HR 3160 IH

To reauthorize and amend the Endangered Species Act of 1973.

October 27, 1999

Mr. YOUNG of Alaska (for himself, Mr. POMBO, Mr. TAUZIN, Mr. HANSEN, Mr. CALVERT, Mr. THOMAS, Mr. DOOLITTLE, Mr. RADANOVICH, Mr. BAKER, Mr. SKEEN, Mrs. BONO, Mr. LEWIS of California, Mr. WALDEN of Oregon, Mrs. CUBIN, Mr. SCHAFFER, Mr. TAYLOR of North Carolina, Mr. HASTINGS of Washington, Mr. HUNTER, Mr. GARY MILLER of California, Mr. WATKINS, Mr. TANCREDO, Mr. BACHUS, Mr. SIMPSON, Mr. HERGER, Mr. CUNNINGHAM, Mr. PETERSON of Pennsylvania, Mr. DELAY, Mr. GIBBONS, Mr. LUCAS of Oklahoma, Mr. JOHN, Mr. BONILLA, and Mr. PACKARD) introduced the following bill; which was referred to the Committee on Resources

To reauthorize and amend the Endangered Species Act of 1973.

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 `Common Sense Protections for Endangered Species Act'.

(b) TABLE OF CONTENTS- The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. References to Endangered Species Act of 1973.

TITLE I--IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND PROCEDURES

Sec. 101. Improving the validity and credibility of decisions.

Sec. 102. Peer review.

Sec. 103. Making data public.

Sec. 104. Judicial review.

Sec. 105. State consultation on final determination.

Sec. 106. Determinations by the Secretary to delist.

Sec. 107. Cooperation with the States.

TITLE II--COMPLYING WITH ALL FEDERAL LAWS AND MISSIONS

Sec. 201. Balancing ESA with other laws and missions.

Sec. 202. Actions not requiring consultation and conferencing.

Sec. 203. Eliminating the exemption committee.

TITLE III--PERMITTING AND ENFORCEMENT

Sec. 301. Protecting public health and safety.

Sec. 302. Intervention in citizen suits.

Sec. 303. Incidental take permits.

Sec. 304. Safe harbor agreements.

TITLE IV--RECOVERY PLANNING

Sec. 401. Recovery planning.

TITLE V--MISCELLANEOUS

Sec. 501. Authorizing increased appropriations.

SEC. 2. REFERENCES TO ENDANGERED SPECIES ACT OF 1973.

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.).

TITLE I--IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND PROCEDURES

SEC. 101. IMPROVING THE VALIDITY AND CREDIBILITY OF DECISIONS.

(a) BASES LISTINGS; USE OF CREDIBLE SCIENCE- Section 4 (16 U.S.C. 1533) is amended--

(1) by amending subsection (a)(1)(D) to read as follows:

`(D) the inadequacy of existing Federal, State, and local government regulatory mechanisms or other proactive conservation programs or measures, including programs and measures voluntarily undertaken;';

(2) by striking paragraph (3) of subsection (a); and

(3) in subsection (b), by amending so much as precedes paragraph (3) to read as follows:

`(b) SECRETARIAL DETERMINATIONS-

`(1) BASIS FOR DETERMINATION- (A) The Secretary shall make determinations required by subsection (a)(1) solely on the basis of the best scientific and commercial data available to the Secretary after conducting a review of the status of the species and after soliciting and fully considering the best scientific and commercial data available concerning the status of a species from any affected State or any interested non-Federal person, and taking into account those efforts being made by any State or foreign nation, any political subdivision of a State or foreign nation, or any non-Federal person or conservation organization, 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, and shall accord greater weight, consideration, and preference to empirical data rather than projections or other extrapolations developed through modeling.

`(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 as 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) In making a determination whether a species is an endangered species or threatened species under this section, the Secretary shall consider the future conservation benefits to be provided to the species under any species conservation plans prepared pursuant to section 10 or to any management agreement entered into under section 6 or under any other agreement for the conservation of any species entered into between the Secretary and any other person.

`(2) STANDARDS FOR DETERMINING SPECIES- Within 18 months after the date of the enactment of the Common Sense Protections for Endangered Species Act, the Secretary shall promulgate a rule establishing scientifically valid standards for rendering taxonomic determinations of species and subspecies. The standards shall provide that to be eligible for determination as a subspecies under this Act, a subspecies must be reproductively isolated from other subspecific population units and constitute an important component in the evolutionary legacy of the species.'.

(b) LISTING AND DELISTING-

(1) RESPONSE TO PETITIONS- Section 4(b)(3) (16 U.S.C. 1533(b)(3)) is amended to read as follows:

`(3) RESPONSE TO PETITIONS-

`(A) ACTION MAY BE WARRANTED-

`(i) IN GENERAL- Consistent with the ranking system established by the Secretary under subsection (h)(3) and to the maximum extent practicable, after receiving the petition of an interested person under section 553(e) of title 5, United States Code, to--

`(I) add a species to;

`(II) remove a species from; or

`(III) change the status of a species from a previous determination with respect to;

either of the lists published under subsection (c), the Secretary shall immediately publish in the Federal Register a notice of receipt of the petition and shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If 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.

`(ii) MINIMUM DOCUMENTATION- A finding that the petition presents the information described in clause (i) shall not be made unless the petition provides--

`(I) scientific documentation from a published scientific source that the fish or wildlife or plant that is the subject of the petition is a species;

`(II) a description of all available data on the historical and current range, population, and distribution of the species, an explanation of the methodology used to collect the data, and an identification of the location where the data can be reviewed;

`(III) scientific evidence that the population of the species is declining or has declined from historic population levels and beyond normal population fluctuations for the species;

`(IV) an appraisal of the available data on the threats to the species or the causes of its decline;

`(V) an identification of the information contained or referred to in the petition that has been peer-reviewed or field-tested;

`(VI) the reason that the petitioned action is warranted, based on the factors established under subsection (a);

`(VII) a bibliography of scientific literature on the species, if any, in support of the petition;

`(VIII) the qualifications of any person cited in the petition as an expert on the species or the status of the species; and

`(IX) at least one study or credible expert opinion, by a person who is not affiliated with the petitioner, to support the action requested in the petition.

`(iii) NOTIFICATION TO THE STATES-

`(I) PETITIONED ACTIONS- If the petition is found to present the information described in clause (i), the Secretary shall notify and provide a copy of the petition to the Governor of each State in which the species is believed to occur and to affected tribes, and shall solicit the advice of each such Governor and tribe as to whether the petitioned action is warranted. Such advice shall be submitted to the Secretary not later than 90 days after the notification.

`(II) PEER REVIEW OF CERTAIN DETERMINATIONS- If the Secretary's determination that the petitioned action is warranted is in direct conflict with the information submitted by the Governor or tribe, the finding shall not be final until the Secretary submits the finding to peer review as provided in subsection (f). The peer reviewers shall have not more than 30 days to submit their findings and comments to the Secretary. If the peer reviewers and the Secretary find that the petition is warranted, the Secretary shall prepare a record of decision and shall submit the record to the Governor or tribe. Issuance of such record shall be final agency action for purposes of chapter 7 of title 5, United States Code (relating to judicial review).

`(B) PETITION TO CHANGE STATUS OR DELIST- A petition may be submitted to the Secretary under subparagraph (A) to change the status of a species or to remove a species from either of the lists published under subsection (c) in accordance with subsection (a)(1), if--

`(i) the current listing is no longer appropriate because of a change in the factors identified under subsection (a)(1); or

`(ii) with respect to a petition to remove a species from either of the lists--

`(I) new data or a reinterpretation of prior data indicate that removal is appropriate;

`(II) the species is extinct;

`(III) the recovery goals established for the species in a recovery plan adopted under section 5 have been achieved; or

`(IV) the original listing of the species was not subject to adequate peer review as required by this Act.

`(C) DETERMINATION- Not later than the end of the 1-year period beginning on the date the Secretary receives a petition that is found under subparagraph (A)(i) to present substantial information indicating that the petitioned action may be warranted, the Secretary shall make one of the following findings:

`(i) NOT WARRANTED- The petitioned action is not warranted, in which case the Secretary shall promptly publish the finding in the Federal Register.

`(ii) WARRANTED- The petitioned action is warranted, in which case the Secretary shall, within 45 days after making the determination and before issuing any proposed rule to implement the determination, publish in the Federal Register a notice of a review of the status of the species that includes a description of the following:

`(I) Any missing data that, if obtained, would support the determination.

`(II) Data that are necessary to make the determination and that can be collected within the period available for making the determination.

`(III) Data that may be necessary in the future to ensure the continued validity of the determination, and the deadline or deadlines for collecting that data.

`(iii) WARRANTED BUT PRECLUDED- The petitioned action is warranted, but--

`(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 the lists species for which the protections of this Act are no longer necessary;

in which case the Secretary shall promptly publish the finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.

`(D) PUBLIC MEETINGS- If requested by any person within 30 days after the date of publication of a finding under subparagraph (C) regarding a species, the Secretary shall conduct at least one public meeting on the finding in each State in which the species is believed to occur and a person making such a request resides. Public meetings in a State under this clause shall include--

`(i) a public meeting at a location that is as centrally located as possible to the areas in the State believed by the Secretary to be habitat of the species; and

`(ii) at least one public meeting in each rural area of the State that the Governor of the State determines is affected by the determination.

`(E) SUBSEQUENT DETERMINATION- A petition with respect to which a finding is made under subparagraph (C)(iii) shall be treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the date of the finding and that presents substantial scientific or commercial information that the petitioned action may be warranted.

`(F) JUDICIAL REVIEW- (i) Any negative finding described in subparagraph (A)(i) and any finding described in clause (i) or (iii) of subparagraph (C) shall be subject to judicial review. In any suit for review brought under this paragraph, any person may intervene as a matter of right if the person can demonstrate that a determination to list will have a direct economic impact on such person.

`(ii) In any action seeking judicial review of a finding by the Secretary described in subparagraph (C)(iii), the court shall give great weight to the finding.

`(G) MONITORING- The Secretary shall implement a system to monitor effectively the status of each species with respect to which a finding is made under subparagraph (C)(iii) and shall make prompt use of the authority under paragraph (7) to prevent a significant risk to the well-being of the species.

`(H) DATA SOLICITATION- (i) The Secretary shall, in the one-year period referred to in subparagraph (C)--

`(I) solicit, through publication in the Federal Register, information regarding the status of the species that may be the subject of a proposed rule, including current population, population trends, current habitat, other State or local governmental conservation efforts, Federal conservation lands that could provide habitat for the species, food sources, predators, breeding habits, captive breeding efforts, commercial, nonprofit, avocational, or voluntary conservation activities, or other pertinent information that may assist in making the

determination referred to in subsection (a)(1); and

`(II) collect and consider the data identified and described pursuant to subclause (I).

`(ii) The solicitation shall establish a time period within which to submit the information, that shall be not less than 180 days. The period shall be extended for an additional 60 days at the request of any person who submits a request for such extension that includes a statement of the reasons for the request. In making the determination referred to in subsection (a)(1), the Secretary shall give equal weight to the information submitted in accordance with this subparagraph.'.

(2) CONFORMING AMENDMENT- Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended in the first sentence by striking `subparagraph (C)' and inserting `subparagraph (G)'.

(c) PROPOSED REGULATIONS- Section 4(b)(5) (16 U.S.C. 1533(b)(5)) is amended to read as follows:

`(5) PROPOSED REGULATIONS AND REVIEW- With respect to any regulation proposed by the Secretary to implement a determination referred to in subsection (a)(1) of this section, the Secretary shall perform the following:

`(A) Not later than 12 months before publishing the proposed regulation, the Secretary shall--

`(i) notify the Governor of each State in which the species is believed to occur and each affected tribe; and

`(ii) solicit submission by each such Governor and tribe, by not later than 90 days after the notification, of advice as to whether the determination is warranted.

`(B) Before publication of the proposed regulation, the Secretary shall consider advice received from State Governors and tribes under subparagraph (A)(ii). If a Governor or tribe provides scientific evidence pursuant to subparagraph (A)(ii) that the determination is not warranted, the Secretary may not make the determination with respect to that State or on the lands of that tribe, respectively, unless the Secretary shows by a preponderance of scientific evidence that the information submitted by the Governor or tribe is incorrect and that the determination is warranted.

`(C) 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 as provided in paragraph (8); and

`(ii) give actual notice of the proposed regulation (including the complete text of the regulation) to the Governor of each State in which the species is believed to occur, and invite the determination of such State as to whether the action is warranted and if the Governor notifies the Secretary that the action is not warranted, the Secretary must provide to the Governor a record of decision for such determination, including information made available to the Secretary which did not support the determination, and the written reasons for the determination.

`(D) 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 consult with such nation thereon.

`(E) Give notice of the proposed regulation to any person who requests such notice, any person who has submitted additional data, each State and local government within which the species is believed to occur or which is likely to experience any effects of any measures to protect the species under this Act, and such professional scientific organizations as the Secretary deems appropriate.

`(F) 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.

`(G) At the request of any person made not later than 45 days after the date of publication of general notice, promptly hold at least one public meeting in each State that would be affected by the proposed regulation (including at least one public meeting in an affected rural area, if any) except that the Secretary shall not be required to hold more than five public meetings under this subparagraph.

`(H) Identify and include with the proposed rule a description of--

`(i) all data that are to be considered in making the determination under subsection (a)(1) to which the proposed rule relates and that have yet to be collected or field verified;

`(ii) any data that have not been collected and considered in the determination under subsection (a)(1) to which the rule relates and that are necessary to ensure the continued scientific integrity of the determination;

`(iii) deadlines by which the Secretary shall collect and consider the data in accordance with subparagraph (I);

`(iv) a description of additional scientific and commercial data that would assist in the preparation of a recovery plan for the species to which the rule relates;

`(v) a list of known threats to the species and a description of the types of activities that may be affected by the determination under subsection (a)(1) and

any restriction on use of property that may result from the determination; and

`(vi) other State, local, or Federal regulatory or conservation measures that may either at present or in the future contribute to the conservation of the species.

`(I) Not later than the deadline published by the Secretary pursuant to subparagraph (H)(iii), the Secretary shall--

`(i) collect the data;

`(ii) provide an opportunity for public review and comment on the data;

`(iii) consider the data after that review and comment; and

`(iv) publish in the Federal Register the results of that consideration and a description of and schedule for any actions warranted by the data.'.

(d) FINAL REGULATIONS-

(1) SCHEDULE- Section 4(b)(6) (16 U.S.C. 1533(b)(6)) is amended by striking `(6)(A)' and all that follows through the end of subparagraph (A) and inserting the following:

`(6) FINAL REGULATIONS-

`(A) IN GENERAL- Within the 1-year period beginning on the date on which general notice is published in accordance with paragraph (5)(A)(i) regarding a proposed regulation, the Secretary shall publish in the Federal Register--

`(i) a final regulation to implement the determination;

`(ii) notice that the 1-year period is being extended under subparagraph (B)(i); or

`(iii) notice that the proposed regulation is being withdrawn under subparagraph (B)(ii), together with the finding on which the withdrawal is based.'.

(2) CONFORMING AMENDMENTS- Section 4(b)(6) (16 U.S.C. 1533(b)(6)) is amended--

(A) in subparagraph (B)(i), by striking `or revision';

(B) in subparagraph (B)(iii), by striking `or revision concerned, a finding that the revision should not be made,'; and

(C) by striking subparagraph (C).

(e) USING BEST DATA- Section 4(b)(8) (16 U.S.C. 1533(b)(8)) is amended--

(1) by striking `the data' and inserting `the best scientific and commercial data available';

(2) by striking `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.' and inserting `regulation, and shall provide, to the degree that it is relevant and available, information regarding the status of the affected species, including current population, population trends, current habitat, food sources, predators, breeding habits, captive breeding efforts, governmental and nongovernmental conservation efforts, or other pertinent information.'; and

(3) by adding at the end the following new sentence: `Each regulation proposed by the Secretary to implement a determination referred to in subsection (a)(1) shall be based primarily and substantially on peer-reviewed scientific information obtainable from any source, including governmental and nongovernmental sources, that has been to the maximum extent feasible verified by field testing. The Secretary shall identify any data that is used as a basis for such a determination and that has not been verified by field testing.'.

(f) ANALYSIS OF ECONOMIC AND SOCIAL EFFECTS- Section 4(b) (16 U.S.C. 1533(b)) is amended by adding at the end the following new paragraph:

`(9) ANALYSIS OF ECONOMIC AND SOCIAL COSTS- (A) Concurrently with a determination that a species warrants listing as an endangered species or threatened species, the Secretary shall publish in the Federal Register with such determination an analysis of the economic, social, and other public health, safety, and welfare effects the listing may have.

`(B) The analysis shall include--

`(i) an estimate of the effects the listing may have on Federal, State, and local expenditures and revenues;

`(ii) the costs and benefits of the listing for the private sector, including lost opportunity costs; and

`(iii) an identification of the geographic area that may be affected by the listing.'.

(g) DEFINITIONS- Section 3 (16 U.S.C. 1532) is amended--

(1) by amending paragraph (20) to read as follows:

`(20) The term `threatened species' means any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, and the population of which is declining or has declined from known historic populations levels and beyond the normal population fluctuations for the species.'; and

(2) by adding at the end the following:

`(22) The term `best scientific and commercial data available' means factual information, including but not limited to peer reviewed scientific information and genetic data, obtainable from any source, including governmental and nongovernmental sources, which has been to the maximum extent feasible verified by field testing.

`(23) The term `species' includes any subspecies of fish or wildlife or plants, and any distinct population of any species of vertebrate fish or wildlife which interbreeds when mature, unless such distinct population is determined to be endangered or threatened under the law of the State in which it is found and such law prohibits the unpermitted take of such species.'.

SEC. 102. PEER REVIEW.

Section 4(f) (16 U.S.C. 1533(f)) is amended to read as follows:

`(f) PEER REVIEW REQUIREMENT-

`(1) DEFINITIONS- In this subsection:

`(A) The term `action' means--

`(i) the determination that a species is an endangered species or a threatened species under subsection (a);

`(ii) the determination under subsection (a) that an endangered species or a threatened species be removed from any list published under subsection (c)(1);

`(iii) the designation, or revision of the designation, of critical habitat for an endangered species or a threatened species under section 5(k);

`(iv) the determination that a proposed action is likely to jeopardize the continued existence of a listed species and the proposal of any reasonable and prudent alternatives by the Secretary under section 7(b)(3); and

`(v) the issuance of any regulation or criteria establishing specific mitigation obligations with respect to a species.

`(B) The term `qualified individual' means an individual with expertise in the biological sciences--

`(i) who is by virtue of advanced education, training, or avocational, academic, commercial, research, or other experience competent to review the adequacy of any scientific methodology supporting the action, the validity of any conclusions drawn from the supporting data, and the competency of the individual who conducted the research or prepared the data;

`(ii) who is not otherwise employed by or under contract to the Secretary or the State in which the species is located;

`(iii) who has not actively participated in the prelisting or listing processes or advocated that a listing decision be made;

`(iv) who has not been employed by or under contract to the Secretary or the State in which the species is located for work related to the action or species under consideration; and

`(v) who has no direct financial interest, and is not employed by any person with a direct financial interest, in opposing the action under consideration.

`(2) LIST OF PEER REVIEWERS- In order to provide a substantial list of individuals who on a voluntary basis are available to participate in peer review of actions, the Secretary shall, through the Federal Register, through scientific and commercial journals, and through the National Academy of Sciences and other such institutions, seek nominations of persons who agree to peer review an action upon appointment by the Secretary.

`(3) APPOINTMENT OF PEER REVIEWERS- Before any action shall become final, the Secretary shall appoint, from among the list prepared in accordance with paragraph (2), not more than 2 qualified individuals who shall review, and report to the Secretary on, the scientific information and analyses on which the proposed action is based. The Governor of each State in which the species is located that is the subject of the proposal, may appoint up to 2 qualified individuals to conduct peer review of the action. If any individual declines the appointment, the Secretary or the Governor shall appoint another individual to conduct the peer review.

`(4) DATA PROVIDED TO PEER REVIEWER- The Secretary shall make available to each person conducting peer review all scientific information available regarding the species which is the subject of the peer review. The Secretary shall not indicate to a peer reviewer the name of any person that submitted a petition for listing or delisting that is reviewed by the reviewer.

`(5) OPINION OF PEER REVIEWERS- The peer reviewer shall give his or her opinion with regard to any technical or scientific deficiencies in the proposal, whether the methodology and analysis supporting the petition conform to the standards of the academic and scientific community, and whether the proposal is supported by sufficient credible evidence.

`(6) PUBLICATION OF PEER REVIEW REPORT- The Secretary shall publish with any final regulation implementing an action a summary of the report of the peer review panel noting points of disagreement between peer reviewers, if any, and the response of the Secretary to the report. The report of the peer reviewers shall be included in the official record of the proposed action and shall be available for public review prior to the close of the comment period on the regulation.'.

SEC. 103. MAKING DATA PUBLIC.

(a) PUBLIC DATA- Section 4(b)(3) (16 U.S.C. 1533(b)(3)) is further amended by adding at the end the following new subparagraph:

`(H)(i) All data or information considered by the Secretary in making the determination to list as provided in this section, shall be considered public information and shall be subject to section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act') unless the Secretary, for good cause, determines that the information must be kept confidential. The burden shall be on the Secretary to prove that such information shall be confidential and such decision shall be reviewable by a district court of competent jurisdiction, which shall review the decision in chambers. Good cause can include that the information is of a proprietary nature or that release of the location of the species may endanger the species further.

`(ii) The Secretary shall not publish or otherwise publicly disclose the location of particular private property as habitat for a species which is determined to be an endangered species or threatened species or proposed to be determined to be an endangered species or threatened species, unless the Secretary first notifies the owner thereof and receives the consent of the owner, or the information is otherwise public information.'.

(b) NOTICE OF HEARINGS AND PUBLIC MEETINGS- Section 14 is amended to read as follows:

`SEC. 14. PUBLIC HEARINGS AND PUBLIC MEETINGS.

`(a) IN GENERAL- Except as otherwise provided by this Act, the Secretary shall provide notice of any hearing or public meeting at which public comment is accepted under this Act by publication in the Federal Register and in a newspaper of general circulation in the location of the hearing or public meeting at least 30 days prior to the hearing or public meeting.

`(b) PUBLIC MEETINGS- Each public meeting held pursuant to this Act shall provide an opportunity for the public to make statements and receive information and answers, respectively, from the agency regarding all aspects of and questions regarding the petition or other matter that is the subject of the public meeting. To the maximum extent practicable, the Secretary shall ensure that members of the public are provided with the information sought at the public meeting.'.

SEC. 104. JUDICIAL REVIEW.

Section 4 (16 U.S.C. 1533) is further amended by adding at the end the following new subsection:

`(j) JUDICIAL REVIEW OF DETERMINATIONS- Any final determination that a species is a threatened species or endangered species shall be subject to a de novo judicial review with the court determining whether the decision is supported by a preponderance of the evidence.'.

SEC. 105. STATE CONSULTATION ON FINAL DETERMINATION.

Section 4(i) (16 U.S.C. 1533(i)) is amended to read as follows:

`(i) SUBMISSION TO STATE AGENCY OF JUSTIFICATION FOR REGULATIONS INCONSISTENT WITH STATE AGENCY'S COMMENTS OR PETITION- If, in the case of any regulation proposed by the Secretary under the authority of this section, a Governor who consulted with the Secretary in accordance with subsection (b)(5)(A)(ii) files comments disagreeing with all or part of the proposed regulation, the Secretary shall not issue a final regulation that is in conflict with such comments until the Secretary further consults with the President. If the Secretary adopts a final regulation in conflict with comments made by the Governor of a State or fails to adopt a regulation pursuant to an action petitioned by a Governor under subsection (b)(3), the Secretary shall submit to the Governor a written justification for the failure of the Secretary to adopt regulations consistent with the comments or petition of the Governor.'.

SEC. 106. DETERMINATIONS BY THE SECRETARY TO DELIST.

Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to read as follows:

`(2) The Secretary shall--

`(A) conduct, at least once every 5 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, which shall be proposed within 90 days of the date upon which it is determined that--

`(I) new data or a reinterpretation of prior data indicates that the previous determination was in error;

`(II) the species is extinct; or

`(III) the recovery goal established for the species in a recovery plan under section 5(e) has been achieved;

`(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 subsections (a) and (b) of this section.'.

SEC. 107. COOPERATION WITH THE STATES.

The first sentence of section 4(h) (16 U.S.C. 1533(h)) is amended to read as follows: `The Secretary shall develop in cooperation with the States, and publish in the Federal Register, agency guidelines to ensure that cooperation with the States is achieved efficiently and effectively.'.

TITLE II--COMPLYING WITH ALL FEDERAL LAWS AND MISSIONS

SEC. 201. BALANCING ESA WITH OTHER LAWS AND MISSIONS.

(a) FEDERAL AGENCY ACTIONS- Section 7 (16 U.S.C. 1536) is amended--

(1) by amending the matter preceding subsection (a)(2) to read as follows:

`SEC. 7. INTERAGENCY COOPERATION.

`(a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS-

`(1) PROGRAMS ADMINISTERED BY THE SECRETARY OF THE INTERIOR- The Secretary shall review other programs administered by the Secretary and utilize such programs in furtherance of the purposes of this Act. Except as provided in section 5(k)(2), all other Federal agencies shall, consistent with their primary missions and 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.'; and

(2) by adding at the end of subsection (a) the following:

`(5) INITIATION OF CONSULTATION- A Federal agency that receives a request under paragraph (3) shall initiate consultation within 15 days after the date on which the request is received from the permit or license applicant.

`(6) DEMONSTRATION BY SECRETARY REQUIRED- If the Secretary asserts the applicability of section 7 to any property, the Secretary shall have the responsibility of demonstrating, based on the best information available at the time any consultation under this subsection is initiated, that--

`(A) a threatened species or endangered species or its respective critical habitat is located in the geographic area that is the subject of the consultation; and

`(B) such proposed action will jeopardize the continued existence of a threatened species or endangered species.

`(7) PROHIBITION ON OPINIONS BASED ON INSUFFICIENT DATA- The Secretary shall not issue an opinion under subsection (b) that a proposed action will jeopardize the continued existence of a threatened species or endangered species based on the insufficiency of available data on the impact of a proposed action on such species.

`(8) EFFECT OF LISTING ON EXISTING PLANS-

`(A) DEFINITION OF ACTION- For the purposes of this paragraph, the term `action' includes the adoption of land use plans under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.) and land and resource management plans under the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et seq.), as amended by the National Forest Management Act of 1976 (16 U.S.C. 1600 (note)).

`(B) REINITIATION OF CONSULTATION- Whenever a determination to list a species as an endangered species or a threatened species or a designation of critical habitat requires reinitiation of consultation on an already approved action, the consultation shall commence promptly, but not later than 90 days after the date of the determination or designation, and shall be completed not later than 1 year after the date on which the consultation is commenced. During that 1-year period, the site specific actions referred to in subparagraph (C) may not be enjoined under this Act based on that listing.

`(C) SITE-SPECIFIC ACTIONS DURING CONSULTATION- Notwithstanding subsection (d), the Federal agency implementing the land use plan or land and resource management plan under subparagraph (B) may authorize, fund, or carry out a site-specific ongoing or previously scheduled action within the scope of the plan on the lands prior to completing consultation on the plan under subparagraph (B) pursuant to the consultation procedures of this section and related regulations, if--

`(i) no consultation on the action is required; or

`(ii) consultation on the action is required, the Secretary issues or has issued a biological opinion, and the action satisfies the requirements of this section.

`(9) RELATIONSHIP TO DUTIES UNDER OTHER LAWS- (A) The responsibilities of a Federal agency under this Act shall not supersede and shall be implemented in a manner consistent with duties assigned to the Federal agency by any other laws or by any treaties.

`(B)(i) If a Federal agency determines that the responsibilities and duties described in subparagraph (A) are in irreconcilable conflict, the action agency shall request the President to resolve the conflict.

`(ii) In determining a resolution to such a conflict, the President shall consider and choose the course of action that best meets the public interest and, to the extent possible, balances pursuit of the recovery objective or the purposes of the recovery plan with economic and social needs and pursuit of the purposes of the other laws or treaties. The authority assigned to the President by this subparagraph may not be delegated to a member of the executive branch who has not been confirmed by the Senate.'.

(b) PROCEDURES FOR CONSULTATION- Section 7(b) (16 U.S.C. 1536(b)) is amended--

(1) by adding at the end of paragraph (1) the following:

`(C) If consultation is not concluded and the written statement of the Secretary required under paragraph (3)(A) is not provided to the Federal agency by the applicable deadline established under this paragraph, the requirements of subsection (a)(2) shall be deemed met and the Federal agency may proceed with the agency action.'; and

(2) by amending paragraph (2) to read as follows:

`(2) OPPORTUNITY TO PARTICIPATE IN CONSULTATIONS- (A) In conducting a consultation under subsection (a)(2), the Secretary shall provide any person who has sought authorization or funding from a Federal agency for an action that is the subject of the consultation, the opportunity to--

`(i) prior to the development of a draft biological opinion under paragraph (3), submit and discuss with the Secretary and the Federal agency information relevant to the effect of the proposed action on the species and the availability of reasonable and prudent alternatives (if a jeopardy opinion is to be issued) that the Federal agency and the person can take to avoid violation of subsection (a)(2);

`(ii) receive information, on request, subject to the exemptions specified in section 552(b) of title 5, United States Code, on the status of the species, threats to the species, and conservation measures, used by the Secretary to develop the draft biological opinion and the final biological opinion, including the associated incidental taking statements; and

`(iii) receive a copy of the draft biological opinion from the Federal agency and, prior to issuance of the final biological opinion, submit comments on the draft biological opinion and discuss with the Secretary and the Federal agency the basis for any finding in the draft biological opinion.

`(B) If reasonable and prudent alternatives are proposed by a person under subparagraph (A) and the Secretary does not include the alternatives in the final biological opinion under paragraph (3), the Secretary shall explain, in writing, to the person why those alternatives were not included in the opinion.

`(C) Consultation under subsection (a)(3) shall be concluded within such period as is agreeable to the Secretary, the Federal agency, and the applicant concerned.'.

(c) REASONABLE AND PRUDENT ALTERNATIVES- Section 7(b)(3) (16 U.S.C. 1536(b)(3)) is amended by adding at the end the following:

`(C) In the development of an opinion under this paragraph with respect to public lands, the Secretary shall solicit and utilize information and advice regarding those lands from the Governor of each State in which the lands are located. With respect to nonpublic lands, the Secretary shall solicit such advice only upon the request of the affected landowner.

`(D) Unless required by law other than subsections (a) through (d), the Secretary, in any opinion or statement under this subsection concerning an agency action (including any reasonable and prudent alternative suggested under subparagraph (A) or any reasonable and prudent measure specified under clause (ii) of paragraph (4)), and the head of the Federal agency proposing the agency action, may not require, provide for, or recommend the imposition of any restriction or obligation on the activity of any person that is not authorized, funded, carried out, or otherwise subject to regulation by the Federal agency.'.

(d) DEFINITIONS- Section 3 (16 U.S.C. 1532) is further amended by adding at the end the following:

`(24) The term `reasonable and prudent alternative' means an alternative to an agency action that--

`(A) can be implemented in a manner consistent with the intended purpose of the agency action or the activity of a non-Federal person under section 10;

`(B) can be implemented consistent with the scope of the legal authority and jurisdiction of the Federal agency;

`(C) is economically and technologically feasible for the applicant or non-Federal person to undertake;

`(D) the Secretary believes would avoid being likely to jeopardize the continued existence of the species;

`(E) does not exceed in nature, scope, and extent the effect of the proposed activity that is the subject of the consultation; and

`(F) both prevents the agency action concerned from jeopardizing the continued existence of the species and imposes the least social and economic cost possible.

`(25) The term `likely to jeopardize the continued existence of', with respect to an action or activity affecting an endangered species or a threatened species, means an action or activity that significantly diminishes the likelihood of the survival of the species by significantly reducing the numbers or distribution of the entire species.'.

(e) RESTRICTION ON NEW OR ADDITIONAL REQUIREMENTS- Section 7(b) (16 U.S.C. 1536(b)) is amended by adding at the end the following:

`(5) The Secretary shall provide to each applicant for a permit or license that is subject to consultation under this section a written statement that shall guarantee that, so long as the project at issue is carried out consistent with the statement issued under paragraph (4), the applicant shall not be subject to new or additional requirements for the specific protection of any species identified in the statement beyond the requirements set forth in the statement. All Federal entities shall be bound by the Secretary's guarantee.

`(6)(A) The Secretary shall not refuse to provide an incidental take statement under paragraph (4), unless the Secretary has provided to the agency and the permit applicant--

`(i) all conditions for issuance of the statement, in writing; and

`(ii) an opportunity for the agency and the permit applicant to provide a written response to the conditions.

`(B) Any refusal to provide an incidental take statement without first providing the written conditions therefore and providing an opportunity to respond in accordance with subparagraph (A), is deemed to be arbitrary and capricious.

`(7) The Secretary may not require any measures under subsection (b)(4) that exceed in nature, scope, or effect the impact of the taking for which the statement is issued.'.

SEC. 202. ACTIONS NOT REQUIRING CONSULTATION AND CONFERENCING.

Section 7 is amended by adding at the end the following:

`(q) ACTIONS NOT REQUIRING CONSULTATION AND CONFERENCING-

`(1) IN GENERAL- Consultation and conferencing under paragraphs (2) and (4) of subsection (a) shall not be required for any agency action that--

`(A) is consistent with the provisions of a final recovery plan under section 5;

`(B) is consistent with a cooperative management agreement under section 6 or an incidental taking permit under section 10; or

`(C) consists of routine operation, maintenance, rehabilitation, repair, or replacement to a Federal or non-Federal project or facility, including operation of a project or facility in accordance with a previously issued Federal license, permit, or other authorization.

`(2) EMERGENCY CONSULTATIONS- In response to, or to prevent or minimize damage from, a natural event or other emergency, consultation under subsection (a)(2) may be waived by a Federal agency for the repair or maintenance of a natural gas pipeline, hazardous liquid pipeline, flood control facility, or electrical distribution transmission, or substation facility, if the repair or maintenance is necessary to address a probable imminent threat to human lives or a probable and significant threat to the environment. If a consultation is required by the Secretary for such repair or maintenance, it shall be completed within 10 days of any request by the applicant for consultation. Any measure required to be taken to avoid take for an activity that is the subject of such a waiver may not exceed in nature, scope, and extent the effect of the activity and shall not be required prior to the completion of the repair or maintenance action.

`(3) ACTIONS NOT PROHIBITED- An agency action shall not constitute a taking of a species prohibited by this Act or any regulation issued under this Act if the action is consistent with--

`(A) the actions provided for in a final recovery plan under section 5;

`(B) a cooperative management agreement or an incidental take permit; or

`(C) the terms and conditions specified in a written statement provided under subsection (b)(3) of this section.'.

SEC. 203. ELIMINATING THE EXEMPTION COMMITTEE.

(a) CONFORMING AMENDMENTS- Section 7(c) (16 U.S.C. 1536(c)) is amended--

(1) in the first full sentence by striking `(1) To facilitate' and inserting `To facilitate'; and

(2) by striking paragraph (2).

(b) PRESIDENTIAL EXEMPTIONS- Section 7(e) (16 U.S.C. 1536(e)) is amended to read as follows:

`(e) EXEMPTIONS- Notwithstanding any other provision of this Act--

`(1) the Secretary shall grant an exemption from this Act for any activity if the Secretary of Defense determines that the exemption of the activity is necessary for reasons of national security; and

`(2) the President may grant an exemption from this Act for any area that the President has declared to be a major disaster area under The Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) for any project for the repair or replacement of a public facility substantially as the facility existed prior to the disaster under section 405 or 406 of that Act (42 U.S.C. 5171 and 5172), if the President determines that the project--

`(A) is necessary to prevent the recurrence of such a natural disaster or to reduce the potential loss of human life; and

`(B) involves an emergency situation that makes the application of the procedures of this Act (other than this subsection) impractical.'.

(c) REPEAL- Section 7 (16 U.S.C. 1536) is further amended--

(1) by striking subsections (f) through (n) and subsection (p);

(2) in subsection (o)--

(A) by striking the heading and inserting the following: `EXCEPTION FOR TAKING IN ACCORDANCE WITH STATEMENT- '; and

(B) by striking `such section--' and all that follows through `(2) any taking' and inserting `such section, any taking'; and

(3) by redesignating subsection (o) as subsection (f).

TITLE III--PERMITTING AND ENFORCEMENT

SEC. 301. PROTECTING PUBLIC HEALTH AND SAFETY.

(a) IN GENERAL- Section 9(a) (16 U.S.C. 1538(a)) is amended by adding at the end the following:

`(3) PROTECTING PUBLIC HEALTH AND SAFETY- An activity of a non-Federal person is not a taking of a species for purposes of paragraph (1) if the activity--

`(A) addresses a critical, probable threat to public health or safety or a catastrophic natural event, or is mandated by any Federal, State, or local government agency for public health or safety purposes; or

`(B) is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity that consists of--

`(i) ongoing maintenance, routine operation or use, and emergency repair of existing pipelines, flood control facilities or projects, fire breaks, transmission and distribution lines, groundwater recharge facilities and areas, water storage and recycling facilities, water drainage or water conveyance structures and channels, and appurtenant facilities;

`(ii) road and right-of-away maintenance, use, and repair; or

`(iii) emergency repair or restoration of any property or non-Federal facility to the condition in which it existed or operated immediately before an emergency or disaster, meeting current standards.'.

SEC. 302. INTERVENTION IN CITIZEN SUITS.

Section 11(g) (16 U.S.C. 1540(g)) is amended--

(1) by amending so much as precedes paragraph (1)(B) to read as follows:

`(g) CITIZEN SUITS-

`(1) IN GENERAL- Except as provided in paragraph (2), a civil suit may be commenced by any person on his or her own behalf, who satisfies the requirements of the Constitution and who has suffered or is threatened with economic or other injury resulting from the violation, regulation, application, nonapplication, or failure to act--

`(A) to enjoin the United States or any agency or official of the United States who is alleged to be in violation of any provision of this Act or regulation issued under the authority thereof, if the violation poses immediate and irreparable harm to a threatened species or endangered species;' and

(2) by adding at the end the following:

`(6) INTERVENTION- Any person may intervene as a matter of right in any civil suit brought under this subsection if such suit presents a reasonable threat of economic injury to such person. Any intervenor under this paragraph shall have the same right to present argument and to accept or reject potential settlements as do the parties to the suit.'.

SEC. 303. INCIDENTAL TAKE PERMITS.

(a) SPECIES CONSERVATION PLANS- Section 10(a)(2) (16 U.S.C. 1539(a)(2)) is amended to read as follows:

`(2) SPECIES CONSERVATION PLANS- (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 species conservation plan that specifies--

`(i) the impact on the species which will be the likely result of the taking to be permitted;

`(ii) what steps the applicant can reasonably and economically take consistent with the purposes and objectives of the taking to minimize and mitigate such impacts, and the funding that will be available to implement such steps; and

`(iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized.

`(B) If the Secretary finds, after opportunity for public comment, with respect to a permit application and the related species conservation plan that--

`(i) the taking will be incidental;

`(ii) the applicant will, to the extent reasonable and economically practicable, minimize 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; and

`(v) the measures specified under subparagraph (A)(ii) will be met;

and the Secretary has received such other assurances as the Secretary may require that the plan will be implemented, the Secretary shall issue the permit. The permit shall contain such reasonable and economically practicable terms and conditions consistent with the purposes and objectives of the activity as the Secretary deems necessary 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. The Secretary shall include those terms and conditions that accomplish the goals of this section for the least cost to the permit applicant.

`(C) The Secretary may not require the applicant, as a condition of processing the application or issuing the permit--

`(i) to expand the application to include land, an interest in land, a right to use or receive water, or a proprietary water right not owned by the applicant or to address a species other than the species for which the application is made;

`(ii) to carry out mitigation that exceeds in nature, scope, or effect the impacts of the taking for which the permit is issued;

`(iii) to minimize and mitigate for loss of habitat resulting from activities under the permit, in an area of land greater than the area of land that is subject to impacts for which the mitigation is required; or

`(iv) to expend an aggregate amount greater than the cost of fencing and preserving current conditions of the land on which activities are conducted under the permit.

`(D)(i) The Secretary shall complete the processing of, and approve or deny, any application for

a permit under paragraph (1)(B) within 90 days of the date of submission of the application or within such other period of time after such date of submission to which the Secretary and the permit applicant mutually agree.

`(ii) The preparation and approval of a species conservation plan and issuance of a permit with respect to nonpublicly owned lands under paragraph (1)(B) shall not be subject to section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)).

`(iii) If the Secretary considers a plan submitted under subparagraph (A) to be insufficient or incomplete, the Secretary shall respond in writing to the applicant within 30 days after receiving the application, stating why the application is incomplete or insufficient and stating any additional conditions that must be met for the issuance of the permit. Any denial of a permit under paragraph (1)(B) without first providing such conditions in writing is deemed to be arbitrary and capricious.

`(iv) If the application is resubmitted after the Secretary responds under clause (iii), the Secretary shall, within 60 days after receiving the resubmitted application--

`(I) issue the permit;

`(II) at the request of the permit applicant, provide written reasons for refusal to complete consideration of the application; or

`(III) formally deny the permit, in writing, stating the reasons for the denial.

`(E) No consultation is required under section 7 for--

`(i) any action by a permittee under this section that is authorized by the terms and conditions of the permit;

`(ii) any action by the Secretary in implementing, enforcing, or monitoring compliance with a permit under this section; or

`(iii) the issuance, amendment, or renewal of any permit under this section, if the Secretary determines that the issuance, amendment, or renewal, respectively, will not appreciably reduce the likelihood of the survival and recovery of any species that is authorized to be taken under the permit.

`(F) No additional measures to minimize and mitigate impacts on a species that is a subject of a permit issued under paragraph (1)(B) shall be required of a permittee that is in compliance with the permit. With respect to any species that is a subject of such a permit, under no circumstance shall a permittee in compliance with the permit be required to make any additional payment for any purpose, or accept any additional restriction on any parcel of land available for development or land management or any water or water-related right under the permit, without the consent of the permittee.

`(G) After providing a permittee notice and an opportunity to make appropriate corrections, the Secretary shall revoke a permit issued under this paragraph if the Secretary finds that the permittee is not complying with the terms and conditions of the permit or the species conservation plan required for the permit.

`(H) Notwithstanding any other provision of law, a person may not commence any action or proceeding to challenge the approval of a permit under this section unless suit is filed within 45 days after publication in the Federal Register of notice of issuance of the permit.'.

(b) LIMITATION ON MITIGATION REQUIRED FOR INCIDENTAL TAKE PERMITS- Section 10 of the Endangered Species Act of 1973 (16 U.S.C. 1539) is amended by adding at the end the following:

`(k) LIMITATION ON REQUIRED MITIGATION-

`(1) IN GENERAL- Subsection (a)(2) does not require, and the Secretary may not require as a term or condition of a permit under subsection (a)(1)(B), that a permittee for a public project take any measures to minimize or mitigate impacts of a taking under the permit--

`(A) if the costs of implementing such measures will exceed 10 percent of the total project costs of the public project; or

`(B) for any activity that occurred prior to the date of the issuance of the permit.

`(2) DEFINITIONS- In this subsection--

`(A) the term `public project' means any construction project that is carried out or funded (in whole or in part) by a Federal, State, or local agency; and

`(B) the term `total project costs' means the aggregate costs of acquiring land and carrying out construction.'.

SEC. 304. SAFE HARBOR AGREEMENTS.

Section 10 (16 U.S.C. 1539) is further amended by adding at the end the following:

`(l) Safe Harbor Agreements-

`(1) Agreements-

`(A) IN GENERAL- The Secretary may enter into agreements with non-Federal persons to benefit the conservation of endangered species or threatened species by creating, restoring, or improving habitat or by maintaining currently unoccupied habitat for endangered species or threatened species. Under an agreement, the Secretary shall permit the person to take endangered species or threatened species included under the agreement on lands or waters that are subject to the agreement if the taking is incidental to, and not the purpose of, carrying out of an otherwise lawful activity, and does not violate the baseline requirement established under subparagraph (B).

`(B) BASELINE REQUIREMENT- For each agreement under this subsection, the Secretary shall establish a baseline requirement that is mutually agreed upon by the applicant and the Secretary at the time of the agreement that will, at a minimum, maintain existing conditions for the species covered by the agreement on lands and waters that are subject to the agreement. The baseline requirement may be expressed in terms of the abundance or distribution of endangered species or threatened species, quantity or quality of habitat, or such other indicators as appropriate.

`(2) STANDARDS AND GUIDELINES- The Secretary shall issue standards and guidelines for the development and approval of safe harbor agreements in accordance with this subsection.

`(3) Financial assistance-

`(A) IN GENERAL- In cooperation with the States and subject to the availability of appropriations to carry out this section, the Secretary may provide a grant of up to $10,000 to any individual private landowner to assist the landowner in carrying out a safe harbor agreement under this subsection.

`(B) PROHIBITION ON ASSISTANCE FOR REQUIRED ACTIVITIES- The Secretary may not provide assistance under this paragraph for any action that is required by a permit issued under this Act or that is otherwise required under this Act or other Federal law.'.

TITLE IV--RECOVERY PLANNING

SEC. 401. RECOVERY PLANNING.

(a) REDESIGNATION- Section 5 (16 U.S.C. 1534) is redesignated as section 5A.

(b) RECOVERY PLANS- The Act is amended by inserting before section 5A (as redesignated by subsection (a)) the following:

`RECOVERY PLANS

`SEC. 5. (a) IN GENERAL- The Secretary, in cooperation with the States, and on the basis of the best scientific and commercial data available, shall develop and implement plans (referred to in this Act as `recovery plans') for the conservation and recovery of endangered species and threatened species that are indigenous to the United States or in waters with respect to which the United States exercises sovereign rights or jurisdiction, in accordance with the requirements and schedules described in this section, unless the Secretary finds, after notice and opportunity for public comment, that a plan will not promote the conservation of the species or because an existing plan or strategy to conserve the species already serves as the functional equivalent to a recovery plan.

`(b) PRIORITIES- To the maximum extent practicable, the Secretary, in developing recovery plans, shall give priority, without regard to taxonomic classification, to recovery plans that--

`(1) address significant and immediate threats to the survival of an endangered species or a threatened species, have the greatest likelihood of achieving recovery of the endangered species or the threatened species, and will benefit species that are more taxonomically distinct;

`(2) address multiple species including (A) endangered species, (B) threatened species, or (C) species that the Secretary has identified as candidates or proposed for listing under section 4 and that are dependent on the same habitat as the endangered species or threatened species covered by the plan;

`(3) reduce conflicts with construction, development projects, jobs, agriculture, private property, or other economic activities; and

`(4) reduce conflicts with military training and operations.

`(c) SCHEDULE- For each species determined to be an endangered species or a threatened species after the date of enactment of this subsection for which the Secretary is required to develop a recovery plan under subsection (a), the Secretary shall publish--

`(1) not later than 18 months after the date of the publication under section 4 of the final regulation containing the listing determination, a draft recovery plan; and

`(2) not later than 30 months after the date of publication under section 4 of the final regulation containing the listing determination, a final recovery plan.

`(d) APPOINTMENT AND ROLE OF RECOVERY TEAM-

`(1) IN GENERAL- (A) Not later than 60 days after the date of the publication under section 4 of the final regulation containing the listing determination for a species, the Secretary, in cooperation with the affected States, shall either--

`(i) appoint a recovery team to develop a recovery plan for the species; or

`(ii) provide to each affected State and publish a notice that a recovery team will not be appointed, stating the reasons for not appointing a recovery team; and

`(B) Upon request by the Governor of any State in which the species occurs made after publication of notice under subparagraph (A)(ii), the Secretary shall, as requested by the Governor--

`(i) appoint a recovery team to develop a recovery plan under this section; or

`(ii) delegate to the Governor, under subsection (l), the authority of the Secretary to develop a recovery plan for the species for that State.

`(2) APPOINTMENT OF RECOVERY TEAM- (A) The recovery team shall consist of--

`(i) experts in biology or pertinent scientific fields, economics, property law and regulation, and other appropriate disciplines, including from the private sector;

`(ii) a representative nominated by the Governor of each affected State;

`(iii) representatives nominated by each affected local government, if the local government agrees to the appointment of a representative; and

`(iv) representatives of persons who may be directly, economically impacted by the conservation plan.

`(B) The chairman of the team shall be selected by the team from among its members who are representatives of States or local governments.

`(3) DUTIES OF THE RECOVERY TEAM- (A) Each recovery team shall prepare and submit to the Secretary the draft recovery plan, which shall include recovery strategies recommended by the team and alternatives, if any, to meet the recovery goal under subsection (e)(1). The recovery team may also be called on by the Secretary to assist in the implementation, review, and revision of recovery plans. The recovery team shall also advise the Secretary concerning the designation of critical habitat, if any.

`(B) The recovery team shall assess the direct, indirect, and cumulative economic and social impacts on the public and private sectors, including local governments, that may result from the listing determination or from potential recovery strategies recommended under subparagraph (A), including--

`(i) impacts on the cost of governmental actions, tax and other revenues, employment, the use and value of property, and other social, cultural, and community values; and

`(ii) commercial activity that might result in a net benefit to the conservation of the species.

`(C) The recovery team shall recommend to the Secretary measures to balance the achievement of the recovery goal for a species under subsection (e) with protecting the economic well-being of the area affected by implementation of the recovery plan for the species.

`(4) TRAVEL EXPENSES- The Secretary may provide travel expenses (including per diem in lieu of subsistence at the same level as authorized by section 5703 of title 5, United States Code) to recovery team members.

`(5) FEDERAL ADVISORY COMMITTEE ACT- The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the selection or activities of a recovery team appointed pursuant to this subsection, except that meetings of the recovery team shall be open to the public as provided in that Act for meetings of advisory committees.

`(e) CONTENTS OF RECOVERY PLANS AND DRAFT RECOVERY PLANS-

`(1) BIOLOGICAL RECOVERY GOAL- Not later than 180 days after the appointment of a recovery team under this section, the recovery team shall establish and submit to the Secretary a recommended biological recovery goal to conserve and recover the species that, when met, would result in the determination, in accordance with section 4, that the species be removed from the list. The recovery goal shall be expressed as objective and measurable population criteria. When the goal is met, the Secretary shall initiate the procedures under this Act to remove the species from the list. The recovery team shall also report to the Secretary the scientific feasibility of full recovery of the species and the time frame in which recovery is likely to occur.

`(2) CONTENTS OF DRAFT PLAN-

`(A) IN GENERAL- Each draft recovery plan shall contain the following:

`(i) Recommendations for Federal agency compliance with section 7(a)(1) and 7(a)(2).

`(ii) Recommendations for avoiding a taking of a listed species prohibited under section 9(a)(1) and a list of specific activities that would constitute a take under section 9.

`(iii) Alternative strategies to achieve the recovery goal for the listed species, that range from a strategy requiring the least possible Federal management to achieve the recovery goal to a strategy involving more intensive Federal management to achieve the goal.

`(iv) A description of economic and social impacts identified under subsection (d)(3)(B).

`(B) REQUIREMENTS FOR ALTERNATIVE STRATEGIES- The alternative strategies under subparagraph (A)(iii) must achieve an appropriate balance among the following factors:

`(i) The effectiveness of the measures in meeting the recovery goal.

`(ii) The length of time in which the recovery goal is likely to be achieved if the time period within which the recovery goal is to be achieved will not pose a significant risk to recovery of the species.

`(iii) Minimizing the economic and social impacts on the public and private sectors, including the impact on employment, the cost of government actions, tax and other revenues, the use and value of property, and other social, cultural, and community values.

`(3) BENCHMARKS- The recovery plan shall include objective, measurable benchmarks expected to be achieved over the course of the recovery plan to determine whether progress is being made toward the recovery goal. To the extent possible, current and historical population estimates, along with other relevant factors, should be considered in determining whether progress is being made toward meeting the recovery goal.

`(4) EQUITABLE TREATMENT OF AFFECTED STATES AND OTHER NON-FEDERAL PERSONS- Each recovery plan under this section shall--

(A) provide equitable treatment of each affected State and all other non-Federal persons affected by the plan; and

`(B) seek to minimize and fairly distribute the social and economic costs that may result from implementation of the plan.

`(f) PUBLIC NOTICE AND COMMENT-

`(1) IN GENERAL- If the Secretary makes a preliminary determination that the draft recovery plan meets the requirements of this section, the Secretary shall publish in the Federal Register, and a newspaper of general circulation in areas in each affected State that are located as close to the affected area as possible, a notice of availability and a summary of, and a request for public comment on, the draft recovery plan. The notice shall include a description of the activities that will require a permit under section 10, a description of the economic and social impacts referred to in subsection (d)(3)(B), and the recommendations of the recovery team on the recovery goal under subsection (e)(1).

`(2) HEARINGS- At the request of any person, the Secretary shall hold at least 1 public meeting on each draft recovery plan in each State to which the plan would apply (including at least 1 public meeting in an affected rural area, if any), except that the Secretary may not be required to hold more than 5 public meetings under this paragraph.

`(g) REVIEW AND SELECTION BY THE SECRETARY-

`(1) REVIEW AND APPROVAL- The Secretary shall review each plan submitted by a recovery team to determine whether the plan was developed in accordance with the requirements of this section. If the Secretary determines that the plan does not satisfy such requirements, the Secretary shall notify the recovery team and give the team an opportunity to address the concerns of the Secretary and resubmit a plan that satisfies the requirements of this section. After notice and opportunity for public comment on the recommendations of the recovery team, the Secretary shall adopt a final recovery plan that is consistent with the requirements of this section.

`(2) SELECTION OF RECOVERY STRATEGIES- In each final plan the Secretary shall select recovery strategies that achieve the recovery goal and the benchmarks while achieving an appropriate balance among the factors described in subsection (e)(2)(B), except that the Secretary shall select the recovery strategy that would impose the least costs and result in the least socioeconomic impacts in achieving the recovery goal.

`(3) STRATEGIES RECOMMENDED BY RECOVERY TEAM- If the Secretary selects strategies other than those recommended by the recovery team, the Secretary shall publish with the final plan an explanation of why the strategies recommended by the recovery team were not selected for the final recovery plan.

`(4) PUBLICATION OF NOTICE ON FINAL PLAN- The Secretary shall publish in the Federal Register a notice of availability, and a summary, of the final recovery plan, and include in the final recovery plan a response to significant comments that the Secretary received on the draft recovery plan.

`(h) REVIEW-

`(1) EXISTING PLANS- Not later than five years after date of enactment of this subsection, the Secretary shall review recovery plans published prior to that date of enactment.

`(2) SUBSEQUENT PLANS- The Secretary shall review each recovery plan first approved or revised under this section after the date of enactment of this subsection, not later than 5 years after the date of approval or revision of the plan and every 5 years thereafter.

`(i) REVISION OF RECOVERY PLANS- Notwithstanding any other provision of this section, the Secretary shall revise a recovery plan if the Secretary finds, based on the best scientific and commercial data available, that substantial new information, which may include failure to meet the benchmarks included in the plan, indicates that the recovery goal contained in the recovery plan will not achieve the conservation and recovery of the endangered species or threatened species covered by the plan. The Secretary shall convene a recovery team to develop the revisions required by this subsection, unless the Secretary has published a notice that a recovery team shall not be appointed pursuant to subsection (d)(3).

`(j) EXISTING PLANS- Except as provided in subsection (i), nothing in this section shall require the modification of--

`(1) a recovery plan approved before the date of the enactment of the Common Sense Protections for Endangered Species Act; or

`(2) a recovery plan on which public notice and comment has been initiated before that date of enactment.

`(k) Critical Habitat Designation-

`(1) RECOMMENDATION OF THE RECOVERY TEAM- Concurrent with the submission of the draft recovery plan for a species to the Secretary, the recovery team appointed for the species shall provide the Secretary with a description of any habitat of the species that is recommended for designation as critical habitat pursuant to this subsection and any recommendations for special management considerations or protection that are specific to the habitat.

`(2) DESIGNATION BY THE SECRETARY-

`(A) IN GENERAL- The Secretary, to the maximum extent prudent and determinable, may by regulation designate or revise an existing designation of critical habitat of each endangered species or threatened species that is indigenous to the United States or to waters with respect to which the United States exercises sovereign rights or jurisdiction.

`(B) EMERGENCY AUTHORITY- The Secretary may publish a regulation designating critical habitat for an endangered species or a

threatened species concurrently with the final regulation implementing the determination that the species is endangered or threatened if the Secretary determines that designation of such habitat at the time of listing is essential to avoid the imminent extinction of the species.

`(3) FACTORS TO BE CONSIDERED- The designation of critical habitat shall be made on the basis of the best scientific and commercial data available and after taking into consideration the economic impact, impacts to military training and operations, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary shall describe the economic impacts and other relevant impacts that are to be considered under this subsection in the publication of any proposed regulation designating critical habitat.

`(4) PROPOSED AND FINAL REGULATIONS- Any regulation to designate critical habitat or implement a requested revision shall be proposed and promulgated in the same manner as a regulation to implement a determination with respect to listing a species.

`(5) ECONOMIC IMPACTS DEFINED- In this subsection, the term `economic impact' means the cumulative economic effects (including costs) resulting from the listing of a species and the designation of critical habitat of the species, for communities and industries that are located in the area designated as critical habitat or that receive revenue from use of the area.

`(l) State Authority for Recovery Planning-

`(1) IN GENERAL- At the request of the Governor of a State, or the Governors of several States in cooperation, the Secretary may delegate to the State agency, or to the State agencies of such States acting jointly, respectively, the authority of the Secretary to develop and implement the recovery plan for an endangered species or a threatened species in accordance with the requirements and schedules of subsections (c), (d)(1), (d)(2), and (e) and this subsection, if the Secretary finds that--

`(A) the State agency (or agencies, jointly) has entered into a cooperative agreement with the Secretary pursuant to section 6(c); and

`(B) the State agency (or agencies, jointly) has submitted a statement to the Secretary demonstrating adequate authority and capability to carry out the requirements and schedules of subsections (c), (d)(1), (d)(2), and (e) and this subsection.

`(2) RESPONSE TO CONCERNS OF SECRETARY- If the Secretary finds that a State agency lacks any authority or capability required under paragraph (1)(B), the Secretary shall notify the State agency and provide the State agency with an opportunity to address the concerns of the Secretary.

`(3) STANDARDS AND GUIDELINES- The Secretary, in cooperation with the States, shall publish standards and guidelines for the development of recovery plans by State agencies under this subsection, including standards and guidelines for interstate cooperation and for the grant and withdrawal of authorization by the Secretary under this subsection.

`(4) DUTIES OF RECOVERY TEAM- The recovery team shall prepare a draft recovery plan in accordance with this section and shall transmit the draft plan to the Secretary through the State agency authorized to develop the recovery plan.

`(5) REVIEW OF DRAFT PLANS- Prior to publication of a notice of availability of a draft recovery plan, the Secretary shall review each draft recovery plan developed pursuant to this subsection to determine whether the plan meets the requirements of this section and shall give the State an opportunity to address any deficiencies in the plan. Thereafter, if the Secretary determines that the plan does not meet such requirements, the Secretary shall notify the State agency and, in cooperation with the State agency, develop a recovery plan in accordance with this section.

`(6) REVIEW AND APPROVAL OF FINAL PLANS- On receipt of a draft recovery plan transmitted by a State agency, the Secretary shall review and adopt the plan in accordance with subsection (g).

`(7) WITHDRAWAL OF AUTHORITY- (A) The Secretary may withdraw the authority from a State that has been delegated authority to develop a recovery plan pursuant to this subsection if the actions of the State agency are not in accordance with the substantive and procedural requirements of subsections (c), (d)(1), (d)(2), and (e) and this subsection. The Secretary shall give the State agency an opportunity to correct any deficiencies identified by the Secretary and may withdraw the authority from the State unless the State agency within 60 days has corrected the deficiencies identified by the Secretary.

`(B) Following withdrawal of authority delegated to a State pursuant to this subsection, the Secretary shall, in accordance with this section--

`(i) within 18 months after the date of that withdrawal, publish a draft recovery plan for the State; and

`(ii) within 12 months after publication of the draft recovery plan, publish a final recovery plan for the State.

`(8) DEFINITION OF STATE AGENCY- For purposes of this subsection, the term `State agency' means--

`(A) a State agency (as defined in section 3) of each State entering into a cooperative request under paragraph (1); and

`(B) for fish and wildlife, including related spawning grounds and habitat, on the Columbia River and its tributaries, the Pacific Northwest Electric Power and Conservation Planning Council established under the Pacific Northwest Electric Power Planning and Conservation Act (16 U.S.C. 839 et seq.).

`(m) OFFICE OF RECOVERY PLANNING-

`(1) ESTABLISHMENT- Not later than 6 months after the date of the enactment of the Common Sense Protections for Endangered Species Act, the Secretary shall establish in the United States Fish and Wildlife Service a separate office, to be known as the Office of Species Recovery.

`(2) AUTHORITIES- The Secretary, subject to subsection (l), shall delegate to the head of the Office of Species Recovery authority of the Secretary under this Act to--

`(A) provide support services to recovery teams to develop, or where a recovery team cannot be appointed to develop, implement recovery plans under this section;

`(B) otherwise seek the recovery of all species listed under section 4(c) as endangered species or threatened species;

`(C) make all determinations to remove a species from such a list; and

`(D) assist in the designation of critical habitat.'.

TITLE V--MISCELLANEOUS

SEC. 501. AUTHORIZING INCREASED APPROPRIATIONS.

Section 15 (16 U.S.C. 1542) is amended to read as follows:

`SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

`(a) IN GENERAL- There are authorized to be appropriated--

`(1) to the Department of the Interior to carry out the duties of the Secretary of the Interior under this Act $130,000,000 for fiscal year 2001, $140,000,000 for fiscal year 2002, $150,000,000 for fiscal year 2003, and $160,000,000 for fiscal year 2004;

`(2) to the Department of Commerce to carry out the duties of the Secretary of Commerce under this Act $30,000,000 for fiscal year 2001, $35,000,000 for fiscal year 2002, $40,000,000 for fiscal year 2003, and $45,000,000 for fiscal year 2004; and

`(3) to the Department of Agriculture to carry out the duties of the Secretary of Agriculture under this Act $4,000,000 for each of fiscal years 2001 through 2004.

`(b) CONVENTION IMPLEMENTATION- In addition to the other amounts authorized by this section, there are authorized to be appropriated to the Secretary of the Interior to carry out section 8A $1,000,000 for each of fiscal years 2001 through 2004, to remain available until expended.

`(c) SAFE HARBOR AGREEMENTS- In addition to the other amounts authorized by this section, there are authorized to be appropriated to the Secretary to carry out section 10(l) $10,000,000 for each of fiscal years 2001 through 2004, to remain available until expended.'.

END