[House Report 115-1050]
[From the U.S. Government Publishing Office]


115th Congress   }                                     {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                     {      115-1050

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



 
        WEIGH HABITATS OFFSETTING LOCATIONAL EFFECTS ACT OF 2018

                                _______
                                

 November 27, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 6346]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 6346) to amend the Endangered Species Act of 
1973 to provide for consideration of the totality of 
conservation measures in determining the impact of proposed 
Federal agency action, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                          Purpose of the Bill

    The purpose of H.R. 6346 is to amend the Endangered Species 
Act of 1973 to provide for consideration of the totality of 
conservation measures in determining the impact of proposed 
Federal agency action.

                  Background and Need for Legislation

    The Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et 
seq.) sets out the broad goal of conserving and recovering 
species facing extinction. The law authorizes federal agencies 
to identify imperiled species and list them as either 
threatened or endangered, as appropriate.\1\ The law further 
requires agencies to take necessary actions to conserve those 
species and their habitats.\2\ The Secretary of the Interior, 
through the U.S. Fish and Wildlife Service (FWS), has 
responsibility for plants, wildlife and inland fisheries. The 
Secretary of Commerce, through the National Marine Fisheries 
Service (NMFS) is responsible for implementing the ESA with 
respect to ocean-going fish and some marine mammals.\3\ 
Congress made its most significant amendments to ESA in 1978, 
1982, and 1988, although the overall framework has remained 
essentially unchanged since its original enactment in 1973.\4\
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    \1\16 U.S.C. 1533.
    \2\Id.
    \3\Cong. Research Serv., RL31654, The Endangered Species Act: A 
Primer 15 (2016).
    \4\A History of the Endangered Species Act of 1973, U.S. Fish and 
Wildlife Service, U.S. Department of the Interior, https://www.fws.gov/
endangered/esa-library/pdf/history_ESA.pdf (last visited Sept. 18, 
2018).
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    Notwithstanding the worthy goal set out by the ESA to 
conserve and protect species, in the 45 years since its 
enactment, less than 2 percent of species have recovered enough 
to warrant removal from the list of endangered and threatened 
species.\5\ In fact, many of those species were delisted after 
it was discovered that federal agencies used erroneous data in 
the original listing.\6\ In total, to date there have been 
2,421 listings\7\ under the ESA. In that time the Secretaries 
have delisted 77 species, but only 47 distinct species have 
been removed, either entirely or partially throughout their 
range, due to population recovery.\8\
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    \5\ECOS Environmental Conservation Online System, Listed Species 
Summary (Boxscore), U.S. Fish and Wildlife Service, U.S. Department of 
the Interior, https://ecos.fws.gov/ecp0/reports/box-score-report (last 
visited Sept. 19, 2018).
    \6\ECOS Environmental Conservation Online System, Delisted Species, 
U.S. Fish and Wildlife Service, U.S. Department of the Interior, 
https://ecos.fws.gov/ecp0/reports/delisting-report (last visited Sept. 
19, 2018).
    \7\Supra, note 5. This number was determined by adding the total 
number of species listed as endangered or threatened under the ESA to 
the total number delisted since the ESA's enactment.
    \8\Supra, note 6.
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    In addition to failing to achieve meaningful recovery for 
species, implementation of the ESA disincentivizes conservation 
and can lead to increased conflict between people and species 
through unpredictable and expansive restrictions on land 
use.\9\ Excessive litigation and a lack of transparency in 
federal ESA decision-making has only exacerbated these problems 
and reduced the ESA's effectiveness in recovering species.\10\
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    \9\Committee on House Natural Resources, Endangered Species Act 
Congressional Working Group, Report Findings and Recommendations, 
(2014) available at https://naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_and_recommendations _02_04_14.pdf; See 
also: Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603, 
and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 115th 
Cong, (2017) (testimony of Kent Holsinger, Manager and Founder, 
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
    \10\Hearing on Examining Policy Impacts of Excessive Litigation 
Against the Department of the Interior, Before the Subcomm. on 
Oversight & Investigations of the H. Comm. on Natural Resources, 115th 
Cong. (2017), available at https://naturalresources.house.gov/
uploadedfiles/hearing_memo_--_ov_hrg_06.28.17.pdf.
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    In many cases, implementation of the ESA has caused 
increased burdens for those living in close proximity to the 
protected species.\11\ Often States and local communities have 
the most knowledge about the species located in their State and 
can bring the greatest amount of resources to conservation 
efforts.\12\ They are eager to stabilize species populations to 
prevent listings that can have a major negative economic impact 
on State and local communities through restrictions on land 
use.\13\ Yet, too often, federal management of threatened and 
endangered species fails to take advantage of the wealth of 
knowledge of State and local officials and of the successful 
conservation measures implemented by States.\14\
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    \11\Supra, note 9.
    \12\Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 
2603, and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 
115th Cong, (2017) (testimony of Kent Holsinger, Manager and Founder, 
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
    \13\Id.
    \14\See e.g., Letter from John Hickenlooper, Governor, State of 
Colorado, and Matt Mead, Governor, State of Wyoming, to Steve Ellis, 
Deputy Director, Bureau of Land Management, U.S. Dep't of the Interior, 
and Leslie Weldon, Deputy Chief, National Forest System, U.S. Forest 
Service, U.S. Dep't of Agriculture, Sept. 29, 2014, available at http:/
/westgov.org/images/editor/LTR_GSG_Rollup_Mtgs_FINAL.pdf.
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    Despite these shortcomings in how the ESA has been 
implemented since its enactment, the ESA and its overall goal 
of conserving and recovering species remains widely popular and 
accepted.\15\ ESA modernization should prioritize effective 
species recovery while maintaining the core principles of the 
Act.
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    \15\See e.g., Memo from Ben Tulchin, Ben Krompack, and Kiel 
Brunner, Tulchin Research, to Interested Parties, Jul. 6, 2015, 
available at https://earthjustice.org/sites/default/files/files/
PollingMemoNationalESASurvey.pdf.
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    The Weigh Habitats Offsetting Locational Effects Act of 
2018, or the WHOLE Act, amends ESA to revise how the 
Secretaries review an agency action to determine whether the 
action is likely to jeopardize the continued existence of a 
listed species or result in the destruction or adverse 
modification of critical habitat. Specifically, the bill 
requires the appropriate Secretary, when making such a 
determination, to consider the offsetting effects of protection 
or conservation measures that are already in place or proposed 
to be implemented as part of the action.
    Section 7 of the ESA requires federal agencies to ensure 
that private projects they authorize or public development they 
undertake are not likely to impact critical habitat of an 
endangered or threatened species.\16\ As a consequence, federal 
and private entities seeking to develop on or near critical 
habitat may attempt to offset the effects of proposed actions 
by acquiring and managing suitable habitat that can be 
substituted for the critical habitat.\17\ The substituted 
habitat must be of equivalent size and quality and must be 
located within the species' habitat range.\18\ The substituted 
habitat must also contain any characteristics deemed essential 
to the critical habitat designation.\19\ In sum, the 
substituted habitat is functionally equivalent to land 
designated as critical habitat.
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    \16\16 U.S.C. Sec. 1533.
    \17\16 U.S.C. 1539(a)(2); see also 50 C.F.R. 17.22.
    \18\See WildEarth Guardians v. United States Fish & Wildlife Serv., 
622 F. Supp. 2d 1155 (D. Utah 2009) (analysis of mitigation measures 
taken by incidental take permit applicant).
    \19\Id.
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    Substitution is a proven, effective mitigation mechanism 
that benefits listed species while facilitating economic and 
public development. The unprecedented conservation efforts of 
private landowners in support of the Lesser Prairie Chicken 
resulted in approximately 5.8 million acres being dedicated to 
habitat preservation.\20\ However, ambiguity in the relevant 
ESA provisions and subsequent regulations have resulted in 
uncertainty as to whether habitat substitution is explicitly 
authorized.\21\ Promoting flexibility in habitat mitigation 
practices is essential to the long-term success of the ESA. 
Congress needs to clarify that allowing landowners to 
substitute functionally equivalent habitat for critical habitat 
is authorized under the ESA. This added certainty would 
encourage and reward private conservation efforts and 
facilitate economic growth.
---------------------------------------------------------------------------
    \20\What We Do, Lesser Prairie Chicken Initiative, http://
lpcinitiative.org/our-work/what-we-do/ (last visited Sept. 19, 2018); 
see also: The Range-Wide Plan for Conserving the Lesser Prairie-
Chicken, Western Association of Fish and Wildlife Agencies, https://
wafwalpcrwp.
maps.arcgis.com/apps/MapJournal/
index.html?appid=291fa9716d44404eabfd69d73ddbc002 (last visited Sept. 
19, 2018).
    \21\50 CFR 402.14.
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                      Section-by-Section Analysis


Section 1. Short title

    This act may be cited as the Weigh Habitats Offsetting 
Locational Effects Act of 2018, or the WHOLE Act.

Section 2. Consideration of the totality of conservation measures

    This section requires the relevant Secretary, when 
determining whether a federal agency action is likely to 
jeopardize a listed species or result in the destruction or 
adverse modification of critical habitat, to consider the 
offsetting effects of all avoidance, minimization, and other 
species protection or conservation measures that are already in 
place or proposed to be implemented as part of the action. This 
includes the development, improvement, protection, or 
management of species habitat whether or not it is designated 
as critical habitat of the affected species.

                            Committee Action

    H.R. 6346 was introduced on July 12, 2018, by Congressman 
Mike Johnson (R-LA). The bill was referred to the Committee on 
Natural Resources. On September 26, 2018, the Committee held a 
hearing on the bill. On September 27, 2018, the Committee met 
to consider the bill. No amendments were offered, and the bill 
was ordered favorably reported to the House of Representatives 
by a roll call vote of 20 yeas and 11 nays, as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            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 Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

      Compliance With House Rule XIII and Congressional Budget Act

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 15, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 6346, the WHOLE 
Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 6346 WHOLE Act of 2018

    Under the Endangered Species Act, the U.S. Fish and 
Wildlife Service (USFWS) or the National Oceanic and 
Atmospheric Administration (NOAA) may issue a biological 
opinion on whether a federal agency action--such as the 
permitting of a construction project--is likely to jeopardize 
the continued existence of a species or result in habitat 
modification or destruction. H.R. 6346 would require USFWS and 
NOAA to consider in those opinions any offsetting effects of 
protection and conservation measures already in place or that 
are proposed as part of the agency action.
    CBO expects that under the bill, the agencies would issue a 
rule on how they would implement the new requirement. Based on 
the costs of similar tasks, CBO estimates that those costs 
would be less than $500,000 over the 2019-2023 period; such 
spending would be subject to the availability of appropriated 
funds.
    H.R. 6346 would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 6346 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 6346 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Janani 
Shankaran. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.
    2. 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 the Endangered Species Act 
of 1973 to provide for consideration of the totality of 
conservation measures in determining the impact of proposed 
Federal agency action.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                       Compliance With H. Res. 5

    Directed Rule Making. This bill contains no directed 
rulemakings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                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 (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                     ENDANGERED SPECIES ACT OF 1973




           *       *       *       *       *       *       *
                        interagency cooperation

  Sec. 7. (a) Federal Agency Actions and Consultations.--(1) 
The Secretary shall review other programs administered by him 
and utilize such programs in furtherance of the purposes of 
this Act. All other Federal agencies shall, in consultation 
with and with the assistance of the Secretary, utilize their 
authorities in furtherance of the purposes of this Act by 
carrying out programs for the conservation of endangered 
species and threatened species listed pursuant to section 4 of 
this Act.
  (2) Each Federal agency shall, in consultation with and with 
the assistance of the Secretary, insure that any action 
authorized, funded, or carried out by such agency (hereinafter 
in this section referred to as an ``agency action'') is not 
likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or 
adverse modification of habitat of such species which is 
determined by the Secretary, after consultation as appropriate 
with affected States, to be critical, unless such agency has 
been granted an exemption for such action by the Committee 
pursuant to subsection (h) of this section. In fulfilling the 
requirements of this paragraph each agency shall use the best 
scientific and commercial data available.
  (3) Subject to such guidelines as the Secretary may 
establish, a Federal agency shall consult with the Secretary on 
any prospective agency action at the request of, and in 
cooperation with, the prospective permit or license applicant 
if the applicant has reason to believe that an endangered 
species or a threatened species may be present in the area 
affected by his project and that implementation of such action 
will likely affect such species.
  (4) Each Federal agency shall confer with the Secretary on 
any agency action which is likely to jeopardize the continued 
existence of any species proposed to be listed under section 4 
or result in the destruction or adverse modification of 
critical habitat proposed to be designated for such species. 
This paragraph does not require a limitation on the commitment 
of resources as described in subsection (d).
  (b) Opinion of Secretary.--(1)(A) Consultation under 
subsection (a)(2) with respect to any agency action shall be 
concluded within the 90-day period beginning on the date on 
which initiated or, subject to subparagraph (B), within such 
other period of time as is mutually agreeable to the Secretary 
and the Federal agency.
  (B) In the case of an agency action involving a permit or 
license applicant, the Secretary and the Federal agency may not 
mutually agree to conclude consultation within a period 
exceeding 90 days unless the Secretary, before the close of the 
90th day referred to in subparagraph (A)--
          (i) if the consultation period proposed to be agreed 
        to will end before the 150th day after the date on 
        which consultation was initiated, submits to the 
        applicant a written statement setting forth--
                  (I) the reasons why a longer period is 
                required;
                  (II) the information that is required to 
                complete the consultation; and
                  (III) the estimated date on which 
                consultation will be completed; or
          (ii) if the consultation period proposed to be agreed 
        to will end 150 or more days after the date on which 
        consultation was initiated, obtains the consent of the 
        applicant to such period.
The Secretary and the Federal agency may mutually agree to 
extend a consultation period established under the preceding 
sentence if the Secretary, before the close of such period, 
obtains the consent of the applicant to the extension.
  (2) Consultation under subsection (a)(3) shall be concluded 
within such period as is agreeable to the Secretary, the 
Federal agency, and the applicant concerned.
  (3)(A) Promptly after conclusion of consultation under 
paragraph (2) or (3) of subsection (a), the Secretary shall 
provide to the Federal agency and the applicant, if any, a 
written statement setting forth the Secretary's opinion, and a 
summary of the information on which the opinion is based, 
detailing how the agency action affects the species or its 
critical habitat. If jeopardy or adverse modification is found, 
the Secretary shall suggest those reasonable and prudent 
alternatives which he believes would not violate subsection 
(a)(2) and can be taken by the Federal agency or applicant in 
implementing the agency action.
  (B) Consultation under subsection (a)(3), and an opinion 
based by the Secretary incident to such consultation, regarding 
an agency action shall be treated respectively as a 
consultation under subsection (a)(2), and as an opinion issued 
after consultation under such subsection, regarding that action 
if the Secretary reviews the action before it is commenced by 
the Federal agency and finds, and notifies such agency, that no 
significant changes have been made with respect to the action 
and that no significant change has occurred regarding the 
information used during the initial consultation.
  (C) In determining whether a Federal agency action is likely 
to jeopardize the continued existence of any endangered species 
or threatened species or result in the destruction or adverse 
modification of the critical habitat of a species, the 
Secretary shall consider the offsetting effects of all 
avoidance, minimization, and other species-protection or 
conservation measures that are already in place or proposed to 
be implemented as part of the action, including the 
development, improvement, protection, or management of species 
habitat whether or not it is designated as critical habitat of 
such species.
  (4) If after consultation under subsection (a)(2) of this 
section, the Secretary concludes that--
          (A) the agency action will not violate such 
        subsection, or offers reasonable and prudent 
        alternatives which the Secretary believes would not 
        violate such subsection;
          (B) the taking of an endangered species or a 
        threatened species incidental to the agency action will 
        not violate such subsection; and
          (C) if an endangered species or threatened species of 
        a marine mammal is involved, the taking is authorized 
        pursuant to section 101(a)(5) of the Marine Mammal 
        Protection Act of 1972;
the Secretary shall provide the Federal agency and the 
applicant concerned, if any, with a written statement that--
          
          (i) specifies the impact of such incidental taking on 
        the species,
          (ii) specifies those reasonable and prudent measures 
        that the Secretary considers necessary or appropriate 
        to minimize such impact,
          (iii) in the case of marine mammals, specifies those 
        measures that are necessary to comply with section 
        101(a)(5) of the Marine Mammal Protection Act of 1972 
        with regard to such taking, and
          (iv) sets forth the terms and conditions (including, 
        but not limited to, reporting requirements) that must 
        be complied with by the Federal agency or applicant (if 
        any), or both, to implement the measures specified 
        under clauses (ii) and (iii).
  (c) Biological Assessment.--(1) To facilitate compliance with 
the requirements of subsection (a)(2) each Federal agency 
shall, with respect to any agency action of such agency for 
which no contract for construction has been entered into and 
for which no construction has begun on the date of enactment of 
the Endangered Species Act Amendments of 1978, request of the 
Secretary information whether any species which is listed or 
proposed to be listed may be present in the area of such 
proposed action. If the Secretary advises, based on the best 
scientific and commercial data available, that such species may 
be present, such agency shall conduct a biological assessment 
for the purpose of identifying any endangered species or 
threatened species which is likely to be affected by such 
action. Such assessment shall be completed within 180 days 
after the date on which initiated (or within such other period 
as in mutually agreed to by the Secretary and such agency, 
except that if a permit or license applicant is involved, the 
180-day period may not be extended unless such agency provides 
the applicant, before the close of such period, with a written 
statement setting forth the estimated length of the proposed 
extension and the reasons therefor) and, before any contract 
for construction is entered into and before construction is 
begun with respect to such action. Such assessment may be 
undertaken as part of a Federal agency's compliance with the 
requirements of section 102 of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332).
  (2) Any person who may wish to apply for an exemption under 
subsection (g) of this section for that action may conduct a 
biological assessment to identify any endangered species or 
threatened species which is likely to be affected by such 
action. Any such biological assessment must, however, be 
conducted in cooperation with the Secretary and under the 
supervision of the appropriate Federal agency.
  (d) Limitation on Commitment of Resources.--After initiation 
of consultation required under subsection (a)(2), the Federal 
agency and the permit or license applicant shall not make any 
irreversible or irretrievable commitment of resources with 
respect to the agency action which has the effect of 
foreclosing the formulation or implementation of any reasonable 
and prudent alternative measures which would not violate 
subsection (a)(2).
  (e)(1) Establishment of Committee.--There is established a 
committee to be known as the Endangered Species Committee 
(hereinafter in this section referred to as the ``Committee'').
  (2) The Committee shall review any application submitted to 
it pursuant to this section and determine in accordance with 
subsection (h) of this section whether or not to grant an 
exemption from the requirements of subsection (a)(2) of this 
action for the action set forth in such application.
  (3) The Committee shall be composed of seven members as 
follows:
          (A) The Secretary of Agriculture.
          (B) The Secretary of the Army.
          (C) The Chairman of the Council of Economic Advisors.
          (D) The Administrator of the Environmental Protection 
        Agency. Agency.
          (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) Exemption as Providing Exception on Taking of Endangered 
Species.--Notwithstanding sections 4(d) and 9(a)(1)(B) and (C) 
of this Act, sections 101 and 102 of the Marine Mammal 
Protection Act of 1972, or any regulation promulgated to 
implement any such section--
          (1) any action for which an exemption is granted 
        under subsection (h) of this section shall not be 
        considered to be a taking of any endangered species or 
        threatened species with respect to any activity which 
        is necessary to carry out such action; and
          (2) any taking that is in compliance with the terms 
        and conditions specified in a written statement 
        provided under subsection (b)(4)(iv) of this section 
        shall not be considered to be a prohibited taking of 
        the species concerned.
  (p) Exemptions in Presidentially Declared Disaster Areas.--In 
any area which has been declared by the President to be a major 
disaster area under the Disaster Relief and Emergency 
Assistance Act, the President is authorized to make the 
determinations required by subsections (g) and (h) of this 
section for any project for the repair or replacement of a 
public facility substantially as it existed prior to the 
disaster under section 405 or 406 of the Disaster Relief and 
Emergency Assistance Act, and which the President determines 
(1) is necessary to prevent the recurrence of such a natural 
disaster and to reduce the potential loss of human life, and 
(2) to involve an emergency situation which does not allow the 
ordinary procedures of this section to be followed. 
Notwithstanding any other provision of this section, the 
Committee shall accept the determinations of the President 
under this subsection.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    This legislation is part of a package of nine Republican 
bills, spearheaded by the Western Caucus, introduced late in 
the second session of this Congress, and designed to destroy 
the Endangered Species Act. Each bill has its own, logic-
defying, acronym.
    H.R. 6346 would fundamentally weaken the federal agency 
consultation process under Section 7 of the Endangered Species 
Act. The bill directs the Secretary to consider potential, 
nonbinding avoidance, minimization, or other conservation 
measures when determining whether a proposed action is likely 
to jeopardize an imperiled species or their habitat. The bill 
also allows the Secretary to consider any conservation 
activities that occur outside critical habitat during the 
consultation process, even those that have not been 
implemented. Therefore, this bill would increase the 
probability that a federal agency action would jeopardize the 
continued existence of a listed species and cause harm to 
critical habitats.
    For these reasons, we oppose the bill as reported.

                                   Raul M. Grijalva,
                                           Ranking Member, Committee on 
                                               Natural Resources.
                                   Jared Huffman.
                                   A. Donald McEachin.
                                   Wm. Lacy Clay.
                                   Grace F. Napolitano.
                                   Nanette Diaz Barragan
                                   Niki Tsongas.
                                   Donald S. Beyer, Jr.

                                  [all]