[House Report 118-879]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-879
======================================================================
ESA AMENDMENTS ACT OF 2024
_______
December 16, 2024.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Westerman, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 9533]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 9533) to amend the Endangered Species Act of
1973 to optimize conservation through resource prioritization,
incentivize wildlife conservation on private lands, provide for
greater incentives to recover listed species, create greater
transparency and accountability in recovering listed species,
and limit reasonable and prudent measures, having considered
the same, reports favorably thereon with an amendment and
recommends 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 ``ESA Amendments Act
of 2024''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Endangered Species Act of 1973 definitions.
Sec. 3. Authorization of appropriations.
Sec. 4. Rule of construction.
TITLE I--OPTIMIZING CONSERVATION THROUGH RESOURCE PRIORITIZATION
Sec. 101. Prioritization of listing petitions, reviews, and
determinations.
TITLE II--INCENTIVIZING WILDLIFE CONSERVATION ON PRIVATE LANDS
Sec. 201. Candidate Conservation Agreements with Assurances.
Sec. 202. Designation of critical habitat.
TITLE III--PROVIDING FOR GREATER INCENTIVES TO RECOVER LISTED SPECIES
Sec. 301. Protective regulations under Endangered Species Act of 1973.
Sec. 302. 5-year review determinations.
Sec. 303. Judicial review during monitoring period.
Sec. 304. Codification of regulation.
TITLE IV--CREATING GREATER TRANSPARENCY AND ACCOUNTABILITY IN
RECOVERING LISTED SPECIES
Sec. 401. Requirement to publish basis for listings on Internet.
Sec. 402. Decisional transparency and use of State, Tribal, and local
information.
Sec. 403. Disclosure of expenditures under Endangered Species Act of
1973.
Sec. 404. Award of litigation costs to prevailing parties in accordance
with existing law.
Sec. 405. Analysis of impacts and benefits of determination of
endangered or threatened status.
TITLE V--LIMITATION ON REASONABLE AND PRUDENT MEASURES
Sec. 501. Limitation on reasonable and prudent measures.
SEC. 2. ENDANGERED SPECIES ACT OF 1973 DEFINITIONS.
(a) Foreseeable Future.--The final rule titled ``Endangered and
Threatened Wildlife and Plants; Regulations for Listing Species and
Designating Critical Habitat'' (84 Fed. Reg. 45020; published August
27, 2019) shall have the force and effect of law with respect to the
use of the term ``foreseeable future''.
(b) Habitat.--Section 3(5) of the Endangered Species Act of 1973 (16
U.S.C. 1532(5)) is amended by adding at the end the following:
``(D) For the purposes of designating critical habitat under
this Act, the term `habitat' means the abiotic and biotic
setting that currently or periodically contains the resources
and conditions necessary to support 1 or more life processes of
a species.''.
(c) Environmental Baseline.--Section 7(a) of the Endangered Species
Act of 1973 (16 U.S.C. 1536(a)) is amended by adding at the end the
following:
``(5) For the purposes of carrying out a consultation under this
section with respect to a threatened species or an endangered species,
the term `environmental baseline'--
``(A) means the condition of the species or the critical
habitat of the species in the action area, without the
consequences to the species or the critical habitat of the
species caused by the proposed action; and
``(B) includes--
``(i) the past and present effects of all Federal,
State, and private actions and other human activities
in the action area;
``(ii) the anticipated effects of each proposed
Federal project within the action area for which a
consultation under this section has been completed;
``(iii) the effects of State and private actions that
are contemporaneous with the consultation in process;
and
``(iv) the ongoing impacts to listed species or
designated critical habitat from existing facilities or
activities that are not caused by the proposed action
or that are not within the discretion of the Federal
action agency to modify.''.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
Section 15 of the Endangered Species Act of 1973 (16 U.S.C. 1542) is
amended--
(1) in subsection (a)--
(A) by striking ``subsection (b), (c), and (d)'' and
inserting ``subsections (b) and (c)'';
(B) in paragraph (1)--
(i) by striking ``and'' after ``fiscal year
1991,''; and
(ii) by inserting ``, and $302,025,000 for
each of fiscal years 2025 through 2030'' after
``fiscal year 1992'';
(C) in paragraph (2)--
(i) by striking ``and'' after ``fiscal years
1989 and 1990,''; and
(ii) by inserting ``, and $116,630,000 for
each of fiscal years 2025 through 2030'' after
``fiscal years 1991 and 1992''; and
(D) in paragraph (3)--
(i) by striking ``and'' after ``fiscal years
1989 and 1990,''; and
(ii) by inserting ``and $2,600,000 for each
of fiscal years 2025 through 2030'' after
``fiscal years 1991 and 1992,'';
(2) in subsection (b), by inserting ``and $600,000 for each
of fiscal years 2025 through 2030'' after ``1992''; and
(3) in subsection (c)--
(A) by striking ``and'' after ``fiscal years 1988,
1989, and 1990,''; and
(B) by inserting ``and $9,900,000 for each of fiscal
years 2025 through 2030,'' after ``fiscal years 1991
and 1992,''.
SEC. 4. RULE OF CONSTRUCTION.
Nothing in this Act or the amendments made by this Act may be
construed to enlarge or diminish the authority, jurisdiction, or
responsibility of a State (as that term is defined in section 3 of the
Endangered Species Act of 1973 (16 U.S.C. 1532)) to manage, control, or
regulate fish and wildlife on lands and waters, including Federal lands
and waters, within the State.
TITLE I--OPTIMIZING CONSERVATION
THROUGH RESOURCE PRIORITIZATION
SECTION 101. PRIORITIZATION OF LISTING PETITIONS, REVIEWS, AND
DETERMINATIONS.
(a) In General.--Section 4 of the Endangered Species Act of 1973 (16
U.S.C. 1533) is amended by adding at the end the following:
``(j) National Listing Work Plan.--
``(1) In general.--Not later than the date described in
paragraph (2), the Secretary shall submit to Congress a
national listing work plan that establishes, for each covered
species, a schedule for the completion during the 5-fiscal year
period beginning on October 1 of the first fiscal year after
the date of the submission of the work plan of--
``(A) findings as described in subsection (b)(3)(B)
for each such covered species;
``(B) proposed and final determinations regarding
listing each such covered species under this section;
and
``(C) proposed and final critical habitat
designations under subsection (a)(3) relating to each
such covered species.
``(2) Submission to congress.--
``(A) In general.--The Secretary shall submit to
Congress--
``(i) together with the budget request of the
Secretary for the first fiscal year that begins
not less than 365 days after the date of the
enactment of this subsection, the initial work
plan required under paragraph (1); and
``(ii) together with the budget request of
the Secretary for each fiscal year thereafter,
an updated work plan under paragraph (1).
``(B) Additional inclusions.--The Secretary shall
include with each budget request referred to in
subparagraph (A) a description of the amounts to be
requested to carry out the work plan for the fiscal
year covered by the budget request, including any
amounts requested to address emergency listings if the
Secretary identifies any emergency posing a significant
risk to the well-being of any species of fish or
wildlife or plant.
``(3) Priority.--
``(A) In general.--In developing a work plan under
this subsection, the Secretary shall assign to each
species included in the work plan a priority
classification of Priority 1 through Priority 5, such
that, as determined by the Secretary, the following
apply:
``(i) Priority 1 represents species of the
highest priority, to be designated as
critically imperiled and in need of immediate
action.
``(ii) Priority 2 represents species with
respect to which the best scientific and
commercial data available support a clear
decision regarding the status of the species.
``(iii) Priority 3 represents species with
respect to which studies regarding the status
of the species are being carried out--
``(I) to answer key questions that
may influence the findings of a
petition to list the species submitted
under subsection (b)(3); and
``(II) to resolve any uncertainty
regarding the status of the species
within a reasonable timeframe.
``(iv) Priority 4 represents species for
which proactive conservation efforts likely to
reduce threats to the species are being
developed or carried out, within a reasonable
timeframe and in an organized manner, by
Federal agencies, States, landowners, or other
stakeholders.
``(v) Priority 5 represents species--
``(I) for which there exists little
information regarding--
``(aa) threats to the
species; or
``(bb) the status of the
species; or
``(II) that would receive limited
conservation benefit in the foreseeable
future by listing the species as a
threatened species or endangered
species under this section.
``(B) Use of methodology.--The Secretary shall
establish and assign priority classifications under
subparagraph (A) in accordance with the notice of the
Director of the United States Fish and Wildlife Service
titled `Methodology for Prioritizing Status Reviews and
Accompanying 12-Month Findings on Petitions for Listing
Under the Endangered Species Act' (81 Fed. Reg. 49248;
published July 27, 2016).
``(C) Extensions for certain priority
classifications.--
``(i) Priority 3.--With respect to a species
classified as Priority 3 under subparagraph
(A)(iii), if the Secretary determines that
additional time would allow for more complete
data collection or the completion of studies
relating to the species, the Secretary may
retain the species under the work plan for a
period of not more than 5 years after the
deadline under paragraph (4).
``(ii) Priority 4.--With respect to a species
classified as Priority 4 under subparagraph
(A)(iv), if the Secretary determines that
existing conservation efforts continue to meet
the conservation needs of the species, the
Secretary may retain the species under the work
plan for a period of not more than 5 years
after the deadline under paragraph (4).
``(iii) Priority 5.--With respect to a
species classified as Priority 5 under
subparagraph (A)(v), the Secretary may retain
the species under the work plan for a period of
not more than 5 years after the deadline under
paragraph (4).
``(D) Revision of priority classification.--The
Secretary may revise, in accordance with subparagraph
(A), the assignment to a priority classification of a
species included in a work plan at any time during the
fiscal years to which the work plan applies.
``(E) Effect of priority classification.--The
assignment of a priority classification to a species
included in a work plan is not a final agency action.
``(4) Deadline.--The Secretary shall act on any petition to
add a species to a list published under subsection (c)
submitted under subsection (b)(3) not later than the last day
of the fiscal year specified for that petition in the most
recent work plan.
``(5) Regulations.--The Secretary may issue such regulations
as the Secretary determines appropriate to carry out this
subsection.
``(6) Effect of subsection.--Nothing in this subsection may
be construed to preclude or otherwise affect the emergency
listing authority of the Secretary under subsection (b)(7).
``(7) Definitions.--In this subsection:
``(A) Covered species.--The term `covered species'
means a species that is not included on a list
published under subsection (c)--
``(i) for which a petition to add the species
to such a list has been submitted under
subsection (b)(3); or
``(ii) that is otherwise under consideration
by the Secretary for addition to such a list.
``(B) Work plan.--The term `work plan' means the
national listing work plan submitted by the Secretary
under paragraph (1).''.
(b) Conforming Amendments.--Section 4(b)(3) of the Endangered Species
Act of 1973 (16 U.S.C. 1533(b)(3)) is amended--
(1) in subparagraph (B), by striking ``Within 12 months'' and
inserting ``In accordance with the national listing work plan
submitted under subsection (j),''; and
(2) in subparagraph (C), to read as follows:
``(C) Judicial review.--Any negative finding
described in subparagraph (A) and any finding described
in subparagraph (B)(i)(I) shall be subject to judicial
review.''.
TITLE II--INCENTIVIZING WILDLIFE
CONSERVATION ON PRIVATE LANDS
SECTION 201. CANDIDATE CONSERVATION AGREEMENTS WITH ASSURANCES.
(a) Listing Determinations.--Section 4(b)(1) of the Endangered
Species Act of 1973 (16 U.S.C. 1533(b)(1)) is amended by adding at the
end the following:
``(C) Candidate conservation agreements with
assurances.--In making a determination under subsection
(a)(1) with respect to a species, the Secretary shall
take into account and document the effect of any net
conservation benefit (as that term is defined in
subsection (k) of section 10) of any Candidate
Conservation Agreement with Assurances or any
programmatic Candidate Conservation Agreement with
Assurances (as those terms are defined in that
subsection) relating to such species.''.
(b) Candidate Conservation Agreements With Assurances.--Section 10 of
the Endangered Species Act of 1973 (16 U.S.C. 1539) is amended by
adding at the end the following:
``(k) Candidate Conservation Agreements With Assurances.--
``(1) Proposed agreement.--A covered party may submit a
proposed Agreement to the Secretary.
``(2) Approval.--Not later than 120 days after the date of
the receipt of a proposed Agreement under paragraph (1), the
Secretary shall approve the proposed Agreement if the Secretary
determines that the proposed Agreement--
``(A) sets forth specific management activities that
the covered party will undertake to conserve the
covered species;
``(B) provides a positive estimate of the net
conservation benefit of such management activities to
the covered species;
``(C) describes, to the maximum extent practicable,
the existing population levels of the covered species
or the existing quality of habitat;
``(D) includes a monitoring plan to be carried out by
the parties to the Agreement; and
``(E) provides assurances to the covered party that
no additional conservation measures will be required
and additional land, water, or resource use
restrictions will not be imposed on the covered party
if the covered species becomes listed after the
effective date of such Agreement.
``(3) Denial.--Not later than 120 days after the date of the
receipt of a proposed Agreement under paragraph (1), the
Secretary shall--
``(A) deny the proposed Agreement if the Secretary
determines that the proposed Agreement does not meet
the requirements described in paragraph (2); and
``(B) provide the submitting covered party a written
explanation for such determination and the adjustments
required for the Secretary to approve such proposed
Agreement.
``(4) Programmatic candidate conservation agreement with
assurances.--
``(A) In general.--The Secretary may enter into a
Candidate Conservation Agreement with Assurances with a
covered party that authorizes such covered party--
``(i) to administer such Candidate
Conservation Agreement with Assurances;
``(ii) to hold any permit issued under this
section with regard to such Candidate
Conservation Agreement with Assurances;
``(iii) to enroll other covered parties
within the area covered by such Candidate
Conservation Agreement with Assurances in such
Candidate Conservation Agreement with
Assurances; and
``(iv) to convey any permit authorization
held by such covered party under clause (ii) to
each covered party enrolled under clause (iii).
``(B) Publication.--Upon receipt of a proposed
programmatic Candidate Conservation Agreement with
Assurances under paragraph (1) and before approving or
denying such a proposed programmatic Candidate
Conservation Agreement with Assurances under paragraph
(2) or (3), respectively, the Secretary shall--
``(i) not later than 30 days after the date
of such receipt, publish the proposed
programmatic Candidate Conservation Agreement
with Assurances in the Federal Register for
public comment for a period of not less than 60
days;
``(ii) review any comments received under
clause (i); and
``(iii) after the close of the public comment
period for the proposed programmatic Candidate
Conservation Agreement with Assurances, publish
in the Federal Register--
``(I) any comments received under
clause (i); and
``(II) the approval or denial of the
proposed programmatic Candidate
Conservation Agreement with Assurances
under paragraph (2) or (3),
respectively.
``(5) Incidental take authorization.--If a covered species is
listed under section 4, the Secretary shall issue a permit to
the relevant covered party under this section allowing
incidental take of and modification to the habitat of such
covered species consistent with the Agreement.
``(6) Technical assistance.--The Secretary shall, upon
request, provide a covered party with technical assistance in
developing a proposed Agreement.
``(7) Applicability to federal land.--An Agreement may apply
to a covered party that conducts activities on land
administered by any Federal agency pursuant to a permit or
lease issued to the covered party by that Federal agency.
``(8) Exemption from consultation requirement.--An Agreement
approved under this subsection shall be deemed to have been
granted an exemption under section 7(h) for the purposes of
that section.
``(9) Exemption from disclosure.--Information submitted by a
private party to the Secretary under this subsection shall be
exempt from disclosure under section 552(b)(3)(B) of title 5,
United States Code.
``(10) Definitions.--In this subsection:
``(A) Agreement.--The term `Agreement' means--
``(i) a Candidate Conservation Agreement with
Assurances; or
``(ii) a programmatic Candidate Conservation
Agreement with Assurances.
``(B) Candidate conservation agreement with
assurances.--The term `Candidate Conservation Agreement
with Assurances' means any voluntary agreement,
including a conservation benefit agreement, between the
Secretary and a covered party in which--
``(i) the covered party commits to
implementing mutually agreed upon conservation
measures for a candidate species; and
``(ii) the Secretary provides assurances
that, if such candidate species is listed
pursuant to section 4--
``(I) the covered party shall incur
no additional obligations beyond
actions agreed to in the agreement with
respect to conservation activities
required under this Act; and
``(II) no additional land, water, or
resource use restrictions shall be
imposed on the covered party beyond
those included in the agreement.
``(C) Candidate species.--The term `candidate
species' means a species--
``(i) designated by the Secretary as a
candidate species under this Act; or
``(ii) proposed to be listed pursuant to
section 4.
``(D) Covered party.--The term `covered party' means
a--
``(i) party that conducts activities on land
administered by a Federal agency pursuant to a
permit or lease issued to the party;
``(ii) private property owner;
``(iii) county;
``(iv) State or State agency; or
``(v) Tribal government.
``(E) Covered species.--The term `covered species'
means, with respect to an Agreement, the species that
is the subject of such Agreement.
``(F) Net conservation benefit.--The term `net
conservation benefit' means the net effect of an
Agreement, determined by comparing the existing
situation of the candidate species without the
Agreement in effect and a situation in which the
Agreement is in effect, on a candidate species,
including--
``(i) the net effect on threats to such
species;
``(ii) the net effect on the number of
individuals of such species; or
``(iii) the net effect on the habitat of such
species.
``(G) Programmatic candidate conservation agreement
with assurances.--The term `programmatic Candidate
Conservation Agreement with Assurances' means a
Candidate Conservation Agreement with Assurances
described in paragraph (4)(A).''.
SEC. 202. DESIGNATION OF CRITICAL HABITAT.
(a) Privately Owned or Controlled Land.--Section 4(a)(3) of the
Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) is amended by
adding at the end the following:
``(C) Privately owned or controlled land.--The
Secretary may not designate as critical habitat under
subparagraph (A) any privately owned or controlled land
or other geographical area that is subject to a land
management plan that--
``(i) the Secretary determines is similar in
nature to an integrated natural resources
management plan described in section 101 of the
Sikes Act (16 U.S.C. 670a);
``(ii)(I) is prepared in cooperation with the
Secretary and the head of each applicable State
fish and wildlife agency of each State in which
such land or other geographical area is
located; or
``(II) is submitted to the Secretary in a
manner that is similar to the manner in which
an applicant submits a conservation plan to the
Secretary under section 10(a)(2)(A);
``(iii) includes an activity or a limitation
on an activity that the Secretary determines
will likely conserve the species concerned;
``(iv) the Secretary determines will result
in--
``(I) an increase in the population
of the species concerned above the
population of such species on the date
that such species is listed as a
threatened species or an endangered
species; or
``(II) maintaining the same
population of such species on the land
or other geographical area as the
population that would likely occur if
such land or other geographical area is
designated as critical habitat; and
``(v) to the maximum extent practicable, will
minimize and mitigate the impacts of any
activity that will likely result in an
incidental taking of the species concerned.''.
(b) Designation Considerations.--Section 4(b)(2) of the Endangered
Species Act of 1973 (16 U.S.C. 1533(b)(2)) is amended in the first
sentence by inserting ``the impact on existing efforts of private
landowners to conserve the species,'' after ``impact on national
security,''.
TITLE III--PROVIDING FOR GREATER
INCENTIVES TO RECOVER LISTED SPECIES
SEC. 301. PROTECTIVE REGULATIONS UNDER ENDANGERED SPECIES ACT OF 1973.
(a) Amendment to Definition.--Section 3(3) of the Endangered Species
Act of 1973 (16 U.S.C. 1532(3)) is amended by striking ``and
transplantation, and, in the extraordinary case where population
pressures within a given ecosystem cannot be otherwise relieved, may
include'' and inserting ``transplantation, and, at the discretion of
the Secretary,''.
(b) Protective Regulations.--Section 4 of the Endangered Species Act
of 1973 (16 U.S.C. 1533) is amended--
(1) in subsection (d), to read as follows:
``(d) Protective Regulations.--
``(1) In general.--Whenever any species is listed as a
threatened species pursuant to subsection (c), the Secretary
shall issue such regulations as are necessary and advisable to
provide for the conservation of that species.
``(2) Recovery goals.--If the Secretary issues a regulation
under paragraph (1) that prohibits an act described in section
9(a), the Secretary shall, with respect to the species that is
the subject of such regulation--
``(A) establish objective, incremental recovery
goals;
``(B) provide for the stringency of such regulation
to decrease as such recovery goals are met; and
``(C) provide for State management within such State,
if such State is willing to take on such management,
beginning on the date on which the Secretary determines
all such recovery goals are met and, if such recovery
goals remain met, continuing until such species is
removed from the list of threatened species published
pursuant to subsection (c).
``(3) Cooperative agreement.--A regulation issued under
paragraph (1) that prohibits an act described in section 9(a)
with respect to a resident species shall apply with respect to
a State that has entered into a cooperative agreement with the
Secretary pursuant to section 6(c) only to the extent that such
regulation is adopted by such State.
``(4) State recovery strategy.--
``(A) In general.--A State may develop a recovery
strategy for a threatened species or a candidate
species and submit to the Secretary a petition for the
Secretary to use such recovery strategy as the basis
for any regulation issued under paragraph (1) with
respect to such species within such State.
``(B) Approval or denial of petition.--Not later than
120 days after the date on which the Secretary receives
a petition submitted under subparagraph (A), the
Secretary shall--
``(i) approve such petition if the Secretary
determines the recovery strategy is reasonably
certain to be implemented by the petitioning
State and to be effective in conserving the
species that is the subject of such recovery
strategy; or
``(ii) deny such petition if the requirements
described in clause (i) are not met.
``(C) Publication.--Not later than 30 days after the
date on which the Secretary approves or denies a
petition under subparagraph (B), the Secretary shall
publish such approval or denial in the Federal
Register.
``(D) Denial of petition.--
``(i) Written explanation.--If the Secretary
denies a petition under subparagraph (B), the
Secretary shall include in such denial a
written explanation for such denial, including
a description of the changes to such petition
that are necessary for the Secretary to approve
such petition.
``(ii) Resubmission of denied petition.--A
State may resubmit a petition that is denied
under subparagraph (B).
``(E) Use in protective regulations.--If the
Secretary approves a petition under subparagraph (B),
the Secretary shall--
``(i) issue a regulation under paragraph (1)
that adopts the recovery strategy as such
regulation with respect to the species that is
the subject of such recovery strategy within
the petitioning State; and
``(ii) establish objective criteria to
evaluate the effectiveness of such recovery
strategy in conserving such species within such
State.
``(F) Revision.--If a recovery strategy that is
adopted as a regulation issued under paragraph (1) is
determined by the Secretary to be ineffective in
conserving the species that is the subject of such
recovery strategy in accordance with the objective
criteria established under subparagraph (E)(ii) for
such recovery strategy, the Secretary shall revise such
regulation and reissue such regulation in accordance
with paragraph (1).''; and
(2) in subsection (f)(1)(B)--
(A) in clause (ii), by striking ``and'' at the end;
(B) in clause (iii), by striking the period at the
end and inserting ``; and''; and
(C) by adding at the end the following:
``(iv) with respect to an endangered species,
objective, incremental recovery goals in accordance
with subsection (d)(2)(A) for use under that subsection
if such endangered species is changed in status from an
endangered species to a threatened species under
subsection (c)(2)(B)(ii).''.
SEC. 302. 5-YEAR REVIEW DETERMINATIONS.
Section 4(c) of the Endangered Species Act of 1973 (16 U.S.C.
1533(c)) is amended by adding at the end the following:
``(3) Not later than 30 days after the date on which the Secretary
makes a determination under paragraph (2)(B), the Secretary shall
initiate a rulemaking to carry out such determination.''.
SEC. 303. JUDICIAL REVIEW DURING MONITORING PERIOD.
Section 4(g) of the Endangered Species Act of 1973 (16 U.S.C.
1533(g)) is amended by adding at the end the following:
``(3) The removal of a species from a list published under subsection
(c)(1) is not subject to judicial review during the period established
under paragraph (1) with respect to the species.''.
SEC. 304. CODIFICATION OF REGULATION.
The final rule titled ``Endangered and Threatened Wildlife and
Plants; Regulations for Prohibitions to Threatened Wildlife and
Plants'' (84 Fed. Reg. 44753; published August 27, 2019) shall have the
force and effect of law.
TITLE IV--CREATING GREATER TRANS-
PARENCY AND ACCOUNTABILITY IN RECOV-
ERING LISTED SPECIES
SECTION 401. REQUIREMENT TO PUBLISH BASIS FOR LISTINGS ON INTERNET.
Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C.
1533(b)) is amended by adding at the end the following:
``(9) The Secretary shall make publicly available on the Internet the
best scientific and commercial data available that are used as the
basis for each regulation, including each proposed regulation,
promulgated under subsection (a)(1), except that--
``(A) at the request of a Governor, State agency, or
legislature of a State, the Secretary may not make such data
available under this paragraph if such entity determines that
public disclosure of such data is prohibited by a law or
regulation of such State, including any law or regulation
requiring the protection of personal information; and
``(B) not later than 30 days after the date of the enactment
of this paragraph, the Secretary shall execute an agreement
with the Secretary of Defense that prevents the disclosure of
classified information pertaining to Department of Defense
personnel, facilities, lands, or waters.''.
SEC. 402. DECISIONAL TRANSPARENCY AND USE OF STATE, TRIBAL, AND LOCAL
INFORMATION.
(a) Requiring Decisional Transparency With Affected States.--Section
6(a) of the Endangered Species Act of 1973 (16 U.S.C. 1535(a)) is
amended--
(1) by inserting ``(1)'' before the first sentence; and
(2) by striking ``Such cooperation shall include'' and
inserting the following:
``(2) Such cooperation shall include--
``(A) before making a determination under section 4(a),
providing to States affected by such determination all data
that is the basis of the determination; and
``(B)''.
(b) Ensuring Use of State, Tribal, and Local Information.--
(1) In general.--Section 3 of the Endangered Species Act of
1973 (16 U.S.C. 1532) is amended--
(A) by redesignating paragraphs (2) through (10) as
paragraphs (3) through (11), respectively; and
(B) by inserting after paragraph (1) the following:
``(2) The term `best scientific and commercial data available'
includes data submitted to the Secretary by a State, Tribal, or county
government.''.
(2) Conforming amendment.--Section 7(n) of the Endangered
Species Act of 1973 (16 U.S.C. 1536(n)) is amended by striking
``section 3(13)'' and inserting ``section 3(14)''.
SEC. 403. DISCLOSURE OF EXPENDITURES UNDER ENDANGERED SPECIES ACT OF
1973.
(a) Requirement To Disclose.--Section 13 of the Endangered Species
Act of 1973 (87 Stat. 902) is amended to read as follows:
``SEC. 13. DISCLOSURE OF EXPENDITURES.
``(a) Requirement.--The Secretary of the Interior, in consultation
with the Secretary of Commerce, shall--
``(1) not later than 90 days after the end of each fiscal
year, submit to the Committee on Natural Resources of the House
of Representatives and the Committee on Environment and Public
Works of the Senate an annual report detailing Federal
Government expenditures for covered suits during the preceding
fiscal year (including the information described in subsection
(b)); and
``(2) make publicly available through the Internet a
searchable database, updated monthly, of the information
described in subsection (b).
``(b) Included Information.--The report shall include--
``(1) the case name and number of each covered suit, and,
with respect to each such covered suit, a hyperlink to each
settlement decision, final decision, consent decree,
stipulation of dismissal, release, interim decision, motion to
dismiss, partial motion for summary judgement, or related final
document;
``(2) a description of each claim or cause of action in each
covered suit;
``(3) the name of each covered agency the actions of which
give rise to any claim in a covered suit and each plaintiff in
such suit;
``(4) funds expended by each covered agency (disaggregated by
agency account) to receive and respond to notices referred to
in section 11(g)(2) or to prepare for litigation of, litigate,
negotiate a settlement agreement or consent decree in, or
provide material, technical, or other assistance in relation
to, a covered suit;
``(5) the number of full-time equivalent employees that
participated in the activities described in paragraph (4);
``(6) any information required to be published under section
1304 of title 31, United States Code, with respect to a covered
suit; and
``(7) attorneys fees and other expenses (disaggregated by
agency account) awarded in covered suits, including any consent
decrees or settlement agreements (regardless of whether a
decree or settlement agreement is sealed or otherwise subject
to nondisclosure provisions), including the basis for such
awards.
``(c) Requirement To Provide Information.--The head of each covered
agency shall provide to the Secretary in a timely manner all
information requested by the Secretary to comply with the requirements
of this section.
``(d) Limitation on Disclosure.--Notwithstanding any other provision
of this section, this section shall not affect any restriction in a
consent decree or settlement agreement on the disclosure of information
that is not described in subsection (b).
``(e) Definitions.--In this section:
``(1) Covered agency.--The term `covered agency' means any
agency of the--
``(A) Department of the Interior;
``(B) Forest Service;
``(C) Environmental Protection Agency;
``(D) National Marine Fisheries Service;
``(E) Bonneville Power Administration;
``(F) Western Area Power Administration;
``(G) Southwestern Power Administration; or
``(H) Southeastern Power Administration.
``(2) Covered suit.--The term `covered suit' means--
``(A) any civil action containing any claim arising
under this Act against the Federal Government and based
on the action of a covered agency; and
``(B) any administrative proceeding under which the
United States awards fees and other expenses to a third
party under section 504 of title 5, United States
Code.''.
(b) Clerical Amendment.--The table of contents in the first section
of the Endangered Species Act of 1973 (16 U.S.C. 1531 note) is amended
by striking the item relating to section 13 and inserting the
following:
``Sec. 13. Disclosure of expenditures.''.
SEC. 404. AWARD OF LITIGATION COSTS TO PREVAILING PARTIES IN ACCORDANCE
WITH EXISTING LAW.
Section 11(g)(4) of the Endangered Species Act of 1973 (16 U.S.C.
1540(g)(4)) is amended by striking ``to any party, whenever the court
determines such award is appropriate'' and inserting ``in accordance
with section 2412 of title 28, United States Code and section 504 of
title 5, United States Code''.
SEC. 405. ANALYSIS OF IMPACTS AND BENEFITS OF DETERMINATION OF
ENDANGERED OR THREATENED STATUS.
Section 4(a) of the Endangered Species Act of 1973 (16 U.S.C.
1533(a)) is amended by adding at the end the following:
``(4) Analysis of Effects of Determination.--
``(A) In general.--The Secretary shall, concurrently with
making a determination under paragraph (1) that a species is a
threatened species or an endangered species, prepare an
analysis with respect to such determination of--
``(i) the economic effect;
``(ii) the effects on national security; and
``(iii) any other relevant effect.
``(B) Effect.--Nothing in this paragraph shall delay a
determination made by the Secretary under paragraph (1) or
change the criteria used by the Secretary to make such a
determination.''.
TITLE V--LIMITATION ON REASONABLE AND
PRUDENT MEASURES
SECTION 501. LIMITATION ON REASONABLE AND PRUDENT MEASURES.
Section 7(b)(4) of the Endangered Species Act of 1973 (16 U.S.C.
1536(b)(4)) is amended by inserting ``and that do not propose,
recommend, or require the Federal agency or the applicant concerned, if
any, to mitigate or offset such impact'' after ``minimize such
impact''.
Purpose of the Legislation
The purpose of H.R. 9533 is to amend the Endangered Species
Act of 1973 to optimize conservation through resource
prioritization, incentivize wildlife conservation on private
lands, provide for greater incentives to recover listed
species, create greater transparency and accountability in
recovering listed species, and limit reasonable and prudent
measures.
Background and Need for Legislation
The Endangered Species Act (P.L. 93-205) was enacted in
1973 ``to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be
conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such
steps as may be appropriate to achieve the purposes of the
treaties and conventions set forth'' in the Act.\1\
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\1\Endangered Species Act of 1973, 16 U.S.C. Sec. 1531 et seq.
---------------------------------------------------------------------------
The last time Congress significantly amended the Endangered
Species Act (ESA or Act) was in 1988.\2\ Despite these
revisions, the main provisions of the ESA remain intact and
govern species conservation efforts today. H.R. 9533 would make
significant improvements to the ESA for the betterment of the
species it is charged with recovering and the people that are
impacted directly by its associated regulations. The bill would
also reauthorize the ESA for five fiscal years at funding
levels that correspond to the funding levels set in Fiscal Year
(FY) 2025 appropriations bills introduced in the House of
Representatives.
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\2\Public Law 100-478, the Endangered Species Act Amendment of
1988. https://www.congress.gov/100/STATUTE-102/STATUTE-102-Pg2306.pdf.
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The bill would codify the Trump administration's framework
for determining the ``foreseeable future'' when determining
whether a species qualifies as threatened under the ESA.\3\
This means that when the U.S. Fish and Wildlife Service (FWS)
and the National Marine Fisheries Service (the Services)
considers the ``foreseeable future'', it can extend only so far
into the future as the Services can reasonably determine that
both the threats and the species responses to those threats are
likely.\4\ Prior to the adoption this framework, ``foreseeable
future'' was undefined causing inconsistences in how the term
was applied. The Biden administration has signaled their
interest in rescinding this framework.\5\
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\3\84 FR 45020.
\4\Id.
\5\89 FR 23919.
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The bill would also codify the Trump administration's
definition of ``habitat'' as it relates to the designation of
critical habitat. On December 16, 2020, the Services published
a final rule that defined ``habitat,'' for the purposes of
designating critical habitat as the abiotic and biotic setting
that currently or periodically contains the resources and
conditions necessary to support one or more life processes of
species.\6\ This was in response to the 2018 U.S. Supreme Court
decision in Weyerhaeuser Co. v. U.S. FWS, which stated an area
must logically be considered ``habitat'' for that area to meet
the definition of ``critical habitat'' under the ESA.\7\
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\6\``Endangered and Threatened Wildlife and Plants; Regulations for
Listing Endangered and Threatened Species and Designating Critical
Habitat.'' 87 FR 37757. Federal Register: Endangered and Threatened
Wildlife and Plants; Regulations for Listing Endangered and Threatened
Species and Designating Critical Habitat.
\7\``Final Rules Amending ESA Critical Habitat Regulations.'' Erin
H. Ward and Pervaze A. Sheikh. Congressional Research Service. IF11740
(congress.gov).
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The Biden administration rescinded the 2020 regulatory
definition of ``habitat'' in 2022, giving the Services
significant discretion in designating critical habitat.\8\ This
includes the ability to designate critical habitat in areas
that are not (emphasis added) currently occupied by the species
in question and in some cases, have not been occupied in
decades and may never be occupied. By codifying a definition of
``habitat'' as it relates to critical habitat, this bill
provides certainty and brings the Services in compliance with
the Weyerhaeuser decision.
---------------------------------------------------------------------------
\8\``U.S. Fish and Wildlife Service and NOAA Fisheries Rescind
Regulatory Definition of ``Habitat'' Under the Endangered Species
Act.'' Marilyn Kitchell and Lauren Gaches. U.S. Fish and Wildlife
Service. 6/23/2022. Rescind Regulatory Definition of ``Habitat'' Under
the Endangered Species Act U.S. Fish & Wildlife Service (fws.gov).
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The bill would also codify into law a definition of
``environmental baseline'' into the ESA statute. When
conducting interagency consultations on federal actions, the
Services use the environmental baseline to help determine the
effect on listed species and critical habitat by that action.
On April 5, 2024, the Services finalized a rule that mandated
the following factors be considered when calculating the
environmental baseline: (1) the past and present effects of all
activities in an action area; (2) the anticipated effects of
each proposed federal project in an action area where
consultation has been completed; (3) the effects of state and
private actions that are contemporaneous with the consultation
process; (4) the impacts to listed species or designated
critical habitat from ongoing federal agency activities or
existing federal agency facilities that are not within the
agency's discretion to modify.\9\
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\9\89 FR 24268.
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This bill would amend and replace the fourth consideration
with: ``the ongoing impacts to listed species or critical
habitat from existing facilities or activities that are not
caused by the proposed action or that are not within the
discretion of the Federal action to modify.'' The environmental
baseline should act as a ``snapshot'' of a species health at
the time of the consultation. However, too often the Services
have used the environmental baseline to create a hypothetical
environment that ignores existing infrastructure. This would
require the Services to use a more complete picture of current
impacts to species.
Title I amends section 4 to codify into law existing
Services' efforts to address current backlogs in listing
petitions and critical habitat designation through a ``National
Listing Work Plan.''\10\ These changes would decrease the risk
of litigation in the listing process and to allow the Services
to better allocate their resources towards species most in need
of protection. The Services would be required to submit a work
plan to Congress at the beginning of each fiscal year that
covers listing actions for the next seven fiscal years. The
work plan must include information on species status reviews,
listing determinations, and critical habitat designations.
---------------------------------------------------------------------------
\10\``National Listing Workplan.'' U.S. Fish and Wildlife Service.
National Listing Workplan U.S. Fish & Wildlife Service
(fws.gov).
---------------------------------------------------------------------------
The Services would be required to assign each species
included in the work plan a priority classification, with
priority 1 being the highest and priority 5 being the lowest.
For example, a priority 1 species would be classified as
critically imperiled and in need of immediate action. Whereas a
priority 5 species is a species for which little information
exists regarding threats and the status of the species.
Unfortunately, the ESA has been ineffective in
accomplishing its goal of recovering species and taking them
off the endangered species list, with only three percent of
species that have ever been listed under the act having ever
been delisted.
Private lands play a significant role in managing and the
recovery of endangered and threatened species. As Aldo Leopold
put it, ``conservation will ultimately boil down to rewarding
the private landowner who conserves the public interest.''\11\
In 2023, the FWS reported that ``two-thirds of federally listed
species have at least some habitat on private land, and some
species have most of their remaining habitat on private
land.''\12\ For example, according to the Audubon Society, more
than 80 percent of the grassland and wetlands that provide
essential bird habitat are in private ownership.\13\
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\11\Flader, S.L., Callicott, J.B., & Leopold, A. (1992). The River
of the mother of God: and other Essays by Aldo Leopold. Madison:
University of Wisconsin Press.
\12\``ESA Basics: 50 Years of Conserving Endangered Species.'' U.S.
Fish and Wildlife Service. 2/1/23. Endangered Species Act Basics
(fws.gov).
\13\Wilsey1, CB, J Grand, J Wu, N Michel, J Grogan-Brown, B Trusty.
2019. North American Grasslands. National Audubon Society, New York,
New York, USA. https://nas-national-prod.s3.amazonaws.com/
audubon_north_american_grasslands_birds_report-final.pdf.
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To incentivize private landowners to invest in wildlife
conservation on their lands, the legislation amends the ESA to
provide regulatory certainty to private landowners. This is
done by codifying into law Candidate Conservation Agreements
(CCAs) and Candidate Conservation Agreements with Assurances
(CCAAs). These agreements allow private landowners to commit to
implementing voluntary actions designed to reduce threats to a
species that is a candidate to be listed under the ESA. In
return, if the species is listed, landowners who are a part of
the agreement would be able to continue their operations should
a listing take place. Currently, these agreements only exist
through executive action and secretarial orders, giving the
Services great discretion in how they take these agreements
into account when making listing decisions. The bill explicitly
states that the Services must take the conservation benefit of
these agreements into account when making listing decisions.
In addition, the legislation would give private landowners
who are investing in, or want to invest in, habitat
conservation on their lands the regulatory certainty to do so.
Specifically, the bill prohibits the Services from designating
critical habitat on private lands that are implementing habitat
conservation and restoration actions designed to conserve the
species in question and approved by the Services. This language
mirrors language from the Sikes Act (16 U.S.C. 670a), which
prevents critical habitat designations on lands controlled by
the Department of Defense if those lands are implementing
approved habitat conservation measures.
The ESA requires the Services to ``cooperate to the maximum
extent practicable with the states'' in implementing the Act,
including ``consultation with the States concerned before
acquiring any land or water, or interest therein, for the
purpose of conserving any endangered species or threatened
species.''\14\ Unfortunately, over the course of the ESA's
fifty-year history, states have often been left out of the
process, with power being consolidated in the hands of
officials at the Services. Title III reasserts congressional
intent by giving regulatory incentives and opportunities for
states in the ESA process.
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\14\Endangered Species act of 1973, 16 U.S.C., 1531-1544 (1973).
---------------------------------------------------------------------------
Section 9 prohibits the ``take'' of an endangered species.
Take is defined as to ``harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture or collect, or to attempt to engage
in any such conduct.''\15\ The Act, however, does not
automatically apply the same prohibitions to threatened
species. Instead, Section 4(d) gives the Services the
discretion to grant some exceptions to the take prohibitions
for threatened species.\16\ While National Oceanic and
Atmospheric Administration (NOAA) has taken advantage of this
flexibility,\17\ the FWS continues to take steps to manage
threatened species as endangered species, counter to
congressional intent.\18\
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\15\16 USC Ch. 35. Sec 1532.
\16\USC Ch. 35. Sec 1533.
\17\88 FR 40742.
\18\Revisions of the Regulation for Prohibitions to Threatened
Wildlife and Plants.'' Megan E. Jenkins and Camille Wardle. The Center
for Growth and Opportunity at Utah State University. 10/17/18.
Regulations for Prohibitions to Threatened Wildlife and Plants--The
CGO.
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The FWS began issuing 4(d) rules in 1974, but in 1975 they
finalized what has become known as the ``blanket 4(d) rule''
(blanket rule).\19\ This rule allowed the FWS to extend all
Section 9 prohibitions to threatened species unless a specific
4(d) rule for the species was drafted that exempted certain
activities from those prohibitions. The blanket rule
effectively removes incentives for parties impacted by
threatened species and any of the benefits that result in
downlisting a listed species because no regulatory burdens are
lowered. In 2019, the Trump administration finalized a
rulemaking that took away FWS's ability to blanket rules,\20\
but this rule was rescinded by the Biden administration earlier
this year.\21\
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\19\``Unlocking the Full Power of Section 4(d) to Facilitate
Collaboration and Greater Species Recovery.'' David Willms, J.D.
https://republicans-naturalresources.house.gov/UploadedFiles/
Codex_II_Chapter_3.pdf.
\20\84 FR 44753.
\21\89 FR 23919.
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The legislation changes this dynamic by requiring the
Services to include the following whenever they issue a 4(d)
rule that contains take prohibitions: (1) objective,
incremental recovery goals for the species in question; (2)
provide for the stringency of the prohibitions to decrease as
such recovery goals are met; and (3) provide for state
management of the species once all recovery goals are met in
preparation for the species being delisted.
These steps create greater accountability, transparency,
and incentives to take conservation actions that restore
habitat for and recover listed species because tangible
regulatory relief will come with it. The bill also adopts a
similar approach for the recovery of species listed as
endangered. Specifically, the bill requires the Services to
propose objective and incremental recovery goals for endangered
species. Those goals would form the basis for a 4(d) rule when
the species is downlisted to threatened species status.
This gives states the opportunity to propose a ``recovery
strategy'' for threatened species and species that are
candidates for listing in that state. The bill requires the
Services to review the proposed recovery strategy and determine
whether (1) the state would be able to implement the strategy
and (2) whether that strategy would be effective in conserving
the species in question. If it is determined that both of those
tests are satisfied, the strategy is approved, and it would
become the regulation governing the species in that state.
In addition, the bill amends the definition of
``conserve,'' ``conserving,'' and ``conservation'' to allow for
the regulated take of threatened species. Currently, the
definition only allows for regulated take ``in the
extraordinary case where population pressures within a given
ecosystem cannot be otherwise relieved.''\22\ This standard has
been interpreted by federal courts to mostly prohibit any
regulated take of threatened species.\23\ This raises tensions
with the public, who have no means to control populations of
listed species, even when the population of that species is
well above its population goals. Additionally, it amends the
definition to allow for regulated take ``at the discretion of
the Secretary,'' therefore granting additional flexibility to
the Services.
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\22\16 USC Ch. 35. Sec 1532.
\23\``Unlocking the Full Power of Section 4(d) to Facilitate
Collaboration and Greater Species Recovery.'' David Willms, J.D.
https://republicans-naturalresources.house.gov/UploadedFiles/
Codex_II_Chapter_3.pdf.
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Title III would also amend section 4(g) to require the
Services to monitor, in cooperation with the states, the status
of a species for no less than five years after it is delisted
to ensure it does require relisting. A provision is included
which prohibits judicial review on the delisting of species
during the five-year post-delisting monitoring period. There
are many examples of species that have been successfully
delisted through rigorous scientific decisions, such as wolves
and grizzly bears, only to have a court overrule that decision.
Title IV amends the ESA to require the ``best scientific
and commercial data available'' used to make listing and
critical habitat decision be readily available and accessible
online. ESA-related regulations are often controversial and
impact the public in many ways, including land use, access to
natural resources, and the value of property. In many cases,
all the public gets to see is the result of a decision-making
process, but not what led to that decision being made. The bill
gives the public the ability to understand what the Services
identified as the ``best scientific and commercial data
available.''
Additionally, the Services would be required to coordinate
with states when making listing and critical habitat decisions.
Before finalizing an ESA regulation, the Services must provide
each affected state the data used as the basis of a regulation.
The bill defines ``best scientific and commercial data
available'' to include all such data submitted to the Services
by state, tribal, and local governments.
The Services would be required to disclose to Congress and
make publicly available, each fiscal year, all federal
government expenditures on ESA-related lawsuits. The ESA has
become a magnet for lawsuits designed to frustrate the process
laid out in the underlying statute, with the Services often
settling with litigious environmental groups.
Lastly, Title IV requires an analysis of the economic
impacts, national security impacts, and any other relevant
impacts concurrently with any listing decision. This section
wouldn't preclude a species from being listed for economic and
national security reasons but would give the public necessary
information on how a listing may impact them. Currently the ESA
only requires an analysis of economic and national security
impacts be done when designating critical habitat. Areas can be
excluded from critical habitat for these reasons.
On April 5, 2024, the Services finalized a rule that made
changes to the interagency consultation process on federal
projects.\24\ Included in this rule is a provision that allows
the Services to impose measures that ``offset'' any remaining
impacts on a species caused by an agency action, after
avoidance and minimization measured have been imposed. This
provision greatly expands the discretion of the Services.
Allowing the Services to require offsets for any residual
impacts from an agency action on a listed species is not
supported by ESA statute. As written, Section 7 requires
federal agencies and project applicants to ``minimize'' impacts
to listed species and critical habitat.\25\ The words
``offset'' or ``mitigate'' are not mentioned. To further
clarify this, the bill amends Section 7 to explicitly state
that the Services may not propose, recommend, or require
federal agencies and project applicants to fully mitigate or
offset impacts to listed species and critical habitat.
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\24\``Endangered and Threatened Wildlife and Plants; Regulations
for Interagency Cooperation'' 89 FR 24268 https://
www.federalregister.gov/documents/2024/04/05/2024-06902/endangered-and-
threatened-wildlife-and-plants-regulations-for-interagency-cooperation.
\25\16 U.S.C. 1536.
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Committee Action
H.R. 9533 was introduced on September 10, 2024, by Chairman
Bruce Westerman (R-AR). The bill was referred to the Committee
on Natural Resources. On July 9, 2024, the Subcommittee on
Water, Wildlife and Fisheries held a hearing on the discussion
draft of this bill. On September 19, 2024, the Committee on
Natural Resources met to consider the bill. Chairman Bruce
Westerman (R-AR) offered an Amendment in the Nature of a
Substitute designated Westerman_097 ANS. The amendment in the
nature of a substitute was agreed to by voice vote.
Representative Jared Huffman (D-CA) offered an amendment to the
Amendment in the Nature of a Substitute designated Huffman #1.
The amendment was not agreed to by a roll call vote of 13 yeas
to 20 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Jared Huffman (D-CA) offered an amendment to
the Amendment in the Nature of a Substitute designated Huffman
#2. The amendment was not agreed to by a roll call vote of 13
yeas to 20 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Jared Huffman (D-CA) offered an amendment to
the Amendment in the Nature of a Substitute designated Huffman
#8. The amendment was not agreed to by a roll call vote of 12
yeas to 22 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Katie Porter (D-CA) offered an amendment to
the Amendment in the Nature of a Substitute designated Porter
#4 revised. The amendment was not agreed to by a roll call vote
of 13 yeas to 21 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Katie Porter (D-CA) offered an amendment to
the Amendment in the Nature of a Substitute designated Porter
#7. The amendment was not agreed to by a roll call vote of 13
yeas to 21 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The bill, as amended, was ordered favorably reported to the
House of Representatives by a roll call vote of 22 yeas to 13
nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Hearings
For the purposes of clause 3(c)(6) of House rule XIII, the
following hearing was used to develop or consider this measure:
hearing by the Subcommittee on Water, Wildlife and Fisheries
held on the discussion draft of this legislation on July 9,
2024.
Section-by-Section Analysis
Section 1. Short title; Table of Contents
Defines this Act may be cited as the ``ESA Amendments Act
of 2024''.
Definitions
Codifies the definition of the ``foreseeable future'' that
was adopted by the Trump administration in a 2019 rulemaking.
The bill would also codify the definition of ``habitat'' as it
relates to critical habitat that was adopted by the Trump
administration and codify a definition of ``environmental
baseline'' in the Section 7 consultation process that includes
considering the impacts of existing infrastructure that are not
caused by the proposed action or that are not within the
discretion of the federal action agency to modify.
TITLE I. OPTIMIZING CONSERVATION THROUGH
RESOURCE PRIORITIZATION
Codifies the structure of the listing work plan to create
flexibility on listing timelines in times where too many
petitions are being submitted relative to the capacity of the
U.S. Fish and Wildlife Service and National Marine Fisheries
Service (the Services) to process them.
TITLE II. INCENTIVIZING WILDLIFE CONSERVATION ON PRIVATE LANDS
Codifies into statute the need for the Services to consider
the net conservation benefit of Candidate Conservation
Agreements with Assurance (CCAA's) or any programmatic CCAA's
for a species when making a listing decision on that species
under the ESA. Would also replicate, on private lands, language
from the Sikes Act (16 U.S.C. 670a) giving regulatory certainty
that critical habitat will not be designated if a landowner is
working to implement a land management plan that conserves the
listed species in question.
TITLE III. PROVIDING FOR GREATER INCENTIVES TO RECOVER
LISTED SPECIES
Amends Section 4(d) to require the Services to establish
objective, incremental recovery goals for threatened species,
provide for the stringency of regulations to decrease as
recovery goals are met, and provide for state management of
that species once all recovery goals are met in preparation for
delisting. Would allow states to develop and submit recovery
strategies to the Services for species that are candidates for
listing or listed as threatened. If the Services determine that
the proposed recovery strategy would be effective in conserving
the species, it will become the regulation governing the
management of the species in that state. For species listed as
endangered, the Services must develop objective incremental
recovery goals that would form the basis of a regulation under
Section 4(d) once a species is upgraded to threatened. The bill
would also require the Services to act on 5-year review
determinations of listed species and prohibit judicial review
within the 5-year monitoring period after a species is
delisted. The bill would also codify into the 2019 final rule
from the Trump Administration that prohibited the U.S. Fish and
Wildlife Service from adopted ``blanket'' 4(d) rules.
TITLE IV. CREATING GREATER TRANSPARENCY AND ACCOUNTABILITY
IN RECOVERING LISTED SPECIES
Requires the Services to make publicly available on the
internet the best scientific and commercial data available that
are used as the basis for listing and critical habitat
determinations. This title would provide exceptions for data
that states, or the Department of Defense do not want to be
made publicly available. The Services would also be required to
disclose to states affected by a listing or critical habitat
determination all data used to make that determination. The
definition of ``best scientific and commercial data available''
would be amended to include all such data submitted to the
Secretary by a state, Tribal, or county government. Requires
the Services to disclose to Congress all costs associated with
ESA-related lawsuits. Places a cap on the award of attorney's
fees to successful litigants in line with the Equal Access to
Justice Act. It also requires an analysis of the economic
impacts and national security impacts of each listing and
critical habitat determination. Clarifies that these analyses
do not change the listing criteria set out by the ESA.
TITLE V. LIMITATION ON REASONABLE AND PRUDENT MEASURES
Amends Section 7(b)(4) of the ESA to clarify that the
Services cannot require federal agencies or project applicants
to fully mitigate or offset impacts to listed species caused by
an action.
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.
Pursuant to clause 3(c)(2) of House rule XIII and section
308(a) of the Congressional Budget Act of 1974, and pursuant to
clause 3(c)(3) of House rule XIII and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received from the Director of the Congressional Budget
Office a budgetary analysis and a cost estimate of this bill.
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 optimize conservation through resource
prioritization, incentivize wildlife conservation on private
lands, provide for greater incentives to recover listed
species, create greater transparency and accountability in
recovering listed species, and limit reasonable and prudent
measures.
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.
Unfunded Mandates Reform Act Statement
An estimate of federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chair of
the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee, if such
estimate is not publicly available on the Congressional Budget
Office website.
Existing Programs
Directed Rule Making. This bill does not contain any
directed rule makings.
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.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
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 italics, and 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. 13. Conforming amendments.]
Sec. 13. Disclosure of expenditures.
* * * * * * *
definitions
Sec. 3. For the purposes of this Act--
(1) The term ``alternative courses of action'' means all
alternatives and thus is not limited to original project
objectives and agency jurisdiction.
(2) The term ``best scientific and commercial data
available'' includes data submitted to the Secretary by a
State, Tribal, or county government.
[(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] transplantation, and, at the discretion of the
Secretary, regulated taking.
[(4)] (5) The term ``Convention'' means the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.
[(5)] (6)(A) The term ``critical habitat'' for a threatened
or endangered species means--
(i) the specific areas within the geographical area
occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this
Act, on which are found those physical or biological
features (I) essential to the conservation of the
species and (II) which may require special management
considerations or protection; and
(ii) specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of this
Act, upon a determination by the Secretary that such
areas are essential for the conservation of the
species.
(B) Critical habitat may be established for those species now
listed as threatened or endangered species for which no
critical habitat has heretofore been established as set forth
in subparagraph (A) of this paragraph.
(C) Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire
geographical area which can be occupied by the threatened or
endangered species.
(D) For the purposes of designating critical habitat under
this Act, the term ``habitat'' means the abiotic and biotic
setting that currently or periodically contains the resources
and conditions necessary to support 1 or more life processes of
a species.
[(6)] (7) The term ``endangered species'' means any species
which is in danger of extinction throughout all or a
significant portion of its range other than a species of the
Class Insecta determined by the Secretary to constitute a pest
whose protection under the provisions of this Act would present
an overwhelming and overriding risk to man.
[(7)] (8) The term ``Federal agency'' means any department,
agency, or instrumentality of the United States.
[(8)] (9) The term ``fish or wildlife'' means any member of
the animal kingdom, including without limitation any mammal,
fish, bird (including any migratory, nonmigratory, or
endangered bird for which protection is also afforded by treaty
or other international agreement), amphibian, reptile, mollusk,
crustacean, arthropod or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or
parts thereof.
[(9)] (10) The term ``foreign commerce'' includes, among
other things, any transaction--
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a
person in a foreign country; or
(D) between persons within the United States, where
the fish and wildlife in question are moving in any
country or countries outside the United States.
[(10)] (11) The term ``import'' means to land on, bring into,
or introduce into or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the
United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of
the customs laws of the United States.
(12) The term ``permit or license applicant'' means, when
used with respect to an action of a Federal agency for which
exemption is sought under section 7, any person whose
application to such agency for a permit or license has been
denied primarily because of the application of section 7(a) to
such agency action.
(13) The term ``person'' means an individual, corporation,
partnership, trust, association, or any other private entity;
or any officer, employee, agent, department, or instrumentality
of the Federal Government, of any State, municipality, or
political subdivision of a State, or of any foreign government;
any State, municipality, or political subdivision of a State;
or any other entity subject to the jurisdiction of the United
States.
(14) The term ``plant'' means any member of the plant
kingdom, including seeds, roots and other parts thereof.
(15) The term ``Secretary'' means, except as otherwise herein
provided, the Secretary of the Interior or the Secretary of
Commerce as program responsibilities are vested pursuant to the
provisions of Reorganization Plan Numbered 4 of 1970; except
that with respect to the enforcement of the provisions of this
Act and the Convention which pertain to the importation or
exportation of terrestrial plants, the term also means the
Secretary of Agriculture.
(16) The term ``species'' includes any subspecies of fish or
wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when
mature.
(17) The term ``State'' means any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, Guam, and the Trust Territory of the
Pacific Islands.
(18) The term ``State agency'' means any State agency,
department, board, commission, or other governmental entity
which is responsible for the management and conservation of
fish, plant, or wildlife resources within a State.
(19) The term ``take'' means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.
(20) The term ``threatened species'' means any species which
is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of
its range.
(21) The term ``United States,'' when used in a geographical
context, includes all States.
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.
(C) Privately owned or controlled land.--The
Secretary may not designate as critical habitat
under subparagraph (A) any privately owned or
controlled land or other geographical area that
is subject to a land management plan that--
(i) the Secretary determines is
similar in nature to an integrated
natural resources management plan
described in section 101 of the Sikes
Act (16 U.S.C. 670a);
(ii)(I) is prepared in cooperation
with the Secretary and the head of each
applicable State fish and wildlife
agency of each State in which such land
or other geographical area is located;
or
(II) is submitted to the Secretary in
a manner that is similar to the manner
in which an applicant submits a
conservation plan to the Secretary
under section 10(a)(2)(A);
(iii) includes an activity or a limitation on
an activity that the Secretary determines will
likely conserve the species concerned;
(iv) the Secretary determines will result
in--
(I) an increase in the population of
the species concerned above the
population of such species on the date
that such species is listed as a
threatened species or an endangered
species; or
(II) maintaining the same population
of such species on the land or other
geographical area as the population
that would likely occur if such land or
other geographical area is designated
as critical habitat; and
(v) to the maximum extent practicable, will
minimize and mitigate the impacts of any
activity that will likely result in an
incidental taking of the species concerned.
(4) Analysis of effects of determination.--
(A) In general.--The Secretary shall, concurrently
with making a determination under paragraph (1) that a
species is a threatened species or an endangered
species, prepare an analysis with respect to such
determination of--
(i) the economic effect;
(ii) the effects on national security; and
(iii) any other relevant effect.
(B) Effect.--Nothing in this paragraph shall delay a
determination made by the Secretary under paragraph (1)
or change the criteria used by the Secretary to make
such a determination.
(b) Basis for Determinations.--(1)(A) The Secretary shall
make determinations required by subsection (a)(1) solely on the
basis of the best scientific and commercial data available to
him after conducting a review of the status of the species and
after taking into account those efforts, if any, being made by
any State or foreign nation, or any political subdivision of a
State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or
other conservation practices, within any area under its
jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give
consideration to species which have been--
(i) designated as requiring protection from
unrestricted commerce by any foreign nation, or
pursuant to any international agreement; or
(ii) identified as in danger of extinction, or likely
to become so within the foreseeable future, by any
State agency or by any agency of a foreign nation that
is responsible for the conservation of fish or wildlife
or plants.
(C) Candidate conservation agreements with
assurances.--In making a determination under
subsection (a)(1) with respect to a species,
the Secretary shall take into account and
document the effect of any net conservation
benefit (as that term is defined in subsection
(k) of section 10) of any Candidate
Conservation Agreement with Assurances or any
programmatic Candidate Conservation Agreement
with Assurances (as those terms are defined in
that subsection) relating to such species.
(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, the impact on existing efforts of private landowners
to conserve the species, 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)(A) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to add a species
to, or to remove a species from, either of the lists published
under subsection (c), the Secretary shall make a finding as to
whether the petition presents substantial scientific or
commercial information indicating that the petitioned action
may be warranted. If such a petition is found to present such
information, the Secretary shall promptly commence a review of
the status of the species concerned. The Secretary shall
promptly publish each finding made under this subparagraph in
the Federal Register.
(B) [Within 12 months] In accordance with the national
listing work plan submitted under subsection (j), after
receiving a petition that is found under subparagraph (A) to
present substantial information indicating that the petitioned
action may be warranted, the Secretary shall make one of the
following findings:
(i) The petitioned action is not warranted, in which
case the Secretary shall promptly publish such finding
in the Federal Register.
(ii) The petitioned action is warranted in which case
the Secretary shall promptly publish in the Federal
Register a general notice and the complete text of a
proposed regulation to implement such action in
accordance with paragraph (5).
(iii) The petitioned action is warranted but that--
(I) the immediate proposal and timely
promulgation of a final regulation implementing
the petitioned action in accordance with
paragraphs (5) and (6) is precluded by pending
proposals to determine whether any species is
an endangered species or a threatened species,
and
(II) expeditious progress is being made to
add qualified species to either of the lists
published under subsection (c) and to remove
from such lists species for which the
protections of the Act are no longer necessary,
in which case the Secretary shall promptly publish such
finding in the Federal Register, together with a
description and evaluation of the reasons and data on
which the finding is based.
[(C)(i) A petition with respect to which a finding is made
under subparagraph (B)(iii) shall be treated as a petition that
is resubmitted to the Secretary under subparagraph (A) on the
date of such finding and that presents substantial scientific
or commercial information that the petitioned action may be
warranted.
[(ii) Any negative finding described in subparagraph (A) and
any finding described in subparagraph (B)(i) or (iii) shall be
subject to judicial review.
[(iii) The Secretary shall implement a system to monitor
effectively the status of all species with respect to which a
finding is made under subparagraph (B)(iii) and shall make
prompt use of the authority under paragraph 7 to prevent a
significant risk to the well being of any such species.]
(C) Judicial review.--Any negative finding
described in subparagraph (A) and any finding
described in subparagraph (B)(i)(I) shall be
subject to judicial review.
(D)(i) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to revise a
critical habitat designation, the Secretary shall make a
finding as to whether the petition presents substantial
scientific information indicating that the revision may be
warranted. The Secretary shall promptly publish such finding in
the Federal Register.
(ii) Within 12 months after receiving a petition that is
found under clause (i) to present substantial information
indicating that the requested revision may be warranted, the
Secretary shall determine how he intends to proceed with the
requested revision, and shall promptly publish notice of such
intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this
subsection, the provisions of section 553 of title 5, United
States Code (relating to rulemaking procedures), shall apply to
any regulation promulgated to carry out the purposes of this
Act.
(5) With respect to any regulation proposed by the Secretary
to implement a determination, designation, or revision referred
to in subsection (a)(1) or (3), the Secretary shall--
(A) not less than 90 days before the effective date
of the regulation--
(i) publish a general notice and the complete
text of the proposed regulation in the Federal
Register, and
(ii) give actual notice of the proposed
regulation (including the complete text of the
regulation) to the State agency in each State
in which the species is believed to occur, and
to each county or equivalent jurisdiction in
which the species is believed to occur, and
invite the comment of such agency, and each
such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the
Secretary of State, give notice of the proposed
regulation to each foreign nation in which the species
is believed to occur or whose citizens harvest the
species on the high seas, and invite the comment of
such nation thereon;
(C) give notice of the proposed regulation to such
professional scientific organizations as he deems
appropriate;
(D) publish a summary of the proposed regulation in a
newspaper of general circulation in each area of the
United States in which the species is believed to
occur; and
(E) promptly hold one public hearing on the proposed
regulation if any person files a request for such a
hearing within 45 days after the date of publication of
general notice.
(6)(A) Within the one-year period beginning on the date on
which general notice is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the Secretary shall
publish in the Federal Register--
(i) if a determination as to whether a species is an
endangered species or a threatened species, or a
revision of critical habitat, is involved, either--
(I) a final regulation to implement such
determination,
(II) a final regulation to implement such
revision or a finding that such revision should
not be made,
(III) notice that such one-year period is
being extended under subparagraph (B)(i), or
(IV) notice that the proposed regulation is
being withdrawn under subparagraph (B)(ii),
together with the finding on which such
withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of
critical habitat is involved, either--
(I) a final regulation to implement such
designation, or
(II) notice that such one-year period is
being extended under such subparagraph.
(B)(i) If the Secretary finds with respect to a proposed
regulation referred to in subparagraph (A)(i) that there is
substantial disagreement regarding the sufficiency or accuracy
of the available data relevant to the determination or revision
concerned, the Secretary may extend the one-year period
specified in subparagraph (A) for not more than six months for
purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph
(A)(i) is not promulgated as a final regulation within such
one-year period (or longer period if extension under clause (i)
applies) because the Secretary finds that there is not
sufficient evidence to justify the action proposed by the
regulation, the Secretary shall immediately withdraw the
regulation. The finding on which a withdrawal is based shall be
subject to judicial review. The Secretary may not propose a
regulation that has previously been withdrawn under this clause
unless he determines that sufficient new information is
available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is
extended under clause (i) with respect to a proposed
regulation, then before the close of such extended period the
Secretary shall publish in the Federal Register either a final
regulation to implement the determination or revision
concerned, a finding that the revision should not be made, or a
notice of withdrawal of the regulation under clause (ii),
together with the finding on which the withdrawal is based.
(C) A final regulation designating critical habitat of an
endangered species or a threatened species shall be published
concurrently with the final regulation implementing the
determination that such species is endangered or threatened,
unless the Secretary deems that--
(i) it is essential to the conservation of such
species that the regulation implementing such
determination be promptly published; or
(ii) critical habitat of such species is not then
determinable, in which case the Secretary, with respect
to the proposed regulation to designate such habitat,
may extend the one-year period specified in
subparagraph (A) by not more than one additional year,
but not later than the close of such additional year
the Secretary must publish a final regulation, based on
such data as may be available at that time,
designating, to the maximum extent prudent, such
habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor
section 553 of title 5, United States Code, shall apply to any
regulation issued by the Secretary in regard to any emergency
posing a significant risk to the well-being of any species of
fish and wildlife or plants, but only if--
(A) at the time of publication of the regulation in
the Federal Register the Secretary publishes therein
detailed reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident
species of fish or wildlife, or plants, the Secretary
gives actual notice of such regulation to the State
agency in each State in which such species is believed
to occur.
Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in
the Federal Register. Any regulation promulgated under the
authority of this paragraph shall cease to have force and
effect at the close of the 240-day period following the date of
publication unless, during such 240-day period, the rulemaking
procedures which would apply to such regulation without regard
to this paragraph are complied with. If at any time after
issuing an emergency regulation the Secretary determines, on
the basis of the best appropriate data available to him, that
substantial evidence does not exist to warrant such regulation,
he shall withdraw it.
(8) The publication in the Federal Register of any proposed
or final regulation which is necessary or appropriate to carry
out the purposes of this Act shall include a summary by the
Secretary of the data 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.
(9) The Secretary shall make publicly available on the
Internet the best scientific and commercial data available that
are used as the basis for each regulation, including each
proposed regulation, promulgated under subsection (a)(1),
except that--
(A) at the request of a Governor, State agency, or
legislature of a State, the Secretary may not make such
data available under this paragraph if such entity
determines that public disclosure of such data is
prohibited by a law or regulation of such State,
including any law or regulation requiring the
protection of personal information; and
(B) not later than 30 days after the date of the
enactment of this paragraph, the Secretary shall
execute an agreement with the Secretary of Defense that
prevents the disclosure of classified information
pertaining to Department of Defense personnel,
facilities, lands, or waters.
(c) Lists.--(1) The Secretary of the Interior shall publish
in the Federal Register a list of all species determined by him
or the Secretary of Commerce to be endangered species and a
list of all species determined by him or the Secretary of
Commerce to be threatened species. Each list shall refer to the
species contained therein by scientific and common name or
names, if any, specify with respect to such species over what
portion of its range it is endangered or threatened, and
specify any 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).
(3) Not later than 30 days after the date on which the
Secretary makes a determination under paragraph (2)(B), the
Secretary shall initiate a rulemaking to carry out such
determination.
[(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.]
(d) Protective Regulations.--
(1) In general.--Whenever any species is listed as a
threatened species pursuant to subsection (c), the
Secretary shall issue such regulations as are necessary
and advisable to provide for the conservation of that
species.
(2) Recovery goals.--If the Secretary issues a
regulation under paragraph (1) that prohibits an act
described in section 9(a), the Secretary shall, with
respect to the species that is the subject of such
regulation--
(A) establish objective, incremental recovery
goals;
(B) provide for the stringency of such
regulation to decrease as such recovery goals
are met; and
(C) provide for State management within such
State, if such State is willing to take on such
management, beginning on the date on which the
Secretary determines all such recovery goals
are met and, if such recovery goals remain met,
continuing until such species is removed from
the list of threatened species published
pursuant to subsection (c).
(3) Cooperative agreement.--A regulation issued under
paragraph (1) that prohibits an act described in
section 9(a) with respect to a resident species shall
apply with respect to a State that has entered into a
cooperative agreement with the Secretary pursuant to
section 6(c) only to the extent that such regulation is
adopted by such State.
(4) State recovery strategy.--
(A) In general.--A State may develop a
recovery strategy for a threatened species or a
candidate species and submit to the Secretary a
petition for the Secretary to use such recovery
strategy as the basis for any regulation issued
under paragraph (1) with respect to such
species within such State.
(B) Approval or denial of petition.--Not
later than 120 days after the date on which the
Secretary receives a petition submitted under
subparagraph (A), the Secretary shall--
(i) approve such petition if the
Secretary determines the recovery
strategy is reasonably certain to be
implemented by the petitioning State
and to be effective in conserving the
species that is the subject of such
recovery strategy; or
(ii) deny such petition if the
requirements described in clause (i)
are not met.
(C) Publication.--Not later than 30 days
after the date on which the Secretary approves
or denies a petition under subparagraph (B),
the Secretary shall publish such approval or
denial in the Federal Register.
(D) Denial of petition.--
(i) Written explanation.--If the
Secretary denies a petition under
subparagraph (B), the Secretary shall
include in such denial a written
explanation for such denial, including
a description of the changes to such
petition that are necessary for the
Secretary to approve such petition.
(ii) Resubmission of denied
petition.--A State may resubmit a
petition that is denied under
subparagraph (B).
(E) Use in protective regulations.--If the
Secretary approves a petition under
subparagraph (B), the Secretary shall--
(i) issue a regulation under
paragraph (1) that adopts the recovery
strategy as such regulation with
respect to the species that is the
subject of such recovery strategy
within the petitioning State; and
(ii) establish objective criteria to
evaluate the effectiveness of such
recovery strategy in conserving such
species within such State.
(F) Revision.--If a recovery strategy that is
adopted as a regulation issued under paragraph
(1) is determined by the Secretary to be
ineffective in conserving the species that is
the subject of such recovery strategy in
accordance with the objective criteria
established under subparagraph (E)(ii) for such
recovery strategy, the Secretary shall revise
such regulation and reissue such regulation in
accordance with paragraph (1).
(e) Similarity of Appearance Cases.--The Secretary may, by
regulation of commerce or taking, and to the extent he deems
advisable, treat any species as an endangered species or
threatened species even through it is not listed pursuant to
section 4 of this Act if he finds that--
(A) such species so closely resembles in appearance,
at the point in question, a species which has been
listed pursuant to such section that enforcement
personnel would have substantial difficulty in
attempting to differentiate between the listed and
unlisted species;
(B) the effect of this substantial difficulty is an
additional threat to an endangered or threatened
species; and
(C) such treatment of an unlisted species will
substantially facilitate the enforcement and further
the policy of this Act.
(f)(1) Recovery Plans.--The Secretary shall develop and
implement plans (hereinafter in this subsection referred to as
``recovery plans'') for the conservation and survival of
endangered species and threatened species listed pursuant to
this section, unless he finds that such a plan will not promote
the conservation of the species. The Secretary, in 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[.]; and
(iv) with respect to an endangered species,
objective, incremental recovery goals in
accordance with subsection (d)(2)(A) for use
under that subsection if such endangered
species is changed in status from an endangered
species to a threatened species under
subsection (c)(2)(B)(ii).
(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 chapter 10 of title 5, United States Code.
(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.
(3) The removal of a species from a list published under
subsection (c)(1) is not subject to judicial review during the
period established under paragraph (1) with respect to the
species.
(h) Agency Guidelines.--The Secretary shall establish, and
publish in the Federal Register, agency guidelines to insure
that the purposes of this section are achieved efficiently and
effectively. Such guidelines shall include, but are not limited
to--
(1) procedures for recording the receipt and the
disposition of petitions submitted under subsection
(b)(3) of this section;
(2) criteria for making the findings required under
such subsection with respect to petitions;
(3) a ranking system to assist in the identification
of species that should receive priority review under
subsection (a)(1) of the section; and
(4) a system for developing and implementing, on a
priority basis, recovery plans under subsection (f) of
this section.
The Secretary shall provide to the public notice of, and
opportunity to submit written comments on, any guideline
(including any amendment thereto) proposed to be established
under this subsection.
(i) If, in the case of any regulation proposed by the
Secretary under the authority of this section, a State agency
to which notice thereof was given in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of
the proposed regulation, and the Secretary issues a final
regulation which is in conflict with such comments, or if the
Secretary fails to adopt a regulation pursuant to an action
petitioned by a State agency under subsection (b)(3), the
Secretary shall submit to the State agency a written
justification for his failure to adopt regulations consistent
with the agency's comments or petition.
(j) National Listing Work Plan.--
(1) In general.--Not later than the date described in
paragraph (2), the Secretary shall submit to Congress a
national listing work plan that establishes, for each
covered species, a schedule for the completion during
the 5-fiscal year period beginning on October 1 of the
first fiscal year after the date of the submission of
the work plan of--
(A) findings as described in subsection
(b)(3)(B) for each such covered species;
(B) proposed and final determinations
regarding listing each such covered species
under this section; and
(C) proposed and final critical habitat
designations under subsection (a)(3) relating
to each such covered species.
(2) Submission to congress.--
(A) In general.--The Secretary shall submit
to Congress--
(i) together with the budget request
of the Secretary for the first fiscal
year that begins not less than 365 days
after the date of the enactment of this
subsection, the initial work plan
required under paragraph (1); and
(ii) together with the budget request
of the Secretary for each fiscal year
thereafter, an updated work plan under
paragraph (1).
(B) Additional inclusions.--The Secretary
shall include with each budget request referred
to in subparagraph (A) a description of the
amounts to be requested to carry out the work
plan for the fiscal year covered by the budget
request, including any amounts requested to
address emergency listings if the Secretary
identifies any emergency posing a significant
risk to the well-being of any species of fish
or wildlife or plant.
(3) Priority.--
(A) In general.--In developing a work plan
under this subsection, the Secretary shall
assign to each species included in the work
plan a priority classification of Priority 1
through Priority 5, such that, as determined by
the Secretary, the following apply:
(i) Priority 1 represents species of
the highest priority, to be designated
as critically imperiled and in need of
immediate action.
(ii) Priority 2 represents species
with respect to which the best
scientific and commercial data
available support a clear decision
regarding the status of the species.
(iii) Priority 3 represents species
with respect to which studies regarding
the status of the species are being
carried out--
(I) to answer key questions
that may influence the findings
of a petition to list the
species submitted under
subsection (b)(3); and
(II) to resolve any
uncertainty regarding the
status of the species within a
reasonable timeframe.
(iv) Priority 4 represents species
for which proactive conservation
efforts likely to reduce threats to the
species are being developed or carried
out, within a reasonable timeframe and
in an organized manner, by Federal
agencies, States, landowners, or other
stakeholders.
(v) Priority 5 represents species--
(I) for which there exists
little information regarding--
(aa) threats to the
species; or
(bb) the status of
the species; or
(II) that would receive
limited conservation benefit in
the foreseeable future by
listing the species as a
threatened species or
endangered species under this
section.
(B) Use of methodology.--The Secretary shall
establish and assign priority classifications
under subparagraph (A) in accordance with the
notice of the Director of the United States
Fish and Wildlife Service titled ``Methodology
for Prioritizing Status Reviews and
Accompanying 12-Month Findings on Petitions for
Listing Under the Endangered Species Act'' (81
Fed. Reg. 49248; published July 27, 2016).
(C) Extensions for certain priority
classifications.--
(i) Priority 3.--With respect to a
species classified as Priority 3 under
subparagraph (A)(iii), if the Secretary
determines that additional time would
allow for more complete data collection
or the completion of studies relating
to the species, the Secretary may
retain the species under the work plan
for a period of not more than 5 years
after the deadline under paragraph (4).
(ii) Priority 4.--With respect to a
species classified as Priority 4 under
subparagraph (A)(iv), if the Secretary
determines that existing conservation
efforts continue to meet the
conservation needs of the species, the
Secretary may retain the species under
the work plan for a period of not more
than 5 years after the deadline under
paragraph (4).
(iii) Priority 5.--With respect to a
species classified as Priority 5 under
subparagraph (A)(v), the Secretary may
retain the species under the work plan
for a period of not more than 5 years
after the deadline under paragraph (4).
(D) Revision of priority classification.--The
Secretary may revise, in accordance with
subparagraph (A), the assignment to a priority
classification of a species included in a work
plan at any time during the fiscal years to
which the work plan applies.
(E) Effect of priority classification.--The
assignment of a priority classification to a
species included in a work plan is not a final
agency action.
(4) Deadline.--The Secretary shall act on any
petition to add a species to a list published under
subsection (c) submitted under subsection (b)(3) not
later than the last day of the fiscal year specified
for that petition in the most recent work plan.
(5) Regulations.--The Secretary may issue such
regulations as the Secretary determines appropriate to
carry out this subsection.
(6) Effect of subsection.--Nothing in this subsection
may be construed to preclude or otherwise affect the
emergency listing authority of the Secretary under
subsection (b)(7).
(7) Definitions.--In this subsection:
(A) Covered species.--The term ``covered
species'' means a species that is not included
on a list published under subsection (c)--
(i) for which a petition to add the
species to such a list has been
submitted under subsection (b)(3); or
(ii) that is otherwise under
consideration by the Secretary for
addition to such a list.
(B) Work plan.--The term ``work plan'' means
the national listing work plan submitted by the
Secretary under paragraph (1).
* * * * * * *
cooperation with the states
Sec. 6. (a) General.--(1) In carrying out the program
authorized by this Act, the Secretary shall cooperate to the
maximum extent practicable with the States. [Such cooperation
shall include]
(2) Such cooperation shall include--
(A) before making a determination under section 4(a),
providing to States affected by such determination all
data that is the basis of the determination; and
(B) consultation with the States concerned before
acquiring any land or water, or interest therein, for
the purpose of conserving any endangered species or
threatened species.
(b) Management Agreements.--The Secretary may enter into
agreements with any State for the administration and management
of any area established for the conservation of endangered
species or threatened species. Any revenues derived from the
administration of such areas under these agreements shall be
subject to the provisions of section 401 of the Act of June 15,
1935 (49 Stat. 383; 16 U.S.C. 715s).
(c)(1) Cooperative Agreements.--In furtherance of the
purposes of this Act, the Secretary is authorized to enter into
a cooperative agreement in accordance with this section with
any State which establishes and maintains an adequate and
active program for the conservation of endangered species and
threatened species. Within one hundred and twenty days after
the Secretary receives a certified copy of such a proposed
State program, he shall make a determination whether such
program is in accordance with this Act. Unless he determines,
pursuant to this paragraph, that the State program is not in
accordance with this Act, he shall enter into a cooperative
agreement with the State for the purpose of assisting in
implementation of the State program. In order for a State
program to be deemed an adequate and active program for the
conservation of endangered species and threatened species, the
Secretary must find, and annually thereafter reconfirm such
finding, that under the State program--
(A) authority resides in the State agency to conserve
resident species of fish or wildlife determined by the
State agency or the Secretary to be endangered or
threatened;
(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of fish
or wildlife in the State which are deemed by the
Secretary to be endangered or threatened, and has
furnished a copy of such plan and program together with
all pertinent details, information, and data requested
to the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and requirements
for survival of resident species of fish and wildlife;
(D) the State agency is authorized to establish
programs, including the acquisition of land or aquatic
habitat or interests therein, for the conservation of
resident endangered or threatened species of fish or
wildlife; and
(E) provision is made for public participation in
designating resident species of fish or wildlife as
endangered or threatened; or
that under the State program--
(i) the requirements set forth in subparagraphs (C),
(D), and (E) of this paragraph are complied with, and
(ii) plans are included under which immediate
attention will be given to those resident species of
fish and wildlife which are determined by the Secretary
or the State agency to be endangered or threatened and
which the Secretary and the State agency agree are most
urgently in need of conservation programs; except that
a cooperative agreement entered into with a State whose
program is deemed adequate and active pursuant to
clause (i) and this clause shall not affect the
applicability of prohibitions set forth in or
authorized pursuant to section 4(d) or section 9(a)(1)
with respect to the taking of any resident endangered
or threatened species.
(2) In furtherance of the purposes of this Act, the Secretary
is authorized to enter into a cooperative agreement in
accordance with this section with any State which establishes
and maintains an adequate and active program for the
conservation of endangered species and threatened species of
plants. Within one hundred and twenty days after the Secretary
receives a certified copy of such a proposed State program, he
shall make a determination whether such program is in
accordance with this Act. Unless he determines, pursuant to
this paragraph, that the State program is not in accordance
with this Act, he shall enter into a cooperative agreement with
the State for the purpose of assisting in implementation of the
State program. In order for a State program to be deemed an
adequate and active program for the conservation of endangered
species of plants and threatened species of plants, the
Secretary must find, and annually thereafter reconfirm such
findings, that under the State program--
(A) authority resides in the State agency to conserve
resident species of plants determined by the State
agency or the Secretary to be endangered or threatened;
(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of
plants in the State which are deemed by the Secretary
to be endangered or threatened, and has furnished a
copy of such plan and program together with all
pertinent details, information, and data requested to
the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and requirements
for survival of resident species of plants; and
(D) provision is made for public participation in
designating resident species of plants as endangered or
threatened; or that under the State program--
(i) the requirements set forth in
subparagraphs (C) and (D) of this paragraph are
complied with, and
(ii) plans are included under which immediate
attention will be given to those resident
species of plants which are determined by the
Secretary or the State agency to be endangered
or threatened and which the Secretary and the
State agency agree are most urgently in need of
conservation programs; except that a
cooperative agreement entered into with a State
whose program is deemed adequate and active
pursuant to clause (i) and this clause shall
not affect the applicability of prohibitions
set forth in or authorized pursuant to section
4(d) or section 9(a)(1) with respect to the
taking of any resident endangered or threatened
species.
(d) Allocation of Funds.--(1) The Secretary is authorized to
provide financial assistance to any State, through its
respective State agency, which has entered into a cooperative
agreement pursuant to subsection (c) of this section to assist
in development of programs for the conservation of endangered
and threatened species or to assist in monitoring the status of
candidate species pursuant to subparagraph (C) of section
4(b)(3) and recovered species pursuant to section 4(g). The
Secretary shall allocate each annual appropriation made in
accordance with the provisions of subsection (i) of this
section to such States based on consideration of--
(A) the international commitments of the United
States to protect endangered species or threatened
species;
(B) the readiness of a State to proceed with a
conservation program consistent with the objectives and
purposes of this Act;
(C) the number of endangered species and threatened
species within a State;
(D) the potential for restoring endangered species
and threatened species within a State;
(E) the relative urgency to initiate a program to
restore and protect an endangered species or threatened
species in terms of survival of the species;
(F) the importance of monitoring the status of
candidate species within a State to prevent a
significant risk to the well being of any such species;
and
(G) the importance of monitoring the status of
recovered species within a State to assure that such
species do not return to the point at which the
measures provided pursuant to this Act are again
necessary.
So much of the annual appropriation made in accordance with
provisions of subsection (i) of this section allocated for
obligation to any State for any fiscal year as remains
unobligated at the close thereof is authorized to be made
available to that State until the close of the succeeding
fiscal year. Any amount allocated to any State which is
unobligated at the end of the period during which it is
available for expenditure is authorized to be made available
for expenditure by the Secretary in conducting programs under
this section.
(2) Such cooperative agreements shall provide for (A) the
actions to be taken by the Secretary and the States; (B) the
benefits that are expected to be derived in connection with the
conservation of endangered or threatened species; (C) the
estimated cost of these actions; and (D) the share of such
costs to be bore by the Federal Government and by the States;
except that--
(i) the Federal share of such program costs shall not
exceed 75 percent of the estimated program cost stated
in the agreement; and
(ii) the Federal share may be increased to 90 percent
whenever two or more States having a common interest in
one or more endangered or threatened species, the
conservation of which may be enhanced by cooperation of
such States, enter jointly into agreement with the
Secretary.
The Secretary may, in his discretion, and under such rules and
regulations as he may prescribe, advance funds to the State for
financing the United States pro rata share agreed upon in the
cooperative agreement. For the purposes of this section, the
non-Federal share may, in the discretion of the Secretary, be
in the form of money or real property, the value of which will
be determined by the Secretary whose decision shall be final.
(e) Review of State Programs.--Any action taken by the
Secretary under this section shall be subject to his periodic
review at no greater than annual intervals.
(f) Conflicts Between Federal and State Laws.--Any State law
or regulation which applies with respect to the importation or
exportation of, or interstate or foreign commerce in,
endangered species or threatened species is void to the extent
that it may effectively (1) permit what is prohibited by this
Act or by any regulation which implements this Act, or (2)
prohibit what is authorized pursuant to an exemption or permit
provided for in this Act or in any regulation which implements
this Act. This Act shall not otherwise be construed to void any
State law or regulation which is intended to conserve
migratory, resident, or introduced fish or wildlife, or to
permit or prohibit sale of such fish or wildlife. Any State law
or regulation respecting the taking of an endangered species or
threatened species may be more restrictive than the exemptions
or permits provided for in this Act or in any regulation which
implements this Act but not less restrictive than the
prohibitions so defined.
(g) Transition.--(1) For purposes of this subsection, the
term ``establishment period'' means, with respect to any State,
the period beginning on the date of enactment of this Act and
ending on whichever of the following dates first occurs: (A)
the date of the close of the 120-day period following the
adjournment of the first regular session of the legislature of
such State which commences after such date of enactment, or (B)
the date of the close of the 15-month period following such
date of enactment.
(2) The prohibitions set forth in or authorized pursuant to
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with
respect to the taking of any resident endangered species or
threatened species (other than species listed in Appendix I to
the Convention or otherwise specifically covered by any other
treaty or Federal law) within any State--
(A) which is then a party to a cooperative agreement
with the Secretary pursuant to section 6(c) of this Act
(except to the extent that the taking of any such
species is contrary to the law of such State); or
(B) except for any time within the establishment
period when--
(i) the Secretary applies such prohibition to
such species at the request of the State, or
(ii) the Secretary applies such prohibition
after he finds, and publishes his finding, that
an emergency exists posing a significant risk
to the well-being of such species and that the
prohibition must be applied to protect such
species. The Secretary's finding and
publication may be made without regard to the
public hearing or comment provisions of section
553 of title 5, United States Code, or any
other provision of this Act; but such
prohibition shall expire 90 days after the date
of its imposition unless the Secretary further
extends such prohibition by publishing notice
and a statement of justification of such
extension.
(h) Regulations.--The Secretary is authorized to promulgate
such regulations as may be appropriate to carry out the
provisions of this section relating to financial assistance to
States.
(i) Appropriations.--(1) To carry out the provisions of this
section for fiscal years after September 30, 1988, there shall
be deposited into a special fund known as the cooperative
endangered species conservation fund, to be administered by the
Secretary, an amount equal to five percent of the combined
amounts covered each fiscal year into the Federal aid to
wildlife restoration fund under section 3 of the Act of
September 2, 1937, and paid, transferred, or otherwise credited
each fiscal year to the Sport Fishing Restoration Account
established under 1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are authorized to
be appropriated annually and allocated in accordance with
subsection (d) of this section.
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).
(5) For the purposes of carrying out a consultation under
this section with respect to a threatened species or an
endangered species, the term ``environmental baseline''--
(A) means the condition of the species or the
critical habitat of the species in the action area,
without the consequences to the species or the critical
habitat of the species caused by the proposed action;
and
(B) includes--
(i) the past and present effects of all
Federal, State, and private actions and other
human activities in the action area;
(ii) the anticipated effects of each proposed
Federal project within the action area for
which a consultation under this section has
been completed;
(iii) the effects of State and private
actions that are contemporaneous with the
consultation in process; and
(iv) the ongoing impacts to listed species or
designated critical habitat from existing
facilities or activities that are not caused by
the proposed action or that are not within the
discretion of the Federal action agency to
modify.
(b) Opinion of Secretary.--(1)(A) Consultation under
subsection (a)(2) with respect to any agency action shall be
concluded within the 90-day period beginning on the date on
which initiated or, subject to subparagraph (B), within such
other period of time as is mutually agreeable to the Secretary
and the Federal agency.
(B) In the case of an agency action involving a permit or
license applicant, the Secretary and the Federal agency may not
mutually agree to conclude consultation within a period
exceeding 90 days unless the Secretary, before the close of the
90th day referred to in subparagraph (A)--
(i) if the consultation period proposed to be agreed
to will end before the 150th day after the date on
which consultation was initiated, submits to the
applicant a written statement setting forth--
(I) the reasons why a longer period is
required;
(II) the information that is required to
complete the consultation; and
(III) the estimated date on which
consultation will be completed; or
(ii) if the consultation period proposed to be agreed
to will end 150 or more days after the date on which
consultation was initiated, obtains the consent of the
applicant to such period.
The Secretary and the Federal agency may mutually agree to
extend a consultation period established under the preceding
sentence if the Secretary, before the close of such period,
obtains the consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded
within such period as is agreeable to the Secretary, the
Federal agency, and the applicant concerned.
(3)(A) Promptly after conclusion of consultation under
paragraph (2) or (3) of subsection (a), the Secretary shall
provide to the Federal agency and the applicant, if any, a
written statement setting forth the Secretary's opinion, and a
summary of the information on which the opinion is based,
detailing how the agency action affects the species or its
critical habitat. If jeopardy or adverse modification is found,
the Secretary shall suggest those reasonable and prudent
alternatives which he believes would not violate subsection
(a)(2) and can be taken by the Federal agency or applicant in
implementing the agency action.
(B) Consultation under subsection (a)(3), and an opinion
based by the Secretary incident to such consultation, regarding
an agency action shall be treated respectively as a
consultation under subsection (a)(2), and as an opinion issued
after consultation under such subsection, regarding that action
if the Secretary reviews the action before it is commenced by
the Federal agency and finds, and notifies such agency, that no
significant changes have been made with respect to the action
and that no significant change has occurred regarding the
information used during the initial consultation.
(4) If after consultation under subsection (a)(2) of this
section, the Secretary concludes that--
(A) the agency action will not violate such
subsection, or offers reasonable and prudent
alternatives which the Secretary believes would not
violate such subsection;
(B) the taking of an endangered species or a
threatened species incidental to the agency action will
not violate such subsection; and
(C) if an endangered species or threatened species of
a marine mammal is involved, the taking is authorized
pursuant to section 101(a)(5) of the Marine Mammal
Protection Act of 1972;
the Secretary shall provide the Federal agency and the
applicant concerned, if any, with a written statement that--
(i) specifies the impact of such incidental taking on
the species,
(ii) specifies those reasonable and prudent measures
that the Secretary considers necessary or appropriate
to minimize such impact and that do not propose,
recommend, or require the Federal agency or the
applicant concerned, if any, to mitigate or offset 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)] section 3(14) 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.
* * * * * * *
exceptions
Sec. 10. (a) Permits.--(1) The Secretary may permit, under
such terms and conditions as he shall prescribe--
(A) any act otherwise prohibited by section 9 for
scientific purposes or to enhance the propagation or
survival of the affected species, including, but not
limited to, acts necessary for the establishment and
maintenance of experimental populations pursuant to
subsection (j); or
(B) any taking otherwise prohibited by section
9(a)(1)(B) if such taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful
activity.
(2)(A) No permit may be issued by the Secretary authorizing
any taking referred to in paragraph (1)(B) unless the applicant
therefor submits to the Secretary a conservation plan that
specifies--
(i) the impact which will likely result from such
taking;
(ii) what steps the applicant will take to minimize
and mitigate such impacts, and the funding that will be
available to implement such steps;
(iii) what alternative actions to such taking the
applicant considered and the reasons why such
alternatives are not being utilized; and
(iv) such other measures that the Secretary may
require as being necessary or appropriate for purposes
of the plan.
(B) If the Secretary finds, after opportunity for public
comment, with respect to a permit application and the related
conservation plan that--
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent
practicable, minimize and mitigate the impacts of such
taking;
(iii) the applicant will ensure that adequate funding
for the plan will be provided;
(iv) the taking will not appreciably reduce the
likelihood of the survival and recovery of the species
in the wild; and
(v) the measures, if any, required under subparagraph
(A)(iv) will be met;
and he has received such other assurances as he may require
that the plan will be implemented, the Secretary shall issue
the permit. The permit shall contain such terms and conditions
as the Secretary deems necessary or appropriate to carry out
the purposes of this paragraph, including, but not limited to,
such reporting requirements as the Secretary deems necessary
for determining whether such terms and conditions are being
complied with.
(C) The Secretary shall revoke a permit issued under this
paragraph if he finds that the permittee is not complying with
the terms and conditions of the permit.
(b) Hardship Exemptions.--(1) If any person enters into a
contract with respect to a species of fish or wildlife or plant
before the date of the publication in the Federal Register of
notice of consideration of that species as an endangered
species and the subsequent listing of that species as an
endangered species pursuant to section 4 of this Act will cause
undue hardship to such person under the contract, the
Secretary, in order to minimize such hardship, may exempt such
person from the application of section 9(a) of this Act to the
extent the Secretary deems appropriate if such person applies
to him for such exemption and includes with such application
such information as the Secretary may require to prove such
hardship; except that (A) no such exemption shall be for a
duration of more than one year from the date of publication in
the Federal Register of notice of consideration of the species
concerned, or shall apply to a quantity of fish or wildlife or
plants in excess of that specified by the Secretary; (B) the
one-year period for those species of fish or wildlife listed by
the Secretary as endangered prior to the effective date of this
Act shall expire in accordance with the terms of section 3 of
the Act of December 5, 1969 (83 Stat. 275); and (C) no such
exemption may be granted for the importation or exportation of
a specimen listed in Appendix I of the Convention which is to
be used in a commercial activity.
(2) As used in this subsection, the term ``undue economic
hardship'' shall include, but not be limited to:
(A) substantial economic loss resulting from
inability caused by this Act to perform contracts with
respect to species of fish and wildlife entered into
prior to the date of publication in the Federal
Register of a notice of consideration of such species
as an endangered species;
(B) substantial economic loss to persons who, for the
year prior to the notice of consideration of such
species as an endangered species, derived a substantial
portion of their income from the lawful taking of any
listed species, which taking would be made unlawful
under this Act; or
(C) curtailment of subsistence taking made unlawful
under this Act by persons (i) not reasonably able to
secure other sources of subsistence; and (ii) dependent
to a substantial extent upon hunting and fishing for
subsistence; and (iii) who must engage in such
curtailed taking for subsistence purposes.
(3) The Secretary may make further requirements for a showing
of undue economic hardship as he deems fit. Exceptions granted
under this section may be limited by the Secretary in his
discretion as to time, area, or other factor of applicability.
(c) Notice and Review.--The Secretary shall publish notice in
the Federal Register of each application for an exemption or
permit which is made under this section. Each notice shall
invite the submission from interested parties, within thirty
days after the date of the notice, of written data, views, or
arguments with respect to the application; except that such
thirty-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 finds and publishes his finding in the Federal
Register that (1) such exceptions were applied for in good
faith, (2) if granted and exercised will not operate to the
disadvantage of such endangered species, and (3) will be
consistent with the purposes and policy set forth in section 2
of this Act.
(e) Alaska Natives.--(1) Except as provided in paragraph (4)
of this subsection the provisions of this Act shall not apply
with respect to the taking of any endangered species or
threatened species, or the importation of any such species
taken pursuant to this section, by--
(A) any Indian, Aleut, or Eskimo who is an Alaskan
Native who resides in Alaska; or
(B) any non-native permanent resident of an Alaska
native village;
if such taking is primarily for subsistence purposes. Non-
edible by-products of species taken pursuant to this section
may be sold in interstate commerce when made into authentic
native articles of handicrafts and clothing; except that the
provisions of this subsection shall not apply to any non-native
resident of an Alaskan native village found by the Secretary to
be not primarily dependent upon the taking of fish and wildlife
for consumption or for the creation and sale of authentic
native articles of handicrafts and clothing.
(2) Any taking under this subsection may not be accomplished
in a wasteful manner.
(3) As used in this subsection--
(i) The term ``subsistence'' includes selling any
edible portion of fish or wildlife in native villages
and towns in Alaska for native consumption within
native villages or towns; and
(ii) The term ``authentic native articles of handicrafts and
clothing'' means items composed wholly or in some significant
respect to natural materials, and which are produced, decorated
or fashioned in the exercise of traditional native handicrafts
without the use of pantographs, multiple carvers, or other mass
copying devices. Traditional native handicrafts include, but
are not limited to, weaving, carving, stitching, sewing,
lacing, beading, drawing, and painting.
(4) Notwithstanding the provisions of paragraph (l) of this
subsection, whenever the Secretary determines that any species
of fish or wildlife which is subject to taking under the
provisions of this subsection is an endangered species or
threatened species, and that such taking materially and
negatively affects the threatened or endangered species, he may
prescribe regulations upon the taking of such species by any
such Indian, Aleut, Eskimo, or non-native Alaskan resident of
an Alaskan native village. Such regulations may be established
with reference to species, geographical description of the area
included, the season for taking, or any other factors related
to the reason for establishing such regulations and consistent
with the policy of this Act. Such regulations shall be
prescribed after a notice and hearings in the affected judicial
districts of Alaska and as otherwise required by section 103 of
the Marine Mammal Protection Act of 1972, and shall be removed
as soon as the Secretary determines that the need for their
impositions has disappeared.
(f)(1) As used in this subsection--
(A) The term ``pre-Act endangered species part''
means--
(i) any sperm whale oil, including
derivatives thereof, which was lawfully held
within the United States on December 28, 1973,
in the course of a commercial activity; or
(ii) any finished scrimshaw product, if such
product or the raw material for such product
was lawfully held within the United States on
December 28, 1973, in the course of a
commercial activity.
(B) The term ``scrimshaw product'' means any art form
which involves the substantial etching or engraving of
designs upon, or the substantial carving of figures,
patterns, or designs from, any bone or tooth of any
marine mammal of the order Cetacea. For purposes of
this subsection, polishing or the adding of minor
superficial markings does not constitute substantial
etching, engraving, or carving.
(2) The Secretary, pursuant to the provisions of this
subsection, may exempt, if such exemption is not in violation
of the Convention, any pre-Act endangered species part from one
or more of the following prohibitions.
(A) The prohibition on exportation from the United
States set forth in section 9(a)(1)(A) of this Act.
(B) Any prohibition set forth in section 9(a)(1) (E)
or (F) of this Act.
(3) Any person seeking an exemption described in paragraph
(2) of this subsection shall make application therefor to the
Secretary in such form and manner as he shall prescribe, but no
such application may be considered by the Secretary unless the
application--
(A) is received by the Secretary before the close of
the one-year period beginning on the date on which
regulations promulgated by the Secretary to carry out
this subsection first take effect;
(B) contains a complete and detailed inventory of all
pre-Act endangered species parts for which the
applicant seeks exemption;
(C) is accompanied by such documentation as the
Secretary may require to prove that any endangered
species part or product claimed by the applicant to be
a pre-Act endangered species part is in fact such a
part; and
(D) contains such other information as the Secretary
deems necessary and appropriate to carry out the
purposes of this subsection.
(4) If the Secretary approves any application for exemption
made under this subsection, he shall issue to the applicant a
certificate of exemption which shall specify--
(A) any prohibition in section 9(a) of this Act which
is exempted;
(B) the pre-Act endangered species parts to which the
exemption applies;
(C) the period of time during which the exemption is
in effect, but no exemption made under this subsection
shall have force and effect after the close of the
three-year period beginning on the date of issuance of
the certificate unless such exemption is renewed under
paragraph (8); and
(D) any term or condition prescribed pursuant to
paragraph (5) (A) or (B), or both, which the Secretary
deems necessary or appropriate.
(5) The Secretary shall prescribe such regulations as he
deems necessary and appropriate to carry out the purposes of
this subsection. Such regulations may set forth--
(A) terms and conditions which may be imposed on
applicants for exemptions under this subsection
(including, but not limited to, requirements that
applicants register inventories, keep complete sales
records, permit duly authorized agents of the Secretary
to inspect such inventories and records, and
periodically file appropriate reports with the
Secretary); and
(B) terms and conditions which may be imposed on any
subsequent purchaser of any pre-Act endangered species
part covered by an exemption granted under this
subsection;
to insure that any such part so exempted is adequately
accounted for and not disposed of contrary to the provisions of
this Act. No regulation prescribed by the Secretary to carry
out the purposes of this subsection shall be subject to section
4(f)(2)(A)(i) of this Act.
(6)(A) Any contract for the sale of pre-Act endangered
species parts which is entered into by the Administrator of
General Services prior to the effective date of this subsection
and pursuant to the notice published in the Federal Register on
January 9, 1973, shall not be rendered invalid by virtue of the
fact that fulfillment of such contract may be prohibited under
section 9(a)(1)(F).
(B) In the event that this paragraph is held invalid, the
validity of the remainder of the Act, including the remainder
of this subsection, shall not be affected.
(7) Nothing in this subsection shall be construed to--
(A) exonerate any person from any act committed in
violation of paragraphs (1)(A), (1)(E), or (1)(F) of
section 9(a) prior to the date of enactment of this
subsection; or
(B) immunize any person from prosecution for any such
act.
(8)(A)(i) Any valid certificate of exemption which was
renewed after October 13, 1982, and was in effect on March 31,
1988, shall be deemed to be renewed for a 6-month period
beginning on the date of enactment of the Endangered Species
Act Amendments of 1988. Any person holding such a certificate
may apply to the Secretary for one additional renewal of such
certificate for a period not to exceed 5 years beginning on the
date of such enactment.
(B) If the Secretary approves any application for renewal of
an exemption under this paragraph, he shall issue to the
applicant a certificate of renewal of such exemption which
shall provide that all terms, conditions, prohibitions, and
other regulations made applicable by the previous certificate
shall remain in effect during the period of the renewal.
(C) No exemption or renewal of such exemption made under this
subsection shall have force and effect after the expiration
date of the certificate of renewal of such exemption issued
under this paragraph.
(D) No person may, after January 31, 1984, sell or offer for
sale in interstate or foreign commerce, any pre-Act finished
scrimshaw product unless such person holds a valid certificate
of exemption issued by the Secretary under this subsection, and
unless such product or the raw material for such product was
held by such person on October 13, 1982.
(g) In connection with any action alleging a violation of
section 9, any person claiming the benefit of any exemption or
permit under this Act shall have the burden of proving that the
exemption or permit is applicable, has been granted, and was
valid and in force at the time of the alleged violation.
(h) Certain Antique Articles.--(1) Sections 4(d), 9(a), and
9(c) do not apply to any article which--
(A) is not less than 100 years of age;
(B) is composed in whole or in part of any endangered
species or threatened species listed under section 4;
(C) has not been repaired or modified with any part
of any such species on or after the date of the
enactment of this Act; and
(D) is entered at a port designated under paragraph
(3).
(2) Any person who wishes to import an article under the
exception provided by this subsection shall submit to the
customs officer concerned at the time of entry of the article
such documentation as the Secretary of the Treasury, after
consultation with the Secretary of the Interior, shall by
regulation require as being necessary to establish that the
article meets the requirements set forth in paragraph (1) (A),
(B), and (C).
(3) The Secretary of the Treasury, after consultation with
the Secretary of the Interior, shall designate one port within
each customs region at which articles described in paragraph
(1) (A), (B), and (C) must be entered into the customs
territory of the United States.
(4) Any person who imported, after December 27, 1973, and on
or before the date of the enactment of the Endangered Species
Act Amendments of 1978, any article described in paragraph (1)
which--
(A) was not repaired or modified after the date of
importation with any part of any endangered species or
threatened species listed under section 4;
(B) was forfeited to the United States before such
date of the enactment, or is subject to forfeiture to
the United States on such date of enactment, pursuant
to the assessment of a civil penalty under section 11;
and
(C) is in the custody of the United States on such
date of enactment;
may, before the close of the one-year period beginning on such
date of enactment make application to the Secretary for return
of the article. Application shall be made in such form and
manner, and contain such documentation, as the Secretary
prescribes. If on the basis of any such application which is
timely filed, the Secretary is satisfied that the requirements
of this paragraph are met with respect to the article
concerned, the Secretary shall return the article to the
applicant and the importation of such article shall, on and
after the date of return, be deemed to be a lawful importation
under this Act.
(i) Noncommercial Transshipments.--Any importation into the
United States of fish or wildlife shall, if--
(1) such fish or wildlife was lawfully taken and
exported from the country of origin and country of
reexport, if any;
(2) such fish or wildlife is in transit or
transshipment through any place subject to the
jurisdiction of the United States en route to a country
where such fish or wildlife may be lawfully imported
and received;
(3) the exporter or owner of such fish or wildlife
gave explicit instructions not to ship such fish or
wildlife through any place subject to the jurisdiction
of the United States, or did all that could have
reasonably been done to prevent transshipment, and the
circumstances leading to the transshipment were beyond
the exporter's or owner's control;
(4) the applicable requirements of the Convention
have been satisfied; and
(5) such importation is not made in the course of a
commercial activity,
be an importation not in violation of any provision of this Act
or any regulation issued pursuant to this Act while such fish
or wildlife remains in the control of the United States Customs
Service.
(j) Experimental Populations.--(1) For purposes of this
subsection, the term ``experimental population'' means any
population (including any offspring arising solely therefrom)
authorized by the Secretary for release under paragraph (2),
but only when, and at such times as, the population is wholly
separate geographically from nonexperimental populations of the
same species.
(2)(A) The Secretary may authorize the release (and the
related transportation) of any population (including eggs,
propagules, or individuals) of an endangered species or a
threatened species outside the current range of such species if
the Secretary determines that such release will further the
conservation of such species.
(B) Before authorizing the release of any population under
subparagraph (A), the Secretary shall by regulation identify
the population and determine, on the basis of the best
available information, whether or not such population is
essential to the continued existence of an endangered species
or a threatened species.
(C) For the purposes of this Act, each member of an
experimental population shall be treated as a threatened
species; except that--
(i) solely for purposes of section 7 (other than
subsection (a)(1) thereof), an experimental population
determined under subparagraph (B) to be not essential
to the continued existence of a species shall be
treated, except when it occurs in an area within the
National Wildlife Refuge System or the National Park
System, as a species proposed to be listed under
section 4; and
(ii) critical habitat shall not be designated under
this Act for any experimental population determined
under subparagraph (B) to be not essential to the
continued existence of a species.
(3) The Secretary, with respect to populations of endangered
species or threatened species that the Secretary authorized,
before the date of the enactment of this subsection, for
release in geographical areas separate from the other
populations of such species, shall determine by regulation
which of such populations are an experimental population for
the purposes of this subsection and whether or not each is
essential to the continued existence of an endangered species
or a threatened species.
(k) Candidate Conservation Agreements With Assurances.--
(1) Proposed agreement.--A covered party may submit a
proposed Agreement to the Secretary.
(2) Approval.--Not later than 120 days after the date
of the receipt of a proposed Agreement under paragraph
(1), the Secretary shall approve the proposed Agreement
if the Secretary determines that the proposed
Agreement--
(A) sets forth specific management activities
that the covered party will undertake to
conserve the covered species;
(B) provides a positive estimate of the net
conservation benefit of such management
activities to the covered species;
(C) describes, to the maximum extent
practicable, the existing population levels of
the covered species or the existing quality of
habitat;
(D) includes a monitoring plan to be carried
out by the parties to the Agreement; and
(E) provides assurances to the covered party
that no additional conservation measures will
be required and additional land, water, or
resource use restrictions will not be imposed
on the covered party if the covered species
becomes listed after the effective date of such
Agreement.
(3) Denial.--Not later than 120 days after the date
of the receipt of a proposed Agreement under paragraph
(1), the Secretary shall--
(A) deny the proposed Agreement if the
Secretary determines that the proposed
Agreement does not meet the requirements
described in paragraph (2); and
(B) provide the submitting covered party a
written explanation for such determination and
the adjustments required for the Secretary to
approve such proposed Agreement.
(4) Programmatic candidate conservation agreement
with assurances.--
(A) In general.--The Secretary may enter into
a Candidate Conservation Agreement with
Assurances with a covered party that authorizes
such covered party--
(i) to administer such Candidate
Conservation Agreement with Assurances;
(ii) to hold any permit issued under
this section with regard to such
Candidate Conservation Agreement with
Assurances;
(iii) to enroll other covered parties
within the area covered by such
Candidate Conservation Agreement with
Assurances in such Candidate
Conservation Agreement with Assurances;
and
(iv) to convey any permit
authorization held by such covered
party under clause (ii) to each covered
party enrolled under clause (iii).
(B) Publication.--Upon receipt of a proposed
programmatic Candidate Conservation Agreement
with Assurances under paragraph (1) and before
approving or denying such a proposed
programmatic Candidate Conservation Agreement
with Assurances under paragraph (2) or (3),
respectively, the Secretary shall--
(i) not later than 30 days after the
date of such receipt, publish the
proposed programmatic Candidate
Conservation Agreement with Assurances
in the Federal Register for public
comment for a period of not less than
60 days;
(ii) review any comments received
under clause (i); and
(iii) after the close of the public
comment period for the proposed
programmatic Candidate Conservation
Agreement with Assurances, publish in
the Federal Register--
(I) any comments received
under clause (i); and
(II) the approval or denial
of the proposed programmatic
Candidate Conservation
Agreement with Assurances under
paragraph (2) or (3),
respectively.
(5) Incidental take authorization.--If a covered
species is listed under section 4, the Secretary shall
issue a permit to the relevant covered party under this
section allowing incidental take of and modification to
the habitat of such covered species consistent with the
Agreement.
(6) Technical assistance.--The Secretary shall, upon
request, provide a covered party with technical
assistance in developing a proposed Agreement.
(7) Applicability to federal land.--An Agreement may
apply to a covered party that conducts activities on
land administered by any Federal agency pursuant to a
permit or lease issued to the covered party by that
Federal agency.
(8) Exemption from consultation requirement.--An
Agreement approved under this subsection shall be
deemed to have been granted an exemption under section
7(h) for the purposes of that section.
(9) Exemption from disclosure.--Information submitted
by a private party to the Secretary under this
subsection shall be exempt from disclosure under
section 552(b)(3)(B) of title 5, United States Code.
(10) Definitions.--In this subsection:
(A) Agreement.--The term ``Agreement''
means--
(i) a Candidate Conservation
Agreement with Assurances; or
(ii) a programmatic Candidate
Conservation Agreement with Assurances.
(B) Candidate conservation agreement with
assurances.--The term ``Candidate Conservation
Agreement with Assurances'' means any voluntary
agreement, including a conservation benefit
agreement, between the Secretary and a covered
party in which--
(i) the covered party commits to
implementing mutually agreed upon
conservation measures for a candidate
species; and
(ii) the Secretary provides
assurances that, if such candidate
species is listed pursuant to section
4--
(I) the covered party shall
incur no additional obligations
beyond actions agreed to in the
agreement with respect to
conservation activities
required under this Act; and
(II) no additional land,
water, or resource use
restrictions shall be imposed
on the covered party beyond
those included in the
agreement.
(C) Candidate species.--The term ``candidate
species'' means a species--
(i) designated by the Secretary as a
candidate species under this Act; or
(ii) proposed to be listed pursuant
to section 4.
(D) Covered party.--The term ``covered
party'' means a--
(i) party that conducts activities on
land administered by a Federal agency
pursuant to a permit or lease issued to
the party;
(ii) private property owner;
(iii) county;
(iv) State or State agency; or
(v) Tribal government.
(E) Covered species.--The term ``covered
species'' means, with respect to an Agreement,
the species that is the subject of such
Agreement.
(F) Net conservation benefit.--The term ``net
conservation benefit'' means the net effect of
an Agreement, determined by comparing the
existing situation of the candidate species
without the Agreement in effect and a situation
in which the Agreement is in effect, on a
candidate species, including--
(i) the net effect on threats to such
species;
(ii) the net effect on the number of
individuals of such species; or
(iii) the net effect on the habitat
of such species.
(G) Programmatic candidate conservation
agreement with assurances.--The term
``programmatic Candidate Conservation Agreement
with Assurances'' means a Candidate
Conservation Agreement with Assurances
described in paragraph (4)(A).
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 action if it is supported by
substantial evidence on the record considered as a whole.
(2) Hearings held during proceedings for the assessment of
civil penalties by paragraph (1) of this subsection shall be
conducted in accordance with section 554 of title 5, United
States Code. The Secretary may issue subpoenas for the
attendance and testimony of witnesses and the production of
relevant papers, books, and documents, and administer oaths.
Witnesses summoned shall be paid the same fees and mileage that
are paid to witnesses in the courts of the United States. In
case of contumacy or refusal to obey a subpoena served upon any
person pursuant to this paragraph, the district court of the
United States for any district in which such person is found or
resides or transacts business, upon application by the United
States and after notice to such person, shall have jurisdiction
to issue an order requiring such person to appear and give
testimony before the Secretary or to appear and produce
documents before the Secretary, or both, and any failure to
obey such order of the court may be punished by such court as a
contempt thereof.
(3) Notwithstanding any other provision of this Act, no civil
penalty shall be imposed if it can be shown by a preponderance
of the evidence that the defendant committed an act based on a
good faith belief that he was acting to protect himself or
herself, a member of his or her family, or any other individual
from bodily harm, from any endangered or threatened species.
(b) Criminal Violations.--(1) Any person who knowingly
violates any provision of this Act, of any permit or
certificate issued hereunder, or of any regulation issued in
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or
(F); (a)(2)(A), (B), (C), or (D), (c), (d) (other than a
regulation relating to recordkeeping, or filing of reports),
(f), or (g) of section 9 of this Act shall, upon conviction, be
fined not more than $50,000 or imprisoned for not more than one
year, or both. Any person who knowingly violates any provision
of any other regulation issued under this Act shall, upon
conviction, be fined not more than $25,000 or imprisoned for
not more than six months, or both.
(2) The head of any Federal agency which has issued a lease,
license, permit, or other agreement authorizing a person to
import or export fish, wildlife, or plants, or to operate a
quarantine station for imported wildlife, or authorizing the
use of Federal lands, including grazing of domestic livestock,
to any person who is convicted of a criminal violation of this
Act or any regulation, permit, or certificate issued hereunder
may immediately modify, suspend, or revoke each lease, license,
permit, or other agreement. The Secretary shall also suspend
for a period of up to one year, or cancel, any Federal hunting
or fishing permits or stamps issued to any person who is
convicted of a criminal violation of any provision of this Act
or any regulation, permit, or certificate issued hereunder. The
United States shall not be liable for the payments of any
compensation, reimbursement, or damages in connection with the
modification, suspension, or revocation of any leases,
licenses, permits, stamps, or other agreements pursuant to this
section.
(3) Notwithstanding any other provision of this Act, it shall
be a defense to prosecution under this subsection if the
defendant committed the offense based on a good faith belief
that he was acting to protect himself or herself, a member of
his or her family, or any other individual, from bodily harm
from any endangered or threatened species.
(c) District Court Jurisdiction.--The several district courts
of the United States; including the courts enumerated in
section 460 of title 28, United States Code, shall have
jurisdiction over any actions arising under this Act. For the
purpose of this Act, American Samoa shall be included within
the judicial district of the District Court of the United
States for the District of Hawaii.
(d) Rewards and Certain Incidental Expenses.--The Secretary
or the Secretary of the Treasury shall pay, from sums received
as penalties, fines, or forfeitures of property for any
violations of this chapter or any regulation issued hereunder
(1) a reward to any person who furnishes information which
leads to an arrest, a criminal conviction, civil penalty
assessment, or forfeiture of property for any violation of this
chapter or any regulation issued hereunder, and (2) the
reasonable and necessary costs incurred by any person in
providing temporary care for any fish, wildlife, or plant
pending the disposition of any civil or criminal proceeding
alleging a violation of this chapter with respect to that fish,
wildlife, or plant. The amount of the reward, if any, is to be
designated by the Secretary or the Secretary of the Treasury,
as appropriate. Any officer or employee of the United States or
any State or local government who furnishes information or
renders service in the performance of his official duties is
ineligible for payment under this subsection. Whenever the
balance of sums received under this section and section 6(d) of
the Act of November 16, 1981 (16 U.S.C. 3375(d)) as penalties
or fines, or from forfeitures of property, exceed $500,000, the
Secretary of the Treasury shall deposit an amount equal to such
excess balance in the cooperative endangered species
conservation fund established under section 6(i) of this Act.
(e) Enforcement.--(1) The provisions of this Act and any
regulations or permits issued pursuant thereto shall be
enforced by the Secretary, the Secretary of the Treasury, or
the Secretary of the Department in which the Coast Guard is
operating, or all such Secretaries. Each such Secretary may
utilize by agreement, with or without reimbursement, the
personnel, services, and facilities of any other Federal agency
or any State agency for purposes of enforcing this Act.
(2) The judges of the district courts of the United States
and the United States magistrates may within their respective
jurisdictions, upon proper oath or affirmation showing probable
cause, issue such warrants or other process as may be required
for enforcement of this Act and any regulation issued
thereunder.
(3) Any person authorized by the Secretary, the Secretary of
the Treasury, or the Secretary of the Department in which the
Coast Guard is operating, to enforce this Act may detain for
inspection and inspect any package, crate, or other container,
including its contents, and all accompanying documents, upon
importation or exportation. Such persons may make arrests
without a warrant for any violation of this Act if he has
reasonable grounds to believe that the person to be arrested is
committing the violation in his presence or view and may
execute and serve any arrest warrant, search warrant, or other
warrant or civil or criminal process issued by any officer or
court of competent jurisdiction for enforcement of this Act.
Such person so authorized may search and seize, with or without
a warrant, as authorized by law. Any fish, wildlife, property,
or item so seized shall be held by any person authorized by the
Secretary, the Secretary of the Treasury, or the Secretary of
the Department in which the Coast Guard is operating pending
disposition of civil or criminal proceedings, or the
institution of an action in rem for forfeiture of such fish,
wildlife, property, or item pursuant to paragraph (4) of the
subsection; except that the Secretary may, in lieu of holding
such fish, wildlife, property, or item, permit the owner or
consignee to post a bond or other surety satisfactory to the
Secretary, but upon forfeiture of any such property to the
United States, or the abandonment or waiver of any claim to any
such property, it shall be disposed of (other than by sale to
the general public) by the Secretary in such a manner,
consistent with the purposes of this Act, as the Secretary
shall by regulation prescribe.
(4)(A) All fish or wildlife or plants taken, possessed, sold,
purchased, offered for sale or purchase, transported,
delivered, received, carried, shipped, exported, or imported
contrary to the provisions of this Act, any regulation made
pursuant thereto, or any permit or certificate issued hereunder
shall be subject to forfeiture to the United States.
(B) All guns, traps, nets, and other equipment, vessels,
vehicles, aircraft, and other means of transportation used to
aid the taking, possessing, selling, purchasing, offering for
sale or purchase, transporting, delivering, receiving,
carrying, shipping, exporting, or importing of any fish or
wildlife or plants in violation of this Act, any regulation
made pursuant thereto, or any permit or certificate issued
thereunder shall be subject to forfeiture to the United States
upon conviction of a criminal violation pursuant to section
11(b)(1) of this Act.
(5) All provisions of law relating to the seizure,
forfeiture, and condemnation of a vessel for violation of the
customs laws, the disposition of such vessel or the proceeds
from the sale thereof, and the remission or mitigation of such
forfeiture, shall apply to the seizures and forfeitures
incurred, or alleged to have been incurred, under the
provisions of this Act, insofar as such provisions of law are
applicable and not inconsistent with the provisions of this
Act; except that all powers, rights, and duties conferred or
imposed by the customs laws upon any officer or employee of the
Treasury Department shall, for the purposes of this Act, be
exercised or performed by the Secretary or by such persons as
he may designate.
(6) The Attorney General of the United States may seek to
enjoin any person who is alleged to be in violation of any
provision of this Act or regulation issued under authority
thereof.
(f) Regulations.--The Secretary, the Secretary of the
Treasury, and the Secretary of the Department in which the
Coast Guard is operating, are authorized to promulgate such
regulations as may be appropriate to enforce this Act, and
charge reasonable fees for expenses to the Government connected
with permits or certificates authorized by this Act including
processing applications and reasonable inspections, and with
the transfer, board, handling, or storage of fish or wildlife
or plants and evidentiary items seized and forfeited under this
Act. All such fees collected pursuant to this subsection shall
be deposited in the Treasury to the credit of the appropriation
which is current and chargeable for the cost of furnishing the
services. Appropriated funds may be expended pending
reimbursement from parties in interest.
(g) Citizen Suits.--(1) Except as provided in paragraph (2)
of this subsection any person may commence a civil suit on his
own behalf--
(A) to enjoin any person, including the United States
and any other governmental instrumentality or agency
(to the extent permitted by the eleventh amendment to
the Constitution), who is alleged to be in violation of
any provision of this Act or regulation issued under
the authority thereof; or
(B) to compel the Secretary to apply, pursuant to
section 6(g)(2)(B)(ii) of this Act, the prohibitions
set forth in or authorized pursuant to section 4(d) or
section 9(a)(1)(B) of this Act with respect to the
taking of any resident endangered species or threatened
species within any State; or
(C) against the Secretary where there is alleged a
failure of the Secretary to perform any act or duty
under section 4 which is not discretionary with the
Secretary.
The district courts shall have jurisdiction, without regard to
the amount in controversy or the citizenship of the parties, to
enforce any such provision or regulation or to order the
Secretary to perform such act or duty, as the case may be. In
any civil suit commenced under subparagraph (B) the district
court shall compel the Secretary to apply the prohibition
sought if the court finds that the allegation that an emergency
exists is supported by substantial evidence.
(2)(A) No action may be commenced under subparagraph (1)(A)
of this section--
(i) prior to sixty days after written notice of the
violation has been given to the Secretary, and to any
alleged violator of any such provision or regulation;
(ii) if the Secretary has commenced action to impose
a penalty pursuant to subsection (a) of this section;
or
(iii) if the United States has commenced and is
diligently prosecuting a criminal action in a court of
the United States or a State to redress a violation of
any such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of
this section--
(i) prior to sixty days after written notice has been
given to the Secretary setting forth the reasons why an
emergency is thought to exist with respect to an
endangered species or a threatened species in the State
concerned; or
(ii) if the Secretary has commenced and is diligently
prosecuting action under section 6(g)(2)(B)(ii) of this
Act to determine whether any such emergency exists.
(C) No action may be commenced under subparagraph (1)(C) of
this section prior to sixty days after written notice has been
given to the Secretary; except that such action may be brought
immediately after such notification in the case of an action
under this section respecting an emergency posing a significant
risk to the well-being of any species of fish or wildlife or
plants.
(3)(A) Any suit under this subsection may be brought in the
judicial district in which the violation occurs.
(B) In any such suit under this subsection in which the
United States is not a party, the Attorney General, at the
request of the Secretary, may intervene on behalf of the United
States as a matter of right.
(4) The court, in issuing any final order in any suit brought
pursuant to paragraph (1) of this subsection, may award costs
of litigation (including reasonable attorney and expert witness
fees) [to any party, whenever the court determines such award
is appropriate] in accordance with section 2412 of title 28,
United States Code and section 504 of title 5, United States
Code.
(5) The injunctive relief provided by this subsection shall
not restrict any right which any person (or class of persons)
may have under any statute or common law to seek enforcement of
any standard or limitation or to seek any other relief
(including relief against the Secretary or a State agency).
(h) Coordination With Other Laws.--The Secretary of
Agriculture and the Secretary shall provide for appropriate
coordination of the administration of this Act with the
administration of the animal quarantine laws (as defined in
section 2509(f) of the Food, Agriculture, Conservation, and
Trade Act of 1990 (21 U.S.C. 136a(f)) and section 306 of the
Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this Act or any
amendment made by this Act shall be construed as superseding or
limiting in any manner the functions of the Secretary of
Agriculture under any other law relating to prohibited or
restricted importations or possession of animals and other
articles and no proceeding or determination under this Act
shall preclude any proceeding or be considered determinative of
any issue of fact or law in any proceeding under any Act
administered by the Secretary of Agriculture. Nothing in this
Act shall be construed as superseding or limiting in any manner
the functions and responsibilities of the Secretary of the
Treasury under the Tariff Act of 1930, including, without
limitation, section 527 of that Act (19 U.S.C. 1527), relating
to the importation of wildlife taken, killed, possessed, or
exported to the United States in violation of the laws or
regulations of a foreign country.
* * * * * * *
[conforming amendments
[Sec. 13. (a) Subsection 4(c) of the Act of October 15,1966
(80 Stat. 928, 16 U.S.C. 668dd(c)), is further amended by
revising the second sentence thereof to read as follows: ``With
the exception of endangered species and threatened species
listed by the Secretary pursuant to section 4 of the Endangered
Species Act of 1973 in States wherein a cooperative agreement
does not exist pursuant to section 6(c) of that Act, nothing in
this Act shall be construed to authorize the Secretary to
control or regulate hunting or fishing of resident fish and
wildlife on lands not within the system.''
[(b) Subsection 10(a) of the Migratory Bird Conservation Act
(45 Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of the
Act of June 15, 1935 (49 Stat. 383,16 U.S.C. 715s(a)), are each
amended by Striking out ``threatened with extinction,'' and
inserting in lieu thereof the following: ``listed pursuant to
section 4 of the Endangered Species Act of 1973 as endangered
species or threatened species,''.
[(c) Section 7(a)(1) of the Land and Water Conservation Fund
Act of 1965 (16 U.S.C. 4601--9(a) (1)) is amended by striking
out:
`` Threatened Species.--For any national area which may be
authorized for the preservation of species of fish or wildlife
that are threatened with extinction.and inserting in lieu
thereof the following:
`` Endangered Species and Threatened Species.--For lands,
waters, or interests therein, the acquisition of which is
authorized under section 5 (a) of the Endangered Species Act of
1973, needed for the purpose of conserving endangered or
threatened species of fish or wildlife or plants.
[(d) The first sentence of section 2 of the Act of September
28,1962, as amended (76 Stat. 653, 16 U.S.C. 460k-l), is
amended to read as follow:
``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 the Endangered Species List, authorized by the
Endangered Species Conservation Act of 1969,'' in
section 202(a)(6) thereof and inserting in lieu thereof
the following: ``such revisions of the endangered
species list and threatened species list published
pursuant to section 4(c)(1) of the Endangered Species
Act of 1973''.
[(f) Section 2(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''. ]
SEC. 13. DISCLOSURE OF EXPENDITURES.
(a) Requirement.--The Secretary of the Interior, in
consultation with the Secretary of Commerce, shall--
(1) not later than 90 days after the end of each
fiscal year, submit to the Committee on Natural
Resources of the House of Representatives and the
Committee on Environment and Public Works of the Senate
an annual report detailing Federal Government
expenditures for covered suits during the preceding
fiscal year (including the information described in
subsection (b)); and
(2) make publicly available through the Internet a
searchable database, updated monthly, of the
information described in subsection (b).
(b) Included Information.--The report shall include--
(1) the case name and number of each covered suit,
and, with respect to each such covered suit, a
hyperlink to each settlement decision, final decision,
consent decree, stipulation of dismissal, release,
interim decision, motion to dismiss, partial motion for
summary judgement, or related final document;
(2) a description of each claim or cause of action in
each covered suit;
(3) the name of each covered agency the actions of
which give rise to any claim in a covered suit and each
plaintiff in such suit;
(4) funds expended by each covered agency
(disaggregated by agency account) to receive and
respond to notices referred to in section 11(g)(2) or
to prepare for litigation of, litigate, negotiate a
settlement agreement or consent decree in, or provide
material, technical, or other assistance in relation
to, a covered suit;
(5) the number of full-time equivalent employees that
participated in the activities described in paragraph
(4);
(6) any information required to be published under
section 1304 of title 31, United States Code, with
respect to a covered suit; and
(7) attorneys fees and other expenses (disaggregated
by agency account) awarded in covered suits, including
any consent decrees or settlement agreements
(regardless of whether a decree or settlement agreement
is sealed or otherwise subject to nondisclosure
provisions), including the basis for such awards.
(c) Requirement to Provide Information.--The head of each
covered agency shall provide to the Secretary in a timely
manner all information requested by the Secretary to comply
with the requirements of this section.
(d) Limitation on Disclosure.--Notwithstanding any other
provision of this section, this section shall not affect any
restriction in a consent decree or settlement agreement on the
disclosure of information that is not described in subsection
(b).
(e) Definitions.--In this section:
(1) Covered agency.--The term ``covered agency''
means any agency of the--
(A) Department of the Interior;
(B) Forest Service;
(C) Environmental Protection Agency;
(D) National Marine Fisheries Service;
(E) Bonneville Power Administration;
(F) Western Area Power Administration;
(G) Southwestern Power Administration; or
(H) Southeastern Power Administration.
(2) Covered suit.--The term ``covered suit'' means--
(A) any civil action containing any claim
arising under this Act against the Federal
Government and based on the action of a covered
agency; and
(B) any administrative proceeding under which
the United States awards fees and other
expenses to a third party under section 504 of
title 5, United States Code.
* * * * * * *
authorization of appropriations
Sec. 15. (a) In General.--Except as provided in [subsection
(b), (c), and (d)] subsections (b) and (c), 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, and
$302,025,000 for each of fiscal years 2025 through 2030
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, and $116,630,000 for each of fiscal years 2025
through 2030 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, and $2,600,000 for each of fiscal years 2025
through 2030 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 and $600,000 for
each of fiscal years 2025 through 2030.
(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 $9,900,000 for each of fiscal
years 2025 through 2030, and such sums shall remain available
until expended.
* * * * * * *
DISSENTING VIEWS
H.R. 9533, the ``ESA Amendments Act of 2024,'' would weaken
the authority and effectiveness of the Endangered Species Act
(ESA). It would codify several 2019 Trump administration--era
ESA rules weakening protections for threatened and endangered
species and their critical habitat and requiring economic
analyses that should remain outside the science-based decision-
making process. The bill would increase the timeframe for
listing species while fast-tracking de-listing and blocking
judicial review. It would create narrow definitions for key
terms to limit the scope of ESA consultations and require that
``best available science'' include information from states,
tribes, and local communities without regard for the quality of
the data. The bill would also create new, burdensome reporting
requirements for ESA-related agency litigation and cap awards
of litigation costs to disincentivize accountability.
Human-related impacts, including habitat destruction,
invasive species, disease, and climate change, threaten many
species of wildlife and plants. One million species globally
are threatened with extinction.\1\ In the United States, 34% of
plants and 40% of animals are at risk of extinction, and 41% of
our ecosystems are at risk of range-wide collapse.\2\ The loss
of biodiversity and ecosystems worldwide could lead to a global
GDP loss of $2.7 trillion annually by 2030.\3\ In light of this
extinction crisis, the ESA is a critical tool for preventing
extinction and putting imperiled species on the road to
recovery. It is ``the most comprehensive legislation for the
preservation of endangered species enacted by any nation.''\4\
---------------------------------------------------------------------------
\1\IPBES (2019): Global assessment report on biodiversity and
ecosystem services of the Intergovernmental Science-Policy Platform on
Biodiversity and Ecosystem Services. E.S. Brondizio, J. Settele, S.
Diaz, and H.T. Ngo (editors). IPBES secretariat, Bonn, Germany. https:/
/doi.org/10.5281/zenodo.3831673.
\2\NatureServe https://www.natureserve.org/sites/default/files/
NatureServe_BiodiversityInFocus
Report_medium.pdf.
\3\Johnson, Justin Andrew; Ruta, Giovanni; Baldos, Uris; Cervigni,
Raffaello; Chonabayashi, Shun; Corong, Erwin; Gavryliuk, Olga; Gerber,
James; Hertel, Thomas; Nootenboom, Christopher; Polasky, Stephen;
Gerber, James; Ruta, Giovanni; Polasky, Stephen. 2021. The Economic
Case for Nature: A Global Earth-Economy Model to Assess Development
Policy Pathways. World Bank, Washington, DC. http://hdl.handle.net/
10986/35882 License: CC BY 3.0 IGO.
\4\TVA v. Hill, 473 U.S. 153, 180 (1978).
---------------------------------------------------------------------------
This bill would extend the deadlines to list some species
from the mandatory 12-month deadline to 5 years. It provides no
course of action should the Secretary misclassify a species to
a lower priority, allowing for administrative misconduct to
legally delay the listing for a species. The bill would fast-
track the de-listing of species by requiring a rulemaking
within 30 days of the five-year review and then prevent any
judicial review of a de-listing decision for the next five
years. These changes would make it harder for species to be
listed and then easier for them to be de-listed prematurely,
with little recourse to challenge either action.
This bill is filled with harmful definitions that are a
departure from the decades of established, working definitions.
It expands ``Best scientific and commercial data available'' to
include all data from ``State, tribal or county governments,''
regardless of its quality. The best science should be about the
quality of the data--not the source. It would also exclude
unoccupied habitat from the definition of critical habitat--
regardless of whether it was historically where these species
were found but no longer are, or if the unoccupied habitat is
suitable for species recovery and would thus help save them
from extinction. This includes precluding the designation of
critical habitat for ``any privately owned or controlled land
or other geographical area'' subject to a land management plan
that meets their criteria.
This bill would also put threatened species in peril by
removing the blanket 4(d) rule, which guarantees the same
comprehensive and immediate protection for threatened species
afforded to endangered species. The bill would also push
threatened species recovery onto states without clear and
objective science-based recovery goals. States can already
manage ESA-listed species under Section 6(c) of the ESA but
have not used the authority. The bill would reinstate a
shortsighted definition for critical habitat and block
directives to mitigate the impacts of actions on threatened and
endangered species.
The Republican attempts to undermine the ESA would hinder
the ability to protect species from extinction, no matter how
close to extinction a species may be or what the best available
science says about the status, recovery, or management.
Raul M. Grijalva,
Ranking Member.
[all]