The greenies are going ballistic over this. If there is one thing they can't tolerate, it is the right of the landowner to control the landowner's own private property. These guys believe that all land should be owned and controlled by the government and the constitution be damned.
Here's the actual wording of the bill:
[109th CONGRESS House Bills]
[From the U.S. Government Printing Office via GPO Access]
[Introduced in House]
[DOCID: f:h3824ih.txt]
109th CONGRESS
1st Session
H. R. 3824
To amend and reauthorize the Endangered Species Act of 1973 to provide
greater results conserving and recovering listed species, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 19, 2005
Mr. Pombo (for himself, Mr. Cardoza, Mr. Walden of Oregon, Mr. Berry,
Mr. Radanovich, Mr. Ross, Mrs. Cubin, Miss McMorris, Mr. Thompson of
Mississippi, Mr. Brown of South Carolina, Mr. Baca, Mr. Graves, Mr.
Costa, and Mr. Gibbons) introduced the following bill; which was
referred to the Committee on Resources
_______________________________________________________________________
A BILL
To amend and reauthorize the Endangered Species Act of 1973 to provide
greater results conserving and recovering listed species, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Threatened and
Endangered Species Recovery Act of 2005''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendment references.
Sec. 3. Definitions.
Sec. 4. Determinations of endangered species and threatened species.
Sec. 5. Repeal of critical habitat requirements.
Sec. 6. Petitions and procedures for determinations and revisions.
Sec. 7. Reviews of listings and determinations.
Sec. 8. Protective regulations.
Sec. 9. Secretarial guidelines; State comments.
Sec. 10. Recovery plans and land acquisitions.
Sec. 11. Cooperation with States.
Sec. 12. Interagency cooperation and consultation.
Sec. 13. Exceptions to prohibitions.
Sec. 14. Private property conservation.
Sec. 15. Public accessibility and accountability.
Sec. 16. Annual cost analyses.
Sec. 17. Authorization of appropriations.
Sec. 18. Clerical amendment to table of contents.
Sec. 19. Miscellaneous technical corrections.
SEC. 2. AMENDMENT REFERENCES.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to such section or other provision of the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.).
SEC. 3. DEFINITIONS.
(a) Best Available Scientific Data.--Section 3 (16 U.S.C. 1532) is
amended by redesignating paragraphs (2) through (21) in order as
paragraphs (3), (4), (5), (6), (7), (8), (9), (10), (11), (13), (14),
(15), (16), (17), (18), (19), (20), (21), and (22), respectively, and
by inserting before paragraph (3), as so redesignated, the following:
``(2)(A) The term `best available scientific data' means
scientific data, regardless of source, that are available to
the Secretary at the time of a decision or action for which
such data are required by this Act and that the Secretary
determines are the most accurate, reliable, and relevant for
use in that decision or action.
``(B) Not later than one year after the date of the
enactment of the Threatened and Endangered Species Recovery Act
of 2005, the Secretary shall issue regulations that establish
criteria that must be met to determine which data constitute
the best available scientific data for purposes of subparagraph
(A).
``(C) If the Secretary determines that data for a decision
or action do not comply with the criteria established by the
regulations issued under subparagraph (B), do not comply with
guidance issued under section 515 of the Treasury and General
Government Appropriations Act, 2001 (Public Law 106-554; 114
Stat. 2763A-171) by the Director of the Office of Management
and Budget and the Secretary, do not consist of any empirical
data, or are found in sources that have not been subject to
peer review in a generally acceptable manner--
``(i) the Secretary shall undertake the necessary
measures to assure compliance with such criteria or
guidance; and
``(ii) the Secretary may--
``(I) secure such empirical data;
``(II) seek appropriate peer review; and
``(III) reconsider the decision or action
based on any supplemental or different data
provided or any peer review conducted pursuant
to this subparagraph.''.
(b) Permit or License Applicant.--Section 3 (16 U.S.C. 1532) is
further amended by amending paragraph (13), as so redesignated, to read
as follows:
``(13) The term `permit or license applicant' means, when
used with respect to an action of a Federal agency that is
subject to section 7(a) or (b), any person that has applied to
such agency for a permit or license or for formal legal
approval to perform an act.''.
(c) Jeopardize the Continued Existence.--Section 3 (16 U.S.C. 1532)
is further amended by inserting after paragraph (11) the following:
``(12) Jeopardize the continued existence.--The term
`jeopardize the continued existence' means, with respect to an
agency action (as that term is defined in section 7(a)(2)),
that the action reasonably would be expected to significantly
impede, directly or indirectly, the conservation in the long-
term of the species in the wild.''.
(d) Conforming Amendment.--Section 7
(16 U.S.C. 1536
) is
amended by striking ``section 3(13)'' and inserting ``section 3(14)''.
SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND THREATENED SPECIES.
(a) Requirement to Make Determinations.--Section 4 (16 U.S.C. 1533)
is amended by striking so much as precedes subsection (a)(3) and
inserting the following:
``determination of endangered species and threatened species
``Sec. 4. (a) In General.--(1)(A) 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:
``(i) The present or threatened destruction, modification,
or curtailment of its habitat or range by human activities,
competition from other species, drought, fire, or other
catastrophic natural causes.
``(ii) Overutilization for commercial, recreational,
scientific, or educational purposes.
``(iii) Disease or predation.
``(iv) The inadequacy of existing regulatory mechanisms,
including any efforts identified pursuant to subsection (b)(1).
``(v) Other natural or manmade factors affecting its
continued existence.
``(B) The Secretary shall use the authority provided by
subparagraph (A) to determine any distinct population of any species of
vertebrate fish or wildlife to be an endangered species or a threatened
species only sparingly.''.
(b) Basis for Determination.--Section 4(b)(1)(A) (16 U.S.C.
1533(b)(1)(A)) is amended--
(1) by striking ``best scientific and commercial data
available to him'' and inserting ``best available scientific
data''; and
(2) by inserting ``Federal agency, any'' after ``being made
by any''.
(c) Lists.--Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to
read as follows:
``(2)(A) The Secretary shall--
``(i) conduct, at least once every 5 years, based
on the information collected for the biennial reports
to the Congress required by paragraph (3) of subsection
(f), a review of all species included in a list that is
published pursuant to paragraph (1) and that is in
effect at the time of such review; and
``(ii) determine on the basis of such review and
any other information the Secretary considers relevant
whether any such species should--
``(I) be removed from such list;
``(II) be changed in status from an
endangered species to a threatened species; or
``(III) be changed in status from a
threatened species to an endangered species.
``(B) Each determination under subparagraph (A)(ii) shall
be made in accordance with subsections (a) and (b).''.
SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS.
(a) Repeal of Requirement.--Section 4(a) (16 U.S.C. 1533(a)) is
amended by striking paragraph (3).
(b) Conforming Amendments.--
(1) Section 3 (16 U.S.C. 1532), as amended by section 3 of
this Act, is further amended by striking paragraph (5) and by
redesignating paragraphs (6) through (22) in order as
paragraphs (5) through (21).
(2) Section 4(b) (16 U.S.C. 1533(b)), as otherwise amended
by this Act, is further amended by striking paragraph (2), and
by redesignating paragraphs (3) through (9) in order as
paragraphs (2) through (8), respectively.
(3) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (2), as redesignated by paragraph (2) of this
subsection, by striking subparagraph (D).
(4) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (4), as redesignated by paragraph (2) of this
subsection, by striking ``determination, designation, or
revision referred to in subsection (a)(1) or (3)'' and
inserting ``determination referred to in subsection (a)(1)''.
(5) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (6), as redesignated by paragraph (2) of this
subsection, by striking ``, designation,''.
(6) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (7), as redesignated by paragraph (2) of this
subsection, by striking ``; and if such regulation'' and all
that follows through the end of the sentence and inserting a
period.
(7) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended--
(A) in the second sentence--
(i) by inserting ``and'' after ``if any'';
and
(ii) by striking ``and specify any'' and
all that follows through the end of the
sentence and inserting a period; and
(B) in the third sentence by striking ``,
designations,''.
(8) Section 5 (16 U.S.C. 1534), as amended by section
10(a)(3) of this Act, is further amended in subsection (i)(2)
by striking ``section 4(b)(7)'' and inserting ``section
4(b)(6)''.
(9) Section 6(c) (16 U.S.C. 1535(c)), as amended by section
11(1) of this Act, is further amended in paragraph (3) by
striking ``section 4(b)(3)(B)(iii)'' each place it appears and
inserting ``section 4(b)(2)(B)(iii)''.
(10) Section 7 (16 U.S.C. 1536) is amended--
(A) in subsection (a)(2) in the second sentence by
striking ``or result in the destruction or modification
of any habitat of such species'' and all that follows
through the end of the sentence and inserting a period;
(B) in subsection (a)(4) in the first sentence by
striking ``or result'' and all that follows through the
end of the sentence and inserting a period; and
(C) in subsection (b)(3)(A) by striking ``or its
critical habitat''.
(11) Section 10(j)(2)(C)) (16 U.S.C. 1539(j)(2)(C)), as
amended by section 13(c) of this Act, is further amended--
(A) by striking ``that--'' and all that follows
through ``(i) solely'' and inserting ``that solely'';
and
(B) by striking ``; and'' and all that follows
through the end of the sentence and inserting a period.
SEC. 6. PETITIONS AND PROCEDURES FOR DETERMINATIONS AND REVISIONS.
(a) Treatment of Petitions.--Section 4(b)(3) (16 U.S.C. 1533(b)(3))
is amended by adding at the end of subparagraph (A) the following:
``The Secretary shall not make a finding that the petition presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted unless the petitioner provides to
the Secretary a copy of all information cited in the petition.''.
(b) Implementing Regulations.--
(1) Proposed regulations.--Section 4(b) (16 U.S.C. 1533(b))
is amended--
(A) in paragraph (5)(A)--
(i) in clause (i) by striking ``, and'' and
inserting a semicolon;
(ii) in clause (ii) by striking ``to the
State agency in'' and inserting ``to the
Governor of, and the State agency in,'';
(iii) in clause (ii) by striking ``such
agency'' and inserting ``such Governor or
agency'';
(iv) in clause (ii) by inserting ``and''
after the semicolon at the end; and
(v) by adding at the end the following:
``(iii) maintain, and shall make available, a complete
record of all information concerning the determination or
revision in the possession of the Secretary, on a publicly
accessible website on the Internet, including an index to such
information.''; and
(B) by adding at the end the following:
``(9)(A) Information maintained and made available under
paragraph (5)(A)(iii) shall include any status review, all
information cited in such a status review, all information
referred to in the proposed regulation and the preamble to the
proposed regulation, and all information submitted to the
Secretary by third parties.
``(B) The Secretary shall withhold from public review under
paragraph (5)(A)(iii) any information that may be withheld
under 552 of title 5, United States Code''.
(2) Final regulations.--Section 4(b)(6) (16 U.S.C.
1533(b)(6)) is amended--
(A) in subparagraph (A) by striking clauses (i) and
(ii) and inserting the following:
``(i) a final regulation to implement such a determination
of whether a species is an endangered species or a threatened
species;
``(ii) notice that such one-year period is being extended
under subparagraph (B)(i); or
``(iii) notice that the proposed regulation is being
withdrawn under subparagraph (B)(ii), together with the finding
on which such withdrawal is based.'';
(B) in subparagraph (B)(i) by striking
``subparagraph (A)(i)'' and inserting ``subparagraph
(A)'';
(C) in subparagraph (B)(ii) by striking
``subparagraph (A)(i)'' and inserting ``subparagraph
(A)''; and
(D) by striking subparagraph (C).
(3) Emergency determinations.--Section 4(b)(7) (16 U.S.C.
1533(b)(7)) is amended--
(A) in the matter preceding subparagraph (A), by
inserting ``with respect to a determination of a
species to be an endangered species or a threatened
species'' after ``any regulation''; and
(B) in subparagraph (B), by striking ``the State
agency in'' and inserting ``the Governor of, and State
agency in,''.
SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS.
Section 4(c) (16 U.S.C. 1533(c)) is amended in paragraph (2)--
(1) in subparagraph (B)--
(A) in the matter preceding clause (i), by striking
``any such species should''; and
(B) in each of clause (i), (ii), and (iii), by
inserting ``any such species should'' before ``be'';
and
(2) by striking the last sentence and inserting the
following:
``(3) Each determination under paragraph (2)(B) shall consider one
of the following:
``(A) Except as provided in subparagraph (B) of this
paragraph, the criteria in the recovery plan for the species
required by section 5(c)(1)(A) or (B).
``(B) If the recovery plan is issued before the criteria
required under section 5(c)(1)(A) and (B) are established or if
no recovery plan exists for the species, the factors for
determination that a species is an endangered species or a
threatened species set forth in subsections (a)(1)(A) and
(b)(1).
``(C) A finding of fundamental error in the determination
that the species is an endangered species, a threatened
species, or extinct.
``(D) A determination that the species is no longer an
endangered species or threatened species or in danger of
extinction, based on an analysis of the factors that are the
basis for listing under section 4(a)(1).''.
SEC. 8. PROTECTIVE REGULATIONS.
Section 4(d) (16 U.S.C. 1533(d)) is amended by striking so much as
precedes ``respect'' and inserting the following:
``(d) Protective Regulations.--(1) Whenever any species is
determined to be a threatened species pursuant to subsection (a)(1),
the Secretary may, by regulation published on or after the date of
publication of the rule implementing the determination, prohibit with
respect to the 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.
``(2) Each regulation published under this subsection shall be
accompanied with a statement by the Secretary of the reason or reasons
for applying any particular prohibition to the threatened species.
``(3) A regulation issued under this subsection may apply to more
than one threatened species only if the specific threats to, and
specific biological conditions and needs of, the species are identical,
or sufficiently similar, to warrant the application of identical
prohibitions.
``(4) With''.
SEC. 9. SECRETARIAL GUIDELINES; STATE COMMENTS.
Section 4 (16 U.S.C. 1533) is amended--
(1) by striking subsections (f) and (g) and redesignating
subsections (h) and (i) as subsections (f) and (g),
respectively;
(2) in subsection (f), as redesignated by paragraph (1) of
this subsection--
(A) in the heading by striking ``Agency'' and
inserting ``Secretarial'';
(B) in the matter preceding paragraph (1), by
striking ``the purposes of this section are achieved''
and inserting ``this section is implemented'';
(C) by redesignating paragraph (4) as paragraph
(5);
(D) by inserting after paragraph (3) the following:
``(4) the criteria for determining best available
scientific data pursuant to section 3(2); and''; and
(E) in paragraph (5), as redesignated by
subparagraph (C) of this paragraph, by striking
``subsection (f) of this section'' and inserting
``section 5'';
(3) in subsection (g), as redesignated by paragraph (1) of
this section--
(A) by inserting ``State Comments.--'' before the
first sentence;
(B) by striking ``a State agency'' the first place
it appears and inserting ``a Governor or a State
agency'';
(C) by striking ``a State agency'' the second place
it appears and inserting ``a Governor or a State
agency'';
(D) by striking ``the State agency'' and inserting
``the Governor or the State agency''; and
(E) by striking ``the agency's'' and inserting
``the Governor's or the State agency's''.
SEC. 10. RECOVERY PLANS AND LAND ACQUISITIONS.
(a) In General.--Section 5 (16 U.S.C. 1534) is amended--
(1) by redesignating subsections (a) and (b) as subsections
(j) and (k), respectively;
(2) in subsection (k), as redesignated by paragraph (1) of
this section, by striking ``subsection (a) of this section''
and inserting ``subsection (j)''; and
(3) by striking so much as precedes subsection (j), as
redesignated by paragraph (1) of this section, and inserting
the following:
``recovery plans and land acquisition
``Sec. 5. (a) Recovery Plans.--The Secretary shall, in accordance
with this section, develop and implement a plan (in this subsection
referred to as a `recovery plan') for the species determined under
section 4(a)(1) to be an endangered species or a threatened species,
unless the Secretary finds that such a plan will not promote the
conservation and survival of the species.
``(b) Development of Recovery Plans.--(1) Subject to paragraphs (2)
and (3), the Secretary, in developing recovery plans, shall, to the
maximum extent practicable, give priority to those endangered species
or threatened species, without regard to taxonomic classification, that
are most likely to benefit from such plans, particularly those species
that are, or may be, in conflict with construction or other development
projects or other forms of economic activity.
``(2) In the case of any species determined to be an endangered
species or threatened species after the date of the enactment of the
Threatened and Endangered Species Recovery Act of 2005, the Secretary
shall publish a final recovery plan for a species within 2 years after
the date the species is listed under section 4(c).
``(3)(A) For those species that are listed under section 4(c) on
the date of enactment of the Threatened and Endangered Species Recovery
Act of 2005 and are described in subparagraph (B) of this paragraph,
the Secretary, after providing for public notice and comment, shall--
``(i) not later than 1 year after such date, publish in the
Federal Register a priority ranking system for preparing or
revising such recovery plans that is consistent with paragraph
(1) and takes into consideration the scientifically based needs
of the species; and
``(ii) not later than 18 months after such date, publish in
the Federal Register a list of such species ranked in
accordance with the priority ranking system published under
clause (i) for which such recovery plans will be developed or
revised, and a tentative schedule for such development or
revision.
``(B) A species is described in this subparagraph if--
``(i) a recovery plan for the species is not published
under this Act before the date of enactment of the Threatened
and Endangered Species Recovery Act of 2005 and the Secretary
finds such a plan would promote the conservation and survival
of the species; or
``(ii) a recovery plan for the species is published under
this Act before such date of enactment and the Secretary finds
revision of such plan is warranted.
``(C)(i) The Secretary shall, to the maximum extent practicable,
adhere to the list and tentative schedule published under subparagraph
(A)(ii) in developing or revising recovery plans pursuant to this
paragraph.
``(ii) The Secretary shall provide the reasons for any deviation
from the list and tentative schedule published under subparagraph
(A)(ii), in each report to the Congress under subsection (e).
``(c) Plan Contents.--(1)(A) Except as provided in subparagraph
(E), a recovery plan shall be based on the best available scientific
data and shall include the following:
``(i) Objective, measurable criteria that, when met, would
result in a determination, in accordance with this section,
that the species to which the recovery plan applies be removed
from the lists published under section 4(c) or be reclassified
from an endangered species to a threatened species.
``(ii) A description of such site-specific or other
measures that would achieve the criteria established under
clause (i), including such intermediate measures as are
warranted to effect progress toward achievement of the
criteria.
``(iii) Estimates of the time required and the costs to
carry out those measures described under clause (ii),
including, to the extent practicable, estimated costs for any
recommendations, by the recovery team, or by the Secretary if
no recovery team is selected, that any of the areas identified
under clause (iv) be acquired on a willing seller basis.
``(iv) An identification of those specific areas that are
of special value to the conservation of the species.
``(B) Those members of any recovery team appointed pursuant to
subsection (d) with relevant scientific expertise, or the Secretary if
no recovery team is appointed, shall, based solely on the best
available scientific data, establish the objective, measurable criteria
required under subparagraph (A)(i).
``(C)(i) If the recovery team, or the Secretary if no recovery team
is appointed, determines in the recovery plan that insufficient best
available scientific data exist to determine criteria or measures under
subparagraph (A) that could achieve a determination to remove the
species from the lists published under section 4(c), the recovery plan
shall contain interim criteria and measures that are likely to improve
the status of the species.
``(ii) If a recovery plan does not contain the criteria and
measures provided for by clause (i) of subparagraph (A), the recovery
team for the plan, or by the Secretary if no recovery team is
appointed, shall review the plan at intervals of no greater than 5
years and determine if the plan can be revised to contain the criteria
and measures required under subparagraph (A).
``(iii) If the recovery team or the Secretary, respectively,
determines under clause (ii) that a recovery plan can be revised to add
the criteria and measures provided for under subparagraph (A), the
recovery team or the Secretary, as applicable, shall revise the
recovery plan to add such criteria and measures within 2 years after
the date of the determination.
``(D) In specifying measures in a recovery plan under subparagraph
(A), a recovery team or the Secretary, as applicable, shall--
``(i) whenever possible include alternative measures; and
``(ii) in developing such alternative measures, the
Secretary shall seek to identify, among such alternative
measures of comparable expected efficacy, the alternative
measures that are least costly.
``(E) Estimates of time and costs pursuant to subparagraph
(A)(iii), and identification of the least costly alternatives pursuant
to subparagraph (D)(ii), are not required to be based on the best
available scientific data.
``(2) Any area that, immediately before the enactment of the
Threatened and Endangered Species Recovery Act of 2005, is designated
as critical habitat of an endangered species or threatened species
shall be treated as an area described in subparagraph (A)(iv) until a
recovery plan for the species is developed or the existing recovery
plan for the species is revised pursuant to subsection (b)(3).
``(d) Recovery Teams.--(1) The Secretary shall promulgate
regulations that provide for the establishment of recovery teams for
development of recovery plans under this section.
``(2) Such regulations shall--
``(A) establish criteria and the process for selecting the
members of recovery teams, and the process for preparing
recovery plans, that ensure that each team--
``(i) is of a size and composition to enable timely
completion of the recovery plan; and
``(ii) includes sufficient representation from
constituencies with a demonstrated direct interest in
the species and its conservation or in the economic and
social impacts of its conservation to ensure that the
views of such constituencies will be considered in the
development of the plan;
``(B) include provisions regarding operating procedures of
and recordkeeping by recovery teams;
``(C) ensure that recovery plans are scientifically
rigorous and that the evaluation of costs required by
paragraphs (1)(A)(iii) and (1)(D) of subsection (c) are
economically rigorous; and
``(D) provide guidelines for circumstances in which the
Secretary may determine that appointment of a recovery team is
not necessary or advisable to develop a recovery plan for a
specific species, including procedures to solicit public
comment on any such determination.
``(3) The Federal Advisory Committee Act (5 App. U.S.C.) shall not
apply to recovery teams appointed in accordance with regulations issued
by the Secretary under this subsection.
``(e) Reports to Congress.--(1) The Secretary shall report every
two years to the Committee on Resources of the House of Representatives
and the Committee on Environment and Public Works of the Senate on the
status of all domestic endangered species and threatened species and
the status of efforts to develop and implement recovery plans for all
domestic endangered species and threatened species.
``(2) In reporting on the status of such species since the time of
its listing, the Secretary shall include--
``(A) an assessment of any significant change in the well-
being of each such species, including--
``(i) changes in population, range, or threats; and
``(ii) the basis for that assessment; and
``(B) for each species, a measurement of the degree of
confidence in the reported status of such species, based upon a
quantifiable parameter developed for such purposes.
``(f) Public Notice and Comment.--The Secretary shall, prior to
final approval of a new or revised recovery plan, provide public notice
and an opportunity for public review and comment on such plan. The
Secretary shall consider all information presented during the public
comment period prior to approval of the plan.
``(g) State Comment.--The Secretary shall, prior to final approval
of a new or revised recovery plan, provide a draft of such plan and an
opportunity to comment on such draft to the Governor of, and State
agency in, any State to which such draft would apply. The Secretary
shall include in the final recovery plan the Secretary's response to
the comments of the Governor and the State agency.
``(h) Use of Plans.--(1) Each Federal agency shall consider any
relevant best available scientific data contained in a recovery plan in
any analysis conducted under section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332).
``(2)(A)(i) The head of any Federal agency may enter into an
agreement with the Secretary specifying the measures the agency will
carry out to implement a recovery plan.
``(ii) Each such agreement shall be published in draft form with
notice and an opportunity for public comment.
``(iii) Each such final agreement shall be published, with
responses by the head of the Federal agency to any public comments
submitted on the draft agreement.
``(B) Nothing in a recovery plan shall be construed to establish
regulatory requirements or otherwise to have an effect other than as
nonbinding guidance, except with respect to any program or project
covered by an implementation agreement under this paragraph.
``(i) Monitoring.--(1) The Secretary shall implement a system in
cooperation with the States to monitor effectively for not less than
five years the status of all species that have recovered to the point
at which the measures provided pursuant to this Act are no longer
necessary and that, in accordance with this section, have been removed
from the lists published under section 4(c).
``(2) The Secretary shall make prompt use of the authority under
section 4(b)(7) to prevent a significant risk to the well-being of any
such recovered species.''.
(b) Recovery Plans for Species Occupying More Than One State.--
Section 6 (16 U.S.C. 1535) is amended by adding at the end the
following:
``(j) Recovery Plans for Species Occupying More Than One State.--
Any recovery plan under section 5 for an endangered species or a
threatened species that occupies more than one State shall identify
criteria and actions pursuant to subsection (c)(1) of section 5 for
each State that are necessary so that the State may pursue a
determination that the portion of the species found in that State may
be removed from lists published under section 4(c).''.
(c) Species Recovery Agreements and Species Conservation Contract
Agreements.--
(1) Agreements authorized.--Section 5 (16 U.S.C. 1534) is
further amended by adding at the end the following:
``(l) Species Recovery Agreements and Species Conservation Contract
Agreements.--(1) The Secretary may enter into species recovery
agreements pursuant to paragraph (2) and species conservation contract
agreements pursuant to paragraph (3) with persons, other than agencies
or departments of the Federal Government or State governments, under
which the Secretary is obligated, subject to the availability of
appropriations, to make annual payments or provide other compensation
to the persons to implement the agreements.
``(2)(A) The Secretary and persons who own or control the use of
private land may enter into species recovery agreements with a term of
not less than 5 years that meet the criteria set forth in subparagraph
(B) and are in accordance with the priority established in subparagraph
(C).
``(B) A species recovery agreement entered into under this
paragraph by the Secretary with a person--
``(i) shall require that the person shall carry out, on the
land owned or controlled by the person, activities that--
``(I) protect and restore habitat for covered
species that are species determined to be endangered
species or threatened species pursuant to section
4(a)(1);
``(II) contribute to the conservation of one or
more covered species; and
``(III) specify and implement a management plan for
the covered species;
``(ii) shall specify such a management plan that includes--
``(I) identification of the covered species;
``(II) a description of the land to which the
agreement applies; and
``(III) a description of, and a schedule to carry
out, the activities under clause (i);
``(iii) shall provide sufficient documentation to establish
ownership or control by the person of the land to which the
agreement applies;
``(iv) shall include the amounts of the annual payments or
other compensation to be provided by the Secretary to the
person under the agreement, and the terms under which such
payments or compensation shall be provided; and
``(v) shall include--
``(I) the duties of the person;
``(II) the duties of the Secretary;
``(III) the terms and conditions under which the
person and the Secretary mutually agree the agreement
may be modified or terminated; and
``(IV) acts or omissions by the person or the
Secretary that shall be considered violations of the
agreement, and procedures under which notice of and an
opportunity to remedy any violation by the person or
the Secretary shall be given.
``(C) In entering into species recovery agreements under this
paragraph, the Secretary shall accord priority to agreements that apply
to any areas that are identified in recovery plans pursuant to
subsection (c)(1)(A)(iv).
``(3)(A) The Secretary and persons who own private land may enter
into species conservation contract agreements with terms of 30 years,
20 years, or 10 years that meet the criteria set forth in subparagraph
(B) and standards set forth in subparagraph (D) and are in accordance
with the priorities established in subparagraph (C).
``(B) A species conservation contract agreement entered into under
this paragraph by the Secretary with a person--
``(i) shall provide that the person shall, on the land
owned by the person--
``(I) carry out conservation practices to meet one
or more of the goals set forth in clauses (i) through
(iii) of subparagraph (C) for one or more covered
species, that are species that are determined to be
endangered species or threatened species pursuant to
section 4(a)(1), species determined to be candidate
species pursuant to section 4(b)(3)(B)(iii), or species
subject to comparable designations under State law; and
``(II) specify and implement a management plan for
the covered species;
``(ii) shall specify such a management plan that includes--
``(I) identification of the covered species;
``(II) a description in detail of the conservation
practices for the covered species that the person shall
undertake;
``(III) a description of the land to which the
agreement applies; and
``(IV) a schedule of approximate deadlines, whether
one-time or periodic, for undertaking the conservation
practices described pursuant to subclause (II);
``(V) a description of existing or future economic
activities on the land to which the agreement applies
that are compatible with the conservation practices
described pursuant to subclause (II) and generally with
conservation of the covered species;
``(iii) shall specify the term of the agreement; and
``(iv) shall include--
``(I) the duties of the person;
``(II) the duties of the Secretary;
``(III) the terms and conditions under which the
person and the Secretary mutually agree the agreement
may be modified or terminated;
``(IV) acts or omissions by the person or the
Secretary that shall be considered violations of the
agreement, and procedures under which notice of and an
opportunity to remedy any violation by the person or
the Secretary shall be given; and
``(V) terms and conditions for early termination of
the agreement by the person before the management plan
is fully implemented or termination of the agreement by
the Secretary in the case of a violation by the person
that is not remedied under subclause (IV), including
any requirement for the person to refund all or part of
any payments received under subparagraph (E) and any
interest thereon.
``(C) The Secretary shall establish priorities for the selection of
species conservation contract agreements, or groups of such agreements
for adjacent or proximate lands, to be entered into under this
paragraph that address the following factors:
``(i) The potential of the land to which the agreement or
agreements apply to contribute significantly to the
conservation of an endangered species or threatened species or
a species with a comparable designation under State law.
``(ii) The potential of such land to contribute
significantly to the improvement of the status of a candidate
species or a species with a comparable designation under State
law.
``(iii) The amount of acreage of such land.
``(iv) The number of covered species in the agreement or
agreements.
``(v) The degree of urgency for the covered species to
implement the conservation practices in the management plan or
plans under the agreement or agreements.
``(vi) Land in close proximity to military test and
training ranges, installations, and associated airspace that is
affected by a covered species.
``(D) The Secretary shall enter into a species conservation
contract agreement submitted by a person, if the Secretary finds that
the person owns such land or has sufficient control over the use of
such land to ensure implementation of the management plan under the
agreement.
``(E)(i) Upon entering into a species conservation contract
agreement with the Secretary pursuant to this paragraph, a person shall
receive the financial assistance provided for in this subparagraph.
``(ii) If the person is implementing fully the agreement, the
person shall receive from the Secretary--
``(I) in the case of a 30-year agreement, an annual
contract payment in an amount equal to 100 percent of the
person's actual costs to implement the conservation practices
described in the management plan under the terms of the
agreement;
``(II) in the case of a 20-year agreement, an annual
contract payment in an amount equal to 80 percent of the
person's actual costs to implement the conservation practices
described in the management plan under the terms of the
agreement; and
``(III) in the case of a 10-year agreement, an annual
contract payment in an amount equal to 60 percent of the
person's actual costs to implement the conservation practices
described in the management plan under the terms of the
agreement.
``(iii)(I) If the person receiving contract payments pursuant to
clause (ii) receives any other State or Federal funds to defray the
cost of any conservation practice, the cost of such practice shall not
be eligible for such contract payments.
``(II) Contributions of agencies or organizations to any
conservation practice other than the funds described in subclause (I)
shall not be considered as costs of the person for purposes of the
contract payments pursuant to clause (iii).
``(4)(A) Upon request of a person seeking to enter into an
agreement pursuant to this subsection, the Secretary may provide to
such person technical assistance in the preparation, and management
training for the implementation, of the management plan for the
agreement.
``(B) Any State agency, local government, nonprofit organization,
or federally recognized Indian tribe may provide assistance to a person
in the preparation of a management plan, or participate in the
implementation of a management plan, including identifying and making
available certified fisheries or wildlife biologists with expertise in
the conservation of species for purposes of the preparation or review
and approval of management plans for species conservation contract
agreements under paragraph (3)(D)(iii).
``(5) Upon any conveyance or other transfer of interest in land
that is subject to an agreement under this subsection--
``(A) the agreement shall terminate if the agreement does
not continue in effect under subparagraph (B);
``(B) the agreement shall continue in effect with respect
to such land, with the same terms and conditions, if the person
to whom the land or interest is conveyed or otherwise
transferred notifies the Secretary of the person's election to
continue the agreement by no later than 30 days after the date
of the conveyance or other transfer and the person is
determined by the Secretary to qualify to enter into an
agreement under this subsection; or
``(C) the person to whom the land or interest is conveyed
or otherwise transferred may seek a new agreement under this
subsection.
``(6) An agreement under this subsection may be renewed with the
mutual consent of the Secretary and the person who entered into the
agreement or to whom the agreement has been transferred under paragraph
(5).
``(7) The Secretary shall make annual payments under this
subsection as soon as possible after December 31 of each calendar year.
``(8) An agreement under this subsection that applies to an
endangered species or threatened species shall, for the purpose of
section 10(a)(4), be deemed to be a permit to enhance the propagation
or survival of such species under section 10(a)(1), and a person in
full compliance with the agreement shall be afforded the protection of
section 10(a)(4).
``(9) The Secretary, or any other Federal official, may not require
a person to enter into an agreement under this subsection as a term or
condition of any right, privilege, or benefit, or of any action or
refraining from any action, under this Act.''.
(2) Subsection (e)(2) of section 7 (16 U.S.C. 1536) (as
redesignated by section 12(d)(2) of this Act) is amended by
inserting ``or in an agreement under section 5(l)'' after
``section''.
(d) Conforming Amendments.--
(1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by
striking ``section 4(g)'' and inserting ``section 5(i)''.
(2) The Marine Mammal Protection Act of 1972 is amended--
(A) in section 104(c)(4)(ii) (16 U.S.C.
1374(c)(4)(A)(ii)) by striking ``section 4(f)'' and
inserting ``section 5''; and
(B) in section 115(b)(2) (16 U.S.C. 1383b(b)(2)) by
striking ``section 4(f) of the Endangered Species Act
of 1973 (16 U.S.C. 1533(f))'' and inserting ``section 5
of the Endangered Species Act of 1973''.
SEC. 11. COOPERATION WITH STATES.
Section 6 (16 U.S.C. 1535) is amended--
(1) in subsection (c), by adding at the end the following:
``(3)(A) Any cooperative agreement entered into by the Secretary
under this subsection may also provide for development of a program for
conservation of species determined to be candidate species pursuant to
section 4(b)(3)(B)(iii) or any other species that the State and the
Secretary agree is at risk of being determined to be an endangered
species or threatened species under section 4(a)(1) in that State. Upon
completion of consultation on the agreement pursuant to subsection
(e)(2), any incidental take statement issued on the agreement shall
apply to any such species, and to the State and any landowners enrolled
in any program under the agreement, without further consultation
(except any additional consultation pursuant to subsection (e)(2)) if
the species is subsequently determined to be an endangered species or a
threatened species and the agreement remains an adequate and active
program for the conservation of endangered species and threatened
species.
``(B) Any cooperative agreement entered into by the Secretary under
this subsection may also provide for monitoring or assistance in
monitoring the status of candidate species pursuant to section
4(b)(3)(C)(iii) or recovered species pursuant to section 5(i).
``(C) The Secretary shall periodically review each cooperative
agreement under this subsection and seek to make changes the Secretary
considers necessary for the conservation of endangered species and
threatened species to which the agreement applies.
``(4) Any cooperative agreement entered into by the Secretary under
this subsection that provides for the enrollment of private lands or
water rights in any program established by the agreement shall ensure
that the decision to enroll is voluntary for each owner of such lands
or water rights.'';
(2) in subsection (d)(1)--
(A) by striking ``pursuant to subsection (c) of
this section'';
(B) by striking ``or to assist'' and all that
follows through ``section 4(g)'' and inserting
``pursuant to subsection (c)(1) and (2) or to address
candidate species or other species at risk and
recovered species pursuant to subsection (c)(3)''; and
(C) in subparagraph (F), by striking ``monitoring
the status of candidate species'' and inserting
``developing a conservation program for, or monitoring
the status of, candidate species or other species
determined to be at risk pursuant to subsection
(c)(3)''; and
(3) in subsection (e)--
(A) by inserting ``(1)'' before the first sentence;
(B) in paragraph (1), as designated by subparagraph
(A) of this paragraph, by striking ``at no greater than
annual intervals'' and inserting ``every 3 years''; and
(C) by adding at the end the following:
``(2) Any cooperative agreement entered into by the Secretary under
subsection (c) shall be subject to section 7(a)(2) through (d) and
regulations implementing such provisions only before--
``(A) the Secretary enters into the agreement; and
``(B) the Secretary approves any renewal of, or amendment
to, the agreement that--
``(i) addresses species that are determined to be
endangered species or threatened species, are not
addressed in the agreement, and may be affected by the
agreement; or
``(ii) new information about any species addressed
in the agreement that the Secretary determines--
``(I) constitutes the best available
scientific data; and
``(II) indicates that the agreement may
have adverse effects on the species that had
not been considered previously when the
agreement was entered into or during any
revision thereof or amendment thereto.
``(3) The Secretary may suspend any cooperative agreement
established pursuant to subsection (c), after consultation with the
Governor of the affected State, if the Secretary finds during the
periodic review required by paragraph (1) of this subsection that the
agreement no longer constitutes an adequate and active program for the
conservation of endangered species and threatened species.
``(4) The Secretary may terminate any cooperative agreement entered
into by the Secretary under subsection (c), after consultation with the
Governor of the affected State, if--
``(A) as result of the procedures of section 7(a)(2)
through (d) undertaken pursuant to paragraph (2) of this
subsection, the Secretary determines that continued
implementation of the cooperative agreement is likely to
jeopardize the continued existence of endangered species or
threatened species, and the cooperative agreement is not
amended or revised to incorporate a reasonable and prudent
alternative offered by the Secretary pursuant to section
7(b)(3); or
``(B) the cooperative agreement has been suspended under
paragraph (3) of this subsection and has not been amended or
revised and found by the Secretary to constitute an adequate
and active program for the conservation of endangered species
and threatened species within 180 days after the date of the
suspension.''.
SEC. 12. INTERAGENCY COOPERATION AND CONSULTATION.
(a) Consultation Requirement.--Section 7(a) (16 U.S.C. 1536(a)) is
amended--
(1) in paragraph (1) in the second sentence, by striking
``endangered species'' and all that follows through the end of
the sentence and inserting ``species determined to be
endangered species and threatened species under section 4.'';
(2) in paragraph (2)--
(A) in the first sentence by striking ``action''
the first place it appears and all that follows through
``is not'' and inserting ``agency action authorized,
funded, or carried out by such agency is not'';
(B) in the first sentence by striking ``, unless''
and all that follows through the end of the sentence
and inserting a period;
(C) in the second sentence, by striking ``best
scientific and commercial data available'' and
inserting ``best available scientific data''; and
(D) by inserting ``(A)'' before the first sentence,
and by adding at the end the following:
``(B) The Secretary may identify specific agency actions or
categories of agency actions that may be determined to meet the
standards of this paragraph by alternative procedures to the procedures
set forth in this subsection and subsections (b) through (d), except
that subsections (b)(4) and (e) may apply only to an action that the
Secretary finds, or concurs, does meet such standards, and the
Secretary shall suggest, or concur in any suggested, reasonable and
prudent alternatives described in subsection (b)(3) for any action
determined not to meet such standards. Any such agency action or
category of agency actions shall be identified, and any such
alternative procedures shall be established, by regulation promulgated
prior or subsequent to the date of the enactment of this Act.'';
(3) in paragraph (4)--
(A) by striking ``listed under section 4'' and
inserting ``an endangered species or a threatened
species,''; and
(B) by inserting ``, under section 4'' after ``such
species''; and
(4) by adding at the end the following:
``(5) Any Federal agency or the Secretary, in conducting any
analysis pursuant to paragraph (2), shall consider only the effects of
any agency action that are distinct from a baseline of all effects upon
the relevant species that have occurred or are occurring prior to the
action.''.
(b) Opinion of Secretary.--Section 7(b) (16 U.S.C. 1536(b)) is
amended--
(1) in paragraph (1)(B)(i) by inserting ``permit or
license'' before ``applicant'';
(2) in paragraph (2) by inserting ``permit or license''
before ``applicant'';
(3) in paragraph (3)(A)--
(A) in the first sentence--
(i) by striking ``Promptly after'' and
inserting ``Before'';
(ii) by inserting ``permit or license''
before ``applicant''; and
(iii) by inserting ``proposed'' before
``written statement''; and
(B) by striking all after the first sentence and
inserting the following: ``The Secretary shall consider
any comment from the Federal agency and the permit or
license applicant, if any, prior to issuance of the
final written statement of the Secretary's opinion. The
Secretary shall issue the final written statement of
the Secretary's opinion by providing the written
statement to the Federal agency and the permit or
license applicant, if any, and publishing notice of the
written statement in the Federal Register. If jeopardy
is found, the Secretary shall suggest in the final
written statement those reasonable and prudent
alternatives, if any, that the Secretary believes would
not violate subsection (a)(2) and can be taken by the
Federal agency or applicant in implementing the agency
action. The Secretary shall cooperate with the Federal
agency and any permit or license applicant in the
preparation of any suggested reasonable and prudent
alternatives.'';
(4) in paragraph (4)--
(A) by redesignating subparagraphs (A), (B), and
(C) as clauses (i), (ii), and (iii), respectively;
(B) by inserting ``(A)'' after ``(4)'';
(C) by striking ``the Secretary shall provide'' and
all that follows through ``with a written statement
that--'' and inserting the following: ``the Secretary
shall include in the written statement under paragraph
(3), a statement described in subparagraph (B) of this
paragraph.
``(B) A statement described in this subparagraph--''; and
(5) by adding at the end the following:
``(5)(A) Any terms and conditions set forth pursuant to paragraph
(4)(B)(iv) shall be roughly proportional to the impact of the
incidental taking identified pursuant to paragraph (4) in the written
statement prepared under paragraph (3).
``(B) If various terms and conditions are available to comply with
paragraph (4)(B)(iv), the terms and conditions set forth pursuant to
that paragraph--
``(i) must be capable of successful implementation; and
``(ii) must be consistent with the objectives of the
Federal agency and the permit or license applicant, if any, to
the greatest extent possible.''.
(c) Biological Assessments.--Section 7(c) (16 U.S.C. 1536(c)) is
amended--
(1) by striking ``(1)'';
(2) by striking paragraph (2);
(3) in the first sentence, by striking ``which is listed''
and all that follows through the end of the sentence and
inserting ``that is determined to be an endangered species or a
threatened species, or for which such a determination is
proposed pursuant to section 4, may be present in the area of
such proposed action.''; and
(4) in the second sentence, by striking ``best scientific
and commercial data available'' and inserting ``best available
scientific data''.
(d) Elimination of Endangered Species Committee Process.--Section 7
(16 U.S.C. 1536) is amended--
(1) by repealing subsections (e), (f), (g), (h), (i), (j),
(k), (l), (m), and
;
(2) by redesignating subsections (o) and (p) as subsections
(e) and (f), respectively;
(3) in subsection (e), as redesignated by paragraph (2) of
this subsection--
(A) in the heading, by striking ``Exemption as
Providing''; and
(B) by striking ``such section'' and all that
follows through ``(2)'' and inserting ``such
section,''; and
(4) in subsection (f), as redesignated by paragraph (2) of
this subsection--
(A) in the first sentence, by striking ``is
authorized'' and all that follows through ``of this
section'' and inserting ``may exempt an agency action
from compliance with the requirements of subsections
(a) through (d) of this section before the initiation
of such agency action,''; and
(B) by striking the second sentence.
SEC. 13. EXCEPTIONS TO PROHIBITIONS.
(a) Incidental Take Permits.--Section 10(a)(2) (16 U.S.C.
1539(a)(2)) is amended--
(1) in subparagraph (A) by striking ``and'' after the
semicolon at the end of clause (iii), by redesignating clause
(iv) as clause (vii), and by inserting after clause (iii) the
following:
``(iv) objective, measurable biological goals to be
achieved for species covered by the plan and specific
measures for achieving such goals;
``(v) measures the applicant will take to monitor
impacts of the plan on covered species and the
effectiveness of the plan's measures in achieving the
plan's biological goals; and
``(vi) adaptive management provisions necessary to
respond to all reasonably foreseeable changes in
circumstances that could appreciably reduce the
likelihood of the survival and recovery of any species
covered by the plan'';
(2) in subparagraph (B) by striking ``and'' after the
semicolon at the end of clause (iv), by redesignating clause
(v) as clause (vi), and by inserting after clause (iv) the
following:
``(v) the term of the permit is reasonable, taking
into consideration--
``(I) the period in which the applicant can
be expected to diligently complete the
principal actions covered b
