
        Congressman John E. Peterson (R-PA) offered and withdrew an
    amendment which required the Secretary of the Interior to
    prepare an analysis of the economic impact, the impact on
    national security and other relevant impact of a determination
    that a species is endangered or threatened.
        Congressman Jim Saxton (R-NJ) offered an amendment to
    strike section 5 of the bill (Repeal of Critical Habitat
    Requirements). The amendment failed by voice vote.
        Congressman Jim Saxton offered and withdrew an amendment to
    strike the repeal of the critical habitat requirements under
    section 4 of the ESA and insert instead provisions on
    protection of critical habitat and survival habitat.
        Congressman Mark Udall (D-CO) offered an amendment to
    strike section 8 (Protective Regulations). The amendment was
    adopted by voice vote.
        Congressman Jim Costa (D-CA) offered an amendment to
    section 9 of the bill to include counties along with Governors
    and State agencies in commenting on regulations issued by the
    Secretary of the Interior under section 4 of the ESA. Chairman
    Pombo offered an amendment to the Costa amendment to include
    units of local government. The Pombo amendment to the Costa
    amendment was adopted by unanimous consent. The Costa
    amendment, as amended, was adopted by voice vote.
        Congressman Jim Saxton offered an amendment to strike the
    recovery plan process in section 10 of the bill and replace it
    with a different process. Chairman Richard Pombo offered an
    amendment to the Saxton amendment to strike all the text but
    the requirement that recovery plans be prepared or revised
    within 10 years of the date of enactment of TESRA. The Pombo
    amendment to the Saxton amendment was agreed to by unanimous
    consent. The Saxton amendment, as amended, by adopted by voice
    vote.
        Congressman Edward Markey (D-MA) offered an amendment to
    strike the language in section 10 of the bill regarding the
    regulatory nature of recovery plans. The amendment failed by
    voice vote.
        Congressman Greg Walden offered and withdrew an amendment
    to allow themodification of specific measures in an agreement
    between the Secretary of the Interior and a federal agency after
    considering the direct, indirect and cumulative costs and benefits
    resulting from the implementation of a recovery plan.
        Congressman Jim Costa offered an amendment to section 10 of
    the bill to require the Secretary of the Interior to consult
    with any pertinent State, regional or local land use agency
    before approving a new or revised recovery plan. Chairman Pombo
    offered an amendment to also include the designee of a local
    land use agency. This amendment was adopted by unanimous
    consent. Congressman Rick Renzi (R-AZ) offered an amendment to
    the Costa amendment to include Indian tribes and to provide a
    definition of Indian tribes. This amendment was adopted by
    unanimous consent. The Costa amendment, as amended, was adopted
    by voice vote.
        Congressman Rick Renzi offered an amendment to allow the
    Secretary of the Interior to enter into cooperative agreements
    with Indian tribes under section 11 of the bill. The amendment
    was adopted by voice vote.
        Congressman Raul Grijalva (D-AZ) offered an amendment to
    strike alternative procedures for the federal agency
    consultation requirement under section 7(a)(2) of the ESA. The
    amendment failed by a roll call vote of 12 to 21, as follows:

        Congressman Ken Calvert (R-CA) offered and withdrew an
    amendment which exempted from the ESA section 7(a) requirements
    certain agency action that may affect a species for which a
    permit has been issued under section 10 of the ESA if the
    action implements or is consistent with any conservation plan
    or agreement incorporated by reference in the permit.
        Congressman Dennis Cardoza (D-CA) offered an amendment to
    change from 90 to 180 days the length of time the Secretary of
    the Interior has to respond to a request for a written
    determination of compliance with section 9(a) of the ESA. The
    amendment also provided a sunset for the written determination
    and allowed the Secretary to withdraw the determination under
    certain circumstances. The amendment was adopted by voice vote.
        Chairman Pombo offered an amendment to clarify that the
    request for a written determination of compliance must apply to
    a proposed use which is lawful under State and local law. The
    amendment also required the requestor to send the request by
    certified mail, that the request must describe the lawfulness
    of the proposed action under State and local law, as well as
    demonstrate that the property owner has the means to undertake
    the use, and the request must describe the anticipated adverse
    impact to a species. The amendment also allows the Secretary of
    the Interior to request more information regarding the
    determination and allows the requestor to supply such
    additional information. The amendment was adopted by voice
    vote.
        Congressman Jim Gibbons (R-NV) offered an amendment to
    allow the President, after consulting with the appropriate
    federal agency, to exempt any act or omission from the
    provisions of the ESA if the exemption is necessary for
    national security. The amendment was adopted by voice vote.
        Congressman Jeff Flake (R-AZ) offered and withdrew an
    amendment regarding an exemption from liability for take of
    listed aquatic species.
        Congressman Bobby Jindal (R-LA) offered an amendment to
    authorize the President to suspend the application of the ESA
    in a declared disaster area and directed the Secretary of the
    Interior to issue regulations regarding the application of the
    ESA in the event of an emergency involving a threat to human
    health or safety or to property. The amendment was adopted by
    voice vote.
        Congressman Neil Abercrombie (D-HI) offered an amendment
    providing a definition of ``experimental population.'' The
    amendment was adopted by voice vote.
        Chairman Richard Pombo offered an amendment to section 14
    of the bill to clarify the provisions regarding the
    distribution of aid, including the legality of the foregone use
    which would be subject to aid, the timing of the aid, the
    documentation and calculation of fair market value of the
    foregone use, and the availability of aid. The amendment was
    adopted by voice vote.
        Congressman Jay Inslee offered an amendment to require that
    before any aid can be granted under section 14 of the bill, the
    property owner would also have to demonstrate that the
    application of ESA section 9(a) to prohibit the foregone use
    constitutes a taking of privately owned land for which the
    payment of compensation is required by the 5th Amendment of the
    U.S. Constitution. The amendment failed on a roll call vote of
    10 to 27, as follows:

        Congressman Stevan Pearce (R-NM) offered an amendment
    regarding the reimbursement for depredation of livestock by
    reintroduced species. The amendment was adopted by voice vote.
        Congressman Greg Walden offered an amendment which deemed
    certain actions in compliance with other laws to also be in
    compliance with section 7(a)(2) and section 9(a)(1)(B) of the
    ESA for a period of time. The amendment was adopted by a roll
    call vote of 26 to 11, as follows:

        No additional amendments were offered and H.R. 3824, as
    amended, was ordered favorably reported to the House of
    Representatives by a roll call vote of 26 to 12, as follows:

                          Section-by-Section Analysis

    Section 1. Short title; Table of contents

        Section 1 provides a short title for the bill--``The
    Threatened and Endangered Species Recovery Act of 2005''--and a
    table of contents.

    Section 2. Amendment references

        Section 2 clarifies that, unless otherwise noted, all
    amendments are to the Endangered Species Act of 1973 (16 U.S.C.
    1531 et seq.).

    Section 3. Definitions

        TESRA section 3 establishes a new definition for the ESA
    and directs the Secretaries of the Interior and Commerce to
    provide guidance and direction on the development and use of
    scientific data. The fundamental goal of adding this definition
    is to ensure that sound and defensible science is used in all
    relevant decisions including: a proposed listing or delisting
    of an endangered or threatened species; a proposal to
    reclassify a species from threatened to endangered or vice
    versa; the development of a recovery plan for an endangered or
    threatened species; and a biological opinion on a federal
    agency action.
        Each agency follows a regulatory process to list species as
    threatened or endangered and to conserve or recover a species.
    Currently, the ESA requires ``the best scientific and
    commercial data available'' for listings and other actions.
    However, this term is not defined, and there are no objective
    standards to ensure a uniformly high quality of scientific
    data. Further, many question the cost, magnitude and validity
    of the ESA's requirements and implementation since the ESA has
    produced very limited recovery results. This has led to
    concerns about the adequacy of science supporting
    implementation of actions under the ESA. To address these
    issues, this definition is established and the Secretaries are
    to set standards for the ``best available scientific data''
    that are used to take actions under the ESA.
        TESRA section 3 also provides a new definition of ``permit
    or license applicant'' to replace the old definition that was
    tied to the now-repealed Endangered Species Committee exemption
    process. A permit or license applicant under ESA section 7 is a
    person who has applied to a federal agency for a permit or
    license or for another type of formal legal approval to perform
    an act, such as a bidder on a federal contract.
        TESRA section 3 also defines the term ``jeopardize the
    continued existence'' of an endangered species or threatened
    species. The term is used in ESA section 7, under which federal
    agencies must insure their actions are not likely to jeopardize
    the continued existence of an endangered or threatened species.
    Under this definition, the agency action must reasonably be
    expected to significantly impede, directly or indirectly, the
    conservation of the species in the long-term. This definition
    strengthens the current jeopardy standard by adding to the
    jeopardy analysis consideration of ``conservation,'' defined in
    the ESA as the use of all methods and procedures to restore a
    species to the point where the protections of the ESA are no
    longer necessary. A significant impediment to conservation is
    one that, by itself, makes the future use of such methods and
    procedures unlikely to be successful, thus jeopardizing the
    continued existence of the species and risking its extinction.
    Before an impediment can be considered ``significant,'' there
    must be sufficient scientific basis in existence at the time of
    the consultation, such as a recovery plan if one has been
    prepared under TESRA, to conclude that the conservation is
    possible. As provided by the definitions of ``endangered
    species'' and ``threatened species'' in the current ESA, a
    significant impediment must be likely to frustrate, directly or
    indirectly, conservation throughout all or a significant
    portion of the species' range, not just in one region or
    locality, although for some species an action occurring only in
    one such area could indirectly have significant effects in a
    broader area. In addition to being significant, the harmful
    effects of the agency action must persist over the long term,
    which may vary from species to species. A short-term impediment
    to conservation, no matter how significant, that has no lasting
    long-term effects would not support a jeopardy finding under
    the definition. To find jeopardy, it would be necessary to
    demonstrate that the effects would be likely to create a
    significant long-term threat to the ability to successfully
    conserve the species. Finally, this definition would consider
    only the conservation of the species in the wild, not taking
    into account, for example, captive-breeding programs or the
    maintenance of members of the endangered species or threatened
    species in zoos, aquaria, or other refuges.
        This term, as it appears in section 7 of the current ESA,
    is not defined, and has been implemented by the Secretary
    through regulatory provisions. The term is also accompanied by
    a second standard in section 7 of the current ESA for
    evaluating federal actions destruction or adverse modification
    of critical habitat. Although the greatest threat to endangered
    and threatened species is habitat loss, and protection of
    habitat is a key concern of the ESA, the legal concept of
    critical habitat in the ESA has proven to be poorly understood,
    controversial and difficult to implement, with both the Clinton
    and Bush Administrations speaking out forcefully as to its cost
    in time and money and relative ineffectiveness as a
    conservation tool. Litigation over the concept's meaning and
    application in ESA section 7 has also increased dramatically,
    shifting valuable conservation resources away from on-the-
    ground restoration to often ineffective process costs.
    Reflecting these realities, the concept of critical habitat and
    the second standard in ESA section 7 that incorporates it have
    been dropped. To assure that ESA section 7 continues to give
    broad protection for species and habitats, the new jeopardy
    definition has been added so that, when a future agency action
    is evaluated for risk of jeopardizing the continued existence
    of a species, consideration is given to preserving the
    potential for species' conservation and not just the effect on
    the species' survival. Habitat will continue to be a central
    focus of the analysis under ESA section 7 since ultimate
    conservation of so many endangered and threatened species is
    habitat-dependent. Moreover, the amendments contained in TESRA
    to strengthen the recovery planning process increase the focus
    on habitat, since recovery plans will be required to include
    the identification of habitat that is of special value to the
    conservation of the species. This will able the recovery plan
    to serve a role formerly played by critical habitat to inform
    the public of the importance of key habitat areas.
    Additionally, recovery teams can develop plans that incentivize
    conservation on privately owned lands that have been subject to
    sound land management practices that have benefitted species
    but were never acknowledged under the current regulatory-based
    critical habitat system. Recovery plans can be given the force
    and effect of law if adopted through other existing
    authorities, and federal agencies may enter into implementation
    agreements with the Secretary to enforce recovery plan
    provisions. In any event the recovery plan should inform all
    discretionary decision-making under the ESA even where the
    obligations of the affected agencies or parties differ from the
    standards of a recovery plan. The Secretary's regulations will
    have to be updated to implement the new jeopardy definition in
    the wide range of circumstances that exist among endangered and
    threatened species.

    Section 4. Determinations of endangered species and threatened species

        TESRA section 4 provides that the ``Secretary shall use the
    authority * * * to determine any distinct population of any
    species of vertebrate fish or wildlife to be an endangered
    species or a threatened species only sparingly.'' The Senate
    Report on the 1979 ESA Amendments recognized the ``great
    potential for abuse'' in providing an ability to extend the
    ESA's protections to a ``distinct population,'' and directed
    that this authority be used only ``sparingly.'' S. Rep. No. 96-
    151 at 7 (1979). TESRA elevates that legislative intent to a
    statutory directive.
        The Committee has done so because, despite the intent in
    the U.S. Fish and Wildlife Service's 1996 DPS Policy to
    designate distinct populations only ``sparingly'' (61 Fed.
    Reg.4722-25 (Feb. 7, 1996)), in practice the ``Services have concluded
    that potential populations qualify as a distinct population over 80
    percent of the time.'' Geoffroy and Doyle, Listing Distinct Population
    Segments of Endangered Species: Has It Gone Too Far?, Natural Resources
    & Env't 82, 84 (ABA Fall 2001). The Secretaries need clear direction
    and authority to limit the number of ``distinct populations'' that are
    found and listed. The historic overuse of that authority is diverting
    limited resources from more important ESA goals, is trivializing the
    ESA by protecting less-significant units, and is needlessly increasing
    the conflicts between the ESA and desired human land uses.
        Section 4 of TESRA provides that in evaluating the adequacy
    of existing regulatory mechanisms in making a decision whether
    to list a species as threatened or endangered, the Secretary
    shall consider ongoing conservation efforts described in ESA
    subsection 4, and provides that such efforts include those by
    federal agencies as well as States, local governments and
    foreign nations. The amendment made by this subsection
    clarifies that the ESA subsection 4(b)(1) factors should be
    considered as part of the ESA subsection 4(a)(1) analysis
    rather than separately after consideration of the ESA section
    4(a)(1) factors.

    Section 5. Repeal of critical habitat requirements

        This section repeals the critical habitat provision
    contained in the current ESA. TESRA eliminates critical habitat
    because, according to successive Democratic and Republican
    administrations, the provisions cause nothing but litigation
    and waste resources. The official position of the U.S. Fish and
    Wildlife Service is:
        ``In 30 years of implementing the ESA, the Service has
    found that the designation of statutory critical habitat
    provides little additional protection to most listed species,
    while consuming significant amounts of conservation resources.
    The Service's present system for designating critical habitat
    is driven by litigation rather than biology, limits our ability
    to fully evaluate the science involved, consumes enormous
    agency resources, and imposes huge social and economic costs.
    The consequences of the critical habitat litigation activity is
    that limited listing funds are used to defend active lawsuits
    and to comply with the growing number of adverse court orders.
    As a result, the Service's own proposals to undertake
    conservation actions based on biological priorities are
    significantly delayed.''
        In TESRA, habitat of special value to the conservation of a
    species is identified and included in recovery plans and given
    priority in recovery contracts. Any proposal that would
    initiate a review of an action's effect on habitat will be
    reviewed under TESRA's recovery habitat, as required under the
    ESA section 7 consultation process. This process is described
    in greater detail under section 9 of the bill.

    Section 6. Petitions and procedures for determinations and revisions

        The Secretary's determination that a petition to list a
    species as endangered or threatened may be warranted can only
    be made if the petitioner has provided the Secretary with all
    information cited in the petition. TESRA section 6 also
    modifies the notice provisions to provide that the Governor, as
    well as the appropriate State agency, receives notice of a
    proposed listing determination or revision.
        This section further provides that: (1) a complete record
    of all information concerning the proposed listing
    determination or revision must be made available on a publicly
    available website; (2) the posted information must include any
    status review and information, information referred to in the
    proposed regulation, and all information submitted by third
    parties; and (3) the Secretary must withhold any document
    consistent with the requirements of section 552 of the
    Administrative Procedure Act.
        The section also provides that any withdrawal of a proposed
    listing determination or revision must be accompanied by
    written findings explaining such withdrawal, and clarifies that
    the emergency provisions set forth in ESA section 4 only apply
    to listing determinations and requires that the Governor as
    well as any affected State agencies be given notice. The posted
    information must include any status review and information,
    information referred to in the proposed regulation, and all
    information submitted by third parties. The Secretary must
    withhold any document consistent with the requirements of
    section 552 of the Administrative Procedure Act.

    Section 7. Reviews of listings and determinations

        This section provides that status reviews that propose a
    change in the species status must have taken into consideration
    either: (1) the objective, measurable criteria identified in
    the recovery plan which, if met, would result in a downlisting
    or delisting decision; (2) for species with no recovery plan or
    established downlisting or delisting criteria, the listing
    determination factors under ESA section 4(a); (3) a finding of
    a fundamental error in the initial determination; or (4) a
    determination that the species is no longer an endangered or
    threatened species or in danger of extinction based on an
    analysis of the listing factors under ESA section 4(a).

    Section 8. Secretarial guidelines; State comments

        The ESA has had a more far reaching impact than anticipated
    when signed into law in 1973. It has become clear that the
    impacts and benefits are not just at a State level, but
    actually have trickled down to the local government level. In
    response to growing concerns by county, local and other
    equivalent governments on the need for greater opportunity to
    comment on the actions of the federal government as it manages
    threatened and endangered species, the Committee has extended
    the authority to these groups. The Committee has done this in
    TESRA by adding Governors, counties or units of local
    governments to the provisions of section 4 of the ESA.

    Section 9. Recovery plans and land acquisitions

        Subsections (a) and (b) of section 9 of TESRA expand upon
    and strengthen the ESA's provisions concerning recovery plans.
    In keeping with the more detailed coverage of the recovery
    planning process, section 10 of TESRA moves the recovery plan
    provisions from section 4 of the ESA, which focuses on listing
    and delisting of endangered species and threatened species, to
    a more prominent position at the beginning of ESA section 5. In
    effect, existing ESA section 4(f) would become ESA subsections
    5(a) through (j).
        Among the most significant changes that section 9 of TESRA
    would make to the current ESA recovery planning provisions are
    the following:
        Section 9 would require that, for any species determined to
    be endangered species or threatened species after TESRA's
    enactment, the recovery plan must be prepared within two years
    after the final determination rule.
        Section 9 would require that recovery plans be based on
    ``best available scientific data.'' The current ESA requires
    use of such data in listing species and in consultations on
    federal agency actions, but omits the requirement for recovery
    plans. Given the greater attention paid to recovery plans in
    TESRA, such plans should also be governed by the same data
    standard as applies to species' listings and agency action
    consultations.
        Section 9 also specifies in more detail requirements for
    the contents of recovery plans. The plans must contain
    objective measurable criteria that, when met, would allow
    adetermination to delist the covered endangered species or threatened
    species or to downlist an endangered species to a threatened species.
    Measurable criteria are important because they set the goals for all
    other plan elements. Moreover, if and when such criteria are met, they
    should automatically trigger a downlisting or delisting rulemaking.
    Currently it is difficult to determine in many recovery plans what
    constitutes conditions that would warrant delisting or downlisting, or,
    when the plans do contain measurable criteria and they are met or
    exceeded, the Secretaries fail to take any delisting or downlisting
    action.
        The plans must also contain a description of site-specific
    or other measures that would achieve the criteria, including
    intermediate measures. Again, it is difficult to locate any
    discussion of practical measures in many existing recovery
    plans. Perhaps because they are often prepared by recovery
    teams dominated by academics, many of those plans emphasize
    research, some to the exclusion of any practical measures.
        TESRA would also require that recovery plans contain
    estimates of the time and cost of the plans' recommended
    measures. Too many current plans do not provide realistic
    assessments of the time needed to undertake specific measures;
    some fail even to suggest when such measures should be
    initiated, thus encouraging either a rush to do everything at
    once or delay everything to the later years of the plans'
    terms. Many existing recovery plans also provide ample evidence
    that those who prepared them gave insufficient thought to the
    cost of proposed measures. The new requirements for time and
    cost estimates should remedy these problems and make recovery
    plans far more useful and realistic documents.
        Finally, the recovery plans should identify areas of
    special value for conservation. This requirement for plan
    contents ensures that attention will continue to be paid to the
    covered species' habitat needs, even with the deletion of the
    current ESA's critical habitat provisions. These lands are not
    to be identified for the regulatory purposes that accompanied
    critical habitat. Rather their identification should inform,
    but not dictate, other decisions under the ESA. It is also
    hoped that these lands are given the highest priority in the
    implementation of any landowner incentive programs, including
    those authorized under the ESA currently, those authorized in
    this bill, and any that may be authorized in the future. The
    lands to be identified in any recovery plan should be those
    that are required to meet the delisting or downlisting
    criteria, and secure the delisting or downlisting
    determination, contained in the same plan.
        Section 9 also has additional provisions refining these
    required plan contents. For example, it allows the
    establishment of ``interim criteria'' intended to improve the
    status of the covered species where insufficient best
    scientific data exist to permit a determination of the criteria
    necessary for delisting or downlisting. TESRA requires reviews
    at least every five years of plans containing interim criteria
    to ascertain whether full delisting or downlisting criteria can
    be established. Prompt revision of any plan is required if the
    data are found to be available. For species that occupy more
    than one State, the recovery plans are to contain criteria
    that, when met, would allow delisting or downlisting of the
    portion of the species in each of the States. Related to the
    cost concerns, the bill requires the recovery plans to include,
    whenever possible, alternative measures and the identification
    of the least costly measure among alternative measures of
    comparable efficacy. The plan is also to contain the estimate
    of the cost of acquisition on a willing seller basis of any of
    the identified special value lands. As a transition matter, any
    critical habitat designated prior to the bill's enactment would
    be treated as special value land until the relevant recovery
    plans are drafted or revised.
        Another significant change would be the detail TESRA
    section 9 would add to the recovery team concept. It requires
    the promulgation of regulations to contain criteria for
    establishing recovery teams to prepare recovery plans that are
    diverse (including representatives of constituencies that would
    be affected favorably by the plans' goals of, and contents to
    effect delisting or downlisting, and constituencies that could
    be economically or socially impacted by implementation of those
    goals and contents) and can achieve timely completion of the
    plans. Broadening the teams' membership will ensure those most
    directly affected by the plans have a voice in their
    preparation. They may also supply new insights, particularly
    concerning land and water management constraints and
    opportunities. These additional insights will be particularly
    valuable in devising the recommended measures. Although TESRA
    provides that only scientific members of the recovery teams are
    to establish the delisting or downlisting criteria, any of the
    broader constituencies can select scientists as their
    representatives who would participate in the criteria-setting
    process. The recovery team regulations also are required to
    ensure that the plans are scientifically rigorous and, where
    costs analyses are required, economically rigorous. Finally,
    those regulations are to provide guidelines as to when the
    appointment of recovery teams is unnecessary.
        TESRA section 9 also adds language that will make the
    Secretaries' biennial report to Congress more informative and a
    better gauge of performance under the ESA. Moreover, new
    provisions attempt to make the planning process be more
    transparent and open by providing for review and comment by the
    affected States, Indian tribes, regional or local land use
    agencies, and the public.
        The new recovery plan provisions in section 9(a) of TESRA
    also makes explicit what is implicit in the current ESA section
    4(f) recovery plan language--the intended effect of the
    recovery plan. The paragraph is also fully consistent with
    long-held federal judicial precedent interpreting that intended
    effect. Consistent with Fund for Animals v. Rice, 85 F.3d 534,
    547 (11th Cir. 1996),2 TESRA states that the
    recovery plan does not impose any regulatory requirements on
    federal agencies and nonfederal persons. As stated elsewhere in
    this report, recovery plans are intended to inform, but not
    dictate, relevant decision making under the ESA. That recovery
    plans do not have the force and effect of law not only is the
    law, given the absence of any direction to the contrary in the
    current recovery plan language in current section 4 of the ESA
    and the consistent interpretations by all Administrations and
    by the courts, but also is a matter of practical necessity. As
    a practical matter, the recovery plan cannot have such force
    and effect because it is prepared on the basis of statutory
    standards (both those in the current ESA section 4 and in the
    new section 5 language of TESRA) that are more stringent than
    the statutory standards for most other decisions under the ESA,
    e.g., consultation on federal agency actions under ESA section
    7 and approval of incidental take permits and safe harbor
    agreements under ESA section 10.
    ---------------------------------------------------------------------------
        \2\ ``[T]he practical effect of the Plaintiffs' position would be
    to elevate the * * * Recovery Plan into a document with the force of
    law. We cannot take such an approach. Section [4(f)] makes it plain
    that recovery plans are for guidance only.''
    ---------------------------------------------------------------------------
        The Committee did adopt an amendment that eliminated a
    phrase which stated recovery plans can have no ``effect other
    than as non-binding guidance.'' In point of fact, they can have
    binding effect if a federal agency decides to adopt all or part
    of any specific plans (and the adoption of those provisions
    does not have the effect of exceeding the limits of authority
    provided by the ESA to impose the restrictions that may be
    contained in those provisions, particularly on non-federal
    entities or landowners) or if the nonfederal entities or
    landowners voluntarily choose to adopt such provisions in
    cooperative agreements, habitat conservation plans, safe harbor
    agreements, etc. After such adoption, the conservation plan
    provisions would then become binding either under the ESA or
    under contract law.
        TESRA section 9 also explicitly allows a federal agency to
    agree to undertake particular identified measures in any
    specific recovery plan through an agreement with the Secretary
    of the Interior
    and/or the Secretary of Commerce. Each agreement is to be
    focused on particular measures in a specific recovery plan.
    This provision requires that any recovery plan-
    specificagreement be made subject to public review and comment, and
    that the Federal agency responds to the public comment. Moreover, the
    Committee does not intend that any agreement waive, alter, or encumber
    any public participation, administrative appeal, or due process
    requirements contained in the laws and implementing regulations that
    authorize and govern agency activities covered by the agreement.
        Finally, TESRA section 9 provides for the development of
    priorities and a schedule for development of recovery plans for
    species listed prior to the bill's enactment that do not yet
    have such plans.
        The two landowner incentives programs included in the
    section 9 of TESRA are intended to provide alternative
    mechanisms to those contained in current programs for
    landowners to secure immunity from liability under the ESA
    while providing additional habitat and protection for
    endangered and threatened species on nonfederal lands.
    Currently there are several incentive programs (e.g. the
    habitat conservation planning and incidental take permitting
    process under ESA section 10) that are explicitly authorized,
    and several more incentive programs (e.g. safe harbor
    agreements and candidate conservation agreements) that are not
    authorized by the ESA. There are also landowner incentive
    programs under other statutes, e.g. the Forest Legacy Program.
    The programs established in this bill are not intended to be
    additive. They, instead, are expected to provide a wider array
    of alternatives for landowners who would otherwise have made
    use of the existing programs. The new programs simply provide
    standards and procedures that landowners already inclined to
    enter a landowner incentive program may find better tailored to
    their needs.

    Section 10. Cooperation with States and Indian tribes

        These provisions strengthening ESA section 6 State
    cooperative agreements are responsive to the repeated requests
    of the States, particularly the Western Governors' Association,
    to be accorded the opportunity to participate more actively and
    fully in species conservation efforts. The States'
    participation is critical because they know their residents'
    needs better (and the residents know the States better) than
    the Secretaries of the Interior and Commerce, and,
    consequently, the States are likely to be far more effective in
    enlisting landowners in the cause of species' conservation.
        A number of States, with active encouragement of the
    Secretary of the Interior, are seeking to make greater use of
    the cooperative agreement provisions of ESA section 6. In the
    past many States chose to prepare and submit bare-bones
    cooperative agreements applicable to all listed species within
    their borders. The principal purpose of such agreements was to
    secure Federal funding. Recently several States have prepared
    or are in the process of preparing cooperative agreements for
    particular species that are far more detailed, containing very
    specific land and water management guidance and requirements to
    protect those species. Often these species-specific agreements
    provide for the voluntary enrollment of landowners, who are
    then bound to the agreements' terms by contract. The advantage
    to enrollment is that the landowners secure the protection of
    the incidental take statement that the Secretaries may issue
    after consulting under ESA section 7 on approval of the
    relevant agreement. The broader agreements come under the
    provision of ESA section 6 concerning agreements ``to conserve
    resident species * * * determined by the State agency or the
    Secretary to be endangered or threatened.'' The species-
    specific agreements come under the provision of ESA section 6
    concerning agreements that contain ``plans'' which address
    resident endangered or threatened species'' which the Secretary
    or the State agency agree are most urgently in need of
    conservation programs. These agreements not only secure the
    enlistment of States and landowners in the efforts to conserve
    listed species, but also reduce the strain on the species
    conservation resources available to the Secretaries and Federal
    land management agencies.
        Section 10 of TESRA strengthens and broadens the ESA's
    section 6 conservation agreement authority in several ways.
    First, it encourages agreements to address candidate species by
    providing that the incidental take statement will cover those
    species if and when they are listed. Second, it amends the
    Federal funding provision to authorize the Secretary to provide
    financial assistance for agreements that establish conservation
    programs for the protection of, and are not just limited to
    monitoring, candidate species, as well as other species at risk
    and species that are determined by the Secretary to be
    recovered species and no longer subject to the constraints of
    the ESA.
        Third, TESRA section 10 eliminates a significant barrier to
    the completion and implementation of these agreements. ESA
    section 6 currently requires that these agreements be reviewed
    annually. As each annual review could be considered a Federal
    agency action, the agreements, the States, and the Secretaries
    could become mired in an increasingly larger number of annual
    consultations, particularly if section 10's intended effect of
    stimulating the States to produce multiple cooperative
    agreements is effective. TESRA section 10 addresses this
    problem by changing the annual reviews to triennial reviews,
    and specifying the circumstances in which additional
    consultations must occur on agreements after the initial
    consultations on the agreements' approvals. Those circumstances
    are, in brief, whenever the Secretaries determine, during the
    reviews or on obtaining new information, that the agreements
    may be having any ``adverse effects'' on the covered species
    that had not been considered previously or whenever either
    Secretary approves the renewal or amendment of an agreement
    that covers or affects newly listed species.
        Fourth, TESRA section 10 contains a provision that
    clarifies that any cooperative agreements that call for the
    enrollment of lands or water rights in the agreements'
    conservation programs may not require enrollment and must
    ensure that any enrollment is voluntary.
        Fifth, TESRA section 10 adds provisions to ESA section 6
    that specify procedures for suspension and termination of
    cooperative agreements, including procedures for curing
    deficiencies. The current ESA section 6 is silent as to how the
    Secretaries may address cooperative agreements that no longer
    meet the requirements of ESA section 6 or are found in
    consultations to likely jeopardize the covered species'
    existence.
        Finally, the Committee adopted an amendment to accord to
    Indian tribes the same authority to enter into cooperative
    agreements that ESA section 6 now provides to the States.
    Indian tribes with the capacity and desire to prepare species
    conservation programs should be encouraged to do so. This
    amendment would provide such encouragement.

    Section 11. Interagency cooperation and consultation

        This section of TESRA adds to the current ESA section 7
    language which authorizes the Secretary to adopt by regulations
    alternative procedures to those described in other provisions
    of ESA section 7 to implement ESA section 7's jeopardy standard
    for Federal agency actions. The paragraph has a number of
    safeguards to ensure that the regulations cannot alter the
    jeopardy standard, and that they will require virtually
    equivalent procedures to those in the current ESA provisions
    for agency actions which are likely to adversely affect listed
    species.
        In effect, the Secretaries have already exercised this
    authority in the regulations they adopted in 1986 (50 CFR Part
    402). Under those regulations, over the last two decades
    countless Federal agency actions have been allowed to proceed
    without any ``consultations'' by the Federal action agencies
    with the Secretaries, and without the preparation of any
    biological ``opinion[s]'' by the Secretaries on those actions,
    using the procedures in the regulations for ``informal
    consultation.'' Yet, since 1979, ESA section 7(a)(2) has
    referred to ``consultation'' on ``any [agency] action,'' ESA
    section 7(b)(1) has set deadlines for concluding
    ``consultation'' on``any agency action,'' and ESA section
    7(b)(3) has required the preparation by the ``Secretary'' of a written
    biological ``opinion'' ``after conclusion of consultation under'' ESA
    section 7(a)(2), which is not prepared in an informal consultation.
        The 1986 rules have allowed such informal consultation with
    the Secretaries for all agency actions that the Federal action
    agencies (e.g., Corps of Engineers, Bureau of Land Management,
    Bureau of Reclamation, and Department of Transportation)
    determine are not likely to adversely affect listed species,
    with only a brief written concurrence from the Secretary rather
    than a biological opinion. Moreover, those same regulations
    have excused any communication by an action agency with the
    Secretary for ``no effect'' agency actions. The 1986
    regulations also authorize the further adoption of additional
    regulations that establish other alternative ``consultation''
    procedures for categories of Federal agency actions (50 CFR
    402.04), which the Secretary has done twice.
        The new language added to section 7 puts into the ESA both
    authority to adopt alternative ``consultation'' procedures
    which the Secretary exercised in promulgating in the 1986
    regulations for informal consultation, and authority to devise
    additional alternative ``consultation'' procedures tailored to
    particular agencies or agency actions as exercised twice
    previously. This new language would constrain these alternative
    procedures authorities in several ways. First, it does not
    alter the ESA section 7 substantive jeopardy standard for
    agency actions. Second, it allows the adoption of alternative
    ``consultation'' procedures only by notice-and-comment
    rulemaking, and only by the Secretaries who have the duty to
    protect listed species, not the Federal agencies proposing the
    agency actions. Third, it maintains all the key requirements of
    the current ESA section 7 statutory procedural steps for agency
    actions that may adversely affect listed species.
        Under the current statutory procedures, the only way that a
    Federal action agency (and any applicant for a Federal permit,
    license, funding, etc.) can obtain immunity from adverse
    effects to a listed species caused by an agency action is to
    obtain an incidental take statement from the Secretary under
    ESA section 7(b), after consultation with the Secretary under
    ESA section 7(a) and preparation by the Secretary of a
    biological opinion under ESA section 7(b). Under the new
    paragraph, if any agency action has the likelihood of adversely
    affecting a species, the agency (and the applicant) will still
    have to seek consultation with the Secretary, and the
    Secretary's preparation or concurrence in a biological opinion,
    to obtain the protection of the issuance of an incidental take
    statement. Also, under current ESA law, if the agency action's
    adverse effects are significant enough to fail to meet the ESA
    section 7(a) jeopardy standard, the Federal action agency (and
    applicant) for all intents and purposes only can proceed, and
    only can secure an incidental take statement, if it engages in
    consultation with and obtains a biological opinion from the
    Secretary, and agrees to undertake a ``reasonable and prudent
    alternative'' to the action suggested by the Secretary under
    ESA section 7(b). Under this new language, the same steps--
    consultation, biological opinion, Secretarial suggestion of or
    concurrence in a reasonable and prudent alternative--would have
    to occur and could not be avoided by any alternative procedure
    established under the new language.
        Section 11 of TESRA adds a new provision to ESA section
    7(a) providing that any analysis under ESA section 7(a) shall
    consider only the effects of the proposed agency action under
    review that are distinct from the baseline of effects on the
    relevant species that have occurred or are continuing to occur
    as a result of past human activities or natural events. The ESA
    section 7(a) analysis is to determine the incremental effects
    of a proposed Federal agency action. Federal actions such as
    the ongoing operation of existing facilities cannot be expected
    to compensate for past activities or events in many cases
    occurring long before the ESA was originally enacted. Thus,
    this section provides that a jeopardy finding under ESA section
    7(a) as amended would have to be based only on the incremental
    effects of the proposed action and not on pre-existing
    conditions.
        TESRA would establish a requirement in new ESA section 7(b)
    that any terms and conditions in the Secretary's written
    statement following consultation must be ``roughly
    proportional'' to the extent that the land use activity results
    in incidental take of a species. Similarly, under new ESA
    section 10(a)(3), terms and conditions in a ESA section 10
    incidental take permit and habitat conservation plan must be
    ``roughly proportional'' to developmental impacts on listed
    wildlife. This ``roughly proportional'' language clarifies the
    intent of the two provisions to provide for mitigation of
    project or development impacts. Indeed, the ``roughly
    proportional'' language is modeled after similar language
    contained in the rigorous State of California Endangered
    Species Act (Cal. Fish & Game Code 2052.1, 1081(b)).
        The ``rough proportionality'' language is also intended to
    codify the principle from Dolan v. City of Tigard, 512 U.S.
    374, 391 (1994), in which the Supreme Court recently recognized
    that ``the government may not require a person to give up a
    constitutional right--here the right to receive just
    compensation when property is taken for a public use--in
    exchange for a discretionary benefit conferred by the
    government where the benefit has little or no relationship to
    the property.'' Lingle v. Chevron, U.S.A., 125 S.Ct. 2074, 2087
    (2005) (citing Dolan, 512 U.S. at 385).
        Dolan stands for the proposition that government can only
    demand conditions on land use activity that are tailored to
    address the particular impacts that will accrue from the
    project under review. As the Court stated, ``no precise
    mathematical calculation is required, but the [government] must
    make some sort of individualized determination that the
    required dedication is related both in nature and extent to the
    impact of the proposed development.'' Id. at 391. Under Dolan,
    it is the government's burden to prove ``rough
    proportionality'' between species impacts and the proposed
    development. Accordingly, for purposes of TESRA, the Secretary
    must quantify his or her findings for ESA sections 7 and 10
    terms and conditions as much as possible. The Secretary cannot
    rely on conclusory statements regarding hypothetical impacts of
    a project as justification to impose excessive conditions on
    private land use activities to address the incidental take of
    species. In short, the government must develop a sufficient
    administrative record to justify terms and conditions under the
    ``rough proportionality'' standard.

    Section 12. Exceptions to prohibitions

        In adding paragraph (4)(E) to ESA section 10(a), it is the
    intent of the Committee to confirm the validity of the ``No
    Surprises'' and Permit Revocation regulations that have
    governed ESA section 10(a) permits for the last seven years,
    and to require the inclusion of ``No Surprises'' and Permit
    Revocation assurances in future permits. To this end, new ESA
    section 10(a)(4)(A) through (E) enacts ``No Surprises'' and
    Permit Revocation assurances and requires that these assurances
    be included in all future ESA section 10(a) permits, except
    permits issued for scientific purposes. For ESA section 10(a)
    permits issued before the date of enactment, new ESA section
    10(a)(4)(E) makes clear that the existing ``No Surprises'' and
    Permit Revocation regulations, codified in 50 CFR Parts 17.22
    and 17.32, constitute the governing law pursuant to which
    existing permits will be implemented and enforced.
        Under TESRA, the habitat conservation plan content (HCP)
    requirements--the biological goals, monitoring, and adaptive
    management provisions--are NOT new, but are taken from an
    existing policy implemented in 2000. All three elements of HCPs
    were established in 65 Fed. Reg. 35242-35257 (June 1, 2000)
    (``Notice of Availability of a Final Addendum to the Handbook
    for Habitat Conservation Planning and Incidental Take
    Permitting''). These new statutory requirements are not
    intended to go beyond the existing notice provisions and
    therefore are not more stringent.
        TESRA also amends the ESA section 10(j) provisions to
    advance recovery while respecting property rights and other
    local concerns. Such solutions have been worked out underthe
    existing law, which allows rules for introduced species to be tailored
    to local conditions, and the committee intends to facilitate more such
    solutions. The Committee finds that application of section 10(j) of the
    ESA can provide clear benefits to endangered species as demonstrated by
    the California condor recovery in northern Arizona and southern Utah
    where recovery actions have involved and are supported by States,
    Tribes, local communities, and private landowners. The Committee
    desires to clarify and improve this provision.
        Application of section 10(j) of the ESA requires the
    Secretary to make two determinations before establishing an
    experimental population. Those are: (1) that doing so will
    ``further the conservation'' of the species; and (2) that there
    are no naturally occurring populations of the same species in
    the area where the experimental population is to be
    established. A point of confusion has been the meaning of
    ``population'' when considering appropriateness for
    establishment an experimental population. The Committee
    believes that periodic sightings and even occasional breeding
    are insufficient to be considered a natural population, and
    that such sightings are no bar to the establishment of an
    experimental population.
        Consequently, TESRA revises ESA subsection 10(j)(1) to
    clarify this point of confusion and potential controversy by
    describing the term ``areas occupied by nonexperimental
    populations'' as ``areas characterized by the sustained and
    predictable presence of more than negligible numbers of
    successfully reproducing individuals over a period of many
    years.'' Endangered and threatened species conservation will
    benefit as this clarification will firmly establish those
    circumstances where the section 10(j) provision may be used and
    reduce the potential for conflict which has often resulted in
    litigation.
        TESRA also provides for a written determination of
    compliance provision that would become subsection 10(k) in the
    ESA. This provision affords a property owner the means of
    receiving a final agency determination whether a proposed
    property use would be in violation of the ESA section 9(a)
    prohibitions. The most important of these prohibitions is that
    against the ``take'' of a species. As defined in the ESA,
    ``take'' includes the elements ``harm, harass, pursue, hunt,
    shoot, wound, kill, trap, capture or collect'' with regard to
    an endangered species or, by prohibitions promulgated in
    regulations, of a threatened species. While most of the actions
    that constitute a take require a direct relation between the
    person committing the take and the species the elements
    ``harm'' and ``harass'' may provide for a proximate
    relationship. Babbitt v. Sweet Home Chapter of Communities for
    a Great Oregon, 515 U.S. 687, 713-714, 115 S.Ct. 2407,2420-2421
    (1995). Consequently, a use that a reasonable person might
    conclude as not violating this prohibition may do so.
        TESRA's provision that provides for a written determination
    affords landowners certainty regarding a proposed use of their
    property and, in the case the Secretary determines that the use
    would not comply with the current ESA's prohibitions against
    take of a listed species, it provides for a written
    determination that may serve as the basis for a request for
    conservation aid to offset the burden of conservation measures
    imposed upon the property owner.
        The newly created section 10(k) provides that a property
    owner who desires a determination by the Secretary whether a
    proposed use would violate the ESA's section 9(a) prohibitions
    may request, by certified mail, such a determination provided
    that the property owner describe: (1) the nature, location,
    anticipated schedule and duration of the proposed action; (2)
    lawfulness under State and local law; (3) the property owner's
    means to carry out the proposed use; and (4) anticipated
    adverse impacts to a listed species is expected to occur. Under
    section 10(k)(3) the Secretary may request and the property may
    provide any other information either believes will aid the
    Secretary in making a determination. Section 10(k)(4) provides
    that the Secretary may make no determination if the property
    owner requesting the determination failed to include
    information required under section 10(k)(2) and allows, in such
    a circumstance, that the property owner may resubmit the
    request.
        Provided with the information under section 10(k)(2), the
    Secretary must, pursuant to section 10(k)(5), provide a written
    determination within 180 days unless a written extension is
    granted by the requesting party. The Secretary may extend the
    deadline by 180 days if the Secretary determines that he or she
    cannot make a determination because of seasonal considerations
    which would include such considerations as migration patterns
    and dormancy. If the Secretary fails to issue a determination
    within the required window, pursuant to section 10(k)(6), the
    proposed use is deemed to be in compliance with ESA section
    9(a).
        Subsection 10(k)(8) provides that uses of the property or
    other actions taken in reasonable reliance upon a written
    determination which finds the use would not violate ESA section
    9(a) prohibitions or that are deemed to comply with section
    9(a) based upon the Secretary's failure to respond are not
    subject to liability for violations of ESA section 9.
    Subsection 10(k)(9) limits the time period a landowner can rely
    on the Secretary's determination or failure to respond to ten
    and five years respectively. The Committee intends that
    reasonable reliance tests allows for variation of the proposed
    use when it is undertaken by the property owner so long as the
    nature of the use is essentially of the same scope, scale and
    area as the proposed use.
        Under subsection 10(k)(10) the Secretary may withdraw a
    determination of compliance if, as a result of unforeseen
    circumstances, the continuation of the use would preclude
    conservation measures essential to the survival of an
    endangered or threatened species. This provision accounts for
    the possibility a species was newly discovered to be in the
    area affected by the use or a species that would be affected by
    the use is added to the endangered species list. Such
    withdrawals become effective ten days after a property owner
    has been notified of the withdrawal and make the property owner
    eligible for aid equivalent to the fair market value of the
    foregone use.
        Pursuant to section 10(k)(7), property use that is subject
    to consultation under ESA section 7 consultation cannot be the
    subject of a request for a written determination of compliance
    as the ESA provides an assessment of the effect of an agency
    action on listed species under ESA section 7's consultation
    provisions.
        TESRA provides reasonable requirements to prevent abuse of
    this determination authority. For example, a property owner
    requesting a determination must include basic information about
    the proposed use such as the use's consistency with State and
    local law, the property owner's means to undertake the proposed
    use and any reasonably anticipated adverse impacts to a species
    included on the lists published under the current ESA section
    4(c). Given that this section is provided in large part to
    reduce conservation burdens imposed on private property owners,
    the Committee does not intend for these requirements to impose
    yet another burden on private property owners. Accordingly,
    TESRA neither imposes any requirement on nor provides any
    authority for the Secretary to require a property owner to
    obtain and provide completed State and local permits or
    approval from any other governmental agency to be eligible for
    a written determination. Similarly, TESRA imposes no
    requirement on the property owner nor provides the Secretary
    with authority to require that detailed or extensive financial,
    design or other such information be provided by a property
    owner to demonstrate the means to undertake the proposed use.
    Likewise, in assessing ``anticipated adverse impacts'' TESRA
    does not require nor provides the Secretary with authority to
    require the property owner to provide detailed studies,
    analyses or surveys. Rather, the intent of these provisions is
    to require a good faith effort on behalf of the property owner
    to provide the Secretary with relevant information to make a
    determination.
        Finally, because this provision is intended to assist
    property owners who, in many instances, may not even know of
    the existence of an endangered or threatened species in the
    vicinity or that their particular activity (e.g., farming,
    forestry, home building) may impact anendangered or threatened
    species, the failure of any property owner to request a written
    determination under this subsection should not count against the owner
    in any legal proceeding or permit process.

    Section 13. Private property conservation

        Section 13 of TESRA would replace section 13 of the ESA
    which consists of amendments to other laws that have been
    executed. Section 13 provides two additional mechanisms to the
    ESA, conservation grants and conservation aid. This section
    affirms that the Committee places the conservation of
    endangered and threatened species among the highest of
    priorities and that TESRA evidences the Committee's recognition
    that the burden of carrying the costs of a conservation program
    that is intended to benefit all should not be borne by the few.
    The conservation aid provisions are at the heart of
    improvements the Committee considers essential to modernize and
    update the ESA. It is designed to compensate private property
    owners who have been denied use of their property as evidenced
    by a written determination that the owner's proposed use of the
    property would violate the ESA prohibitions at section 9(a) (or
    a withdrawal of a written determination of compliance).
    Providing such a mechanism not only reflects the societal
    commitment to conservation of endangered and threatened species
    but also reduces the unintended and counterproductive
    consequence of devaluing private property through regulations.
    Without such a provision, the actual effects of a law designed
    to conserve endangered and threatened species can be the
    destruction of habitat or the species itself compelled by the
    potential threat to the value of private property.
        Under new ESA section 13, the Secretary may issue
    conservation grants to promote conservation of endangered
    species and threatened species on private property. This
    authority is intended to complement other tools at the
    Secretary's disposal under the ESA and that would be provided
    by TESRA. Subsection (b) provides basic restrictions on grants
    prohibiting their use to fund litigation, general education,
    general outreach, lobbying or solicitation. It also prohibits
    use of grants for land acquisition or leases or easements of
    more than 50 years and requires that any grant activities
    carried out on private property are supported by the property
    owner. Subsection (c) establishes a priority ranking to guide
    the Secretary's decision to award grants, giving top priority
    to grants that promote conservation of endangered species or
    threatened species on private property while making
    economically beneficial and productive use of the property. The
    Committee's intent is for grants provided under this section of
    TESRA to be directed to producing tangible and direct
    conservation benefits for endangered and threatened species but
    to also allow the Secretary room for ingenuity and creativity
    in forming partnerships with private landowners and others.
        Subsection (d) establishes the eligibility requirements for
    conservation aid that the Secretary provides under TESRA. To be
    eligible, property owners who received a written determination
    indicating the proposed use would violate ESA section 9(a) or
    had written determination of compliance withdrawn under section
    10(k) must request aid with 180 days. Additionally, the
    property owner must have foregone the proposed use or, in the
    case of a withdrawn written determination, terminate activities
    that would fall under the withdrawn compliance determination
    when such withdrawal became effective. Further, the proposed
    use, as in the case of request for a written determination,
    must be one the property owner has the means to carry out and
    the use must be one that would be lawful under State and local
    law. These later requirements reiterate requirements that
    property owners need to meet to receive a written determination
    under section 10(k), and the Committee's intent is identical to
    their applicability under that provision.
        Subsection (f) establishes the means of documenting the
    foregone use, or, alternatively, the mechanism by which the
    Secretary shall acquire an interest in the property. The
    provision provides that the Secretary shall enter into
    negotiations with the property owner regarding the possible
    means of documenting the use which may include contracts,
    leases, easements or acquisition or transfer of title. If the
    agreement is not reached within 60 days of the request for aid,
    then the Secretary must select the means by which foregone use
    will be documented, selecting the means ``with the least impact
    of the ownership interests of the property owner necessary to
    document the use.'' The Committee clearly intends and
    interprets this provision as forbidding the Secretary, after
    failing to reach agreement with the property owner on a means
    of documentation from determining that title transfer will be
    used as the means of documenting the foregone use. Transfer of
    title is excluded as a means of documenting the foregone use as
    it would have the greatest impact on the ownership interests of
    the property owner. While the Committee is unaware of instances
    in which the application of section 9(a) prohibitions has
    resulted in removal of all uses of a property, the option of
    transfer of title is provided during the initial 30 day
    negotiation period. In conjunction with the baseline that the
    aid provided by the Secretary be ``not less than the fair
    market value'' of the foregone use, this provision allows, with
    the property owner's agreement, acquisition of a larger
    interest in the property than would otherwise occur with aid
    equivalent to the fair market value of the use of the affected
    portion of the property which has been foregone.
        Subsection (g) establishes that fair market value of the
    foregone use means what a willing buyer would pay to a willing
    seller in the open market for the affected property interest,
    here the foregone use that is documented under paragraph (f).
    See e.g. U.S. v. Miller, 317 U.S. 369, 374 (1943) (``market
    value is what a willing buyer would pay in cash to a willing
    seller.'') Fair market value should take into account
    reasonably potential uses of the affected property, taking into
    account the likelihood and difficulty of obtaining permits for
    any particular use. Thus, section 13 further states that ``Fair
    market value shall take into account the likelihood that the
    foregone use would be approved under State and local law.''
    Fair market value should also not be affected by the influence
    of the ESA itself. The Supreme Court has held that under the
    ``scope of the project rule,'' determinations of fair market
    value usually do not take into account impacts on value caused
    by the government action that gives rise to the government's
    liability in the first place. See e.g. Almota Farmers Elevator
    & Warehouse Co. v. U. S., 409 U.S. 470, 478 (1973) (``It
    [government] may not take advantage of any depreciation in the
    property taken that is attributable to the project itself.'').
    Thus, the Committee does not intend that a reduced ability to
    use the property because of the direct or indirect influence of
    the ESA should affect the determination of fair market value.
        To establish fair market value, after the means of
    documentation of the foregone use has been determined, the
    Secretary and the property owner are to jointly select two
    licensed independent appraisers. If these appraisers are unable
    to reach resolution as to a fair market value of the foregone
    use within 180 days, a third appraiser is jointly selected by
    the property owner and the Secretary, who establishes the fair
    market value within an additional 90 days. This is binding on
    the Secretary and the property owner.
        Subsection (e) establishes a schedule by which the
    Secretary is to provide aid and grants provided under this
    section. The Secretary is to provide aid within 180 days of the
    request for aid if there are not unresolved issues regarding
    the fair market value or at the resolution of any issues
    regarding fair market value which shall be accomplished in no
    more than 360 days from the date of the request. Aid is paid in
    order of the date of request. Grants are to be paid on the last
    day of the fiscal year.
        Subsection (h) provides a provision to guard against abuse
    of the section by prohibiting a person from receiving aid for
    the same forgone use, on the same property for the same period
    of time, more than once.
        Under subsection (i) annual reports are to be submitted on
    January 15 to the Committee on Resources of the House of
    Representatives and the Environment and Public Works Committee
    of the Senate for all aid and grants paid by the Secretary
    during the previous year.

    Section 14. Public accessibility and accountability

        TESRA's section 14 add a new requirement to the ESA that
    the Secretary maintain a publicly accessible website that
    includes: (1) endangered and threatened species lists; (2) all
    final and proposed endangered and threatened species
    regulations issued under ESA section 4; (3) draft and final
    recovery plans; (4) the results of five year status reviews;
    and (5) all reports and supporting data to Congress required
    under what would be ESA section 5 and the annual cost analyses
    under ESA section 18. Much of this information is provided now
    by the U.S. Fish and Wildlife Service on its Threatened and
    Endangered Species Database System. This provision codifies
    this as a requirement for the Secretary and specifies the
    information to be contained. Given the increased emphasis
    within TESRA on recovery plans and the important role of the
    five-year review provision requiring these materials to be
    easily accessible to the public, this provision is viewed as
    essential by the Committee. In providing these requirements
    within TESRA the Committee's intent is not merely that these
    documents be eventually made available on the website, but that
    preparation of these documents should be done with the intent
    that they become immediately available in electronic format as
    soon as they are complete and finalized. Further, the Committee
    expects that the requirements of this section and TESRA's
    amendments to ESA section 4(b) requiring the Secretary to make
    ``available a complete record of all information concerning the
    determination or revision'' would be addressed in an integrated
    manner with this section's requirements.
        TESRA section 14 provides a new requirement to include on
    the publicly accessible website a database that may be searched
    by the variables contained within the reports to Congress on
    the status of domestic endangered and threatened species and
    efforts to develop and implement recovery plans for these
    species which are required by TESRA's amendment to section 5 of
    the ESA and the annual cost analyses prepared under TESRA's
    section 16. Both of these reports are, with similar parameters,
    required under current law and that information would be
    required to be included in the database as well. This provision
    would merge the largest available data sources on the
    conservation effects of and costs of implementing the ESA into
    one location, providing the public with a greater understanding
    of this conservation program.

    Section 15. Annual cost analyses

        TESRA section 15 modifies the reporting under the current
    ESA section 18 in several ways to provide consistent and more
    comprehensive reporting of costs associated with implementing
    the ESA. The existing law requires the reporting of
    expenditures that are primarily for the conservation of an
    endangered or threatened species on a species by species basis.
    In practice, many costs related to endangered and threatened
    species cannot be easily segregated on a species by species
    basis as conservation measures may benefit more than one
    species. Under this section, federal and State costs that are
    not attributable to a specific species are to be reported.
    Although not currently required by law, such reporting has been
    implemented in recent years as ``other ESA'' expenditures.
    Codifying this practice as a requirement will ensure that more
    comprehensive cost data is provided and that reporting is
    systematic from year to year.
        The Committee intends for this report to provide as
    comprehensive a picture of ESA expenditures as possible so that
    the societal commitment to endangered and threatened species
    conservation can be more accurately tracked. Consistent with
    this, the Committee expects the reporting by federal agencies,
    such as the Forest Service and the Bureau of Land Management,
    to include foregone revenue as the Bonneville Power
    Administration has been consistently reporting.
        TESRA also provides for a requirement to establish a
    prerequisite for eligibility for financial assistance under ESA
    section 6. Under this provision a State must report its
    expenditures on endangered and threatened species, including
    those expenditures that are not attributable to a specific
    species for the previous year, to be eligible for section 6
    funding in the following year. The intent of this provision is,
    again, to provide as comprehensive a picture of ESA
    expenditures as possible. The Committee interprets this
    provision as requiring not only the reporting of costs borne by
    State fish and wildlife agencies or departments of natural
    resources but also those costs borne by other State agencies
    such as transportation departments.
        TESRA also requires the Secretary to provide a means where
    units of local government may, voluntarily, report and certify
    the accuracy of costs attributable to the conservation of
    endangered and threatened species. This provision as well
    reflects the Committee's intent to provide as comprehensive a
    picture of ESA costs as possible and the Committee's
    recognition that many of the costs associated with the ESA are
    borne by local government. The Committee expects that in
    providing the means to electronically report and certify the
    accuracy of these expenditures, the Secretary is to make the
    system user friendly so that local governments are not
    discouraged by an additional burden.

    Section 16. Reimbursement for depredation of livestock by reintroduced
            species

        This section authorizes the Secretary, through the Director
    of the U.S. Fish and Wildlife Service, to reimburse the owner
    of livestock for any loss of such livestock resulting from
    depredation by any population of a species listed under the ESA
    and includes or derives from members of the species that were
    reintroduced into the wild. Eligibility under this section is
    not conditioned on the presentation of the body of any animal
    for which reimbursement is sought. The Secretary is authorized
    to accept and use donations of funds to pay reimbursement under
    this section.

    Section 17. Authorization of appropriations

        This section authorizes such sums as are necessary for
    Fiscal Year 2006 to 2010 for the Secretary of the Interior. It
    also authorizes sums as necessary for Fiscal Year 2006 and 2010
    for the Secretary of Agriculture to carry out functions and
    responsibility of the Department of the Interior with respect
    to the enforcement of the ESA and the convention which pertains
    to the importation of plants.

    Section 18. Miscellaneous technical corrections

        This section makes miscellaneous corrections to other
    portions of the ESA to correct cross references and to conform
    the text with the amendments made by earlier portions of the
    bill, as well as to provide gender neutral references within
    the text of the ESA.

    Section 19. Clerical amendment to table of contents

        This section makes a technical change to conform the table
    of contents of the ESA to changes made in earlier portions of
    this bill.

    Section 20. Certain actions deemed in compliance

        Section 20 of TESRA addresses a significant action taken by
    the Secretaries and the Environmental Protection Agency to
    remedy the alleged failure of the government (and, as
    aconsequence, manufacturers, and farmers, utilities, mosquito control
    districts, and other applicators of pesticides) for over three decades
    to comply with ESA section 7(a)(2) in the registration and use of
    pesticides under the Federal Insecticide, Fungicide and Rodenticide Act
    (FIFRA, 7 U.S.C. 136-136y). ESA section 7(a)(2) requires federal
    agencies to consider, and consult with the Secretaries on the effects
    of federal agency actions on endangered or threatened species. On
    August 5, 2004 (69 Fed. Reg. 47732-47762), following coordination with
    the Environmental Protection Agency and the U.S. Department of
    Agriculture, the Secretaries published a joint rule (50 CFR Part 402,
    Subpart D) establishing procedures to ensure ESA section 7(a)(2)
    compliance for regulatory actions under FIFRA.
        Critics have alleged that the FIFRA pesticide registration
    program has never complied with the requirements of the ESA,
    and that no Administration since the ESA's enactment in 1973
    has developed a program to ensure compliance. Congress
    addressed this problem as early as 1988 when it enacted section
    1010 in the 1988 ESA Amendments Act, which directed all
    involved federal agencies to design a FIFRA/ESA compliance
    program to ``minimize the impacts to persons engaged in
    agricultural food and fiber commodity production.'' Public Law
    100-478, section 1010(b), 102 Stat. 2313-14 (1988), 7 U.S.C.
    136a note. The alleged continued absence of a comprehensive ESA
    compliance program for FIFRA actions has prompted significant
    litigation over the last three years. On January 30, 2004, the
    Secretaries proposed a rule that would establish the
    comprehensive ESA compliance program for FIFRA actions. In a
    bipartisan letter sent to the Secretary of the Interior on June
    25, 2004, 92 members of the House of Representatives praised
    the decision to establish a compliance program and urged prompt
    publication of a final rule, which occurred less than a month
    and a half later.
        The August 5, 2004, rule which established specific
    procedures to ensure that FIFRA actions comply with the ESA
    section 7 consultation requirements was promulgated under the
    authority of the Secretaries' 1986 general consultation
    regulations. The 1986 regulations authorized the development of
    alternative rules focused on certain federal agency actions
    that may benefit from ESA implementation procedures
    specifically tailored to those actions. The new 2004 rule
    constitutes such a focused regulation for ESA compliance on
    FIFRA actions, consistent with the 1988 ESA Amendments Act.
    However, the procedures mandated in the ESA compliance program
    established by the new rule will take some time to complete for
    all registered pesticide products (675 primary products) and
    all listed species.
        Section 20 of TESRA was adopted by the Committee to give
    the affected agencies breathing room to properly implement the
    new rule. It states that, for a specific period of time,
    satisfaction of FIFRA's rigorous requirements for collection
    and submission of scientific data and scientific review of
    ecological risks (including effects on wildlife and ESA listed
    species) will constitute, for registration and use of any
    particular pesticide, compliance with the ESA's consultation
    and ``take'' avoidance requirements. So as to ensure
    expeditious proceedings under the new rule's ESA compliance
    program, the amendment is effective only for a period of five
    years or until the pesticide undergoes those proceedings,
    whichever is earlier. Moreover, TESRA's section 20 states that
    it may not affect any court order or settlement. The Committee
    expects that all of the currently filed litigation should be
    settled or concluded before enactment of TESRA; indeed, half of
    the cases filed to date have already been settled or concluded
    (and orders issued). This section 20 will ensure that use of
    pesticides critical for control of pests, disease vectors, and
    destructive invasive plants and animals, and for protection of
    food and fiber production, will not be terminated or
    compromised, and that manufacturers, and farmers, utilities,
    mosquito control districts, and other users will not be at risk
    of violating one environmental law (ESA) while complying with
    another (FIFRA) during implementation of the 2004 rule adopted
    to remedy the alleged three-decade-long non-compliance by
    federal agencies.

                Committee Oversight Findings and Recommendations

        Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
    rule XIII of the Rules of the House of Representatives, the
    Committee on Resources' oversight findings and recommendations
    are reflected in the body of this report.

                       Constitutional Authority Statement

        Article I, section 8 of the Constitution of the United
    States grants Congress the authority to enact this bill.

                        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. However, clause 3(d)(3)(B)
    of that Rule provides that this requirement does not apply when
    the Committee has included in its report a timely submitted
    cost estimate of the bill prepared by the Director of the
    Congressional Budget Office under section 402 of the
    Congressional Budget Act of 1974.
        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, credit
    authority, or an increase or decrease in revenues or tax
    expenditures. According to the Congressional Budget Office,
    enactment of this bill could total less than $10 million over
    the 2006-2010 time period in direct spending.
        3. General Performance Goals and Objectives. As required by
    clause 3(c)(4) of rule XIII, the general performance goal or
    objective of this bill is to amend and reauthorize the
    Endangered Species Act of 1973 to provide greater results
    conserving and recovering listed species, and for other
    purposes.
        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 received the following cost estimate
    for this bill from the Director of the Congressional Budget
    Office:

    H.R. 3824--Threatened and Endangered Species Recovery Act of 2005

        Summary: H.R. 3824 would amend the Endangered Species Act
    (ESA) and authorize appropriations to the Department of the
    Interior (DOI) and the Department of Agriculture of whatever
    amounts are necessary to carry out the act through 2010. The
    bill also would create new financial assistance programs and
    provide statutory authority for certain other grants and
    cooperative agreements administered by DOI. The legislation
    also would increase direct spending by requiring the Secretary
    of the Interior to pay aid to private landowners who are
    prohibited from using their property under certain
    circumstances.
        CBO estimates that the U.S. Fish and Wildlife Service
    (USFWS) and the Animal and Plant Health Inspection Service
    (APHIS) would spend a total of about $2.7 billion over the
    2006-2010 period to carry out and enforce the ESA as amended by
    this legislation, assuming appropriation of the necessary
    amounts. (That total includes spending from funds already
    appropriated for 2006 and prior years.)
        The cost of providing payment of aid to certain land owners
    is uncertain and would depend on how the legislation would be
    interpreted by the Administration, private property owners, and
    the courts. While CBO cannot predict the impact of the aid
    requirement on the total costs of carrying out the ESA over
    time, we estimate that federal payments over the 2006-2010
    period would likely total less than $10 million because of
    likely delays in resolving conflicting interpretations of the
    law, implementing the necessary administrative mechanisms, and
    processing requests. The costs of those payments the program
    has been fully implemented could be much more significant-
    despite the likely small size of individual payments--because
    the volume of requests could be very large at first. After
    2010, we expect that such payments would probably average less
    than $20 million a year--though annual amounts would likely
    vary significantly from year to year.
        H.R. 3824 contains no intergovernmental or private-sector
    mandates as defined in the Unfunded Mandates Reform Act (UMRA),
    and would impose no significant additional costs on state,
    local, or tribal governments. Some provisions in this bill
    would give state or local governments a greater role in
    carrying out the Endangered Species Act. Any costs they might
    incur in response would be incurred voluntarily.
        Estimated Cost to the Federal Government: The estimated
    discretionary budgetary effects of implementing H.R. 3824 are
    summarized in the following table. The costs of this
    legislation fall within budget function 300 (natural resources
    and environment).

    ------------------------------------------------------------------------
                                    By fiscal year, in millions of dollars--
                                   -----------------------------------------
                                     2005   2006   2007   2008   2009   2010
    ------------------------------------------------------------------------
                        SPENDING SUBJECT TO APPROPRIATION

    ESA Spending Under Current
     Law:
        Budget Authority 1, 2.....    358    379      0      0      0      0
        Estimated Outlays.........    340    350    200    100      0      0
    Proposed Changes:
        Estimated Authorization         0    118    614    630    649    668
         Level....................
        Estimated Outlays.........      0     91    354    453    528    600
    ESA Spending Under H.R. 3765:
        Specified Authorization       358    497    614    630    649    668
         Level \1\................
        Estimated Authorization       340    441    554    553    528    600
         Level....................

                           CHANGES IN DIRECT SPENDING

    Estimated Budget Authority....      0      0      0      0      1      5
    Estimated Outlays.............      0      0      0      0      1     5
    ------------------------------------------------------------------------
    \1\ The 2005 and 2006 levels are the amounts appropriated for USFWS and
      APHIS activities authorized by this bill.
    \2\ Excludes grants to states from the Cooperative Endangered Species
      Fund because the authority to provide such assistance does not expire
      under existing law.

        Amounts in the table include only the costs of ESA
    activities carried out by the USFWS and APHIS. H.R. 3824 would
    not authorize appropriations for ESA programs carried out by
    the National Oceanic and Atmospheric Administration, which is
    responsible for protecting threatened or endangered marine
    species. Also, the activities of other DOI agencies such asthe
    Bureau of Land Management and the Bureau of Reclamation (both of which
    incur significant costs to protect endangered and threatened species on
    lands under their jurisdiction) and the costs of other federal agencies
    who must comply with the ESA are not included in this estimate.
        Basis of estimate: For purposes of this estimate, CBO has
    assumed that H.R. 3824 will be enacted during fiscal year 2006
    and that the entire amounts estimated to be necessary to carry
    out the bill will be appropriated for each of fiscal years 2006
    through 2010. This estimate is based on information provided by
    the Office of Management and Budget, the Department of the
    Interior, nonprofit organizations, and various state agencies.
    Outlays for administrative activities have been estimated on
    the basis of historical spending patterns for ongoing ESA
    programs. Spending rates for new assistance programs under the
    bill reflect expected delays because of the time that would be
    required to promulgate new regulations and develop
    administrative procedures.

    Spending subject to appropriation

        The Congress appropriated $358 million for 2005 and $379
    million for 2006 to carry out ESA activities. CBO estimates
    that, under H.R. 3824, discretionary funding could rise to more
    than $600 million a year.
        Administrative Costs. Although authorizations for funding
    under the ESA expired in 1992, Congress has continued to
    provide funds each year for programs carried out under the act.
    For fiscal year 2005, the Congress provided $234 million for
    traditional ESA activities and programs carried out by the
    USFWS.
        CBO estimates that the USFWS would need additional funding
    of $118 million in fiscal year 2006 and a total of $2.6 billion
    over the 2006-2010 period to carry out its responsibilities as
    the primary agency charged with implementing the ESA (as
    amended by H.R. 3824). In total, this estimated funding level
    is more than double the agency's ESA operating budget in recent
    years. The higher estimated authorization levels reflect the
    costs of developing and administering new financial assistance
    programs, modifying USFWS regulatory procedures to incorporate
    amendments made by the bill, and meeting new planning
    deadlines. We estimate that funding for APHIS, which helps to
    enforce the act, would continue at its existing level of
    roughly $7 million a year.
        The estimated authorization levels for the USFWS include:
               About $240 million a year to carry out
            traditional FWS regulatory programs to identify,
            evaluate, and protect threatened or endangered species,
            develop and implement habitat conservation plans and
            species recovery plans, and consult with other federal
            agencies that carry out, authorize, or fund projects
            that may affect protected species;
               $6 million annually for the implementation
            of the Convention on International Trade in Endangered
            Species (CITES);
               About $115 million a year to implement
            changes to existing ESA programs required by the bill,
            including costs to incorporate new definitions to be
            used in USFWS regulatory procedures, expedite the
            development of recovery plans to reflect new deadlines,
            and establish new financial assistance programs
            mandated by sections 9 and 13 of the bill;
               $2 million in each of fiscal years 2006 and
            2007 to create and maintain an online database of ESA
            information as required by section 14;
               Between $5 million and $10 million annually
            to process requests made by property owners under
            sections 12 and 13 of the bill. Under section 12,
            persons whose land may be home to a protected species
            could request the Secretary of the Interior to provide
            a written determination that a proposed use of that
            property would comply with the ESA. The Secretary would
            have 180 days to make a determination unless an
            extension is negotiated; failure to do so would be
            deemed to be an approval of the proposed use. Section
            13 would allow property owners to apply for aid to
            compensate them for the loss of property value if they
            receive a written determination from the Secretary that
            a proposed land use would not comply with the ESA; and
               $1 million a year to compensate landowners
            for livestock killed by protected species that have
            been reintroduced to the wild as part of a recovery
            plan.
        Discretionary Grants, Cooperative Agreements, and Other
    Assistance. H.R. 3824 would authorize the USFWS to provide
    nonfederal entities with several forms of financial assistance,
    subject to the availability of appropriated funds. The
    assistance programs authorized by the bill would provide annual
    payments to states, local governments, nonprofit organizations,
    and private landowners who assume conservation and planning
    responsibilities under the ESA. The bill also would expand the
    purposes for which state grants from the Cooperative Endangered
    Species Fund (CESF) may be used.
        CBO estimates that the USFWS would need $240 million
    annually to fully fund and administer the grant programs and
    cooperative agreements envisioned by the bill, or about $140
    million more than the amounts appropriated for similar programs
    for fiscal year 2006.

    Direct spending

        Section 13 of the bill would provide an administrative
    procedure for providing payment of aid to landowners whose use
    of their property has been restricted by ESA regulatory
    decisions. CBO expects that enacting this provision would
    result in new direct spending, but the level of such spending
    is uncertain. This provision would direct the Secretary of the
    Interior to make a one-time payment to any landowner who
    requests aid within 180 days of receiving a written
    determination under section 12 of the bill that a proposed use
    of the landowner's property would not comply with the ESA (or
    that a prior, favorable determination has been withdrawn). The
    amount of any payment would be equal to the fair market value
    of the forgone use of the affected portion of the property, as
    determined by an independent appraisal and taking into account
    whether or not the proposed use would have been allowed under
    state and local law. The Secretary would be required to pay the
    landowner within 180 days of receiving the request or within
    180 days of resolving any valuation disputes or other
    conflicts. Such mandatory payments would increase direct
    spending costs.
        CBO estimates that such costs would likely be small over
    the next five years--probably less than $10 million.
        This provision would make it much easier (and cheaper) for
    private landowners to seek and obtain compensation from the
    federal government by allowing them to request such aid
    directly from the Secretary rather than filing a lawsuit
    against the United States (as they must under current law).
        In addition to providing an alternative to litigation, the
    bill would change current law in two important ways that could
    affect how property owners seek, and how the government pays,
    compensation. First, the bill would delineate specific
    standards, definitions, and valuation procedures to be used in
    determining when and what the government is obligated to pay
    when its actions under the ESA prohibit the use of private
    property. Second, the procedure created by section 12 of the
    bill (to allow property owners to obtain written determinations
    permitting or rejecting a proposed use of their property) would
    provide these owners with a definitive agency action that would
    constitute the basis of a claim for compensation if they still
    choose to sue.
        Compensation Under Current Law. Under existing law, persons
    who wish to seek compensation for property that they believe
    has been adversely affected by a government action (including
    administration of the ESA) usually must do so through
    litigation--generally in the United States Court of Claims.
        The process is time-consuming and expensive. In order for a
    property owner to sue for compensation, he or she must first
    overcome the costly administrative hurdle of seeking and being
    denied an incidental take statement or obtaining some other
    regulatory determination from the government. Property owners
    who pursue such claims can wait years before their cases are
    heard. Decisions unfavorable to the government have been rare
    in the past because of the high loss thresholds and other
    valuation hurdles that the landowner must overcome before the
    courts will award compensation, and the government often
    appeals such awards. Because the costs of obtaining the
    necessary permit denial and associated legal costs are greater
    than most property owners can afford, relatively few
    compensation claims are brought against the United States
    (although there has been a steady increase in the past decade).
    Those cases that are brought typically involve relatively large
    claims ($100,000 to more than $100 million) and are usually
    brought by corporations or other large property owners. Such
    claims can require more than a decade to resolve. Smaller
    claims are rarely pursued because small landowners are unable
    to obtain the necessary permit denials or other agency
    decisions, cannot afford to sue the government, or would not
    expect to receive enough compensation to justify the
    substantial expense of attorneys and scientific experts.
        Compensation Under H.R. 3824. The creation of an
    administrative forum would make it much easier for private
    property owners to seek reimbursement when they are prohibited
    from using their property as a result of ESA regulations.
    Although the number of administrative claims could be quite
    large at first, CBO expects that relatively few or no payments
    would be made over the next several years because of the time
    required to implement the necessary procedures and make other
    case-by-case determinations. For example, no request could be
    processed under section 13 until the landowner receives a
    written determination against his or her proposed use under
    section 12, and CBO expects that it would take the USFWS one or
    two years to establish the administrative mechanisms needed to
    implement section 12 and begin processing the first requests
    for written determinations. Only then would landowners who
    receive notice that their proposed use is prohibited be able to
    request aid under section 13. Such landowners would likely face
    similar delays at this stage of the process, especially in the
    early years of the program, while the agency determines the
    property interest affected by its earlier decision and the fair
    market value of that interest.
        Once the aid program has been fully implemented, total
    payments to landowners would almost certainly be greater than
    the costs of compensating individuals who bring suit under
    existing law (particularly since there are so few such claims
    at present). CBO expects thatmost aid payments eventually made
    by the government would be relatively small (often as little as a few
    thousand dollars) because the vast majority of aid requests would
    likely involve small parcels of land or some minor fraction (``affected
    portion'') of larger tracts. However, the agency may face a large
    volume of requests, at least initially, because the availability of an
    administrative process would make it economically feasible for small
    landowners who often cannot afford to sue the government under existing
    legal avenues to seek compensation.
        We expect that it would be difficult for landowners to
    receive aid for larger claims above $1 million under the
    section 13 process because most larger land-use projects would
    be ineligible to receive written determinations under section
    12.
        After 2010, CBO estimates that payments would average less
    than $20 million a year. Such payments could vary significantly
    from year to year.
        CBO expects that civil litigation would increase as a
    result of H.R. 3824, at least in the short run, because many
    requests for aid would likely involve conflicting
    interpretations of the statute that could require the courts to
    resolve. Moreover, we expect that smaller landowners who choose
    to sue the government rather than apply for aid under section
    13 would find it easier to do so because they would be able to
    use the written determination prohibiting their proposed use as
    a basis for their claims. CBO cannot predict the outcomes of
    any lawsuits that might be brought as a result. Even if the
    government would ultimately lose more lawsuits as a result of
    the legislation, additional compensation costs would probably
    be minimal in the 2006-2010 period because claims would take
    several years to resolve. We expect that the effect on the
    number of larger claims would be less significant for the same
    reasons that we expect larger requests for aid to be
    unsuccessful.
        Intergovernmental and private-sector impact: H.R. 3824
    contains no intergovernmental or private-sector mandates as
    defined in UMRA, and would impose no significant additional
    costs on State, local, or tribal governments. Some provisions
    in this bill would give state and local governments a greater
    role in carrying out the ESA. Any costs they might incur in
    response would be incurred voluntarily.
        Estimate prepared by: Federal Costs: Deborah Reis. Impact
    on State, Local, and Tribal Governments: Marjorie Miller.
    Impact on the Private Sector: Selena Caldera.
        Estimate approved by: Peter H. Fontaine, Deputy Assistant
    Director for Budget Analysis.

                        Compliance With Public Law 104-4

        This bill contains no unfunded mandates.

                    Preemption of State, Local or Tribal Law

        This bill is not intended to preempt any State, local or
    tribal law.

             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

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

                               TABLE OF CONTENTS

    Sec. 2. Findings, purposes, and policy.
         * * * * * * *
    [Sec. 5. Land acquisition.]
    Sec. 5. Recovery plans and land acquisition.
         * * * * * * *
    [Sec. 13. Conforming amendments.
    [Sec. 14. Repealer.
    [Sec. 15. Authorization of appropriations.
    [Sec. 16. Effective date.
    [Sec. 17. Marine Mammal Protection Act of 1972.]
    Sec. 13. Private property conservation.
    Sec. 14. Public accessibility and accountability.
    Sec. 15. Marine Mammal Protection Act of 1972.
    Sec. 16. Annual cost analysis by United States Fish and Wildlife
              Service.
    Sec. 17. Reimbursement for depredation of livestock by reintroduced
              species.
    Sec. 18. Authorization of appropriations.

               *       *       *       *       *       *       *

                                  DEFINITIONS

      Sec. 3. For the purposes of this Act--
      (1) * * *
      (2)(A) The term ``best available scientific data'' means
    scientific data, regardless of source, that are available to
    the Secretary at the time of a decision or action for which
    such data are required by this Act and that the Secretary
    determines are the most accurate, reliable, and relevant for
    use in that decision or action.
      (B) Not later than one year after the date of the enactment
    of the Threatened and Endangered Species Recovery Act of 2005,
    the Secretary shall issue regulations that establish criteria
    that must be met to determine which data constitute the best
    available scientific data for purposes of subparagraph (A).
      (C) If the Secretary determines that data for a decision or
    action do not comply with the criteria established by the
    regulations issued under subparagraph (B), do not comply with
    guidance issued under section 515 of the Treasury and General
    Government Appropriations Act, 2001 (Public Law 106-554; 114
    Stat. 2763A-171) by the Director of the Office of Management
    and Budget and the Secretary, do not consist of any empirical
    data, or are found in sources that have not been subject to
    peer review in a generally acceptable manner--
              (i) the Secretary shall undertake the necessary
            measures to assure compliance with such criteria or
            guidance; and
              (ii) the Secretary may--
                      (I) secure such empirical data;
                      (II) seek appropriate peer review; and
                      (III) reconsider the decision or action based
                    on any supplemental or different data provided
                    or any peer review conducted pursuant to this
                    subparagraph.
      [(2)] (3) The term ``commercial activity'' means all
    activities of industry and trade, including, but not limited
    to, the buying or selling of commodities and activities
    conducted for the purpose of facilitating such buying and
    selling: Provided, however, That it does not include
    exhibitions of commodities by museums or similar cultural or
    historical organizations.
      [(3)] (4) The terms ``conserve,'' ``conserving,'' and
    ``conservation'' mean to use and the use of all methods and
    procedures which are necessary to bring any endangered species
    or threatened species to the point at which the measures
    provided pursuant to this Act are no longer necessary. Such
    methods and procedures include, but are not limited to, all
    activities associated with scientific resources management such
    as research, census, law enforcement, habitat acquisition and
    maintenance, propagation, live trapping, and transplantation,
    and, in the extraordinary case where population pressures
    within a given ecosystem cannot be otherwise relieved, may
    include regulated taking.
      [(4)] (5) The term ``Convention'' means the Convention on
    International Trade in Endangered Species of Wild Fauna and
    Flora, signed on March 3, 1973, and the appendices thereto.
      [(5)(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.]

               *       *       *       *       *       *       *

      (11) The term ``jeopardize the continued existence'' means,
    with respect to an agency action (as that term is defined in
    section 7(a)(2)), that the action reasonably would be expected
    to significantly impede, directly or indirectly, the
    conservation in the long-term of the species in the wild.
      [(12) The term ``permit or license applicant'' means, when
    used with respect to an action of a Federal agency for which
    exemption is sought under section 7, any person whose
    application to such agency for a permit or license has been
    denied primarily because of the application of section 7(a) to
    such agency action.]
      (12) The term ``permit or license applicant'' means, when
    used with respect to an action of a Federal agency that is
    subject to section 7(a) or (b), any person that has applied to
    such agency for a permit or license or for formal legal
    approval to perform an act.

               *       *       *       *       *       *       *

          [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)(A) The Secretary, by regulation promulgated in
    accordance with subsection (b) and to the maximum extent
    prudent and determinable--
              [(i) 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
              [(ii) may, from time-to-time thereafter as
            appropriate, revise such designation.
      [(B)(i) The Secretary shall not designate as critical habitat
    any lands or other geographical areas owned or controlled by
    the Department of Defense, or designated for its use, that are
    subject to an integrated natural resources management plan
    prepared under section 101 of the Sikes Act (16 U.S.C. 670a),
    if the Secretary determines in writing that such plan provides
    a benefit to the species for which critical habitat is proposed
    for designation.
      [(ii) Nothing in this paragraph affects the requirement to
    consult under section 7(a)(2) with respect to an agency action
    (as that term is defined in that section).
      [(iii) Nothing in this paragraph affects the obligation of
    the Department of Defense to comply with section 9, including
    the prohibition preventing extinction and taking of endangered
    species and threatened species.]

           DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

      Sec. 4. (a) In General.--(1) The Secretary shall by
    regulation promulgated in accordance with subsection (b)
    determine whether any species is an endangered species or a
    threatened species because of any of the following factors:
              (A) The present or threatened destruction,
            modification, or curtailment of its habitat or range by
            human activities, competition from other species,
            drought, fire, or other catastrophic natural causes.
              (B) Overutilization for commercial, recreational,
            scientific, or educational purposes.
              (C) Disease or predation.
              (D) The inadequacy of existing regulatory mechanisms,
            including any efforts identified pursuant to subsection
            (b)(1).
              (E) Other natural or manmade factors affecting its
            continued existence.
      (2) The Secretary shall use the authority provided by
    paragraph (1) to determine any distinct population of any
    species of vertebrate fish or wildlife to be an endangered
    species or a threatened species only sparingly.
      (b) Basis for 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] best available scientific data after conducting a review
    of the status of the species and after taking into account
    those efforts, if any, being made by any Federal agency, 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.
      [(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, the impact on national
    security, 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 outweigh 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)] (2)(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. The Secretary shall not make a finding
    that the petition presents substantial scientific or commercial
    information indicating that the petitioned action may be
    warranted unless the petitioner provides to the Secretary a
    copy of all information cited in the petition.
              * * * * * * *
      [(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)] (3) 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)] (4) With respect to any regulation proposed by the
    Secretary to implement a [determination, designation, or
    revision referred to in subsection (a)(1) or (3)] determination
    referred to in subsection (a)(1), the Secretary shall--
              (A) not less than 90 days before the effective date
            of the regulation--
                      (i) publish a general notice and the complete
                    text of the proposed regulation in the Federal
                    Register[, and];
                      (ii) give actual notice of the proposed
                    regulation (including the complete text of the
                    regulation) [to the State agency in] to the
                    Governor of, and 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] such Governor or agency, and each such
                    jurisdiction, thereon; and
                      (iii) maintain, and shall make available, a
                    complete record of all information concerning
                    the determination or revision in the possession
                    of the Secretary, on a publicly accessible
                    website on the Internet, including an index to
                    such information.
              (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] the
            Secretary deems appropriate;
              * * * * * * *
      [(6)] (5)(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.]
              (i) a final regulation to implement such a
            determination of whether a species is an endangered
            species or a threatened species;
              (ii) notice that such one-year period is being
            extended under subparagraph (B)(i); or
              (iii) notice that the proposed regulation is being
            withdrawn under subparagraph (B)(ii), together with the
            finding on which such withdrawal is based.
      (B)(i) If the Secretary finds with respect to a proposed
    regulation referred to in [subparagraph (A)(i)] subparagraph
    (A) 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)] subparagraph (A) 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] the Secretary determines that
    sufficient new information is available to warrant such
    proposal.

               *       *       *       *       *       *       *

      [(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)] (6) Neither paragraph (4), (5), or (6) of this
    subsection nor section 553 of title 5, United States Code,
    shall apply to any regulation with respect to a determination
    of a species to be an endangered species or a threatened
    species 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] the Governor of, and 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] the
    Secretary, that substantial evidence does not exist to warrant
    such regulation, [he] the Secretary shall withdraw it.
      [(8)] (7) 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.].
      (8)(A) Information maintained and made available under
    paragraph (5)(A)(iii) shall include any status review, all
    information cited in such a status review, all information
    referred to in the proposed regulation and the preamble to the
    proposed regulation, and all information submitted to the
    Secretary by third parties.
              (B) The Secretary shall withhold from public review
            under paragraph (5)(A)(iii) any information that may be
            withheld under 552 of title 5, United States Code.
      (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] the Secretary to be
    endangered species and a list of all species determined by [him
    or the Secretary of Commerce] the Secretary to be threatened
    species. Each list shall refer to the species contained therein
    by scientific and common name or names, if any and, specify
    with respect to such species over what portion of its range it
    is endangered or threatened[, and specify any 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 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).]
      (2)(A) The Secretary shall--
                      (i) conduct, at least once every 5 years,
                    based on the information collected for the
                    biennial reports to the Congress required by
                    paragraph (3) of subsection (f), a review of
                    all species included in a list that is
                    published pursuant to paragraph (1) and that is
                    in effect at the time of such review; and
                      (ii) determine on the basis of such review
                    and any other information the Secretary
                    considers relevant whether any such species
                    should--
                              (I) be removed from such list;
                              (II) be changed in status from an
                            endangered species to a threatened
                            species; or
                              (III) be changed in status from a
                            threatened species to an endangered
                            species.
              (B) Each determination under subparagraph (A)(ii)
            shall be made in accordance with subsections (a) and
            (b).
      (3) Each determination under paragraph (2)(B) shall consider
    one of the following:
              (A) Except as provided in subparagraph (B) of this
            paragraph, the criteria in the recovery plan for the
            species required by section 5(c)(1)(A) or (B).
              (B) If the recovery plan is issued before the
            criteria required under section 5(c)(1)(A) and (B) are
            established or if no recovery plan exists for the
            species, the factors for determination that a species
            is an endangered species or a threatened species set
            forth in subsections (a)(1) and (b)(1).
              (C) A finding of fundamental error in the
            determination that the species is an endangered
            species, a threatened species, or extinct.
              (D) A determination that the species is no longer an
            endangered species or threatened species or in danger
            of extinction, based on an analysis of the factors that
            are the basis for listing under section 4(a)(1).
      (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.
      [(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 developing
    and implementing recovery plans, shall, to the maximum extent
    practicable--
              [(A) give priority to those endangered species or
            threatened species, without regard to taxonomic
            classification, that are most likely to benefit from
            such plans, particularly those species that are, or may
            be, in conflict with construction or other development
            projects or other forms of economic activity;
              [(B) incorporate in each plan--
                      [(i) a description of such site-specific
                    management actions as may be necessary to
                    achieve the plan's goal for the conservation
                    and survival of the species;
                      [(ii) objective, measurable criteria which,
                    when met, would result in a determination, in
                    accordance with the provisions of this section,
                    that the species be removed from the list; and
                      [(iii) estimates of the time required and the
                    cost to carry out those measures needed to
                    achieve the plan's goal and to achieve
                    intermediate steps toward that goal.
      [(2) The Secretary, in developing and implementing recovery
    plans, may procure the services of appropriate public and
    private agencies and institutions and other qualified persons.
    Recovery teams appointed pursuant to this subsection shall not
    be subject to the Federal Advisory Committee Act.
      [(3) The Secretary shall report every two years to the
    Committee on Environment and Public Works of the Senate and the
    Committee on Merchant Marine and Fisheries of the House of
    Representatives on the status of efforts to develop and
    implement recovery plans for all species listed pursuant to
    this section and on the status of all species for which such
    plans have been developed.
      [(4) The Secretary shall, prior to final approval of a new or
    revised recovery plan, provide public notice and an opportunity
    for public review and comment on such plan. The Secretary shall
    consider all information presented during the public comment
    period prior to approval of the plan.
      [(5) Each Federal agency shall, prior to implementation of a
    new or revised recovery plan, consider all information
    presented during the public comment period under paragraph (4).
      [(g) 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 of subsection (b) of this section to prevent
    a significant risk to the well being of any such recovered
    species.]
      [(h) Agency] (f) Secretarial Guidelines.--The Secretary shall
    establish, and publish in the Federal Register, agency
    guidelines to insure that [the purposes of this section are
    achieved] this section is implemented 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) the criteria for determining best available
            scientific data pursuant to section 3(2); and
              [(4)] (5) a system for developing and implementing,
            on a priority basis, recovery plans under [subsection
            (f) of this section] section 5.
    The Secretary shall provide to the public notice of, and
    opportunity to submit written comments on, any guideline
    (including any amendment thereto) proposed to be established
    under this subsection.
      [(i)] (g) Comments.--If, in the case of any regulation
    proposed by the Secretary under the authority of this section,
    [a State agency] a Governor, State agency, county (or
    equivalent jurisdiction), or unit of local government 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] a Governor, State agency, county
    (or equivalent jurisdiction), or unit of local government under
    subsection (b)(3), the Secretary shall submit to [the State
    agency] the Governor, State agency, county (or equivalent
    jurisdiction), or unit of local government, respectively a
    written justification for [his] the failure to adopt
    regulations consistent with the [agency's] comments or
    petition.

                               [LAND ACQUISITION

      [Sec. 5.]

                      RECOVERY PLANS AND LAND ACQUISITION

      Sec. 5. (a) Recovery Plans.--The Secretary shall, in
    accordance with this section, develop and implement a plan (in
    this subsection referred to as a ``recovery plan'') for the
    species determined under section 4(a)(1) to be an endangered
    species or a threatened species, unless the Secretary finds
    that such a plan will not promote the conservation and survival
    of the species.
      (b) Development of Recovery Plans.--(1) Subject to paragraphs
    (2) and (3), the Secretary, in developing recovery plans,
    shall, to the maximum extent practicable, give priority to
    those endangered species or threatened species, without regard
    to taxonomic classification, that are most likely to benefit
    from such plans, particularly those species that are, or may
    be, in conflict with construction or other development projects
    or other forms of economic activity.
      (2) In the case of any species determined to be an endangered
    species or threatened species after the date of the enactment
    of the Threatened and Endangered Species Recovery Act of 2005,
    the Secretary shall publish a final recovery plan for a species
    within 2 years after the date the species is listed under
    section 4(c).
      (3)(A) For those species that are listed under section 4(c)
    on the date of enactment of the Threatened and Endangered
    Species Recovery Act of 2005 and are described in subparagraph
    (B) of this paragraph, the Secretary, after providing for
    public notice and comment, shall--
              (i) not later than 1 year after such date, publish in
            the Federal Register a priority ranking system for
            preparing or revising such recovery plans that is
            consistent with paragraph (1) and takes into
            consideration the scientifically based needs of the
            species; and
              (ii) not later than 18 months after such date,
            publish in the Federal Register a list of such species
            ranked in accordance with the priority ranking system
            published under clause (i) for which such recovery
            plans will be developed or revised, and a tentative
            schedule for such development or revision.
      (B) A species is described in this subparagraph if--
              (i) a recovery plan for the species is not published
            under this Act before the date of enactment of the
            Threatened and Endangered Species Recovery Act of 2005
            and the Secretary finds such a plan would promote the
            conservation and survival of the species; or
              (ii) a recovery plan for the species is published
            under this Act before such date of enactment and the
            Secretary finds revision of such plan is warranted.
      (C)(i) The Secretary shall, to the maximum extent
    practicable, adhere to the list and tentative schedule
    published under subparagraph (A)(ii) in developing or revising
    recovery plans pursuant to this paragraph.
      (ii) The Secretary shall provide the reasons for any
    deviation from the list and tentative schedule published under
    subparagraph (A)(ii), in each report to the Congress under
    subsection (e).
      (4) The Secretary, using the priority ranking system required
    under paragraph (3), shall prepare or revise such plans within
    10 years after the date of the enactment of the Threatened and
    Endangered Species Recovery Act of 2005.
      (c) Plan Contents.--(1)(A) Except as provided in subparagraph
    (E), a recovery plan shall be based on the best available
    scientific data and shall include the following:
              (i) Objective, measurable criteria that, when met,
            would result in a determination, in accordance with
            this section, that the species to which the recovery
            plan applies be removed from the lists published under
            section 4(c) or be reclassified from an endangered
            species to a threatened species.
              (ii) A description of such site-specific or other
            measures that would achieve the criteria established
            under clause (i), including such intermediate measures
            as are warranted to effect progress toward achievement
            of the criteria.
              (iii) Estimates of the time required and the costs to
            carry out those measures described under clause (ii),
            including, to the extent practicable, estimated costs
            for any recommendations, by the recovery team, or by
            the Secretary if no recovery team is selected, that any
            of the areas identified under clause (iv) be acquired
            on a willing seller basis.
              (iv) An identification of those specific areas that
            are of special value to the conservation of the
            species.
      (B) Those members of any recovery team appointed pursuant to
    subsection (d) with relevant scientific expertise, or the
    Secretary if no recovery team is appointed, shall, based solely
    on the best available scientific data, establish the objective,
    measurable criteria required under subparagraph (A)(i).
      (C)(i) If the recovery team, or the Secretary if no recovery
    team is appointed, determines in the recovery plan that
    insufficient best available scientific data exist to determine
    criteria or measures under subparagraph (A) that could achieve
    a determination to remove the species from the lists published
    under section 4(c), the recovery plan shall contain interim
    criteria and measures that are likely to improve the status of
    the species.
      (ii) If a recovery plan does not contain the criteria and
    measures provided for by clause (i) of subparagraph (A), the
    recovery team for the plan, or by the Secretary if no recovery
    team is appointed, shall review the plan at intervals of no
    greater than 5 years and determine if the plan can be revised
    to contain the criteria and measures required under
    subparagraph (A).
      (iii) If the recovery team or the Secretary, respectively,
    determines under clause (ii) that a recovery plan can be
    revised to add the criteria and measures provided for under
    subparagraph (A), the recovery team or the Secretary, as
    applicable, shall revise the recovery plan to add such criteria
    and measures within 2 years after the date of the
    determination.
      (D) In specifying measures in a recovery plan under
    subparagraph (A), a recovery team or the Secretary, as
    applicable, shall--
              (i) whenever possible include alternative measures;
            and
              (ii) in developing such alternative measures, the
            Secretary shall seek to identify, among such
            alternative measures of comparable expected efficacy,
            the alternative measures that are least costly.
      (E) Estimates of time and costs pursuant to subparagraph
    (A)(iii), and identification of the least costly alternatives
    pursuant to subparagraph (D)(ii), are not required to be based
    on the best available scientific data.
      (2) Any area that, immediately before the enactment of the
    Threatened and Endangered Species Recovery Act of 2005, is
    designated as critical habitat of an endangered species or
    threatened species shall be treated as an area described in
    subparagraph (A)(iv) until a recovery plan for the species is
    developed or the existing recovery plan for the species is
    revised pursuant to subsection (b)(3).
      (d) Recovery Teams.--(1) The Secretary shall promulgate
    regulations that provide for the establishment of recovery
    teams for development of recovery plans under this section.
      (2) Such regulations shall--
              (A) establish criteria and the process for selecting
            the members of recovery teams, and the process for
            preparing recovery plans, that ensure that each team--
                      (i) is of a size and composition to enable
                    timely completion of the recovery plan; and
                      (ii) includes sufficient representation from
                    constituencies with a demonstrated direct
                    interest in the species and its conservation or
                    in the economic and social impacts of its
                    conservation to ensure that the views of such
                    constituencies will be considered in the
                    development of the plan;
              (B) include provisions regarding operating procedures
            of and recordkeeping by recovery teams;
              (C) ensure that recovery plans are scientifically
            rigorous and that the evaluation of costs required by
            paragraphs (1)(A)(iii) and (1)(D) of subsection (c) are
            economically rigorous; and
              (D) provide guidelines for circumstances in which the
            Secretary may determine that appointment of a recovery
            team is not necessary or advisable to develop a
            recovery plan for a specific species, including
            procedures to solicit public comment on any such
            determination.
      (3) The Federal Advisory Committee Act (5 App. U.S.C.) shall
    not apply to recovery teams appointed in accordance with
    regulations issued by the Secretary under this subsection.
      (e) Reports to Congress.--(1) The Secretary shall report
    every two years to the Committee on Resources of the House of
    Representatives and the Committee on Environment and Public
    Works of the Senate on the status of all domestic endangered
    species and threatened species and the status of efforts to
    develop and implement recovery plans for all domestic
    endangered species and threatened species.
      (2) In reporting on the status of such species since the time
    of its listing, the Secretary shall include--
              (A) an assessment of any significant change in the
            well-being of each such species, including--
                      (i) changes in population, range, or threats;
                    and
                      (ii) the basis for that assessment; and
              (B) for each species, a measurement of the degree of
            confidence in the reported status of such species,
            based upon a quantifiable parameter developed for such
            purposes.
      (f) Public Notice and Comment.--The Secretary shall, prior to
    final approval of a new or revised recovery plan, provide
    public notice and an opportunity for public review and comment
    on such plan. The Secretary shall consider all information
    presented during the public comment period prior to approval of
    the plan.
      (g) State Comment.--The Secretary shall, prior to final
    approval of a new or revised recovery plan, provide a draft of
    such plan and an opportunity to comment on such draft to the
    Governor of, and State agency in, any State to which such draft
    would apply. The Secretary shall include in the final recovery
    plan the Secretary's response to the comments of the Governor
    and the State agency.
      (h) Consultation to Ensure Consistency With Development
    Plan.--(1) The Secretary shall, prior to final approval of a
    new or revised recovery plan, consult with any pertinent State,
    Indian tribe, or regional or local land use agency or its
    designee.
      (2) For purposes of this Act, the term ``Indian tribe''
    means--
      (A) with respect to the 48 contiguous States, any federally
    recognized Indian tribe, organized band, pueblo, or community;
    and
      (B) with respect to Alaska, the Metlakatla Indian Community.
      (i) Use of Plans.--(1) Each Federal agency shall consider any
    relevant best available scientific data contained in a recovery
    plan in any analysis conducted under section 102 of the
    National Environmental Policy Act of 1969 (42 U.S.C. 4332).
      (2)(A)(i) The head of any Federal agency may enter into an
    agreement with the Secretary specifying the measures the agency
    will carry out to implement a recovery plan.
      (ii) Each such agreement shall be published in draft form
    with notice and an opportunity for public comment.
      (iii) Each such final agreement shall be published, with
    responses by the head of the Federal agency to any public
    comments submitted on the draft agreement.
      (B) Nothing in a recovery plan shall be construed to
    establish regulatory requirements.
      (j) Monitoring.--(1) The Secretary shall implement a system
    in cooperation with the States to monitor effectively for not
    less than five years the status of all species that have
    recovered to the point at which the measures provided pursuant
    to this Act are no longer necessary and that, in accordance
    with this section, have been removed from the lists published
    under section 4(c).
      (2) The Secretary shall make prompt use of the authority
    under section 4(b)(6) to prevent a significant risk to the
    well-being of any such recovered species.
      [(a)] (k) Program.--The Secretary, and the Secretary of
    Agriculture with respect to the National Forest System, shall
    establish and implement a program to conserve fish, wildlife,
    and plants, including those which are listed as endangered
    species or threatened species pursuant to section 4 of this
    Act. To carry out such a program, the appropriate Secretary--
              (1) shall utilize the land acquisition and other
            authority under the Fish and Wildlife Act of 1956, as
            amended, the Fish and Wildlife Coordination Act, as
            amended, and the Migratory Bird Conservation Act, as
            appropriate; and
              (2) is authorized to acquire by purchase, donation,
            or otherwise, lands, waters, or interest therein, and
            such authority shall be in addition to any other land
            acquisition vested in [him] the Secretary.
      [(b)] (l) Acquisitions.--Funds made available pursuant to the
    Land and Water Conservation Fund Act of 1965, as amended, may
    be used for the purpose of acquiring lands, waters, or
    interests therein under [subsection (a) of this section]
    subsection (k).
      (m) Threatened and Endangered Species Incentives Program.--
    (1) The Secretary may enter into species recovery agreements
    pursuant to paragraph (2) and species conservation contract
    agreements pursuant to paragraph (3) with persons, other than
    agencies or departments of the Federal Government or State
    governments, under which the Secretary is obligated, subject to
    the availability of appropriations, to make annual payments or
    provide other compensation to the persons to implement the
    agreements.
      (2)(A) The Secretary and persons who own or control the use
    of private land may enter into species recovery agreements with
    a term of not less than 5 years that meet the criteria set
    forth in subparagraph (B) and are in accordance with the
    priority established in subparagraph (C).
      (B) A species recovery agreement entered into under this
    paragraph by the Secretary with a person--
              (i) shall require that the person shall carry out, on
            the land owned or controlled by the person, activities
            that--
                      (I) protect and restore habitat for covered
                    species that are species determined to be
                    endangered species or threatened species
                    pursuant to section 4(a)(1);
                      (II) contribute to the conservation of one or
                    more covered species; and
                      (III) specify and implement a management plan
                    for the covered species;
              (ii) shall specify such a management plan that
            includes--
                      (I) identification of the covered species;
                      (II) a description of the land to which the
                    agreement applies; and
                      (III) a description of, and a schedule to
                    carry out, the activities under clause (i);
              (iii) shall provide sufficient documentation to
            establish ownership or control by the person of the
            land to which the agreement applies;
              (iv) shall include the amounts of the annual payments
            or other compensation to be provided by the Secretary
            to the person under the agreement, and the terms under
            which such payments or compensation shall be provided;
            and
              (v) shall include--
                      (I) the duties of the person;
                      (II) the duties of the Secretary;
                      (III) the terms and conditions under which
                    the person and the Secretary mutually agree the
                    agreement may be modified or terminated; and
                      (IV) acts or omissions by the person or the
                    Secretary that shall be considered violations
                    of the agreement, and procedures under which
                    notice of and an opportunity to remedy any
                    violation by the person or the Secretary shall
                    be given.
      (C) In entering into species recovery agreements under this
    paragraph, the Secretary shall accord priority to agreements
    that apply to any areas that are identified in recovery plans
    pursuant to subsection (c)(1)(A)(iv).
      (3)(A) The Secretary and persons who own private land may
    enter into species conservation contract agreements with terms
    of 30 years, 20 years, or 10 years that meet the criteria set
    forth in subparagraph (B) and standards set forth in
    subparagraph (D) and are in accordance with the priorities
    established in subparagraph (C).
      (B) A species conservation contract agreement entered into
    under this paragraph by the Secretary with a person--
              (i) shall provide that the person shall, on the land
            owned by the person--
                      (I) carry out conservation practices to meet
                    one or more of the goals set forth in clauses
                    (i) through (iii) of subparagraph (C) for one
                    or more covered species, that are species that
                    are determined to be endangered species or
                    threatened species pursuant to section 4(a)(1),
                    species determined to be candidate species
                    pursuant to section 4(b)(3)(B)(iii), or species
                    subject to comparable designations under State
                    law; and
                      (II) specify and implement a management plan
                    for the covered species;
              (ii) shall specify such a management plan that
            includes--
                      (I) identification of the covered species;
                      (II) a description in detail of the
                    conservation practices for the covered species
                    that the person shall undertake;
                      (III) a description of the land to which the
                    agreement applies; and
                      (IV) a schedule of approximate deadlines,
                    whether one-time or periodic, for undertaking
                    the conservation practices described pursuant
                    to subclause (II);
                      (V) a description of existing or future
                    economic activities on the land to which the
                    agreement applies that are compatible with the
                    conservation practices described pursuant to
                    subclause (II) and generally with conservation
                    of the covered species;
              (iii) shall specify the term of the agreement; and
              (iv) shall include--
                      (I) the duties of the person;
                      (II) the duties of the Secretary;
                      (III) the terms and conditions under which
                    the person and the Secretary mutually agree the
                    agreement may be modified or terminated;
                      (IV) acts or omissions by the person or the
                    Secretary that shall be considered violations
                    of the agreement, and procedures under which
                    notice of and an opportunity to remedy any
                    violation by the person or the Secretary shall
                    be given; and
                      (V) terms and conditions for early
                    termination of the agreement by the person
                    before the management plan is fully implemented
                    or termination of the agreement by the
                    Secretary in the case of a violation by the
                    person that is not remedied under subclause
                    (IV), including any requirement for the person
                    to refund all or part of any payments received
                    under subparagraph (E) and any interest
                    thereon.
      (C) The Secretary shall establish priorities for the
    selection of species conservation contract agreements, or
    groups of such agreements for adjacent or proximate lands, to
    be entered into under this paragraph that address the following
    factors:
              (i) The potential of the land to which the agreement
            or agreements apply to contribute significantly to the
            conservation of an endangered species or threatened
            species or a species with a comparable designation
            under State law.
              (ii) The potential of such land to contribute
            significantly to the improvement of the status of a
            candidate species or a species with a comparable
            designation under State law.
              (iii) The amount of acreage of such land.
              (iv) The number of covered species in the agreement
            or agreements.
              (v) The degree of urgency for the covered species to
            implement the conservation practices in the management
            plan or plans under the agreement or agreements.
              (vi) Land in close proximity to military test and
            training ranges, installations, and associated airspace
            that is affected by a covered species.
      (D) The Secretary shall enter into a species conservation
    contract agreement submitted by a person, if the Secretary
    finds that the person owns such land or has sufficient control
    over the use of such land to ensure implementation of the
    management plan under the agreement.
      (E)(i) Upon entering into a species conservation contract
    agreement with the Secretary pursuant to this paragraph, a
    person shall receive the financial assistance provided for in
    this subparagraph.
      (ii) If the person is implementing fully the agreement, the
    person shall receive from the Secretary--
              (I) in the case of a 30-year agreement, an annual
            contract payment in an amount equal to 100 percent of
            the person's actual costs to implement the conservation
            practices described in the management plan under the
            terms of the agreement;
              (II) in the case of a 20-year agreement, an annual
            contract payment in an amount equal to 80 percent of
            the person's actual costs to implement the conservation
            practices described in the management plan under the
            terms of the agreement; and
              (III) in the case of a 10-year agreement, an annual
            contract payment in an amount equal to 60 percent of
            the person's actual costs to implement the conservation
            practices described in the management plan under the
            terms of the agreement.
      (iii)(I) If the person receiving contract payments pursuant
    to clause (ii) receives any other State or Federal funds to
    defray the cost of any conservation practice, the cost of such
    practice shall not be eligible for such contract payments.
      (II) Contributions of agencies or organizations to any
    conservation practice other than the funds described in
    subclause (I) shall not be considered as costs of the person
    for purposes of the contract payments pursuant to clause (iii).
      (4)(A) Upon request of a person seeking to enter into an
    agreement pursuant to this subsection, the Secretary may
    provide to such person technical assistance in the preparation,
    and management training for the implementation, of the
    management plan for the agreement.
      (B) Any State agency, local government, nonprofit
    organization, or federally recognized Indian tribe may provide
    assistance to a person in the preparation of a management plan,
    or participate in the implementation of a management plan,
    including identifying and making available certified fisheries
    or wildlife biologists with expertise in the conservation of
    species for purposes of the preparation or review and approval
    of management plans for species conservation contract
    agreements under paragraph (3)(D)(iii).
      (5) Upon any conveyance or other transfer of interest in land
    that is subject to an agreement under this subsection--
              (A) the agreement shall terminate if the agreement
            does not continue in effect under subparagraph (B);
              (B) the agreement shall continue in effect with
            respect to such land, with the same terms and
            conditions, if the person to whom the land or interest
            is conveyed or otherwise transferred notifies the
            Secretary of the person's election to continue the
            agreement by no later than 30 days after the date of
            the conveyance or other transfer and the person is
            determined by the Secretary to qualify to enter into an
            agreement under this subsection; or
              (C) the person to whom the land or interest is
            conveyed or otherwise transferred may seek a new
            agreement under this subsection.
      (6) An agreement under this subsection may be renewed with
    the mutual consent of the Secretary and the person who entered
    into the agreement or to whom the agreement has been
    transferred under paragraph (5).
      (7) The Secretary shall make annual payments under this
    subsection as soon as possible after December 31 of each
    calendar year.
      (8) An agreement under this subsection that applies to an
    endangered species or threatened species shall, for the purpose
    of section 10(a)(4), be deemed to be a permit to enhance the
    propagation or survival of such species under section 10(a)(1),
    and a person in full compliance with the agreement shall be
    afforded the protection of section 10(a)(4).
      (9) The Secretary, or any other Federal official, may not
    require a person to enter into an agreement under this
    subsection as a term or condition of any right, privilege, or
    benefit, or of any action or refraining from any action, under
    this Act.

                          COOPERATION WITH THE STATES

      Sec. 6. (a) * * *

               *       *       *       *       *       *       *

      (c)(1) Cooperative Agreements.--In furtherance of the
    purposes of this Act, the Secretary is authorized to enter into
    a cooperative agreement in accordance with this section with
    any State which establishes and maintains an adequate and
    active program for the conservation of endangered species and
    threatened species. Within one hundred and twenty days after
    the Secretary receives a certified copy of such a proposed
    State program, [he] the Secretary shall make a determination
    whether such program is in accordance with this Act. Unless
    [he] the Secretary determines, pursuant to this paragraph, that
    the State program is not in accordance with this Act, [he] the
    Secretary shall enter into a cooperative agreement with the
    State for the purpose of assisting in implementation of the
    State program. In order for a State program to be deemed an
    adequate and active program for the conservation of endangered
    species and threatened species, the Secretary must find, and
    annually thereafter reconfirm such finding, that under the
    State program--
              (A) * * *

               *       *       *       *       *       *       *

      (2) In furtherance of the purposes of this Act, the Secretary
    is authorized to enter into a cooperative agreement in
    accordance with this section with any State which establishes
    and maintains an adequate and active program for the
    conservation of endangered species and threatened species of
    plants. Within one hundred and twenty days after the Secretary
    receives a certified copy of such a proposed State program,
    [he] the Secretary shall make a determination whether such
    program is in accordance with this Act. Unless [he] the
    Secretary determines, pursuant to this paragraph, that the
    State program is not in accordance with this Act, [he] the
    Secretary shall enter into a cooperative agreement with the
    State for the purpose of assisting in implementation of the
    State program. In order for a State program to be deemed an
    adequate and active program for the conservation of endangered
    species of plants and threatened species of plants, the
    Secretary must find, and annually thereafter reconfirm such
    findings, that under the State program--
              (A) * * *

               *       *       *       *       *       *       *

      (3)(A) Any cooperative agreement entered into by the
    Secretary under this subsection may also provide for
    development of a program for conservation of species determined
    to be candidate species pursuant to section 4(b)(2)(B)(iii) or
    any other species that the State and the Secretary agree is at
    risk of being determined to be an endangered species or
    threatened species under section 4(a)(1) in that State. Upon
    completion of consultation on the agreement pursuant to
    subsection (e)(2), any incidental take statement issued on the
    agreement shall apply to any such species, and to the State and
    any landowners enrolled in any program under the agreement,
    without further consultation (except any additional
    consultation pursuant to subsection (e)(2)) if the species is
    subsequently determined to be an endangered species or a
    threatened species and the agreement remains an adequate and
    active program for the conservation of endangered species and
    threatened species.
      (B) Any cooperative agreement entered into by the Secretary
    under this subsection may also provide for monitoring or
    assistance in monitoring the status of candidate species
    pursuant to section 4(b)(3)(C)(iii) or recovered species
    pursuant to section 5(j).
      (C) The Secretary shall periodically review each cooperative
    agreement under this subsection and seek to make changes the
    Secretary considers necessary for the conservation of
    endangered species and threatened species to which the
    agreement applies.
      (4) Any cooperative agreement entered into by the Secretary
    under this subsection that provides for the enrollment of
    private lands or water rights in any program established by the
    agreement shall ensure that the decision to enroll is voluntary
    for each owner of such lands or water rights.
      (5)(A) The Secretary may enter into a cooperative agreement
    under this subsection with an Indian tribe in substantially the
    same manner in which the Secretary may enter into a cooperative
    agreement with a State.
      (B) For the purposes of this paragraph, the term ``Indian
    tribe'' means--
              (i) with respect to the 48 contiguous States, any
            federally recognized Indian tribe, organized band,
            pueblo, or community; and
              (ii) with respect to Alaska, the Metlakatla Indian
            Community.
      (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) of
    section 4(b)(3) and recovered species pursuant to [section
    4(g)] section 5(j). 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) * * *

               *       *       *       *       *       *       *

              (F) the importance of [monitoring the status of
            candidate species] developing a conservation program
            for, or monitoring the status of, candidate species or
            other species determined to be at risk pursuant to
            subsection (c)(3) within a State to prevent a
            significant risk to the well being of any such species;
            and

               *       *       *       *       *       *       *

      (2) Such cooperative agreements shall provide for (A) the
    actions to be taken by the Secretary and the States; (B) the
    benefits that are expected to be derived in connection with the
    conservation of endangered or threatened species; (C) the
    estimated cost of these actions; and (D) the share of such
    costs to be bore by the Federal Government and by the States;
    except that--
              (i) * * *
    The Secretary may, in [his] the Secretary's discretion, and
    under such rules and regulations as [he] the Secretary may
    prescribe, advance funds to the State for financing the United
    States pro rata share agreed upon in the cooperative agreement.
    For the purposes of this section, the non-Federal share may, in
    the discretion of the Secretary, be in the form of money or
    real property, the value of which will be determined by the
    Secretary whose decision shall be final.
      (3) A State shall not be eligible for financial assistance
    under this section for a fiscal year unless the State has
    provided to the Secretary for the preceding fiscal year
    information regarding the expenditures referred to in section
    16(b)(2).
      (e) Review of State Programs.--(1) Any action taken by the
    Secretary under this section shall be subject to [his periodic
    review at no greater than annual intervals] periodic review by
    the Secretary every 3 years.
      (2) Any cooperative agreement entered into by the Secretary
    under subsection (c) shall be subject to section 7(a)(2)
    through (d) and regulations implementing such provisions only
    before--
              (A) the Secretary enters into the agreement; and
              (B) the Secretary approves any renewal of, or
            amendment to, the agreement that--
                      (i) addresses species that are determined to
                    be endangered species or threatened species,
                    are not addressed in the agreement, and may be
                    affected by the agreement; or
                      (ii) new information about any species
                    addressed in the agreement that the Secretary
                    determines--
                              (I) constitutes the best available
                            scientific data; and
                              (II) indicates that the agreement may
                            have adverse effects on the species
                            that had not been considered previously
                            when the agreement was entered into or
                            during any revision thereof or
                            amendment thereto.
      (3) The Secretary may suspend any cooperative agreement
    established pursuant to subsection (c), after consultation with
    the Governor of the affected State, if the Secretary finds
    during the periodic review required by paragraph (1) of this
    subsection that the agreement no longer constitutes an adequate
    and active program for the conservation of endangered species
    and threatened species.
      (4) The Secretary may terminate any cooperative agreement
    entered into by the Secretary under subsection (c), after
    consultation with the Governor of the affected State, if--
              (A) as result of the procedures of section 7(a)(2)
            through (d) undertaken pursuant to paragraph (2) of
            this subsection, the Secretary determines that
            continued implementation of the cooperative agreement
            is likely to jeopardize the continued existence of
            endangered species or threatened species, and the
            cooperative agreement is not amended or revised to
            incorporate a reasonable and prudent alternative
            offered by the Secretary pursuant to section 7(b)(3);
            or
              (B) the cooperative agreement has been suspended
            under paragraph (3) of this subsection and has not been
            amended or revised and found by the Secretary to
            constitute an adequate and active program for the
            conservation of endangered species and threatened
            species within 180 days after the date of the
            suspension.

               *       *       *       *       *       *       *

      (g) Transition.--(1) * * *
      (2) The prohibitions set forth in or authorized pursuant to
    sections 4(d) and 9(a)(1)(B) of this Act shall not apply with
    respect to the taking of any resident endangered species or
    threatened species (other than species listed in Appendix I to
    the Convention or otherwise specifically covered by any other
    treaty or Federal law) within any State--
              (A) * * *
              (B) except for any time within the establishment
            period when--
                      (i) * * *
                      (ii) the Secretary applies such prohibition
                    after [he] the Secretary finds, and publishes
                    his finding, that an emergency exists posing a
                    significant risk to the well-being of such
                    species and that the prohibition must be
                    applied to protect such species. The
                    Secretary's finding and publication may be made
                    without regard to the public hearing or comment
                    provisions of section 553 of title 5, United
                    States Code, or any other provision of this
                    Act; but such prohibition shall expire 90 days
                    after the date of its imposition unless the
                    Secretary further extends such prohibition by
                    publishing notice and a statement of
                    justification of such extension.

               *       *       *       *       *       *       *

      (j) Recovery Plans for Species Occupying More Than One
    State.--Any recovery plan under section 5 for an endangered
    species or a threatened species that occupies more than one
    State shall identify criteria and actions pursuant to
    subsection (c)(1) of section 5 for each State that are
    necessary so that the State may pursue a determination that the
    portion of the species found in that State may be removed from
    lists published under section 4(c).

               *       *       *       *       *       *       *

                            INTERAGENCY COOPERATION

      Sec. 7. (a) Federal Agency Actions and Consultations.--(1)
    The Secretary shall review other programs administered by [him]
    the Secretary and utilize such programs in furtherance of the
    purposes of this Act. All other Federal agencies shall, in
    consultation with and with the assistance of the Secretary,
    utilize their authorities in furtherance of the purposes of
    this Act by carrying out programs for the conservation of
    [endangered species and threatened species listed pursuant to
    section 4 of this Act.] species determined to be endangered
    species and threatened species under section 4.
      (2)(A) Each Federal agency shall, in consultation with and
    with the assistance of the Secretary, insure that any [action
    authorized, funded, or carried out by such agency (hereinafter
    in this section referred to as an ``agency action'') is not]
    agency action authorized, funded, or carried out by such agency
    is not likely to jeopardize the continued existence of any
    endangered species or threatened species [or result in the
    destruction or adverse modification of habitat of such species
    which is determined by the Secretary, after consultation as
    appropriate with affected States, to be critical, unless such
    agency has been granted an exemption for such action by the
    Committee pursuant to subsection (h) of this section]. In
    fulfilling the requirements of this paragraph each agency shall
    use the [best scientific and commercial data available] best
    available scientific data.
      (B) The Secretary may identify specific agency actions or
    categories of agency actions that may be determined to meet the
    standards of this paragraph by alternative procedures to the
    procedures set forth in this subsection and subsections (b)
    through (d), except that subsections (b)(4) and (e) may apply
    only to an action that the Secretary finds, or concurs, does
    meet such standards, and the Secretary shall suggest, or concur
    in any suggested, reasonable and prudent alternatives described
    in subsection (b)(3) for any action determined not to meet such
    standards. Any such agency action or category of agency actions
    shall be identified, and any such alternative procedures shall
    be established, by regulation promulgated prior or subsequent
    to the date of the enactment of this Act.
      (3) Subject to such guidelines as the Secretary may
    establish, a Federal agency shall consult with the Secretary on
    any prospective agency action at the request of, and in
    cooperation with, the prospective permit or license applicant
    if the applicant has reason to believe that an endangered
    species or a threatened species may be present in the area
    affected by [his] the applicant's project and that
    implementation of such action will likely affect such species.
      (4) Each Federal agency shall confer with the Secretary on
    any agency action which is likely to jeopardize the continued
    existence of any species proposed to be [listed under section 4
    or result in the destruction or adverse modification of
    critical habitat proposed to be designated for such species],
    under section 4 an endangered species or a threatened species.
    This paragraph does not require a limitation on the commitment
    of resources as described in subsection (d).
      (5) Any Federal agency or the Secretary, in conducting any
    analysis pursuant to paragraph (2), shall consider only the
    effects of any agency action that are distinct from a baseline
    of all effects upon the relevant species that have occurred or
    are occurring prior to the action.
      (b) Opinion of Secretary.--(1)(A) * * *
      (B) In the case of an agency action involving a permit or
    license applicant, the Secretary and the Federal agency may not
    mutually agree to conclude consultation within a period
    exceeding 90 days unless the Secretary, before the close of the
    90th day referred to in subparagraph (A)--
              (i) if the consultation period proposed to be agreed
            to will end before the 150th day after the date on
            which consultation was initiated, submits to the permit
            or license applicant a written statement setting
            forth--
                      (I) * * *

               *       *       *       *       *       *       *

      (2) Consultation under subsection (a)(3) shall be concluded
    within such period as is agreeable to the Secretary, the
    Federal agency, and the permit or license applicant concerned.
      (3)(A) [Promptly after] Before conclusion of consultation
    under paragraph (2) or (3) of subsection (a), the Secretary
    shall provide to the Federal agency and the permit or license
    applicant, if any, a proposed written statement setting forth
    the Secretary's opinion, and a summary of the information on
    which the opinion is based, detailing how the agency action
    affects the species [or its critical habitat]. [If jeopardy or
    adverse modification is found, the Secretary shall suggest
    those reasonable and prudent alternatives which he believes
    would not violate subsection (a)(2) and can be taken by the
    Federal agency or applicant in implementing the agency action.]
    The Secretary shall consider any comment from the Federal
    agency and the permit or license applicant, if any, prior to
    issuance of the final written statement of the Secretary's
    opinion. The Secretary shall issue the final written statement
    of the Secretary's opinion by providing the written statement
    to the Federal agency and the permit or license applicant, if
    any, and publishing notice of the written statement in the
    Federal Register. If jeopardy is found, the Secretary shall
    suggest in the final written statement those reasonable and
    prudent alternatives, if any, that the Secretary believes would
    not violate subsection (a)(2) and can be taken by the Federal
    agency or applicant in implementing the agency action. The
    Secretary shall cooperate with the Federal agency and any
    permit or license applicant in the preparation of any suggested
    reasonable and prudent alternatives.

               *       *       *       *       *       *       *

      (4)(A) If after consultation under subsection (a)(2) of this
    section, the Secretary concludes that--
              [(A)] (i) the agency action will not violate such
            subsection, or offers reasonable and prudent
            alternatives which the Secretary believes would not
            violate such subsection;
              [(B)] (ii) the taking of an endangered species or a
            threatened species incidental to the agency action will
            not violate such subsection; and
              [(C)] (iii) if an endangered species or threatened
            species of a marine mammal is involved, the taking is
            authorized pursuant to section 101(a)(5) of the Marine
            Mammal Protection Act of 1972;
    [the Secretary shall provide the Federal agency and the
    applicant concerned, if any, with a written statement that--]
    the Secretary shall include in the written statement under
    paragraph (3), a statement described in subparagraph (B) of
    this paragraph.
      (B) A statement described in this subparagraph--
              (i) * * *

               *       *       *       *       *       *       *

      (5)(A) Any terms and conditions set forth pursuant to
    paragraph (4)(B)(iv) shall be roughly proportional to the
    impact of the incidental taking identified pursuant to
    paragraph (4) in the written statement prepared under paragraph
    (3).
      (B) If various terms and conditions are available to comply
    with paragraph (4)(B)(iv), the terms and conditions set forth
    pursuant to that paragraph--
              (i) must be capable of successful implementation; and
              (ii) must be consistent with the objectives of the
            Federal agency and the permit or license applicant, if
            any, to the greatest extent possible.
      (c) Biological 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.] that is determined to be an endangered
    species or a threatened species, or for which such a
    determination is proposed pursuant to section 4, may be present
    in the area of such proposed action. If the Secretary advises,
    based on the [best scientific and commercial data available]
    best available scientific data, 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.
      [(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 is
    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 or the critical habitat;
              [(B) a summary of the evidence concerning whether or
            not the agency action is in the public interest and is
            of national or regional significance;
              [(C) appropriate reasonable mitigation and
            enhancement measures which should be considered by the
            Committee; and
              [(D) whether the Federal agency concerned and the
            exemption applicant refrained from making any
            irreversible or irretrievable commitment of resources
            prohibited by subsection (d).
      [(6) To the extent practicable within the time required for
    action under subsection (g) of this section, and except to the
    extent inconsistent with the requirements of this section, the
    consideration of any application for an exemption under this
    section and the conduct of any hearing under this subsection
    shall be in accordance with sections 554, 555, and 556 (other
    than subsection (b)(3) of section 556) of title 5, United
    States Code.
      [(7) Upon request of the Secretary, the head of any Federal
    agency is authorized to detail, on a nonreimbursable basis, any
    of the personnel of such agency to the Secretary to assist him
    in carrying out his duties under this section.
      [(8) All meetings and records resulting from activities
    pursuant to this subsection shall be open to the public.
      [(h) Exemption.--(1) The Committee shall make a final
    determination whether or not to grant an exemption within 30
    days after receiving the report of the Secretary pursuant to
    subsection (g)(5). The Committee shall grant an exemption from
    the requirements of subsection (a)(2) for an agency action if,
    by a vote of not less than five of its members voting in
    person--
              [(A) it determines on the record, based on the report
            of the Secretary, the record of the hearing held under
            subsection (g)(4), and on such other testimony or
            evidence as it may receive, that--
                      [(i) there are no reasonable and prudent
                    alternatives to the agency action;
                      [(ii) the benefits of such action clearly
                    outweigh the benefits of alternative courses of
                    action consistent with conserving the species
                    or its critical habitat, and such action is in
                    the public interest;
                      [(iii) the action is of regional or national
                    significance; and
                      [(iv) neither the Federal agency concerned
                    nor the exemption applicant made any
                    irreversible or irretrievable commitment of
                    resources prohibited by subsection (d); and
              [(B) it establishes such reasonable mitigation and
            enhancement measures, including, but not limited to,
            live propagation, transplantation, and habitat
            acquisition and improvement, as are necessary and
            appropriate to minimize the adverse effects of the
            agency action upon the endangered species, threatened
            species, or critical habitat concerned.
    Any final determination by Committee under this subsection
    shall be considered final agency action for purposes of chapter
    7 of title 5 of the United States Code.
      [(2)(A) Except as provided in subparagraph (B), an exemption
    for an agency action granted under paragraph (1) shall
    constitute a permanent exemption with respect to all endangered
    or threatened species for the purposes of completing such
    agency action--
              [(i) regardless whether the species was identified in
            the biological assessment; and
              [(ii) only if a biological assessment has been
            conducted under subsection (c) with respect to such
            agency action.
      [(B) An exemption shall be permanent under subparagraph (A)
    unless--
              [(i) the Secretary finds, based on the best
            scientific and commercial data available, that such
            exemption would result in the extinction of a species
            that was not the subject of consultation under
            subsection (a)(2) or was not identified in any
            biological assessment conducted under subsection (c),
            and
              [(ii) the Committee determines within 60 days after
            the date of the Secretary's finding that the exemption
            should not be permanent.
    If the Secretary makes a finding described in clause (i), the
    Committee shall meet with respect to the matter within 30 days
    after the date of the finding.
      [(i) Review by Secretary of State.--Notwithstanding any other
    provision of this Act, the Committee shall be prohibited from
    considering for exemption any application made to it, if the
    Secretary of State, after a review of the proposed agency
    action and its potential implications, and after hearing,
    certifies, in writing, to the Committee within 60 days of any
    application made under this section that the granting of any
    such exemption and the carrying out of such action would be in
    violation of an international treaty obligation or other
    international obligation of the United States. The Secretary of
    State shall, at the time of such certification, publish a copy
    thereof in the Federal Register.
      [(j) Notwithstanding any other provision of this Act, the
    Committee shall grant an exemption for any agency action if the
    Secretary of Defense finds that such exemption is necessary for
    reasons of national security.
      [(k) Special Provisions.--An exemption decision by the
    Committee under this section shall not be a major Federal
    action for purposes of the National Environmental Policy Act of
    1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental
    impact statement which discusses the impacts upon endangered
    species or threatened species or their critical habitats shall
    have been previously prepared with respect to any agency action
    exempted by such order.
      [(l) Committee Orders.--(1) If the Committee determines under
    subsection (h) that an exemption should be granted with respect
    to any agency action, the Committee shall issue an order
    granting the exemption and specifying the mitigation and
    enhancement measures established pursuant to subsection (h)
    which shall be carried out and paid for by the exemption
    applicant in implementing the agency action. All necessary
    mitigation and enhancement measures shall be authorized prior
    to the implementing of the agency action and funded
    concurrently with all other project features.
      [(2) The applicant receiving such exemption shall include the
    costs of such mitigation and enhancement measures within the
    overall costs of continuing the proposed action.
    Notwithstanding the preceding sentence the costs of such
    measures shall not be treated as project costs for the purpose
    of computing benefit-cost or other ratios for the proposed
    action. Any applicant may request the Secretary to carry out
    such mitigation and enhancement measures. The costs incurred by
    the Secretary in carrying out any such measures shall be paid
    by the applicant receiving the exemption. No later than one
    year after the granting of an exemption, the exemption
    applicant shall submit to the Council on Environmental Quality
    a report describing its compliance with the mitigation and
    enhancement measures prescribed by this section. Such report
    shall be submitted annually until all such mitigation and
    enhancement measures have been completed. Notice of the public
    availability of such reports shall be published in the Federal
    Register by the Council on Environmental Quality.
      [(m) Notice.--The 60-day notice requirement of section 11(g)
    of this Act shall not apply with respect to review of any final
    determination of the Committee under subsection (h) of this
    section granting an exemption from the requirements of
    subsection (a)(2) of this section.
      [(n) Judicial Review.--Any person, as defined by section
    3(13) of this Act, may obtain judicial review, under chapter 7
    of title 5 of the United States Code, of any decision of the
    Endangered Species Committee under subsection (h) in the United
    States Court of Appeals for (1) any circuit wherein the agency
    action concerned will be, or is being, carried out, or (2) in
    any case in which the agency action will be, or is being,
    carried out outside of any circuit, the District of Columbia,
    by filing in such court within 90 days after the date of
    issuance of the decision, a written petition for review. A copy
    of such petition shall be transmitted by the clerk of the court
    to the Committee and the Committee shall file in the court the
    record in the proceeding, as provided in section 2112, of title
    28, United States Code. Attorneys designated by the Endangered
    Species Committee may appear for, and represent the Committee
    in any action for review under this subsection.]
      [(o)] (e) [Exemption as Providing] Exception on Taking of
    Endangered Species.--Notwithstanding sections 4(d) and
    9(a)(1)(B) and (C) of this Act, sections 101 and 102 of the
    Marine Mammal Protection Act of 1972, or any regulation
    promulgated to implement any [such section--
              [(1) any action for which an exemption is granted
            under subsection (h) of this section shall not be
            considered to be a taking of any endangered species or
            threatened species with respect to any activity which
            is necessary to carry out such action; and
              [(2)] such section or in an agreement under section
            5(m), 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)] (f) 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] may exempt an agency action from compliance with the
    requirements of subsections (a) through (d) of this section
    before the initiation of such agency action, 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.]

                           INTERNATIONAL COOPERATION

      Sec. 8. (a) Financial Assistance.--As a demonstration of the
    commitment of the United States to the worldwide protection of
    endangered species and threatened species, the President may,
    subject to the provisions of section 1415 of the Supplemental
    Appropriation Act, 1953 (31 U.S.C. 724), use foreign currencies
    accruing to the United States Government under the Agricultural
    Trade Development and Assistance Act of 1954 or any other law
    to provide to any foreign county (with its consent) assistance
    in the development and management of programs in that country
    which the Secretary determines to be necessary or useful for
    the conservation of [any endangered species or threatened
    species listed] any species determined to be an endangered
    species or a threatened species by the Secretary pursuant to
    section 4 of this Act. The President shall provide assistance
    (which includes, but is not limited to, the acquisition, by
    lease or otherwise, of lands, waters, or interests therein) to
    foreign countries under this section under such terms and
    conditions as [he] the President deems appropriate. Whenever
    foreign currencies are available for the provision of
    assistance under this section, such currencies shall be used in
    preference to funds appropriated under the authority of
    [section 15] section 18 of this Act.
      (b) Encouragement of Foreign Programs.--In order to carry out
    further the provisions of this Act, the Secretary, through the
    Secretary of State shall encourage--
              (1) foreign countries to provide for the conservation
            of fish or wildlife and plants including [endangered
            species and threatened species listed] species
            determined to be endangered species and threatened
            species pursuant to section 4 of this Act;

               *       *       *       *       *       *       *

              (3) foreign persons who directly or indirectly take
            fish or wildlife or plants in foreign countries or on
            the high seas for importation into the United States
            for commercial or other purposes to develop and carry
            out with such assistance as [he] the Secretary of the
            Interior may provide, conservation practices designed
            to enhance such fish or wildlife or plants and their
            habitat.
      (c) Personnel.--After consultation with the Secretary of
    State, the Secretary may--
              (1) assign or otherwise make available any officer or
            employee of [his] the Secretary's department for the
            purpose of cooperating with foreign countries and
            international organizations in developing personnel
            resources and programs which promote the conservation
            of fish or wildlife or plants, and

               *       *       *       *       *       *       *

      (d) Investigations.--After consultation with the Secretary of
    State and the Secretary of the Treasury, as appropriate, the
    Secretary may conduct or cause to be conducted such law
    enforcement investigations and research abroad as [he] the
    Secretary deems necessary to carry out the purposes of this
    Act.

                           CONVENTION IMPLEMENTATION

      Sec. 8A. (a) Management Authority and Scientific Authority.--
    The Secretary [of the Interior (hereinafter in this section
    referred to as the ``Secretary'')] is designated as the
    Management Authority and the Scientific Authority for purposes
    of the Convention and the respective functions of each such
    Authority shall be carried out through the United States Fish
    and Wildlife Service.

               *       *       *       *       *       *       *

      (c) Scientific Authority Functions.--(1) * * *
      (2) The Secretary shall base the determinations and advice
    given by [him] the Secretary under Article IV of
    the Convention with respect to wildlife upon the best available
    biological information derived from professionally accepted
    wildlife management practices; but is not required to make, or
    require any State to make, estimates of population size in
    making such determinations or giving such advice.
      (d) Reservations by the United States Under Convention.--If
    the United States votes against including any species in
    Appendix I or II of the Convention and does not enter a
    reservation pursuant to paragraph (3) of Article XV of the
    Convention with respect to that species, the Secretary of
    State, before the 90th day after the last day on which such a
    reservation could be entered, shall submit to the Committee on
    [Merchant Marine and Fisheries] Resources of the House of
    Representatives, and to the Committee on the Environment and
    Public Works of the Senate, a written report setting forth the
    reasons why such a reservation was not entered.
      (e) Wildlife Preservation in Western Hemisphere.--(1) The
    Secretary [of the Interior (hereinafter in this subsection
    referred to as the ``Secretary'')], in cooperation with the
    Secretary of State, shall act on behalf of, and represent, the
    United States in all regards as required by the Convention on
    Nature Protection and Wildlife Preservation in the Western
    Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this
    subsection referred to as the ``Western Convention''). In the
    discharge of these responsibilities, the Secretary and the
    Secretary of State shall consult with the Secretary of
    Agriculture, the Secretary of Commerce, and the heads of other
    agencies with respect to matters relating to or affecting their
    areas of responsibility.

               *       *       *       *       *       *       *

      [(3) No later than September 30, 1985, the Secretary and the
    Secretary of State shall submit a report to Congress describing
    those steps taken in accordance with the requirements of this
    subsection and identifying the principal remaining actions yet
    necessary for comprehensive and effective implementation of the
    Western Convention.]
      [(4)] (3) The provisions of this subsection shall not be
    construed as affecting the authority, jurisdiction, or
    responsibility of the several States to manage, control, or
    regulate resident fish or wildlife under State law or
    regulations.

                                PROHIBITED ACTS

      Sec. 9. (a) General.--(1) Except as provided in sections
    6(g)(2) and 10 [of this Act, with respect to any endangered
    species of fish or wildlife listed pursuant to section 4 of
    this Act], with respect to any species of fish or wildlife
    determined to be an endangered species under section 4 it is
    unlawful for any person subject to the jurisdiction of the
    United States to--
              (A) * * *

               *       *       *       *       *       *       *

              (G) violate any regulation pertaining to such species
            or to any [threatened species of fish or wildlife
            listed pursuant to section 4 of this Act] species of
            fish or wildlife determined to be a threatened species
            under section 4 and promulgated by the Secretary
            pursuant to authority provided by this Act.
      (2) Except as provided in sections 6(g)(2) and 10 [of this
    Act, with respect to any endangered species of plants listed
    pursuant to section 4 of this Act], with respect to any species
    of plants determined to be an endangered species under section
    4, it is unlawful for any person subject to the jurisdiction of
    the United States to--
              (A) * * *

               *       *       *       *       *       *       *

              (E) violate any regulation pertaining to such species
            or to any threatened species of plants [listed pursuant
            to section 4 of this Act] determined to be a threatened
            species under section 4 and promulgated by the
            Secretary pursuant to authority provided by this Act.
      (b)[(1)] Species Held in Captivity or Controlled
    Environment.--(1) The provisions of subsections (a)(1)(A) and
    (a)(1)(G) of this section shall not apply to any fish or
    wildlife which was held in captivity or in a controlled
    environment on (A) December 28, 1973, or (B) the date of the
    publication in the Federal Register of a final regulation
    [adding such fish or wildlife species to any list published
    pursuant to subsection (c) of section 4 of this Act: Provided,
    That] determining such fish or wildlife species to be an
    endangered species or a threatened species under section 4, if
    such holding and any subsequent holding or use of the fish or
    wildlife was not in the course of a commercial activity. With
    respect to any act prohibited by subsections (a)(1)(A) and
    (a)(1)(G) of this section which occurs after a period of 180
    days from (i) December 28, 1973, or (ii) the date of
    publication in the Federal Register of a final regulation
    [adding such fish or wildlife species to any list published
    pursuant to subsection (c) of section 4 of this Act]
    determining such fish or wildlife species to be an endangered
    species or a threatened species under section 4, there shall be
    a rebuttable presumption that the fish or wildlife involved in
    such act is not entitled to the exemption contained in this
    subsection.

               *       *       *       *       *       *       *

      (c) Violation of Convention.--(1) * * *
      (2) Any importation into the United States of fish or
    wildlife shall, if--
              (A) such fish or wildlife is not [an endangered
            species listed] a species determined to be an
            endangered species pursuant to section 4 of this Act
            but is listed in Appendix II of the Convention;

               *       *       *       *       *       *       *

      (d) Imports and Exports.--
              (1) In general.--It is unlawful for any person,
            without first having obtained permission from the
            Secretary, to engage in business--
                      (A) as an importer or exporter of fish or
                    wildlife (other than shellfish and fishery
                    products which [(i) are not listed pursuant to
                    section 4 of this Act as endangered species or
                    threatened species, and] (i) are not determined
                    to be endangered species or threatened species
                    under section 4, and (ii) are imported for
                    purposes of human or animal consumption or
                    taken in waters under the jurisdiction of the
                    United States or on the high seas for
                    recreational purposes) or plants; or

               *       *       *       *       *       *       *

              (2) Requirements.--Any person required to obtain
            permission under paragraph (1) of this subsection
            shall--
                      (A) keep such records as will fully and
                    correctly disclose each importation or
                    exportation of fish, wildlife, plants, or
                    African elephant ivory made by [him] such
                    person and the subsequent disposition, made by
                    [him] such person with respect to such fish,
                    wildlife, plants, or ivory;
                      (B) at all reasonable times upon notice by a
                    duly authorized representative of the
                    Secretary, afford such representative access to
                    [his] such person's place of business, an
                    opportunity to examine [his] such person's
                    inventory of imported fish, wildlife, plants,
                    or African elephant ivory and the records
                    required to be kept under subparagraph (A) of
                    this paragraph, and to copy such records; and

               *       *       *       *       *       *       *

      (e) Reports.--It is unlawful for any person importing or
    exporting fish or wildlife (other than shellfish and fishery
    products which [(1) are not listed pursuant to section 4 of
    this Act as endangered or threatened species, and] (1) are not
    determined to be endangered species or threatened species under
    section 4, and (2) are imported for purposes of human or animal
    consumption or taken in waters under the jurisdiction of the
    United States or on the high seas for recreational purposes) or
    plants to fail to file any declaration or report as the
    Secretary deems necessary to facilitate enforcement of this Act
    or to meet the obligations of the Convention.
      (f) Designation of Ports.--(1) It is unlawful for any person
    subject to the jurisdiction of the United States to import into
    or export from the United States any fish or wildlife (other
    than shellfish and fishery products which [(A) are not listed
    pursuant to section 4 of this Act as endangered species or
    threatened species, and] (A) are not determined to be
    endangered species or threatened species under section 4, and
    (B) are imported for purposes of human or animal consumption or
    taken in waters under the jurisdiction of the United States or
    on the high seas for recreational purposes) or plants, except
    at a port or ports designated by the Secretary [of the
    Interior]. For the purposes of facilitating enforcement of this
    Act and reducing the costs thereof, the Secretary [of the
    Interior], with approval of the Secretary of the Treasury and
    after notice and opportunity for public hearing, may, by
    regulation, designate ports and change such designations. The
    Secretary [of the Interior], under such terms and conditions as
    [he] the Secretary may prescribe, may permit the importation or
    exportation at nondesignated ports in the interest of the
    health or safety of the fish or wildlife or plants, or for
    other reasons if, in [his] such person's discretion, [he] the
    Secretary deems it appropriate and consistent with the purpose
    of this subsection.

               *       *       *       *       *       *       *

                                   EXCEPTIONS

      Sec. 10. (a) Permits.--(1) The Secretary may permit, under
    such terms and conditions as [he] the Secretary shall
    prescribe--
              (A)  * * *

               *       *       *       *       *       *       *

      (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)  * * *

               *       *       *       *       *       *       *

              (iii) what alternative actions to such taking the
            applicant considered and the reasons why such
            alternatives are not being utilized; [and]
              (iv) objective, measurable biological goals to be
            achieved for species covered by the plan and specific
            measures for achieving such goals consistent with the
            requirements of subparagraph (B);
              (v) measures the applicant will take to monitor
            impacts of the plan on covered species and the
            effectiveness of the plan's measures in achieving the
            plan's biological goals;
              (vi) adaptive management provisions necessary to
            respond to all reasonably foreseeable changes in
            circumstances that could appreciably reduce the
            likelihood of the survival and recovery of any species
            covered by the plan; and
              [(iv)] (vii) 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)  * * *

               *       *       *       *       *       *       *

              (iv) the taking will not appreciably reduce the
            likelihood of the survival and recovery of the species
            in the wild; [and]
              (v) the term of the permit is reasonable, taking into
            consideration--
                      (I) the period in which the applicant can be
                    expected to diligently complete the principal
                    actions covered by the plan;
                      (II) the extent to which the plan will
                    enhance the conservation of covered species;
                      (III) the adequacy of information underlying
                    the plan;
                      (IV) the length of time necessary to
                    implement and achieve the benefits of the plan;
                    and
                      (V) the scope of the plan's adaptive
                    management strategy; and
              [(v)] (vi) the measures, if any, required under
            subparagraph (A)(iv) will be met;
    and [he] the Secretary has received such other assurances as
    [he] the Secretary 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.]
      (3) Any terms and conditions offered by the Secretary
    pursuant to paragraph (2)(B) to reduce or offset the impacts of
    incidental taking shall be roughly proportional to the impact
    of the incidental taking specified in the conservation plan
    pursuant to in paragraph (2)(A)(i). This paragraph shall not be
    construed to limit the authority of the Secretary to require
    greater than acre-for-acre mitigation where necessary to
    address the extent of such impacts. In any case in which
    various terms and conditions are available, the terms and
    conditions shall be capable of successful implementation and
    shall be consistent with the objective of the applicant to the
    greatest extent possible.
      (4)(A) If the holder of a permit issued under this subsection
    for other than scientific purposes is in compliance with the
    terms and conditions of the permit, and any conservation plan
    or agreement incorporated by reference therein, the Secretary
    may not require the holder, without the consent of the holder,
    to adopt any new minimization, mitigation, or other measure
    with respect to any species adequately covered by the permit
    during the term of the permit, except as provided in
    subparagraphs (B) and (C) to meet circumstances that have
    changed subsequent to the issuance of the permit.
      (B) For any circumstance identified in the permit or
    incorporated document that has changed, the Secretary may, in
    the absence of consent of the permit holder, require only such
    additional minimization, mitigation, or other measures as are
    already provided in the permit or incorporated document for
    such changed circumstance.
      (C) For any changed circumstance not identified in the permit
    or incorporated document, the Secretary may, in the absence of
    consent of the permit holder, require only such additional
    minimization, mitigation, or other measures to address such
    changed circumstance that do not involve the commitment of any
    additional land, water, or financial compensation not otherwise
    committed, or the imposition of additional restrictions on the
    use of any land, water or other natural resources otherwise
    available for development or use, under the original terms and
    conditions of the permit or incorporated document.
      (D) The Secretary shall have the burden of proof in
    demonstrating and documenting, with the best available
    scientific data, the occurrence of any changed circumstances
    for purposes of this paragraph.
      (E) All permits issued under this subsection on or after the
    date of the enactment of the Threatened and Endangered Species
    Recovery Act of 2005, other than permits for scientific
    purposes, shall contain the assurances contained in
    subparagraphs (B) through (D) of this paragraph and paragraph
    (5)(A) and (B). Permits issued under this subsection on or
    after March 25, 1998, and before the date of the enactment of
    the Threatened and Endangered Species Recovery Act of 2005,
    other than permits for scientific purposes, shall be governed
    by the applicable sections of parts 17.22(b), (c), and (d), and
    17.32(b), (c), and (d) of title 50, Code of Federal
    Regulations, as the same exist on the date of the enactment of
    the Threatened and Endangered Species Act of 2005.
      (5)(A) The Secretary shall revoke a permit issued under
    paragraph (2) if the Secretary finds that the permittee is not
    complying with the terms and conditions of the permit.
      (B) Any permit subject to paragraph (4)(A) may be revoked due
    to changed circumstances only if--
              (i) the Secretary determines that continuation of the
            activities to which the permit applies would be
            inconsistent with the criteria in paragraph (2)(B)(iv);
              (ii) the Secretary provides 60 days notice of
            revocation to the permittee; and
              (iii) the Secretary is unable to, and the permittee
            chooses not to, remedy the condition causing such
            inconsistency.
      (b) Hardship Exemptions.--(1) If any person enters into a
    contract with respect to a species of fish or wildlife or plant
    before the date of the publication in the Federal Register of
    notice of consideration of that species as [an endangered
    species and the subsequent listing of that species as an
    endangered species pursuant to section 4 of this Act] an
    endangered species or a threatened species and the subsequent
    determination that the species is an endangered species or a
    threatened species under section 4 will cause undue hardship to
    such person under the contract, the Secretary, in order to
    minimize such hardship, may exempt such person from the
    application of [section 9(a) of this Act] section 9(a) to the
    extent the Secretary deems appropriate if such person applies
    to [him] the Secretary for such exemption and includes with
    such application such information as the Secretary may require
    to prove such hardship; except that (A) no such exemption shall
    be for a duration of more than one year from the date of
    publication in the Federal Register of notice of consideration
    of the species concerned, or shall apply to a quantity of fish
    or wildlife or plants in excess of that specified by the
    Secretary; (B) the one-year period for those species of [fish
    or wildlife listed by the Secretary as endangered] fish or
    wildlife determined to be an endangered species or threatened
    species by the Secretary prior to the effective date of this
    Act shall expire in accordance with the terms of section 3 of
    the Act of December 5, 1969 (83 Stat. 275); and (C) no such
    exemption may be granted for the importation or exportation of
    a specimen listed in Appendix I of the Convention which is to
    be used in a commercial activity.
      (2) As used in this subsection, the term ``undue economic
    hardship'' shall include, but not be limited to:
              (A) substantial economic loss resulting from
            inability caused by this Act to perform contracts with
            respect to species of fish and wildlife entered into
            prior to the date of publication in the Federal
            Register of a notice of consideration of such species
            as an endangered species or a threatened species;
              (B) substantial economic loss to persons who, for the
            year prior to the notice of consideration of such
            species as an endangered species or a threatened
            species, derived a substantial portion of their income
            from the lawful taking of any [listed species]
            endangered species or threatened species, which taking
            would be made unlawful under this Act; or

               *       *       *       *       *       *       *

      (3) The Secretary may make further requirements for a showing
    of undue economic hardship as [he] the Secretary deems fit.
    Exceptions granted under this section may be limited by the
    Secretary in [his] the Secretary's discretion as to time, area,
    or other factor of applicability.
      (c) Notice and Review.--The Secretary shall publish notice in
    the Federal Register of each application for an exemption or
    permit which is made under this section. Each notice shall
    invite the submission from interested parties, within [thirty]
    45 days after the date of the notice, of written data, views,
    or arguments with respect to the application; except that such
    [thirty] 45-day period may be waived by the Secretary in an
    emergency situation where the health or life of an endangered
    animal is threatened and no reasonable alternative is available
    to the applicant, but notice of any such waiver shall be
    published by the Secretary in the Federal Register within ten
    days following the issuance of the exemption or permit.
    Information received by the Secretary as part of any
    application shall be available to the public as a matter of
    public record at every stage of the proceeding.
      (d) Permit and Exemption Policy.--The Secretary may grant
    exceptions under subsections (a)(1)(A) and (b) of this section
    only if [he] the Secretary finds and publishes [his] the
    finding in the Federal Register that (1) such exceptions were
    applied for in good faith, (2) if granted and exercised will
    not operate to the disadvantage of such endangered species or
    threatened species, and (3) will be consistent with the
    purposes and policy set forth in section 2 [of this Act].
      (e) Alaska Natives.--(1)  * * *

               *       *       *       *       *       *       *

      (4) Notwithstanding the provisions of paragraph (l) of this
    subsection, whenever the Secretary determines that any species
    of fish or wildlife which is subject to taking under the
    provisions of this subsection is an endangered species or
    threatened species, and that such taking materially and
    negatively affects the threatened or endangered species, [he]
    the Secretary may prescribe regulations upon the taking of such
    species by any such Indian, Aleut, Eskimo, or non-native
    Alaskan resident of an Alaskan native village. Such regulations
    may be established with reference to species, geographical
    description of the area included, the season for taking, or any
    other factors related to the reason for establishing such
    regulations and consistent with the policy of this Act. Such
    regulations shall be prescribed after a notice and hearings in
    the affected judicial districts of Alaska and as otherwise
    required by section 103 of the Marine Mammal Protection Act of
    1972, and shall be removed as soon as the Secretary determines
    that the need for their impositions has disappeared.
      (f) Pre-Act Parts and Scrimshaw._(1) As used in this
    subsection--
              (A)  * * *

               *       *       *       *       *       *       *

      (2) The Secretary, pursuant to the provisions of this
    subsection, may exempt, if such exemption is not in violation
    of the Convention, any pre-Act endangered species part from one
    or more of the following prohibitions.
              (A) The prohibition on exportation from the United
            States set forth in section 9(a)(1)(A) [of this Act].
              (B) Any prohibition set forth in section 9(a)(1) (E)
            or (F) [of this Act].
      (3) Any person seeking an exemption described in paragraph
    (2) of this subsection shall make application therefor to the
    Secretary in such form and manner as [he] the person shall
    prescribe, but no such application may be considered by the
    Secretary unless the application--
              (A)  * * *

               *       *       *       *       *       *       *

      (4) If the Secretary approves any application for exemption
    made under this subsection, [he] the Secretary shall issue to
    the applicant a certificate of exemption which shall specify--
              (A)  * * *

               *       *       *       *       *       *       *

      (g) Burden of Proof in Seeking Exemption or Permit._In
    connection with any action alleging a violation of section 9,
    any person claiming the benefit of any exemption or permit
    under this Act shall have the burden of proving that the
    exemption or permit is applicable, has been granted, and was
    valid and in force at the time of the alleged violation.
      (h) Certain Antique Articles.--(1) Sections 4(d), 9(a), and
    9(c) do not apply to any article which--
              (A)  * * *
              (B) is composed in whole or in part of any
            [endangered species or threatened species listed]
            species determined to be an endangered species or a
            threatened species under section 4;

               *       *       *       *       *       *       *

      (j) Experimental Populations.--(1) [For purposes of this
    subsection, the term ``experimental population'' means any
    population (including any offspring arising solely therefrom)
    authorized by the Secretary for release under paragraph (2),
    but only when, and at such times as, the population is wholly
    separate geographically from nonexperimental populations of the
    same species.] For purposes of this subsection, the term
    ``experimental population'' means any population (including any
    offspring arising therefrom) authorized by the Secretary for
    release under paragraph (2), but only when such population is
    in the area designated for it by the Secretary, and such area
    is, at the time of release, wholly separate geographically from
    areas occupied by nonexperimental populations of the same
    species. For purposes of this subsection, the term ``areas
    occupied by nonexperimental populations'' means areas
    characterized by the sustained and predictable presence of more
    than negligible numbers of successfully reproducing individuals
    over a period of many years.
      (2)(A)  * * *
      (B) Before authorizing the release of any population under
    subparagraph (A), the Secretary shall by regulation identify
    the population and determine, on the basis of the best
    available [information] scientific data, whether or not such
    population is essential to the continued existence of an
    endangered species or a threatened species.
      (C) For the purposes of this Act, each member of an
    experimental population shall be treated as a threatened
    species; except [that--
              [(i) solely] that solely for purposes of section 7
            (other than subsection (a)(1) thereof), an experimental
            population determined under subparagraph (B) to be not
            essential to the continued existence of a species shall
            be treated, except when it occurs in an area within the
            National Wildlife Refuge System or the National Park
            System, as a species proposed to be [listed] determined
            to be an endangered species or a threatened species
            under section 4[; and
              [(ii) critical habitat shall not be designated under
            this Act for any experimental population determined
            under subparagraph (B) to be not essential to the
            continued existence of a species.].

               *       *       *       *       *       *       *

      (k) Written Determination of Compliance.--(1) A property
    owner (in this subsection referred to as a ``requester'') may
    request the Secretary to make a written determination that a
    proposed use of the owner's property that is lawful under State
    and local law will comply with section 9(a), by submitting a
    written description of the proposed action to the Secretary by
    certified mail.
      (2) A written description of a proposed use is deemed to be
    sufficient for consideration by the Secretary under paragraph
    (1) if the description includes--
              (A) the nature, the specific location, the lawfulness
            under State and local law, and the anticipated schedule
            and duration of the proposed use, and a demonstration
            that the property owner has the means to undertake the
            proposed use; and
              (B) any anticipated adverse impact to a species that
            is included on a list published under 4(c)(1) that the
            requestor reasonably expects to occur as a result of
            the proposed use.
      (3) The Secretary may request and the requestor may supply
    any other information that either believes will assist the
    Secretary to make a determination under paragraph (1).
      (4) If the Secretary does not make a determination pursuant
    to a request under this subsection because of the omission from
    the request of any information described in paragraph (2), the
    requestor may submit a subsequent request under this subsection
    for the same proposed use.
      (5)(A) Subject to subparagraph (B), the Secretary shall
    provide to the requestor a written determination of whether the
    proposed use, as proposed by the requestor, will comply with
    section 9(a), by not later than expiration of the 180-day
    period beginning on the date of the submission of the request.
      (B) The Secretary may request, and the requestor may grant, a
    written extension of the period under subparagraph (A).
      (6) If the Secretary fails to provide a written determination
    before the expiration of the period under paragraph (5)(A) (or
    any extension thereof under paragraph (5)(B)), the Secretary is
    deemed to have determined that the proposed use complies with
    section 9(a).
      (7) This subsection shall not apply with respect to agency
    actions that are subject to consultation under section 7.
      (8) Any use or action taken by the property owner in
    reasonable reliance on a written determination of compliance
    under paragraph (5) or on the application of paragraph (6)
    shall not be treated as a violation of section 9(a).
      (9) Any determination of compliance under this subsection
    shall remain effective--
              (A) in the case of a written determination provided
            under paragraph (5)(A), for the 10-year period
            beginning on the date the written determination is
            provided; or
              (B) in the case of a determination that under
            paragraph (6) the Secretary is deemed to have made, the
            5-year period beginning on the first date the Secretary
            is deemed to have made the determination.
      (10) The Secretary may withdraw a determination of compliance
    under this section only if the Secretary determines that,
    because of unforeseen changed circumstances, the continuation
    of the use to which the determination applies would preclude
    conservation measures essential to the survival of any
    endangered species or threatened species. Such a withdrawal
    shall take effect 10 days after the date the Secretary provides
    notice of the withdrawal to the requester.
      (11) The Secretary may extend the period that applies under
    paragraph (5) by up to 180 days if seasonal considerations make
    a determination impossible within the period that would
    otherwise apply.
      (l) National Security.--The President, after consultation
    with the appropriate Federal agency, may exempt any act or
    omission from the provisions of this Act if such exemption is
    necessary for national security.
      (m) Disaster Declaration and Protection.--(1) The President
    may suspend the application of any provision of this Act in any
    area for which a major disaster is declared under the Robert T.
    Stafford Disaster Relief and Emergency Assistance Act (42
    U.S.C. 5121 et seq.).
      (2) The Secretary shall, within one year after the date of
    the enactment of the Threatened and Endangered Species Recovery
    Act of 2005, promulgate regulations regarding application of
    this Act in the event of an emergency (including circumstances
    other than a major disaster referred to in paragraph (1))
    involving a threat to human health or safety or to property,
    including regulations--
              (A) determining what constitutes an emergency for
            purposes of this paragraph; and
              (B) to address immediate threats through expedited
            consideration under or waiver of any provision of this
            Act.

                           PENALTIES AND ENFORCEMENT

      Sec. 11. (a) Civil Penalties.--(1) Any person who knowingly
    violates, and any person engaged in business as an importer or
    exporter of fish, wildlife, or plants who violates, any
    provision of this Act, or any provision of any permit or
    certificate issued hereunder, or of any regulation issued in
    order to implement subsection (a)(1)(A), (B), (C), (D), (E), or
    (F), (a)(2(A), (B), (C), or (D), (c), (d), (other than
    regulation relating to recordkeeping or filing of reports),
    (f), or (g) of section 9 of this Act, may be assessed a civil
    penalty by the Secretary of not more than $25,000 for each
    violation. Any person who knowingly violates, and any person
    engaged in business as an importer or exporter of fish,
    wildlife, or plants who violates, any provision of any other
    regulation issued under this Act may be assessed a civil
    penalty by the Secretary of not more than $12,000 for each such
    violation. Any person who otherwise violates any provision of
    this Act, or any regulation, permit, or certificate issued
    hereunder, may be assessed a civil penalty by the Secretary of
    not more than $500 for each such violation. No penalty may be
    assessed under this subsection unless such person is given
    notice and opportunity for a hearing with respect to such
    violation. Each violation shall be a separate offense. Any such
    civil penalty may be remitted or mitigated by the Secretary.
    Upon any failure to pay a penalty assessed under this
    subsection, the Secretary may request the Attorney General to
    institute a civil action in a district court of the United
    States for any district in which such person is found, resides,
    or transacts business to collect the penalty and such court
    shall have jurisdiction to hear and decide any such action. The
    court shall hear such action on the record made before the
    Secretary and shall sustain [his] the Secretary's action if it
    is supported by substantial evidence on the record considered
    as a whole.

               *       *       *       *       *       *       *

      (3) Notwithstanding any other provision of this Act, no civil
    penalty shall be imposed if it can be shown by a preponderance
    of the evidence that the defendant committed an act based on a
    good faith belief that [he] the defendant was acting to protect
    [himself or herself] the defendant, a member of [his or her]
    the defendant's family, or any other individual from bodily
    harm, from any endangered or threatened species.
      (b) Criminal Violations.--(1)  * * *

               *       *       *       *       *       *       *

      (3) Notwithstanding any other provision of this Act, it shall
    be a defense to prosecution under this subsection if the
    defendant committed the offense based on a good faith belief
    that [he] the defendant was acting to protect [himself or
    herself] the defendant, a member of [his or her] the
    defendant's family, or any other individual, from bodily harm
    from any endangered or threatened species.

               *       *       *       *       *       *       *

      (d) Rewards and Certain Incidental Expenses.--The Secretary
    or the Secretary of the Treasury shall pay, from sums received
    as penalties, fines, or forfeitures of property for any
    violations of this chapter or any regulation issued hereunder
    (1) a reward to any person who furnishes information which
    leads to an arrest, a criminal conviction, civil penalty
    assessment, or forfeiture of property for any violation of this
    chapter or any regulation issued hereunder, and (2) the
    reasonable and necessary costs incurred by any person in
    providing temporary care for any fish, wildlife, or plant
    pending the disposition of any civil or criminal proceeding
    alleging a violation of this chapter with respect to that fish,
    wildlife, or plant. The amount of the reward, if any, is to be
    designated by the Secretary or the Secretary of the Treasury,
    as appropriate. Any officer or employee of the United States or
    any State or local government who furnishes information or
    renders service in the performance of [his] the officer's or
    employee's official duties is ineligible for payment under this
    subsection. Whenever the balance of sums received under this
    section and section 6(d) of the Act of November 16, 1981 (16
    U.S.C. 3375(d)) as penalties or fines, or from forfeitures of
    property, exceed $500,000, the Secretary of the Treasury shall
    deposit an amount equal to such excess balance in the
    cooperative endangered species conservation fund established
    under section 6(i) of this Act.
      (e) Enforcement.--(1)  * * *

               *       *       *       *       *       *       *

      (3) Any person authorized by the Secretary, the Secretary of
    the Treasury, or the Secretary of the Department in which the
    Coast Guard is operating, to enforce this Act may detain for
    inspection and inspect any package, crate, or other container,
    including its contents, and all accompanying documents, upon
    importation or exportation. [Such persons] Such a person may
    make arrests without a warrant for any violation of this Act if
    [he] the person has reasonable grounds to believe that the
    person to be arrested is committing the violation in [his] the
    person's presence or view and may execute and serve any arrest
    warrant, search warrant, or other warrant or civil or criminal
    process issued by any officer or court of competent
    jurisdiction for enforcement of this Act. Such person so
    authorized may search and seize, with or without a warrant, as
    authorized by law. Any fish, wildlife, property, or item so
    seized shall be held by any person authorized by the Secretary,
    the Secretary of the Treasury, or the Secretary of the
    Department in which the Coast Guard is operating pending
    disposition of civil or criminal proceedings, or the
    institution of an action in rem for forfeiture of such fish,
    wildlife, property, or item pursuant to paragraph (4) of the
    subsection; except that the Secretary may, in lieu of holding
    such fish, wildlife, property, or item, permit the owner or
    consignee to post a bond or other surety satisfactory to the
    Secretary, but upon forfeiture of any such property to the
    United States, or the abandonment or waiver of any claim to any
    such property, it shall be disposed of (other than by sale to
    the general public) by the Secretary in such a manner,
    consistent with the purposes of this Act, as the Secretary
    shall by regulation prescribe.

               *       *       *       *       *       *       *

      (5) All provisions of law relating to the seizure,
    forfeiture, and condemnation of a vessel for violation of the
    customs laws, the disposition of such vessel or the proceeds
    from the sale thereof, and the remission or mitigation of such
    forfeiture, shall apply to the seizures and forfeitures
    incurred, or alleged to have been incurred, under the
    provisions of this Act, insofar as such provisions of law are
    applicable and not inconsistent with the provisions of this
    Act; except that all powers, rights, and duties conferred or
    imposed by the customs laws upon any officer or employee of the
    Treasury Department shall, for the purposes of this Act, be
    exercised or performed by the Secretary or by such persons as
    [he] the Secretary may designate.

               *       *       *       *       *       *       *

      (g) Citizen Suits.--(1) Except as provided in paragraph (2)
    of this subsection any person may commence a civil suit on
    [his] the person's own behalf--
              (A)  * * *

               *       *       *       *       *       *       *

                             [CONFORMING AMENDMENTS

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

                                   [REPEALER

      [Sec. 14. The Endangered Species Conservation Act of 1969
    (sections 1 through 3 of the Act of October 16, 1966, and
    sections 1 through 6 of the Act of December 5,1969; 16 U.S.C.
    668aa-666cc-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 years 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.

                                [EFFECTIVE DATE

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

                         PRIVATE PROPERTY CONSERVATION

      Sec. 13. (a) In General.--The Secretary may provide
    conservation grants (in this section referred to as ``grants'')
    to promote the voluntary conservation of endangered species and
    threatened species by owners of private property and shall
    provide financial conservation aid (in this section referred to
    as ``aid'') to alleviate the burden of conservation measures
    imposed upon private property owners by this Act. The Secretary
    may provide technical assistance when requested to enhance the
    conservation effects of grants or aid.
      (b) Awarding of Grants and Aid.--Grants to promote
    conservation of endangered species and threatened species on
    private property--
              (1) may not be used to fund litigation, general
            education, general outreach, lobbying, or solicitation;
              (2) may not be used to acquire leases or easements of
            more than 50 years duration or fee title to private
            property;
              (3) must be designed to directly contribute to the
            conservation of an endangered species or threatened
            species by increasing the species' numbers or
            distribution; and
              (4) must be supported by any private property owners
            on whose property any grant funded activities are
            carried out.
      (c) Priority.--Priority shall be accorded among grant
    requests in the following order:
              (1) Grants that promote conservation of endangered
            species or threatened species on private property while
            making economically beneficial and productive use of
            the private property on which the conservation
            activities are conducted.
              (2) Grants that develop, promote, or use techniques
            to increase the distribution or population of an
            endangered species or threatened species on private
            property.
              (3) Other grants that promote voluntary conservation
            of endangered species or threatened species on private
            property.
      (d) Eligibility for Aid.--(1) The Secretary shall award aid
    to private property owners who--
              (A) received a written determination under section
            10(k) finding that the proposed use of private property
            would not comply with section 9(a); or
              (B) receive notice under section 10(k)(10) that a
            written determination has been withdrawn.
      (2) Aid shall be in an amount no less than the fair market
    value of the use that was proposed by the property owner if--
              (A) the owner has foregone the proposed use;
              (B) the owner has requested financial aid--
                      (i) within 180 days of the Secretary's
                    issuance of a written determination that the
                    proposed use would not comply with section
                    9(a); or
                      (ii) within 180 days after the property owner
                    is notified of a withdrawal under section
                    10(k)(10); and
              (C) the foregone use would be lawful under State and
            local law and the property owner has demonstrated that
            the property owner has the means to undertake the
            proposed use.
      (e) Distribution of Grants and Aid.--(1) The Secretary shall
    pay eligible aid--
              (A) within 180 days after receipt of a request for
            aid unless there are unresolved questions regarding the
            documentation of the foregone proposed use or
            unresolved questions regarding the fair market value;
            or
              (B) at the resolution of any questions concerning the
            documentation of the foregone use established under
            subsection (f) or the fair market value established
            under subsection (g).
      (2) All grants provided under this section shall be paid on
    the last day of the fiscal year. Aid shall be paid based on the
    date of the initial request.
      (f) Documentation of the Foregone Use.--Within 30 days of the
    request for aid, the Secretary shall enter into negotiations
    with the property owner regarding the documentation of the
    foregone proposed use through such mechanisms such as contract
    terms, lease terms, deed restrictions, easement terms, or
    transfer of title. If the Secretary and the property owner are
    unable to reach an agreement, then, within 60 days of the
    request for aid, the Secretary shall determine how the property
    owner's foregone use shall be documented with the least impact
    on the ownership interests of the property owner necessary to
    document the foregone use.
      (g) Fair Market Value.--For purposes of this section, the
    fair market value of the foregone use of the affected portion
    of the private property, including business losses, is what a
    willing buyer would pay to a willing seller in an open market.
    Fair market value shall take into account the likelihood that
    the foregone use would be approved under State and local law.
    The fair market value shall be determined within 180 days of
    the documentation of the foregone use. The fair market value
    shall be determined jointly by 2 licensed independent
    appraisers, one selected by the Secretary and one selected by
    the property owner. If the 2 appraisers fail to agree on fair
    market value, the Secretary and the property owner shall
    jointly select a third licensed appraiser whose appraisal
    within an additional 90 days shall be binding on the Secretary
    and the private property owner. Within one year after the date
    of enactment of the Threatened and Endangered Species Recovery
    Act of 2005, the Secretary shall promulgate regulations
    regarding selection of the jointly selected appraisers under
    this subsection.
      (h) Limitation on Aid Availability.--Any person receiving aid
    under this section may not receive additional aid under this
    section for the same foregone use of the same property and for
    the same period of time.
      (i) Annual Reporting.--The Secretary shall by January 15 of
    each year provide a report of all aid and grants awarded under
    this section to the Committee on Resources of the House of
    Representatives and the Environment and Public Works Committee
    of the Senate and make such report electronically available to
    the general public on the website required under section 14.

                    PUBLIC ACCESSIBILITY AND ACCOUNTABILITY

      Sec. 14. The Secretary shall make available on a publicly
    accessible website on the Internet--
              (1) each list published under section 4(c)(1);
              (2) all final and proposed regulations and
            determinations under section 4;
              (3) the results of all 5-year reviews conducted under
            section 4(c)(2)(A);
              (4) all draft and final recovery plans issued under
            section 5(a), and all final recovery plans issued and
            in effect under section 4(f)(1) of this Act as in
            effect immediately before the enactment of the
            Threatened and Endangered Species Recovery Act of 2005;
              (5) all reports required under sections 5(e) and 16,
            and all reports required under sections 4(f)(3) and 18
            of this Act as in effect immediately before the
            enactment of the Threatened and Endangered Species
            Recovery Act of 2005; and
              (6) data contained in the reports referred to in
            paragraph (5) of this section, and that were produced
            after the date of enactment of the Threatened and
            Endangered Species Recovery Act of 2005, in the form of
            databases that may be searched by the variables
            included in the reports.

                      MARINE MAMMAL PROTECTION ACT OF 1972

      Sec. [17] 15. Except as otherwise provided in this Act, no
    provision of this Act shall take precedence over any more
    restrictive conflicting provision of the Marine Mammal
    Protection Act of 1972.

             [ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE

      [Sec. 18. Notwithstanding section 3003 of Public Law 104-66
    (31 U.S.C. 1113 note; 109 Stat. 734), on or before January 15,
    1990, and each January 15 thereafter, the Secretary of the
    Interior, acting through the Fish and Wildlife Service, shall
    submit to the Congress an annual report covering the preceding
    fiscal year which shall contain--
              [(1) an accounting on a species by species basis of
            all reasonably unidentifiable Federal expenditures made
            primarily for the conservation of endangered or
            threatened species pursuant to this Act; and
              [(2) an accounting on a species by species basis for
            all reasonably identifiable expenditures made primarily
            for the conservation of endangered or threatened
            species pursuant to this Act by States receiving grants
            under section 6.]

        ANNUAL COST ANALYSIS BY UNITED STATES FISH AND WILDLIFE SERVICE

      Sec. 16. (a) In General.--On or before January 15 of each
    year, the Secretary shall submit to the Congress an annual
    report covering the preceding fiscal year that contains an
    accounting of all reasonably identifiable expenditures made
    primarily for the conservation of species included on lists
    published and in effect under section 4(c).
      (b) Specification of Expenditures.--Each report under this
    section shall specify--
              (1) expenditures of Federal funds on a species-by-
            species basis, and expenditures of Federal funds that
            are not attributable to a specific species;
              (2) expenditures by States for the fiscal year
            covered by the report on a species-by-species basis,
            and expenditures by States that are not attributable to
            a specific species; and
              (3) based on data submitted pursuant to subsection
            (c), expenditures voluntarily reported by local
            governmental entities on a species-by-species basis,
            and such expenditures that are not attributable to a
            specific species.
      (c) Encouragement of Voluntary Submission of Data by Local
    Governments.--The Secretary shall provide a means by which
    local governmental entities may--
              (1) voluntarily submit electronic data regarding
            their expenditures for conservation of species listed
            under section 4(c); and
              (2) attest to the accuracy of such data.

       REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED SPECIES

      Sec. 17. (a) In General.--The Secretary of the Interior,
    acting through the Director of the United States Fish and
    Wildlife Service, may reimburse the owner of livestock for any
    loss of livestock resulting from depredation by any population
    of a species if the population is listed under section 4(c) and
    includes or derives from members of the species that were
    reintroduced into the wild.
      (b) Eligibility for and Amount.--Eligibility for, and the
    amount of, reimbursement under this section shall not be
    conditioned on the presentation of the body of any animal for
    which reimbursement is sought.
      (c) Limitation on Requirement to Present Body.--The Secretary
    may not require the owner of livestock to present the body of
    individual livestock as a condition of payment of reimbursement
    under this section.
      (d) Use of Donations.--The Secretary may accept and use
    donations of funds to pay reimbursement under this section.
      (e) Availability of Appropriations.--The requirement to pay
    reimbursement under this section is subject to the availability
    of funds for such payments.

                        AUTHORIZATION OF APPROPRIATIONS

      Sec. 18. (a) In General.--There are authorized to be
    appropriated to carry out this Act, other than section 8A(e)--
              (1) to the Secretary of the Interior to carry out
            functions and responsibilities of the Department of the
            Interior under this Act, such sums as are necessary for
            fiscal years 2006 through 2010; and
              (2) to the Secretary of Agriculture to carry out
            functions and responsibilities of the Department of the
            Interior with respect to the enforcement of this Act
            and the convention which pertain the importation of
            plants, such sums as are necessary for fiscal year 2006
            through 2010.
      (b) Convention Implementation.--There is authorized to be
    appropriated to the Secretary of the Interior to carry out
    section 8A(e) such sums as are necessary for fiscal years 2006
    through 2010.
                                  ----------

                      MARINE MAMMAL PROTECTION ACT OF 1972

               *       *       *       *       *       *       *
    TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS

               *       *       *       *       *       *       *

                                    PERMITS

      Sec. 104. (a) * * *

               *       *       *       *       *       *       *

      (c)(1) * * *

               *       *       *       *       *       *       *

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

               *       *       *       *       *       *       *

                       STATUS REVIEW; CONSERVATION PLANS

      Sec. 115. (a) * * *
      (b)(1) * * *
      (2) Each plan shall have the purpose of conserving and
    restoring the species or stock to its optimum sustainable
    population. The Secretary shall model such plans on recovery
    plans required under [section 4(f) of the Endangered Species
    Act of 1973 (16 U.S.C. 1533(f))] section 5 of the Endangered
    Species Act of 1973.

               *       *       *       *       *       *       *

                                ADDITIONAL VIEWS

                                  ----------

                   ADDITIONAL VIEWS OF CONGRESSMAN DON YOUNG

        For too long, the Endangered Species Act has been used not
    as a tool for protecting the environment but as a roadblock.
    The original intent of species protection has been lost by
    those eager to wield the ESA's power for legal and bureaucratic
    ensnarement. The problems with the current Act ensure that it
    will remain primarily used in this dilatory role instead of its
    higher calling.
        I particularly applaud the improvement to the scientific
    standards included in H.R. 3824: The Threatened and Endangered
    Species Recovery Act. My fellow Alaskans, for instance, have
    told me of wildlife counts drastically at odds with government
    agency findings, but the Act's unclear definition of ``best
    available'' allows information gathered during airplane fly-
    overs to count more than the on the ground reality as found by
    those who live there.
        While the Federal Government has failed to recover
    endangered species to healthy and sustainable populations, it
    has unfortunately not failed to cause massive hardship for
    landowners and communities while pursuing this so far widely
    unobtained goal. A better approach is needed--for plants,
    wildlife, and humans. I applaud Chairman Pombo and his efforts
    on this urgent matter.

                                                             Don Young.

                 ADDITIONAL VIEWS OF REPRESENTATIVE MARK UDALL

        While I have strongly supported the Endangered Species Act,
    I have never rejected the idea of changing it.
        On the contrary, I have repeatedly said that I thought it
    would be possible to improve the way it was implemented.
        So, I regret that I was unable to support H.R. 3824 as
    ordered reported by the Resources Committee.
        I don't think the bill is all bad. I like the idea of
    putting more emphasis on recovery plans and on steps to provide
    incentives for landowners and other private parties to help
    with recovering species. And there are other provisions that I
    think are acceptable or even desirable.
        Unfortunately, though, to my mind the bill's defects are
    still so numerous and so serious that it does not deserve to be
    favorably reported as it stands. It simply isn't ready for
    prime time on the floor of the House.
        That was why I offered an amendment to retain protections
    for species listed as ``threatened'' and why I joined with the
    gentleman from New Mexico, Mr. Pearce, in offering an amendment
    to authorize the fish and wildlife service to compensate
    ranchers for livestock lost to an endangered predator that has
    been reintroduced into the wild--something I supported to help
    ensure fair treatment for ranchers where those reintroductions
    take place or where those predators may relocate themselves. I
    am pleased that the Committee adopted those amendments.
        In addition, I voted for a number of amendments that would
    have made other improvements in the bill. If all those
    amendments had been adopted, I would have a much higher opinion
    of the bill.
        Regrettably, that did not happen, and the legislation's
    other flaws meant that I could not vote to approve the bill.
        However, I take hope from the fact that the vote on
    reporting the bill will not be the last vote on this
    legislation. And, as the legislative process goes forward, I
    will continue to do what I can to maintain essential
    protections for endangered species while working to improve the
    way those protections are implemented.

                                                            Mark Udall.

                                DISSENTING VIEWS

        Enacted in 1973, the Endangered Species Act (ESA) has
    demonstrated that it is possible to protect our country's
    heritage and at the same time effectively compete in a global
    economy. H.R. 3824 will unravel the progress this Nation has
    made in sparing from extinction more than 1,200 species,
    including the bald eagle and grizzly bear, on their way to
    recovery, and the brown pelican, American Peregrine Falcon and
    gray whale, which have recovered.
        Those who argue that the law is a failure because it has
    not recovered more species do not understand that the
    Endangered Species Act was never intended as a quick fix to
    protect our favorite species. It is the law of last resort when
    other State and Federal laws fail to result in species
    conservation. The true value of the Endangered Species Act lies
    in the intricacies of life itself.
        The Endangered Species Act has been amended several times.
    There are administrative remedies available to address most, if
    not all, the reasonable issues that have been raised about the
    law. But there is no justification for H.R. 3824, except for
    the expedience of a short-sighted political agenda. H.R. 3824
    would establish precedents we strongly oppose.

                                Pesticide Waiver

        H.R. 3824 would repeal the Endangered Species Act
    provisions that protect threatened and endangered species from
    the harmful impacts of pesticides. Have we forgotten that it
    was the pesticide DDT that was largely responsible for the
    demise of our Nation's most enduring symbol, the American bald
    eagle? Pesticides have also been blamed for poisoning the
    salmon in the Pacific Northwest, and are suspected of playing a
    key role in the recent dramatic decline of fish populations in
    California's San Francisco Bay/Sacramento-San Joaquin Delta.
        Yet, H.R. 3824 would insulate those who use pesticides from
    the Endangered Species Act's prohibitions against killing
    endangered and threatened species. Additionally, it would waive
    the requirements in Section 7 of ESA that Federal agencies
    consult with the National Oceanic and Atmospheric
    Administration's National Marine Fisheries Service or Fish and
    Wildlife Service (Services) to determine the effects that a
    proposed action may have on listed species. As long as
    corporations and Federal agencies comply with the Federal
    Insecticide, Fungicide and Rodenticide Act, they will have no
    further obligation to meet the requirements in the Endangered
    Species Act.
        Notwithstanding the billions of dollars this country has
    spent to restore estuaries and waterways, from the Chesapeake
    Bay to the Everglades and San Francisco Bay/Sacramento-San
    Joaquin Delta, this provision would lift prohibitions in place
    to protect drinking water quality, fisheries and wildlife. The
    economic and environmental implications of this provision are
    staggering.

                           Payment for ESA Compliance

        Under the misleading label ``conservation grants,'' Section
    14 creates a new, potentially open-ended entitlement program
    for property developers and speculators. Section 14 would
    establish the dangerous precedent that private individuals must
    be paid in order to comply with an environmental law designed
    to protect the public interest in preserving endangered species
        Under Section 14, the Services would be put in an untenable
    position where enforcement of the Endangered Species Act would
    generate countless compensation claims and virtually unlimited
    liability against the agencies and Federal taxpayers.
        The ``takings'' clause of the Fifth Amendment to the
    Constitution states: ``[N]or shall private property be taken
    for public use, without just compensation.'' However, under the
    provisions of Section 14, property developers would be
    compensated for government actions which do not constitute
    takings under the Fifth Amendment. The Majority's intent to
    disregard the long-standing principles of Fifth-amendment based
    compensation was made clear by their rejection of Mr. Inslee's
    amendment.
        If the ``pay people to comply with the law'' language of
    Section 14 were applied to local zoning, no Mayor or city
    council could govern a community without facing fear that a
    decision might drive the community into financial ruin. Among
    its many flaws, Section 14 redefines ``fair market value'' to
    include speculative ``business losses'' and allows for
    compensation of ``no less than fair market value'' even if only
    a portion of the property is affected by the government action.
        Ironically, Section 14 provides no assurance that the new
    compensation program would lead to greater conservation or
    recovery of endangered species. The far greater likelihood is
    an unwarranted windfall for land developers, and speculators,
    and their lawyers at an enormous cost to the taxpayers and
    budget deficit.

                      Alternative Consultation Procedures

        H.R. 3824 cuts the heart out of the Section 7 consultation
    process, the lynchpin of the ESA. H.R. 3824 allows the
    Secretary of the Interior or Commerce to delegate those
    responsibilities to other Federal agencies through undefined
    procedures. Section 12 imposes no standards for these
    procedures, thus potentially allowing destructive Federal
    activities to proceed without the normal review by the
    scientists with wildlife expertise. The only justification
    given for this provision is that the Services have a heavy
    workload. This problem could be addressed if additional
    resources for ESA compliance were allocated to the responsible
    agencies, a solution repeatedly suggested in testimony before
    the Committee.
        Those tasked with determining the effects of a proposed
    agency action would be forced to wear blinders when considering
    whether a species is in jeopardy of extinction. Under existing
    law, the Services consider the condition of the species at the
    time the proposed action would be carried out. If other
    projects are also negatively impacting the species, the
    Services address their cumulative effects when evaluating
    whether the species is in trouble. Yet H.R. 3824 forbids the
    Services from taking these baseline conditions into account.
    The Services will be obligated to ignore reality and base their
    decision on fiction. There is a real risk that this provision
    could allow political expediency to override the concerns of
    qualified agency scientists.
        Once the Secretary of the Interior or Commerce has entered
    into a cooperative agreement with a State, H.R. 3824 limits the
    applicability of the Section 7 consultation provisions in the
    ESA to the time when the agreement is renewed or amended. If it
    is found that the agreement results in the harm or jeopardy of
    a listed species, it is questionable whether consultation would
    have to be reinitiated. There is no requirement that the
    cooperative agreement meet any meaningful conservation
    standard.

                              Jeopardy Definition

        While we are highly critical of H.R. 3824, we believe that
    including a statutory definition of ``jeopardize the continued
    existence'' of listed species is a step in the right direction.
    The existing regulatory definition in 50 CFR 402.02 allows
    agency actions to proceed unless they impede both the
    ``survival and recovery'' of a listed species. This definition
    allows too many species to totter on the brink of extinction. A
    species that is merely surviving is clearly not recovering.
        The statutory definition of what constitutes jeopardy in
    H.R. 3824 prohibits any agency action that is likely to make
    species' conservation significantly less likely in the long-
    term. The term ``long-term'' will allow the Secretary to
    balance the proven long-term benefits of an action intended to
    promote the species' conservation against potential short term
    negative impacts in assessing whether jeopardy is likely to
    occur. For example, prescriptive-burning or other active
    habitat management may be necessary to ensure a species'
    conservation in the long-term, even though such management
    actions may cause short-term adverse impacts to individual
    members of a species. It is expected that a species' recovery
    plan, including the identification in such plans of habitat
    necessary for the conservation of the species, is to factor
    significantly in making a jeopardy determination during the
    Section 7 consultation process.
        The bill replaces the Secretary's obligation to designate
    critical habitat for listed species with a new obligation to
    identify in a species' recovery plan that habitat which is of
    special value for the conservation of the species. It is
    expected that an endangered or threatened species' recovery
    plan, including the identification in such plan of areas of
    special value to the conservation of the species, will factor
    significantly in making a jeopardy determination during the
    Section 7 consultation process. In the absence of a meaningful
    recovery plan or criteria or where the Secretary has determined
    that he or she cannot yet ascertain recovery criteria, the
    jeopardy analysis shall be informed by the proposed agency
    action's likely impact on achieving interim recovery criteria,
    if any, and the extent to which the proposed agency action is
    likely to impact the species' current status and potential
    prospects for recovery.

                                   Conclusion

        Notwithstanding our support for the inclusion of a
    statutory definition of jeopardy, we strongly oppose H.R. 3824
    which will undermine any progress this country has seen in
    species recovery. There is no justification to overhaul the law
    in this way, and its enactment will likely result in more
    species extinctions and greater costs to the taxpayer.
        We cannot know what currently unforeseen miracles of
    science and medicine reside in the small, seemingly
    insignificant life forms which surround us. But modern medicine
    has saved untold numbers of lives by gaining a deeper
    understanding of life forms. If we wish for human life to
    continue, we must recognize that our lives are inextricably
    woven with all other life.
        None among us fully understands the complex design of life
    on earth. Until we do, we should preserve God's wonders in all
    their forms. It is not for us to decide which pieces of God's
    plan meet our standards, which should survive, and which should
    be extinguished for our convenience and pleasure.

                                       Nick Rahall.
                                       Edward J. Markey.
                                       Frank Pallone, Jr.
                                       Raul M. Grijalva.
                                       Ron Kind.
                                       Dale E. Kildee.
                                       Mark Udall.
                                       Tom Udall.
                                       George Miller.
                                       Grace F. Napolitano.

    ADDITIONAL DISSENTING VIEWS OF REPRESENTATIVES MARKEY, PALLONE, INSLEE,
                                  AND GRIJALVA

        In addition to the concerns that we have about other
    objectionable components of the bill approved by the Resources
    Committee, we would also like to address specifically the
    provisions in H.R. 3824 that deal with the designation of
    habitat. This bill eliminates the mandatory and enforceable
    designation of a listed species' critical habitat that is in
    current law. Instead, section 10 of this bill directs the
    Secretary to create recovery plans for listed species that
    include identification of areas of ``special value'' to a
    species' conservation. Replacing the current mandatory
    designation and protection of critical habitat with a recovery
    plan, which continues to lack regulatory force, represents a
    dangerous shift in policy that would significantly undermine
    the protection and recovery of threatened and endangered
    species.
        Designating critical habitat for listed species is an
    integral part of a species' continued existence and recovery. A
    major factor forcing threatened and endangered species towards
    extinction is the loss and deterioration of habitat necessary
    for survival. We cannot expect a species to recover without
    first ensuring that it has the habitat in which to do so.
        One example of the necessity and success of critical
    habitat designation is the case of the whooping crane. The
    whooping crane is a bird that was at the brink of extinction--
    at one point there were only 16 in the wild. Enforcement action
    under the critical habitat protection led to the protection of
    the bird's designated migratory path along the Platte River and
    now there are over 200 wild whooping cranes.
        The critical habitat designation is the only part of the
    current law that protects the entire habitat needed for the
    recovery of a species. Under the current law, Federal agencies
    and private actors within a Federal nexus must refrain from
    ``adverse modification'' of critical habitat. There is no
    provision in this bill that similarly expressly protects a
    species' habitat. To mandate that areas of special value be
    identified but then to prevent the enforcement of the
    protection of those areas, will simply result in the filing of
    plans that have no regulatory effect. It would create a
    blizzard of unenforceable bureaucratic paperwork which, in the
    words of Shakespeare, would be ``full of sound and fury but
    signifying nothing.''
        We strongly oppose the elimination of critical habitat
    requirements as an enforceable feature of our national law to
    protect endangered species and urge that habitat designations
    and protections be strengthened as the bill moves forward.

                                       Edward J. Markey.
                                       Jay Inslee.
                                       Frank Pallone, Jr.
                                       Raul M. Grijalva.