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104th Congress                                           Rept. 104-778,
                        HOUSE OF REPRESENTATIVES

 2d Session                                                      Part 1

_______________________________________________________________________


 
       ENDANGERED SPECIES CONSERVATION AND MANAGEMENT ACT OF 1995

                                _______
                                

 September 9, 1996.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

_______________________________________________________________________


         Mr. Young of Alaska, from the Committee on Resources,

                        submitted the following

                              R E P O R T

                             together with

                   DISSENTING AND SUPPLEMENTAL VIEWS

                        [To accompany H.R. 2275]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 2275) to reauthorize and amend the Endangered Species Act 
of 1973, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.
  The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``Endangered Species 
Conservation and Management Act of 1995''.
  (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.
Sec. 3. Findings, purposes, and policy of Endangered Species Act of 
1973.

 TITLE I--PRIVATE PROPERTY RIGHTS AND VOLUNTARY INCENTIVES FOR PRIVATE 
                            PROPERTY OWNERS

Sec. 101. Compensation for use or taking of private property.
Sec. 102. Voluntary cooperative management agreements.
Sec. 103. Grants for improving and conserving habitat for species.
Sec. 104. Technical assistance programs.
Sec. 105. Water rights.

 TITLE II--IMPROVING ABILITY TO COMPLY WITH THE ENDANGERED SPECIES ACT 
                                OF 1973

Sec. 201. Enforcement procedures.
Sec. 202. Removing punitive disincentives.
Sec. 203. Allowing non-Federal persons to use the consultation 
procedures.
Sec. 204. Permitting requirements for incidental takes.
Sec. 205. General, research, and educational permits.
Sec. 206. Maintenance of aquatic habitats for listed species.
Sec. 207. Compliance with international requirements and treaties.
Sec. 208. Incentives for protection of marine species.
Sec. 209. International cooperation to conserve sea turtles.

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

Sec. 301. Improving the validity and credibility of decisions.
Sec. 302. Peer review.
Sec. 303. Making data public.
Sec. 304. Improving the petition and designation processes.
Sec. 305. Greater State involvement.
Sec. 306. Monitoring the status of species.
Sec. 307. Petitions to delist species.
Sec. 308. Determinations by the Secretary to delist.

     TITLE IV--RECOGNIZING OTHER FEDERAL ACTION, LAWS, AND MISSIONS

Sec. 401. Balance esa with other laws and missions.
Sec. 402. Exemptions from consultation and conferencing.
Sec. 403. Eliminating the exemption committee (GOD committee).

     TITLE V--BETTER MANAGEMENT AND CONSERVATION OF LISTED SPECIES

Sec. 501. Setting conservation objectives.
Sec. 502. Preparing a conservation plan.
Sec. 503. Interim measures.
Sec. 504. Critical habitat for species.
Sec. 505. Recognition of captive propagation as means of recovery.
Sec. 506. Introduction of species.
Sec. 507. Conserving threatened species.
Sec. 508. Delegation of authority to States.

                     TITLE VI--HABITAT PROTECTIONS

Sec. 601. Federal biological diversity reserve.
Sec. 602. Land acquisition.
Sec. 603. Property exchanges.

TITLE VII--STATE AUTHORITY TO PROTECT ENDANGERED AND THREATENED SPECIES

Sec. 701. State authority.
Sec. 702. State programs affected by the Convention.
Sec. 703. Collaborative rulemaking with the States.

              TITLE VIII--FUNDING OF CONSERVATION MEASURES

Sec. 801. Authorizing increased appropriations.
Sec. 802. Funding of Federal mandates.
Sec. 803. National Endowment for Fish and Wildlife.

                   TITLE IX--MISCELLANEOUS PROVISIONS

Sec. 901. Amendments to definitions.
Sec. 902. Review of species of national interest.
Sec. 903. Preparation of conservation plans for species listed before 
enactment of this Act.
Sec. 904. Application of conservation plans for single or multiple 
species to habitat conservation plans approved prior to this Act.
Sec. 905. Washington County, Utah Desert Tortoise Habitat Conservation 
Plan.
Sec. 906. Taking of species to conserve listed species.
Sec. 907. Conforming amendments.
Sec. 908. Application of provisions to certified applicators of 
registered pesticides.

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.).

SEC. 3. FINDINGS, PURPOSES, AND POLICY OF ENDANGERED SPECIES ACT OF 
                    1973.

  (a) Findings.--Section 2(a) (16 U.S.C. 1531(a)) is amended--
          (1) by amending paragraph (1) to read as follows:
          ``(1) various species of fish, wildlife, and plants in the 
        United States have been rendered extinct because of inadequate 
        conservation practices and natural processes;''; and
          (2) by striking ``and'' after the semicolon at the end of 
        paragraph (4)(G), by striking the period at the end of 
        paragraph (5) and inserting ``; and'', and by adding at the end 
        the following new paragraph:
          ``(6) the Nation's economic well-being is essential to the 
        ability to maintain a sustainable resource base, therefore 
        economic impacts and private property owners' rights must be 
        considered while encouraging practices that protect species.''.
  (b) Purposes and Policy.--Section 2 (b) and (c) (16 U.S.C. 1531 (b), 
(c)) are amended to read as follows:
  ``(b) Purposes.--The purposes of this Act are the following:
          ``(1) To provide a feasible and practical means to conserve 
        endangered species and threatened species consistent with 
        protection of the rights of private property owners and 
        ensuring economic stability.
          ``(2) To provide a program for the conservation and 
        management of such endangered species and threatened species 
        taking into account the economic and social consequences of 
        such program.
          ``(3) To take such steps as may be practicable to achieve the 
        purposes of the treaties and conventions set forth in 
        subsection (a) of this section.
  ``(c) Policy.--
          ``(1) Federal authority.--It is further declared to be the 
        policy of Congress that all Federal departments and agencies 
        shall seek to conserve and manage endangered species and 
        threatened species and shall, consistent with and not 
        prevailing over their primary missions, utilize their 
        authorities in furtherance of the purposes of this Act.
          ``(2) Cooperation with states.--It is further declared to be 
        the policy of Congress that Federal agencies shall cooperate 
        with State and local agencies to resolve water resource issues 
        in concert with conservation of endangered species and 
        consistent with State and local water laws.
          ``(3) Protection of private property rights.--It is the 
        policy of the Federal Government that agency action taken 
        pursuant to this Act shall not use or limit the use of 
        privately owned property when such action diminishes the value 
        of such property without payment of fair market value to the 
        owner of private property. Each Federal agency, officer, and 
        employee shall exercise authority under this Act to ensure that 
        agency action will not violate the policy established in this 
        paragraph.''.

 TITLE I--PRIVATE PROPERTY RIGHTS AND VOLUNTARY INCENTIVES FOR PRIVATE 
                            PROPERTY OWNERS

SEC. 101. COMPENSATION FOR USE OR TAKING OF PRIVATE PROPERTY.

  The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) is 
amended by adding at the end the following new section:

``SEC. 19. RIGHT TO COMPENSATION.

  ``(a) Prohibition.--The Federal Government shall not take an agency 
action affecting privately owned property or nonfederally owned 
property under this Act which results in diminishment of value of any 
portion of that property by 20 percent or more unless compensation is 
offered in accordance with this section.
  ``(b) Compensation for Use or Limitation on Use.--The agency or 
agencies that take an agency action that exceeds the amount provided in 
subsection (a) shall compensate the private property owner for the 
otherwise lawful use or limitation on the otherwise lawful use in the 
amount of the diminution in value of the portion of that property 
resulting from the use or limitation on use. If the diminution in value 
of a portion of that property is greater than 50 percent, at the option 
of the owner, the agency or agencies shall buy that portion of the 
property and shall pay fair market value based on the value of the 
property before the use or limitation on use was imposed. Compensation 
paid shall reflect the duration of the use or limitation on use 
necessary to achieve the purposes of this Act.
  ``(c) Request of Owner.--An owner seeking compensation under this 
section shall make a written request for compensation to the agency 
implementing the agency action. The request shall, at a minimum, 
identify the affected portion of the property, the nature of the use or 
limitation, and the amount of compensation claimed. No such request may 
be made later than one year after the owner receives actual notice that 
the use of property has been limited by an agency action.
  ``(d) Negotiations.--The agency may negotiate with that owner to 
reach agreement on the amount of the compensation and the terms of any 
agreement for payment. If such an agreement is reached, the agency 
shall within 90 days pay the owner the amount agreed upon. An agreement 
under this section may include a transfer of the title or an agreement 
to use the property for a limited period of time.
  ``(e) Choice of Remedies.--If, not later than 180 days after the 
written request is made, the parties have not reached an agreement on 
compensation, the owner may elect binding arbitration or seek 
compensation due under this section in a civil action.
  ``(f) Arbitration.--The procedures that govern the arbitration shall, 
as nearly as practicable, be those established under title 9, United 
States Code, for arbitration proceedings to which that title applies. 
An award made in such arbitration shall include a reasonable attorney's 
fee and other arbitration costs, including appraisal fees. The agency 
shall promptly pay any award made to the owner.
  ``(g) Civil Action.--An owner who prevails in a civil action against 
the agency pursuant to this section shall be entitled to, and the 
agency shall be liable for, the amount of compensation awarded plus 
reasonable attorney's fees and other litigation costs, including 
appraisal fees. The court shall award interest on the amount of any 
compensation from the time of the limitation.
  ``(h) Source of Payments.--Any payment made under this section to an 
owner, and any judgment obtained by an owner in a civil action under 
this section shall, notwithstanding any other provision of law, be made 
from the annual appropriation of the agency that took the agency 
action. If the agency action resulted from a requirement imposed by 
another agency, then the agency making the payment or satisfying the 
judgment may seek partial or complete reimbursement from the 
appropriated funds of the other agency. For this purpose the head of 
the agency concerned may transfer or reprogram any appropriated funds 
available to the agency. If insufficient funds exist for the payment or 
to satisfy the judgment, it shall be the duty of the head of the agency 
to seek the appropriation of such funds for the next fiscal year.
  ``(i) Availability of Appropriations.--Notwithstanding any other 
provision of law, any obligation of the United States to make any 
payment under this section shall be subject to the availability of 
appropriations.
  ``(j) Duty of Notice to Owners.--An agency may not take any action 
limiting the use of private property unless the agency has given 
appropriate notice to the owners of that property directly affected 
explaining their rights under this section and the procedures for 
obtaining any compensation that may be due to them under this section.
  ``(k) Rules of Construction.--The following rules of construction 
shall apply to this Act:
          ``(1) Other rights preserved.--Nothing in this Act shall be 
        construed to limit any right to compensation that exists under 
        the Constitution or under other laws.
          ``(2) Extent of federal authority.--Payment of compensation 
        under this section (other than when the property is bought by 
        the Federal Government at the option of the owner) shall not 
        confer any rights on the Federal Government other than the use 
        or limitation on use resulting from the agency action for the 
        duration so that the agency action may achieve the species 
        conservation purposes of this Act.
  ``(l) Definitions.--For the purposes of this section:
          ``(1) Agency.--The term `agency' has the meaning given that 
        term in section 551 of title 5, United States Code.
          ``(2) Agency action.--The term `agency action'--
                  ``(A) subject to subparagraph (B), has the meaning 
                given that term in section 551 of title 5, United 
                States Code, and
                  ``(B) includes--
                          ``(i) the loss of use of property to avoid 
                        prosecution under section 11;
                          ``(ii) a designation pursuant to section 9(i) 
                        of privately owned property as critical 
                        habitat;
                          ``(iii) the denial of a permit under section 
                        10 that restricts the use of private property;
                          ``(iv) an agency action pursuant to a 
                        biological opinion under section 7 that would 
                        cause an agency to restrict the use of private 
                        property;
                          ``(v) an agreement under section 6 to set 
                        aside property for habitat under the terms of 
                        an easement or other contract;
                          ``(vi) a restriction imposed on private 
                        property as part of a conservation plan adopted 
                        by the Secretary under section 5;
                          ``(vii) any other agency action that 
                        restricts a legal right to use that property, 
                        including, the right to alter habitat; and
                          ``(viii) the making of a grant of land or 
                        money, to a public authority or a private 
                        entity as a predicate to an agency action by 
                        the recipient that would constitute a 
                        limitation if done directly by the agency.
          ``(3) Fair market value.--The term `fair market value' means 
        the most probable price at which property would change hands, 
        in a competitive and open market under all conditions requisite 
        to fair sale, between a willing buyer and willing seller, 
        neither being under any compulsion to buy or sell and both 
        having reasonable knowledge of relevant facts, prior to 
        occurrence of the agency action.
          ``(4) Law of the state.--The term `law of the State' includes 
        the law of a political subdivision of a State.
          ``(5) Limitation on use.--The term `limitation on use' means 
        only a limitation on a use which is otherwise permissible under 
        applicable State property or nuisance laws.
          ``(6) Private property, privately owned property, non-federal 
        property.--The term `private property', `privately owned 
        property', or `non-Federal property' means property which is 
        owned by a person other than any Federal entity of government.
          ``(7) Property.--The term `property' means land, an interest 
        in land, the right to use or receive water, and any personal 
        property that is subject to use by the Federal Government or to 
        a restriction on use.''.

SEC. 102. VOLUNTARY COOPERATIVE MANAGEMENT AGREEMENTS.

  (a) Cooperative Management Agreement Defined.--Section 3 (16 U.S.C. 
1532) is amended--
          (1) by redesignating paragraphs (2) through (21) in order as 
        paragraphs (3), (4), (5), (7), (9), (10), (11), (12), (13), 
        (18), (19), (20), (22), (23), (24), (25), (26), (27), and (28); 
        and
          (2) by adding after paragraph (5) (as redesignated by 
        paragraph (1) of this section) the following new paragraph:
  ``(6) The term `cooperative management agreement' means a voluntary 
agreement entered into under section 6(b).''.
  (b) Voluntary Cooperative Management Agreements.--Section 6 (16 
U.S.C. 1535) is amended by striking so much as precedes subsection (c) 
and inserting the following:

``SEC. 6. COOPERATION WITH NON-FEDERAL PERSONS.

  ``(a) Generally.--In carrying out the program authorized by this Act, 
the Secretary shall cooperate to the maximum extent practicable with 
the States and other non-Federal persons. Such cooperation shall 
include consultation with the States and non-Federal persons concerned 
before acquiring any land or water, or interest therein, for the 
purpose of conserving any endangered species or threatened species.
  ``(b) Cooperative Management Agreements.--
          ``(1) In general.--The Secretary may enter into a cooperative 
        management agreement with any State or group of States, 
        political subdivision of a State, local government, or non-
        Federal person--
                  ``(A) for the management of a species or group of 
                species listed as endangered species or threatened 
                species under section 4, a species or group of species 
                proposed to be listed under section 4, or species or 
                group of species which are candidates for listing; or
                  ``(B) for the management or acquisition of an area 
                which provides habitat for a species.
          ``(2) Scope of cooperative management agreements.--(A) A 
        cooperative management agreement entered into under this 
        subsection--
                  ``(i) may provide for the management of a species or 
                group of species on both public and private lands which 
                are under the authority, control or ownership of a 
                State or group of States, political subdivision of a 
                State, local government, or non-Federal person and 
                which are affected by a listing determination, proposed 
                determination, or proposed candidacy for determination; 
                and
                  ``(ii) may include the acquisition or designation of 
                land as habitat for species.
          ``(B) A cooperative management agreement may not restrict 
        private or non-Federal property unless written consent to such 
        restrictions by the non-Federal owner is given either to the 
        Secretary or the State, political subdivision, local 
        government, or non-Federal person who is a party to the 
        agreement.
          ``(C) The Secretary may grant to a party to an agreement the 
        authority to undertake programs to enhance the population or 
        habitat of a species on federally owned lands, except that such 
        authority shall not otherwise conflict with other uses of such 
        land which are approved by the Secretary or authorized by the 
        Congress.
          ``(D) The Secretary is authorized, in conjunction with 
        entering into and as a part of any agreement under this 
        section, to provide funds to carry out the agreement to a non-
        Federal person, as provided in paragraph (11).
          ``(3) Notification.--Not later than 30 days after submission 
        of a request to enter into a cooperative management agreement, 
        the party submitting the request shall provide notice of the 
        request to any non-Federal person or Federal power marketing 
        administration that would be subject to the proposed 
        cooperative management agreement.
          ``(4) Development of proposed agreement.--(A) The requesting 
        party shall develop and submit to the Secretary a proposed 
        cooperative management agreement.
          ``(B) The Secretary shall publish in the Federal Register a 
        notice of availability and a request for public comment on any 
        proposed cooperative management agreement between the Secretary 
        and any governmental entity and shall hold a public hearing on 
        such a proposed cooperative management agreement in each county 
        or parish in which the proposed agreement would be in effect.
          ``(C) Before entering into a cooperative management agreement 
        with another governmental entity or a non-Federal person for 
        the management of federally owned land, the Secretary shall 
        consider and weigh carefully all information received in 
        response to the request for comment published under 
        subparagraph (B) and testimony presented in each hearing held 
        under subparagraph (B).
          ``(5) Approval of agreement.--(A) Not later than 120 days 
        after the submission of a proposed cooperative management 
        agreement under paragraph (4), the Secretary shall determine 
        whether the proposed agreement is in accordance with this 
        subsection and will promote the conservation of the species to 
        which the proposed agreement applies.
          ``(B) The Secretary shall approve and enter into a proposed 
        cooperative management agreement, if the Secretary finds that--
                  ``(i) the requesting party has sufficient authority 
                under law to implement and carry out the terms of the 
                agreement;
                  ``(ii) the agreement defines an area that serves as 
                habitat for the species or group of species to which 
                the agreement applies;
                  ``(iii) the agreement adequately provides for the 
                administration and management of the identified 
                management area;
                  ``(iv) the agreement promotes the conservation of the 
                species to which the agreement applies by committing 
                Federal or non-Federal efforts to the conservation;
                  ``(v) the term of the agreement is of sufficient 
                duration to accomplish the provisions of the agreement; 
                and
                  ``(vi) the agreement is adequately funded to carry 
                out the agreement.
          ``(C) No later than 30 days after entering into a cooperative 
        management agreement with a governmental entity, the Secretary 
        shall publish in the Federal Register a notice of availability 
        of the terms of such agreement and the response of the 
        Secretary to all information received or presented with respect 
        to the agreement pursuant to paragraph (4)(B).
          ``(6) Environmental assessments.--Preparation, approval, and 
        entering into a cooperative management agreement under this 
        subsection shall not be subject to section 102(2) of the 
        National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)).
          ``(7) No surprises.--For any species or area that is the 
        subject of a cooperative management agreement under this 
        subsection, a party to the agreement shall not be required--
                  ``(A) to make any additional payment for any purpose, 
                or to accept any additional restriction on any parcel 
                of land available for development or land management 
                under the agreement, without consent of the party; or
                  ``(B) to undertake any other measure to minimize or 
                mitigate impacts on the species in addition to measures 
                required by the agreement as established.
          ``(8) Effect of listing of species.--A cooperative management 
        agreement entered into under this subsection shall remain in 
        effect and shall not be required to be amended if a species to 
        which the agreement does not apply is determined to be an 
        endangered species or threatened species under section 4.
          ``(9) Applicability of certain provisions.--Sections 5, 7, 
        and 9 shall not apply to those activities of a party to a 
        cooperative management agreement which are conducted in 
        accordance with such agreement.
          ``(10) Violations of agreements.--(A) If the Secretary 
        determines that a party to a cooperative management agreement 
        is not administering or acting in accordance with the 
        agreement, the Secretary shall notify the party.
          ``(B) If a party that is notified under subparagraph (A) 
        fails to take appropriate corrective action within a period of 
        time determined by the Secretary to be reasonable (not to 
        exceed 90 days after the date of the notification)--
                  ``(i) the Secretary shall rescind the entire 
                cooperative management agreement or the applicability 
                of the agreement to the party that is the subject of 
                the notification; and
                  ``(ii) beginning on the date of the rescission--
                          ``(I) the entire agreement shall not be 
                        effective, or the agreement shall not be 
                        effective with respect to the party, whichever 
                        is appropriate; and
                          ``(II) sections 5, 7, and 9 shall apply to 
                        activities of the party.
          ``(11) FACA.--Consultation with States pursuant to this 
        section shall not be subject to the Federal Advisory Committee 
        Act (5 U.S.C. App.).''.

SEC. 103. GRANTS FOR IMPROVING AND CONSERVING HABITAT FOR SPECIES.

  Section 6 (16 U.S.C. 1535), as amended by section 105 of this Act, is 
further amended by adding at the end the following new subsection:
  ``(k) Habitat Conservation Grants.--(1) The Secretary may, from 
amounts in the account established by section 13 or from funds 
appropriated for such purpose, provide a grant to a non-Federal person 
(other than an officer, employee, or agent (acting in an official 
capacity) or a department or instrumentality of a State, municipality, 
or political subdivision thereof) for the purpose of conserving, 
preserving, or improving habitat for any species that is determined 
under section 4 to be an endangered species or a threatened species or 
for any conservation measures that enhances the survivability of such 
species, including predator control.
  ``(2) The Secretary may provide a grant under this subsection if the 
Secretary determines that--
          ``(A) the property for which the grant is provided contains 
        habitat that significantly contributes to the protection of the 
        population of the species;
          ``(B) the property has been managed for species protection 
        for a period of time that has been sufficient to significantly 
        contribute to the protection of the population of the species; 
        and
          ``(C) the management of the habitat advances the interest of 
        species protection.
  ``(3) A grant made under this subsection shall be transferable to 
subsequent owners of the property for which the grant is provided.''.

SEC. 104. TECHNICAL ASSISTANCE PROGRAMS.

  Section 5 (16 U.S.C. 1534), as added by section 501 of this Act and 
as amended by sections 502(a), 503, 504(a), and 505 of this Act, is 
amended by adding at the end the following new subsection:
  ``(m) Technical Assistance Program.--
          ``(1) In general.--The Secretary shall initiate a technical 
        assistance program to provide technical advice and assistance 
        to non-Federal persons who wish to participate in achieving the 
        conservation objective for a species. The technical assistance 
        provided shall include information on habitat needs of species, 
        optimum management of habitat for species, methods for 
        propagation of species, feeding needs and habits, predator 
        controls, and any other information which a non-Federal person 
        may utilize or request for the purpose of conserving a species 
        determined to be an endangered species or threatened species or 
        proposed to be determined as an endangered species or 
        threatened species.
          ``(2) Regulations to provide exemptions from section 9.--The 
        Secretary shall promulgate regulations that establish 
        exemptions from section 9 for any person who participates in a 
        conservation program under this subsection.''.

SEC. 105. WATER RIGHTS.

  Section 6 (16 U.S.C. 1535) is amended by adding at the end the 
following:
  ``(j) Water Rights.--Nothing in this Act shall be construed to 
supersede, abrogate, or otherwise impair any right or authority of a 
State to allocate or administer quantities of water (including boundary 
waters). Nothing in this Act shall be implemented, enforced, or 
construed to allow any officer or agency of the United States to 
utilize directly or indirectly the authorities established under this 
Act to impose any requirement not imposed by the State which would 
supersede, abrogate, condition, restrict, or otherwise impair rights to 
the use of water resources allocated under State law, interstate water 
compact, or Supreme Court decree, or held by the United States for use 
by a State, its political subdivisions, or its citizens. The exercise 
of authority pursuant to or in furtherance of this Act shall not be 
construed to create a limitation on the exercise of rights to water or 
constitute a cause for nondelivery of water pursuant to contract or 
State law.''.

 TITLE II--IMPROVING ABILITY TO COMPLY WITH THE ENDANGERED SPECIES ACT 
                                OF 1973

SEC. 201. ENFORCEMENT PROCEDURES.

  (a) In General.--Section 9(a) (16 U.S.C. 1538(a)) is amended--
          (1) in paragraph (1) by amending the matter preceding 
        subparagraph (A) to read as follows:
  ``(1) Except as provided in paragraph (3), section 6(g)(2), 
subsections (d)(3) and (e) of section 5, section 7(a), and section 10, 
with respect to any endangered species of fish or wildlife listed 
pursuant to section 4 it is unlawful for any person subject to the 
jurisdiction of the United States to--'';
          (2) in paragraph (2) by amending the matter preceding 
        subparagraph (A) to read as follows:
  ``(2) Except as provided in section 6(g)(2), subsections (d)(3) and 
(e) of section 5, and section 10, with respect to any endangered 
species of plants listed pursuant to section 4, it is unlawful for any 
person subject to the jurisdiction of the United States to--''; and
          (3) by adding at the end the following new paragraph:
          ``(3) Permitted takings.--An activity of a non-Federal person 
        is not a taking of a species if the activity--
                  ``(A) is consistent with the provisions of a final 
                conservation plan or conservation objective;
                  ``(B) complies with the terms and conditions of an 
                incidental take permit or a cooperative management 
                agreement;
                  ``(C) addresses a critical, imminent 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;
                  ``(D) is incidental to, and not the purpose of, the 
                carrying out of an otherwise lawful activity that 
                consists of--
                          ``(i) on-going maintenance, routine operation 
                        or use, and emergency repair of existing 
                        pipelines, fire breaks, transmission and 
                        distribution lines, groundwater recharge 
                        facilities and areas, water storage facilities, 
                        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; or
                  ``(E) is incidental to, and not the purpose of, the 
                carrying out of an otherwise lawful activity that 
                occurs within an area of the territorial sea or 
                exclusive economic zone established by Proclamation 
                Numbered 5030, dated March 10, 1983, that is not 
                designated as critical habitat under section 5(i), and 
                the affected species is not a species of fish.''.
  (b) Rewards and Incidental Expenses.--Section 11 (16 U.S.C. 1540) is 
amended--
          (1) in subsection (d)(2) by inserting after ``temporary care 
        for any'' the following: ``endangered species or threatened 
        species of'';
          (2) in subsection (e)(3) in the fourth sentence by striking 
        ``Any fish, wildlife,'' and inserting ``Any endangered species 
        or threatened species of fish or wildlife,'';
          (3) in subsection (e)(4)(A) by inserting ``endangered species 
        or threatened species of'' after ``All'';
          (4) in subsection (e)(4)(B) by inserting ``endangered species 
        or threatened species of'' after ``importing of any'';
          (5) in subsection (f) in the first sentence by inserting 
        ``endangered species or threatened species of'' after ``storage 
        of'';
          (6) in subsection (a)(1) by striking ``knowingly'' each place 
        it appears and inserting ``with specific intent'';
          (7) in subsection (b)(1) by striking ``knowingly'' each place 
        it appears and inserting ``with specific intent'';
          (8) in subsection (e) by adding at the end the following new 
        paragraph:
          ``(7) Adoption of regulations.--No interpretation, policy, 
        guideline, finding, or other informal determination may be 
        relied upon by the Secretary in the implementation and 
        enforcement of this Act unless such determination has been the 
        subject of a proposed rule, subject to review by the public and 
        comment for a period of no less than 60 days. Any proposed rule 
        under this subparagraph must include--
                  ``(A) a plain-language explanation of the reasons for 
                and purpose of the proposed rule;
                  ``(B) an analysis of the anticipated impact of the 
                proposed rule;
                  ``(C) an analysis showing that the restoration 
                benefit of the proposed rule outweighs any negative 
                conservation impact of that proposed rule;
                  ``(D) an analysis showing that compliance with the 
                proposed rule is reasonably within the means of the 
                State or the range nation concerned; and
                  ``(E) a summary of the literature reviewed and 
                experts consulted in regard to the species involved, 
                and a summary of the Secretary's findings based on that 
                review and consultation.
          ``(8) Basis for refusal of entry.--No refusal of entry, 
        seizure of evidence, or other enforcement action may take place 
        under this Act if the action is based solely on a notification 
        under the Convention or on a resolution of the Conference of 
        the Parties to the Convention.
          ``(9) Detention for purpose of identification.--The burden is 
        on the Secretary to show that a specimen belongs to a species 
        which is determined to be an endangered species or threatened 
        species under this Act or is included in an Appendix to the 
        Convention. The Secretary may not detain a specimen for longer 
        than 30 days for the purpose of identification except where the 
        specimen has been substantially changed from its natural 
        appearance, in which case it may be retained for an additional 
        30 days for identification. If the specimen cannot be 
        positively identified within that time, then it shall be 
        released.''; and
          (9) by amending subsection (g) 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;
                  ``(B) to compel the Secretary to apply, or modify the 
                application of, the prohibitions set forth in or 
                authorized pursuant to section 9(a)(1)(B) or 4(d);
                  ``(C) to compel the Secretary to apply, or modify the 
                application of, the provisions of section 10(a); or
                  ``(D) against the Secretary where there is alleged a 
                failure of the Secretary to perform any act or duty 
                under section 4(d) which is not discretionary with the 
                Secretary.
        The district courts shall have jurisdiction to enforce any such 
        provision or regulation, or to order the Secretary to perform 
        such act or duty, as the case may be.
          ``(2) Prerequisite procedures.--(A) No action may be 
        commenced under paragraph (1)(A)--
                  ``(i) prior to 60 days after written notice of the 
                alleged violation has been given to the Secretary, and 
                to any agency or official of the United States who is 
                alleged to be in violation, except that a State may 
                commence an action at any time;
                  ``(ii) if the Secretary has commenced action to 
                impose a penalty pursuant to subsection (a); or
                  ``(iii) if the United States has commenced and is 
                diligently prosecuting a criminal action in a court of 
                the United States or a State to redress the alleged 
                violation of any such provision or regulation.
          ``(B) No action may be commenced under paragraph (1)(B) prior 
        to 60 days after written notice has been given to the Secretary 
        setting forth the reasons for applying, or modifying the 
        application of, the prohibitions with respect to the taking of 
        a threatened species.
          ``(C) No action may be commenced under paragraph (1)(C) prior 
        to 60 days after written notice has been given to the 
        Secretary, except that such action may be brought immediately 
        after such notification in the case of an action under this 
        subsection respecting an emergency posing a significant risk to 
        the well-being of any species of fish or wildlife or plants.
          ``(3) Venue.--Any suit under this subsection may be brought 
        in the judicial district in which the violation occurs.
          ``(4) Costs.--The court, in issuing any final order in any 
        suit brought pursuant to paragraph (1), may award costs of 
        litigation (excluding attorney and expert witness fees) to any 
        party, whenever the court determines such award is appropriate.
          ``(5) Injunctive relief.--The injunctive relief provided by 
        this subsection shall not restrict any right which any person 
        (or class of persons) may have under any statute or common law 
        to seek enforcement of any standard or limitation or to seek 
        any other relief (including relief against the Secretary or a 
        State agency).
          ``(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. 202. REMOVING PUNITIVE DISINCENTIVES.

  Section 3(26) (as redesignated by section 102(a)(1) of this Act) is 
amended to read as follows:
          ``(26)(A) The term `take' means to harm, pursue, hunt, shoot, 
        wound, kill, trap, capture, or collect, or to attempt to engage 
        in that conduct.
          ``(B) In subparagraph (A), the term `harm' means an action 
        that proximately and foreseeably kills or physically injures an 
        identifiable member of an endangered species.''.

SEC. 203. ALLOWING NON-FEDERAL PERSONS TO USE THE CONSULTATION 
                    PROCEDURES.

  Section 10(a) (16 U.S.C. 1539(a)), as amended by section 204(b) of 
this Act, is amended by adding at the end the following new paragraph:
          ``(3) Voluntary consultation.--(A) Subject to such 
        regulations as the Secretary may issue, any non-Federal person 
        may initiate consultation with the Secretary on any prospective 
        activity of the person--
                  ``(i) to determine if the activity is consistent or 
                inconsistent with a conservation plan or conservation 
                objective; or
                  ``(ii) if the person determines that the activity is 
                inconsistent, to determine whether the activity is 
                likely to jeopardize the continued existence of an 
                endangered species or a threatened species, or to 
                destroy or adversely modify the designated critical 
                habitat of the species in a manner that is likely to 
                jeopardize the continued existence of the species.
          ``(B) The voluntary consultation process for non-Federal 
        persons authorized by subparagraph (A) shall be conducted in 
        accordance with the procedures and requirements for 
        consultation on agency actions set forth in section 7, except 
        that--
                  ``(i) the period for completion of the consultation 
                shall be 90 days from the date on which the 
                consultation is initiated, or not later than such other 
                date as is mutually agreeable to the Secretary and the 
                person initiating the consultation;
                  ``(ii) the person initiating the consultation shall 
                not be required to prepare a biological assessment or 
                equivalent document;
                  ``(iii) neither the activity for which the 
                consultation process is sought nor the consultation 
                process itself shall be deemed a Federal action for the 
                purpose of compliance with section 102(2) of the 
                National Environmental Policy Act of 1969 (42 U.S.C. 
                4332(2)) or an agency action for the purpose of 
                compliance with the consultation requirement of section 
                7(a)(2);
                  ``(iv) the Secretary shall provide the person 
                initiating the consultation with a written opinion 
                only, unless such person requests a permit referred to 
                in paragraph (1)(B) and meets the requirements of 
                clause (v); and
                  ``(v) a permit described in clause (iv) shall be 
                issued if the Secretary makes a finding of--
                          ``(I) consistency pursuant to subparagraph 
                        (A)(i);
                          ``(II) no jeopardy pursuant to subparagraph 
                        (A)(ii); or
                          ``(III) jeopardy pursuant to subparagraph 
                        (A)(ii), but offers a reasonable and prudent 
                        alternative which the person initiating the 
                        consultation accepts.
          ``(C) Any person that is not an owner of property is 
        prohibited from participating in the consultation process under 
        this paragraph with respect to the property without written 
        permission from the owner of the property.''.

SEC. 204. PERMITTING REQUIREMENTS FOR INCIDENTAL TAKES.

  (a) Incidental Take Permit Defined.--Section 3 (16 U.S.C. 1532) is 
amended by adding after paragraph (14) (as added by section 301(b)(3) 
of this Act) the following new paragraph:
          ``(15) The term `incidental take permit' means a permit 
        issued under section 10(a)(1)(B).''.
  (b) Take Permits.--Section 10 (16 U.S.C. 1539) is amended by striking 
so much as precedes subsection (b) and inserting the following:

``SEC. 10. EXCEPTIONS.

  ``(a) Permits.--
          ``(1) Authority to issue permits.--The Secretary may permit, 
        under such terms and conditions as the Secretary shall 
        prescribe--
                  ``(A) any act otherwise prohibited by section 9 
                undertaken for scientific purposes or to enhance the 
                propagation or survival of the affected species, 
                including, but not limited to--
                          ``(i) acts necessary for the establishment 
                        and maintenance of experimental populations 
                        pursuant to subsection (j);
                          ``(ii) the public display or exhibition of 
                        living wildlife in a manner designed to 
                        educate, or which otherwise contributes to the 
                        education of the public about the ecological 
                        role and conservation needs of the affected 
                        species;
                          ``(iii) in the case of foreign species, acts 
                        that are consistent with the Convention and 
                        with conservation strategies adopted by the 
                        foreign nations responsible for the 
                        conservation of the species; and
                          ``(iv) acts necessary for the research in and 
                        carrying out of captive propagation; or
                  ``(B) any taking otherwise prohibited by section 
                9(a)(1)(B) if such taking is incidental to, and not the 
                purpose of, the carrying out of an otherwise lawful 
                activity.
          ``(2) Species conservation plans.--(A) Except as provided in 
        paragraph (3), 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 activities to be permitted;
                  ``(ii) what steps the applicant can reasonably and 
                economically take consistent with the purposes and 
                objectives of the activity to minimize 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 conservation 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 or appropriate to carry out the 
        purposes of this paragraph, including, but not limited to, such 
        reporting requirements as the Secretary deems necessary for 
        determining whether such terms and conditions are being 
        complied with.
          ``(C) The Secretary may not require the applicant, as a 
        condition of processing the application or issuing the permit, 
        to expand the application to include land, an interest in land, 
        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.
          ``(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 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)).
          ``(E) 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.
          ``(F)(i) For such activities as the Secretary determines will 
        not appreciably reduce the chances of survival of a species, 
        the Secretary may issue an interim permit to any applicant for 
        a permit under this section that provides evidence of 
        appropriate interim measures that--
                  ``(I) will minimize impacts of any incidental taking 
                that may be associated with the activity proposed for 
                permitting; and
                  ``(II) are to be performed while the underlying 
                permit application is being considered under this 
                section.
          ``(ii) An interim permit issued under clause (i)--
                  ``(I) shall specifically state the types of 
                activities that are authorized to be carried out under 
                the interim permit;
                  ``(II) shall not create any right to the issuance of 
                a permit under this section;
                  ``(III) shall expire on the date of the granting or 
                denial of the underlying permit application; and
                  ``(IV) may be revoked by the Secretary upon failure 
                to comply with any term of the interim permit.
          ``(G) The Secretary shall revoke a permit issued under this 
        paragraph if he finds that the permittee is not complying with 
        the terms and conditions of the permit.''.
  (c) Multi-Species Planning.--Section 10 (16 U.S.C. 1539) is amended 
by adding at the end the following new subsection:
  ``(k) Multiple Species Conservation Plans.--
          ``(1) Development.--The Secretary may assist a non-Federal 
        person in the development of a plan, to be known as a `multiple 
        species conservation plan', for the conservation of--
                  ``(A) any species with respect to which a finding is 
                made and a status review is commenced under section 
                4(b)(3)(B); and
                  ``(B) any other species that--
                          ``(i) inhabit the area covered by the plan; 
                        and
                          ``(ii) are designated in the plan or are 
                        within a taxonomic group designated in the 
                        plan.
          ``(2) Issuance of permits.--A non-Federal person may submit a 
        species conservation plan prepared under this subsection for 
        the conservation of multiple species to the Secretary for 
        approval under subsection (a)(2). If the Secretary approves the 
        plan, the Secretary shall issue an incidental take permit 
        authorizing take of any threatened species subject to the plan 
        under section 4(d). The Secretary shall also recommend terms 
        and conditions to address species subject to the plan which 
        have not been determined to be endangered species or threatened 
        species.
          ``(3) Effect of listing of species.--A multiple species 
        conservation plan developed under this subsection and a permit 
        issued with respect to the plan shall remain in effect and 
        shall not be required to be amended if a species to which the 
        plan and permit apply is determined to be an endangered species 
        or a threatened species under section 4, except that the 
        Secretary's recommendations under paragraph (2) shall become 
        terms and conditions of the permit. No additional restrictions 
        or prohibitions under this Act shall be imposed upon the plan 
        permittee for such species or geographic area beyond those 
        provided for in the approved plan or the permit terms and 
        conditions.
          ``(4) Consideration of state recommendations.--The Secretary 
        shall, in cooperation with the States, develop a process 
        whereby full consideration can be given to State 
        recommendations regarding standards and guidelines for the 
        development and approval of a broad range of multiple species 
        conservation plans. To the maximum extent practicable and 
        consistent with the conservation of the affected species, such 
        standards and guidelines shall--
                  ``(A) develop clear criteria by which conservation 
                plans would be approved;
                  ``(B) encourage the development of conservation plans 
                which would reduce economic impacts while providing 
                conservation of affected species;
                  ``(C) include assurances that further conservation 
                measures would not be required of a non-Federal person 
                should any species dependent upon that habitat type be 
                subsequently listed unless any additional costs are 
                assumed by the Secretary; and
                  ``(D) provide incentives to a non-Federal person who 
                voluntarily agrees to manage to enhance habitat for 
                species on their property by excluding them from 
                restrictions if they later return their land to its 
                previous condition or use.
          ``(5) Technical assistance or guidance.--To the maximum 
        extent practicable, the Secretary and other Federal agencies, 
        in cooperation with the affected States, are authorized and 
        encouraged to provide technical assistance or guidance to any 
        non-Federal person who is developing a multiple species 
        conservation plan pursuant to this subsection.''.
  (d) Foreign Species.--Section 10(a), as amended by subsection (b) of 
this section and sections 203 and 205(a) of this Act, is amended by 
adding at the end the following new paragraph:
          ``(7) Foreign species.--(A) In determining whether to issue a 
        permit under subsection (a)(1)(A)(iii), there shall be a 
        rebuttable presumption that the survival of a species is 
        enhanced by the ordinary benefit occurring from the taking of a 
        specimen for an inherently limited use in accordance with the 
        laws and wildlife management policies of the nation in which it 
        is found.
          ``(B) The Secretary may not refuse to issue a permit for such 
        specimens and may not limit the number of such specimens which 
        may be imported unless he makes and publishes in the Federal 
        Register a finding that there is substantial evidence that the 
        detriment resulting from the taking of such specimens outweighs 
        the benefit derived, and subsequently promulgates regulations 
        containing the limitation.
          ``(C) The Secretary shall transmit the full text and a 
        complete description of the proposed regulation referred to in 
        the preceding paragraph directly to the appropriate wildlife 
        management authorities of the nations from which the specimens 
        are exported, in the language of those countries, with at least 
        180 days allowed for review and comment. The 180-day period 
        shall be counted from the date of the delivery of the materials 
        to the wildlife management authority of each of the nations.
          ``(D) For the purpose of this paragraph, the term `inherently 
        limited use' means scientific collection, live export for 
        captive breeding, sport hunting, and falconry.''.
  (e) Expedited Permitting Process for Low-Impact Activities.--Section 
10(a), as amended by subsections (b) and (d) of this section and 
sections 203, 205(a), and 401(f) of this Act, is amended by adding at 
the end the following new paragraph:
          ``(9) Expedited permitting process for low-impact 
        activities.--(A) Not later than 180 days after the date of the 
        enactment of the Endangered Species Conservation and Management 
        Amendments of 1995, the Secretary shall issue regulations which 
        establish a simple, standardized application form for a permit 
        under paragraph (1)(B) for a low-impact activity.
          ``(B) If a person submits an application for a permit under 
        paragraph (1)(B) in accordance with the form established by the 
        Secretary under subparagraph (A)--
                  ``(i) the person shall not be required to submit any 
                other information to obtain the permit; and
                  ``(ii) the Secretary shall complete processing of the 
                application, and approve or deny the permit, within 30 
                days after the date the Secretary receives the 
                completed application.
          ``(C) The regulations under this paragraph--
                  ``(i) shall describe classes of activities that are 
                low-impact activities for purposes of this paragraph; 
                and
                  ``(ii) shall treat as a low-impact activity any 
                activity which has no significant effect on the 
                survival of endangered species and threatened species.
          ``(D) For purposes of this paragraph, the term `low-impact 
        activity' means an activity in a class of activities described 
        in regulations under subparagraph (C)(i).''.

SEC. 205. GENERAL, RESEARCH, AND EDUCATIONAL PERMITS.

  (a) In General.--Section 10(a) (16 U.S.C. 1539(a)), as amended by 
sections 203 and 204(b) of this Act, is amended by adding at the end 
the following new paragraphs:
          ``(4) General permits.--(A) After providing notice and 
        opportunity for public hearing, the Secretary may issue a 
        general permit under paragraph (1)(B) on a county, parish, 
        State, regional, or nationwide basis for any category of 
        activities that may affect a species determined to be an 
        endangered species or threatened species if the Secretary 
        determines that the activities in the category are similar in 
        nature, will cause only minimal adverse effects on the species 
        if performed separately, and will have only minimal cumulative 
        adverse effects on the species generally. A general permit 
        issued under this paragraph shall specify the requirements and 
        standards that apply to an activity authorized by the general 
        permit.
          ``(B) A general permit issued under this paragraph shall be 
        effective for a period to be specified by the Secretary, but 
        not to exceed the 5-year period that begins on the date of 
        issuance of the permit.
          ``(C) The Secretary may revoke or modify a general permit if, 
        after providing notice and opportunity for public hearing, the 
        Secretary determines that the activities authorized by the 
        general permit have a greater than minimal adverse effect on a 
        species that is included in a list published under section 
        4(c)(1) or that the activities are more appropriately 
        authorized by individual permits issued under paragraph (1) or 
        (3).
          ``(5) Research on alternative methods and technologies.--
        Priority for issuing permits under paragraph (1)(A) shall be 
        accorded to applications for permits to conduct research, 
        captive breeding, or education on alternative methods and 
        technologies, and the comparative costs of the methods and 
        technologies, to reduce the incidental taking as described in 
        paragraph (1)(B) of an endangered species or a threatened 
        species for which the employment of existing methods or 
        technologies for avoidance of the incidental taking entails 
        significant costs for non-Federal persons.
          ``(6) Educational or propagation permits.--(A) A permit under 
        paragraph (1)(A)(ii) or (iv) shall be issued if--
                  ``(i)(I) the applicant holds a current and valid 
                license as an exhibitor under the Animal Welfare Act (7 
                U.S.C. 2131 et seq.);
                  ``(II) in the case of a permit under paragraph 
                (1)(A)(ii), the applicant maintains a public display or 
                exhibition of living wildlife described in that 
                paragraph; and
                  ``(III) viewing of the public display or exhibition 
                is not limited or restricted other than by charging an 
                admission fee; or
                  ``(ii) in the case of a permit under paragraph 
                (1)(A)(iv), the applicant has demonstrated the ability 
                to use propagation techniques that result in increases 
                in the populations of species held in captivity for 
                eventual release into the wild, maintenance of live 
                specimens, or falconry purposes.
          ``(B)(i) The Secretary shall issue an educational or 
        propagation permit as authorized in subparagraph (A) within 30 
        days from the effective date of this subparagraph to any 
        qualified organization or qualified person for educational or 
        propagation purposes, who has demonstrated the ability to 
        propagate, handle, or recover species for a minimum of 15 years 
        or who had at least 10 permits in the aggregate issued pursuant 
        to this Act or any of the laws listed in subparagraph (H).
          ``(ii) The Secretary shall issue a permit within 90 days of 
        receipt of a completed application from any qualified 
        organization or person who currently does not hold any permit 
        but who has demonstrated the ability to handle or recover 
        species for a minimum of 15 years of who has received at least 
        10 permits in the aggregate and who has not violated any terms 
        or conditions of any permits previously issued pursuant to this 
        Act or the laws listed in subparagraph (H).
          ``(C) A permit referred to in paragraph (1)(A)(ii) shall be 
        for a term of not less than 6 years.
          ``(D) A permit referred to in paragraph (1)(A)(ii) shall also 
        authorize the permittee to import, export, sell, purchase, or 
        otherwise transfer possession of the affected species.
          ``(E) The Secretary shall revoke a permit referred to in 
        paragraph (1)(A)(ii) if the Secretary determines that the 
        permittee--
                  ``(i) no longer meets the requirements of 
                subparagraph (A) and is not reasonably likely to meet 
                the requirements in the near future;
                  ``(ii) is not complying with the terms and conditions 
                of the permit; or
                  ``(iii) is engaging in an activity likely to 
                jeopardize the continued existence of the species 
                subject to the permit.
          ``(F) The Secretary may require an annual report on the 
        activities authorized by a general permit, but may not require 
        reports more frequently than annually.
          ``(G) A permit authorized in this paragraph shall be the only 
        permit required for the activities authorized therein, and may 
        cover activities for one or more species or taxa 
        simultaneously.
          ``(H) The authorizations for any activities permitted under 
        this paragraph or permitted by the Bald Eagle Protection Act 
        (16 U.S.C. 668-668d), the Fish and Wildlife Conservation Act of 
        1980 (16 U.S.C. 2901-2911), the Lacey Act Amendments of 1981 
        (18 U.S.C. 42; 16 U.S.C. 3371-3378), the Marine Mammal 
        Protection Act of 1972 (16 U.S.C. 1361-1407), the Migratory 
        Bird Conservation Act (16 U.S.C. 715-715d), the Migratory Bird 
        Treaty Act (16 U.S.C. 703-712), or the Wild Bird Conservation 
        Act of 1992 (Public Law 102-440) shall be consolidated into a 
        general permit to cover all authorized activities, 
        notwithstanding any law or regulation to the contrary.''.
  (b) Exceptions for Wildlife Bred in Captivity.--Section 10, as 
amended by section 204(c) of this Act, is amended by adding at the end 
the following new subsection:
  ``(l) Wildlife Bred in Captivity.--For the purposes of this Act or 
any regulation adopted pursuant to this Act, the terms `bred in 
captivity' or `captive-bred', with respect to wildlife, means wildlife, 
including eggs, born or otherwise produced in captivity from parents 
that mated or otherwise transferred gametes in captivity if 
reproduction is sexual, or from parents that were in captivity when 
development of the progeny began, if development is asexual. Such 
progeny shall be considered domestic fish or wildlife for all purposes 
and shall not come under the provisions and prohibitions of this Act 
and the laws listed in subsection (a)(6)(H) unless intentionally and 
permanently released to the wild. Any person holding any fish or 
wildlife or their progeny as described in this subsection must be able 
to demonstrate that such fish or wildlife do, in fact, qualify under 
the provision of this subsection, and shall maintain and submit to the 
Secretary, on request, such inventories, documentation, and records as 
the Secretary may by regulation require as being reasonable and 
appropriate to carry out the purposes of this subsection. Such 
requirements shall not unnecessarily duplicate the requirements of 
other rules and regulations promulgated by the Secretary.''.

SEC. 206. MAINTENANCE OF AQUATIC HABITATS FOR LISTED SPECIES.

  The Endangered Species Act of 1973 (16 U.S.C. 1851 et seq.) is 
amended by adding at the end the following new section:

``SEC. 20. RECOGNIZING NET BENEFITS TO AQUATIC SPECIES.

  ``(a) Encouraging Net Benefits.--In carrying out this Act, if the 
number of individual members of an endangered species or threatened 
species exiting an aquatic habitat area under the control, authority or 
ownership of a non-Federal person is equal to or greater than the 
number of individual members of the species entering such area, the 
Secretary shall not require, provide for, or recommend the imposition 
of any restriction or obligation on the activity of the non-Federal 
person in a manner which would require the non-Federal person to 
support the maintenance of any greater number of individual members of 
the species than that which enters such aquatic habitat area.
  ``(b) Consideration of Hatchery Populations.--In calculating the 
number of individual members of a species entering and exiting a 
specific aquatic habitat area pursuant to this section, the Secretary 
shall consider hatchery populations.
  ``(c) Limitations.--The Secretary shall not require, provide for, or 
recommend the imposition of any restriction or obligation on the 
activity of any non-Federal person in an aquatic habitat area to remedy 
adverse impacts on a species resulting from activities of individuals 
other than the non-Federal person.''.

SEC. 207. COMPLIANCE WITH INTERNATIONAL REQUIREMENTS AND TREATIES.

  (a) Respecting the Sovereignty of Other Nations.--Section 8 (16 
U.S.C. 1537) is amended by adding at the end the following new 
subsection:
  ``(e) Encouragement of Foreign Programs.--Any action taken by the 
Secretary pursuant to this Act in regard to a foreign species which 
occurs in a country which is a party to the Convention--
          ``(1) shall be done in cooperation with the wildlife 
        conservation authorities of such country; and
          ``(2) shall not obstruct any wildlife conservation program of 
        such country unless the Secretary can show, based on adequate 
        findings supported by substantial evidence, that the country's 
        wildlife conservation program for the species in question is 
        not consistent with the Convention.''.
  (b) Compliance With the Convention.--Section 8A (16 U.S.C. 1537a) is 
amended by adding at the end the following new subsections:
  ``(f) Nonduplication of Findings.--The Secretary, in making the 
findings required in paragraph 3(a) of Article III of the Convention, 
shall limit such findings to the purpose of the importation, and shall 
not duplicate the findings required to be made by the exporting nation 
except for good cause based on adequate findings supported by 
substantial evidence.
  ``(g) Relationship of Protective Regulations to the Convention.--In 
determining the provisions of protective regulations pursuant to 
section 4(d) of this Act when such regulations relate to a foreign 
species--
          ``(1) the Secretary may not prohibit any act that is 
        permissible under the Convention, notwithstanding Article XIV 
        of the Convention;
          ``(2) the Secretary shall, prior to publishing a proposal for 
        such protective regulations in the Federal Register, transmit 
        the full text and a complete description of the proposed 
        regulation directly to the appropriate wildlife management 
        authority of that country, in the language of that country, 
        with at least 180 days allowed for review and comment, the 180 
        days shall be counted from the date of delivery of the 
        materials to the wildlife authorities of the country;
          ``(3) such transmission must be accompanied by--
                  ``(A) a plain-language explanation of the reasons for 
                and purpose of the proposed regulation;
                  ``(B) an analysis of the anticipated beneficial 
                impact or detrimental impact of the regulation on the 
                economic, social, and cultural utilization of the 
                species, if any, and of the beneficial or detrimental 
                impact on the resource management and conservation 
                programs of that country; and
                  ``(C) a summary of the literature reviewed and 
                experts consulted by the Secretary in regard to the 
                species involved, and a summary of the Secretary's 
                findings based on that review and consultation;
          ``(4) the Secretary shall enter into discussions with 
        appropriate wildlife management officials of the countries to 
        which he has sent the transmission referred to in the previous 
        paragraph, and if those officials feel that further studies of 
        the species are indicated the Secretary may assist in finding 
        funds from private sources for such studies and in carrying out 
        the studies; and
          ``(5) the Secretary must obtain the written concurrence of 
        all the nations contacted, and if such concurrence is not 
        obtained the Secretary may not issue the proposed regulation 
        except by an order submitted to and approved by the 
        President.''.
  (c) Conservation of Threatened Species.--Section 9 (16 U.S.C. 1538), 
as amended by section 206 of this Act, is amended by adding at the end 
the following new subsection:
  ``(h) Importation and Exportation.--
          ``(1) Limitation on importation.--The prohibition on 
        importation in subsection (a) of this section shall not apply 
        to a specimen of a threatened species taken for an inherently 
        limited use in accordance with the laws of a foreign nation 
        which is a party to the Convention and accompanied by an export 
        permit issued by that nation or an equivalent document. For the 
        purpose of this subsection, the term `inherently limited use' 
        means scientific collection, live export for captive breeding, 
        sport hunting, and falconry.
          ``(2) Regulations for shipping under convention.--(A) The 
        Secretary shall adopt regulations regarding the finding 
        required by the Convention that live specimens exported from 
        the United States will be so prepared as to minimize the risk 
        of injury, damage to health, or cruel treatment. Such 
        regulations shall provide clear, consistent and reliable 
        guidance to exporters.
          ``(B) In any instance in which the Secretary believes that a 
        shipment for export is not prepared in accordance with the 
        regulations, a detailed written notice of noncompliance shall 
        be issued to the exporter. The notice shall contain 
        recommendations as to how future shipments should be modified 
        in order to come into compliance with the regulations. The 
        notice shall go into effect 30 days after receipt by the 
        shipper, subject to appeal to an Administrative Law Judge or a 
        court. The filing of an appeal shall toll the effectiveness of 
        the notice. The issue of noncompliance may be appealed as well 
        as the issue of the appropriateness of the recommendation for 
        compliance.''.

SEC. 208. INCENTIVES FOR PROTECTION OF MARINE SPECIES.

  (a) In General.--Section 10 (16 U.S.C. 1539), as amended by section 
205(b) of this Act, is amended by adding at the end the following new 
subsection:
  ``(m) Incentives.--(1) The Secretary shall exempt, under such terms 
and conditions as the Secretary may prescribe by regulation, any 
operator of a trawl vessel required to use a turtle excluder device 
under regulations promulgated under this Act from such requirement if 
such operator agrees to support a conservation program approved under 
paragraph (2) and such support is determined to be appropriate under 
paragraph (4).
  ``(2) No later than 180 days after the effective date of this 
subsection and each year thereafter, the Secretary shall--
          ``(A) review all those programs intended to conserve the 
        endangered species and threatened species of sea turtles found 
        in the Gulf of Mexico and along the Atlantic seaboard, 
        including those programs involving protection of nesting 
        beaches in other nations;
          ``(B) approve any such program determined by the Secretary to 
        be of significant benefit to the recovery of the species of 
        such sea turtles under this subsection; and
          ``(C) publish notice of such determination in the Federal 
        Register.
  ``(3)(A) Any person or group of persons operating trawl vessels may 
submit in writing a request to the Secretary for an exemption under 
this subsection.
  ``(B) Not later than 60 days after receipt of such request the 
Secretary shall provide such person or group written notice of the 
issuance or denial of such request.
  ``(4) The Secretary shall determine that the support offered by an 
operator in a written request submitted under paragraph (3) is 
appropriate if the benefits provided by such support to the recovery of 
such species exceed any harm to the recovery of such species incurred 
as a result of the operator not using turtle excluder devices under an 
exemption provided under this subsection.
  ``(5) The Secretary shall prescribe such regulations as the Secretary 
considers necessary and appropriate to carry out the purposes of this 
subsection.''.
  (b) Incidental Take Statements.--Section 7(b) (16 U.S.C. 1536(b)) is 
amended by adding at the end of paragraph (4)(C)(ii) the following: 
``including incentives to encourage the support of conservation 
programs approved under section 10(k),''.

SEC. 209. INTERNATIONAL COOPERATION TO CONSERVE SEA TURTLES.

  (a) In General.--The Secretary of State, in consultation with the 
Secretary of Commerce and the Secretary of the Interior, may enter into 
international agreements for the conservation of sea turtles listed 
under section 4 of the Endangered Species Act of 1973, as amended by 
this Act.
  (b) Terms of Agreement.--Any international agreement entered into 
under this section shall--
          (1) provide for the conservation of the habitat and nesting 
        beaches of sea turtles and encourage national programs to 
        enhance sea turtle populations;
          (2) include provisions with respect to commercial fishing to 
        ensure that--
                  (A) the capture, injury, and mortality of sea turtles 
                incidental to such fishing are reduced to the extent 
                practicable;
                  (B) the productivity of commercial fisheries is 
                maintained; and
                  (C) measures taken by the nations concerned to reduce 
                the capture, injury, and mortality of sea turtles 
                incidental to such fishing are comparable to each 
                other;
          (3) create an institutional mechanism for international 
        cooperation on a continuing basis which can take account of new 
        developments and information, adopt measures relating to 
        commercial fishing, and otherwise facilitate international 
        cooperation;
          (4) provide for international cooperation in scientific 
        research on sea turtles; and
          (5) provide for effective monitoring and evaluation of 
        measures taken by each country that is party to the agreement 
        to ensure compliance with the agreement by persons and vessels 
        subject to its jurisdiction.
  (c) Entry Into Force.--International agreements entered into under 
this section shall enter into force for the United States in accordance 
with the procedures for governing international fishery agreements set 
forth in section 203 of the Magnuson Fishery Conservation and 
Management Act (16 U.S.C. 1823).
  (d) Acceptance and Implementation of Recommendations.--The Secretary 
of State is authorized to act for the United States with respect to any 
international agreement entered into under this section, and to 
receive, on behalf of the United States, any recommendations for the 
conservation of sea turtles made pursuant to such agreement. Any such 
recommendation shall be acted on by the United States unless the 
Secretaries of State, Commerce, and the Interior agree otherwise. The 
Secretary of Commerce or the Secretary of the Interior shall promulgate 
such regulations as may be necessary to carry out any such agreement or 
recommendation as has been accepted by the United States, except that 
no regulation promulgated under this Act may impose restrictions on 
United States commercial fishing vessels which decrease the 
productivity of such vessels more than provided for in an agreement or 
recommendation approved under this section.
  (e) Report.--The Secretary of State shall submit to Congress, not 
later than May 1, 1996, and every year thereafter a report describing 
the efforts of the Secretary to implement this section, the results of 
such efforts, and any plans for further such efforts. The report shall 
contain a list of the countries participating effectively in and 
complying with agreements which have been approved pursuant to 
subsection (c).
  (f) Effect on Prior Law.--Section 609(b) of the Act making 
appropriations for the Departments of Commerce, Justice, and State, the 
Judiciary, and related agencies for the fiscal year ending September 
30, 1990, and for other purposes (16 U.S.C. 1537 note) shall not apply 
to any country that is a party to, and is complying with, an agreement 
entered into under this section whose geographical scope includes the 
Gulf of Mexico and the Wider Caribbean Sea. The Secretary of State is 
encouraged to enter into international agreements under this section 
which include other regions not affected by that Act.

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

SEC. 301. IMPROVING THE VALIDITY AND CREDIBILITY OF DECISIONS.

  (a) Basing Listings on Credible Science.--
          (1) Listing determinations.--Section 4 (16 U.S.C. 1533) is 
        amended--
                  (A) by striking so much as precedes subsection (a)(2) 
                and inserting the following:

``SEC. 4. DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES.

  ``(a) Generally.--(1) The Secretary shall by regulation promulgated 
in accordance with subsection (b) determine whether any species is an 
endangered species or a threatened species because of any of the 
following factors:
          ``(A) The present or threatened loss of its habitat.
          ``(B) Overutilization for commercial, recreational, 
        scientific, or educational purposes.
          ``(C) Disease or predation.
          ``(D) The inadequacy of existing Federal, State, and local 
        government regulatory mechanisms.
          ``(E) Other natural or manmade factors affecting its 
        continued existence.'';
                  (B) by striking paragraph (3) of subsection (a); and
                  (C) by amending so much of subsection (b) 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, any political subdivision of a State, 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 making a determination whether a species is an 
        endangered species or a threatened species under this section, 
        the Secretary shall fully consider populations of the species 
        that are bred through private sector, university, and Federal, 
        State, and local government breeding programs for release in 
        the habitat of the species. In the case of fish species, the 
        bred populations referred to in the preceding sentence shall 
        include hatchery populations.
          ``(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 cooperative 
        management agreement entered into under section 6.
          ``(2) Consideration of state recommendations.--In making a 
        determination pursuant to paragraph (1), the Secretary shall 
        give consideration to species which have been identified as in 
        danger of extinction, or likely to become so within the 
        foreseeable future, by any State agency that is responsible for 
        the conservation of fish or wildlife or plants.''.
          (2) Standards for taxonomic decisions.--Section 4(b)(1) (15 
        U.S.C. 1533(b)(1)), as amended by paragraph (1), is further 
        amended by adding at the end the following:
  ``(D) Within 18 months after the date of the enactment of the 
Endangered Species Conservation and Management Act of 1995, the 
Secretary shall promulgate 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.''.
          (3) Listing foreign species.--Section 4(b) (16 U.S.C. 
        1533(b)), as amended by subsection (f) of this section, is 
        amended by adding at the end the following new paragraph:
          ``(10) Foreign species.--(A) In determining under subsection 
        (a) whether a foreign species is an endangered species or a 
        threatened species, the Secretary shall not determine that a 
        species that is listed under the Convention is endangered or 
        threatened unless he makes an adequate finding, supported by 
        substantial evidence, that the Convention does not provide 
        adequate regulation.
          ``(B) The Secretary shall, prior to publishing a proposal in 
        the Federal Register to determine that a foreign species is 
        endangered or threatened, transmit the full text and a complete 
        description of the proposed listing directly to the appropriate 
        wildlife management authority of that nation, in the language 
        of that nation, with at least 180 days allowed for review and 
        comment. The 180 days shall be counted from the date of 
        delivery of the materials supporting the proposed listing to 
        the wildlife authorities of the country.
          ``(C) Such transmission must be accompanied by--
                  ``(i) a plain-language explanation of the objective 
                criteria for and purpose of the proposed listing;
                  ``(ii) an analysis of the anticipated beneficial 
                impact or detrimental impact of the listing on the 
                economic, social, and cultural utilization of the 
                species, if any, and of the beneficial or detrimental 
                impact on the resource management and conservation 
                programs of that nation; and
                  ``(iii) a summary of the literature reviewed and 
                experts consulted by the Secretary in regard to the 
                species involved, and a summary of the Secretary's 
                findings based on that review and consultation.
          ``(D) The Secretary shall enter into discussions with the 
        appropriate wildlife management officials of the nations to 
        which he has sent the transmission referred to in subparagraph 
        (C). If those officials feel that further studies of the 
        species are indicated, the Secretary shall assist in finding 
        the funds for such studies and in carrying out the studies.
          ``(E) The Secretary must obtain the written concurrence of 
        all the nations contacted. If such concurrence is not obtained, 
        the Secretary may not issue the proposed regulation except by 
        an order submitted to and approved by the President.''.
  (b) Definitions.--Section 3 (16 U.S.C. 1532) is amended--
          (1) by adding after paragraph (1) the following new 
        paragraph:
          ``(2) 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.'';
          (2) by adding after paragraph (7) (as redesignated by section 
        102(a)(1) of this Act) the following new paragraphs:
          ``(8) The term `distinct population of national interest' 
        means a distinct population of a vertebrate species that is not 
        otherwise an endangered species or threatened species in the 
        United States, Canada, or Mexico, but which because of its 
        value to the Nation as a whole has been designated by Congress 
        as needing protection under this Act.
          ``(8a) The term `foreign species' means a species naturally 
        occurring outside the territory of the United States, but does 
        not include any marine species, any species having a 
        significant population occurring in the wild within the United 
        States, or any migratory species whose migration route includes 
        United States territory.'';
          (3) by adding after paragraph (13) (as redesignated by 
        section 102(a)(1) of this Act) the following new paragraph:
          ``(14) The term `imminent threat to the existence of', with 
        respect to a species, means, as determined by the Secretary 
        under section 4(b)(7) or the President under section 5(e)(2) 
        solely on the basis of the best scientific and commercial data 
        available, that there is a significant likelihood that the 
        species will become extinct, or will be placed on an 
        irreversible course to extinction, during the 2-year period 
        beginning on the date of the determination that the species is 
        an endangered species or a threatened species, unless the 
        species is accorded fully the protection available under this 
        Act during such period.''; and
          (4) by amending paragraph (23) (as redesignated by section 
        102(a)(1) of this Act) to read as follows:
          ``(23) The term `species' includes any subspecies of fish or 
        wildlife or plants, and any distinct population of national 
        interest of any species or vertebrate fish or wildlife which 
        interbreeds when mature.''.
  (c) Soliciting Scientific Information.--Section 4(b)(3) (16 U.S.C. 
1533(b)(3)), as amended by sections 303(a), 304(a), 305(a), and 306 of 
this Act, is amended by adding at the end the following new 
subparagraph:
          ``(F) Before any further action is taken in accordance with 
        this paragraph, the Secretary shall publish in the Federal 
        Register a solicitation for further information regarding the 
        status of a species which is the subject of a proposed rule to 
        list the species as an endangered species or threatened 
        species, including current population, populations trends, 
        current habitat, Federal conservation lands which 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 which may assist in making a 
        determination under this section. The solicitation shall give a 
        time limit within which to submit the information which shall 
        be not less than 180 days. The time limit shall be extended for 
        an additional 180 days at the request of any person who submits 
        a request for such extension along with the reasons therefor. 
        The Secretary in making the determination required in this 
        subsection, shall give equal weight to the information 
        submitted in accordance with this paragraph.''.
  (d) Emergency Listings.--Section 4(b)(7) (16 U.S.C. 1533(b)(7)) is 
amended--
          (1) by striking the matter preceding subparagraph (A) and 
        inserting the following:
          ``(7) Emergency regulations.--Neither paragraph (4), (5), or 
        (6) of this subsection nor section 553 of title 5, United 
        States Code, shall apply to any regulation issued by the 
        Secretary in regard to any emergency posing an imminent threat 
        to the existence of any species of fish or wildlife or plants, 
        but only if--''; and
          (2) by adding at the end the following new sentence: ``The 
        Secretary may not delegate the final decision to issue an 
        emergency regulation under this paragraph.''.
  (e) Using Best Data.--Section 4(b)(8) (16 U.S.C. 1538(b)(8)) is 
amended--
          (1) by striking ``the data'' and inserting ``the best 
        scientific and commercial data available''; and
          (2) 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 
        only upon peer-reviewed scientific information obtainable from 
        any source, including governmental and nongovernmental sources, 
        which has been to the maximum extent feasible verified by field 
        testing.''.
  (f) Identifying Data Used for Decisions.--Section 4(b) (16 U.S.C. 
1533(b)) is amended by adding at the end the following new paragraph:
          ``(9) Publication in federal register.--(A) The Secretary 
        shall identify and publish in the Federal Register with each 
        proposed rule under paragraph (1) or section 5(i) a description 
        of--
                  ``(i) all data that are to be considered in making 
                the determination under the subsection to which the 
                proposed rule relates and that have yet to be collected 
                or field verified;
                  ``(ii) data that are necessary to make determinations 
                and that can be collected prior to any determination; 
                and
                  ``(iii) data that are necessary to ensure the 
                scientific validity of the determination, and each 
                deadline for collecting these data.
          ``(B) In making a determination pursuant to paragraph (1) or 
        section 5(i), the Secretary shall collect and consider the data 
        identified and described pursuant to subparagraph (A)(ii).
          ``(C) The Secretary shall identify and publish in the Federal 
        Register with each final rule promulgated under paragraph (1) 
        or section 5(i)--
                  ``(i) a description of any data that have not been 
                collected and considered in the determination to which 
                the rule relates and that are necessary to ensure the 
                continued scientific validity of the determination; and
                  ``(ii) each deadline by which the Secretary shall 
                collect and consider the data in accordance with 
                subparagraph (D).
          ``(D) Not later than the deadline published by the Secretary 
        pursuant to subparagraph (C)(ii), the Secretary shall--
                  ``(i) collect the data referred to in each paragraph;
                  ``(ii) provide an opportunity for public review and 
                comment on the data;
                  ``(iii) consider the data after the 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.''.
  (g) Judicial Review.--Section 4 (16 U.S.C. 1533), as amended by 
section 302 of this Act, is amended by adding at the end the following 
new subsection:
  ``(j) Judicial Review of Determinations.--Any determination with 
regard to whether 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.''.
  (h) Analysis of Economic and Social Effects.--Section 4(b) (16 U.S.C. 
1533(b)), as amended by section 305(d) of this Act, is further amended 
by adding at the end the following new paragraph:
          ``(12) Analysis of economic and social costs.--Concurrently 
        with a determination that a species warrants listing as an 
        endangered species or threatened species, the Secretary shall 
        issue an analysis of the economic and social effects the 
        listing may have. The analysis shall be published in the 
        Federal Register with the listing determination and shall 
        include an estimate of the effects the listing may have on 
        Federal, State, and local expenditures and revenues, and the 
        costs and benefits of the listing for the private sector, 
        including lost opportunity costs.''.

SEC. 302. PEER REVIEW.

  Section 4 (16 U.S.C. 1533) is amended by adding after subsection (h), 
as redesignated by section 507(b)(2) of this Act, the following new 
subsection:
  ``(i) 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(i); and
                          ``(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).
                  ``(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 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 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. 303. MAKING DATA PUBLIC.

  (a) Public Data.--Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended 
by sections 304(a), 305(a), and 306 of this Act, is amended by adding 
at the end the following new subparagraph:
          ``(E)(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 minimize releasing the 
        identification 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 his or her 
        consent, or the information is otherwise public information.''.
  (b) Public Hearings.--Section 4(b) (16 U.S.C. 1533(b)) is amended--
          (1) in paragraph (5) (as amended by section 305(b) of this 
        Act) by adding at the end the following new subparagraph:
          ``(E) promptly hold at least 1 hearing in each State in which 
        the species proposed for determination as an endangered species 
        or a threatened species is believed to occur, and in a location 
        that is as close as possible to the center of the habitat of 
        such species in such State, including at least one hearing in 
        an affected rural area specified by the Governor of the State, 
        if the Governor determines that 1 or more rural areas within 
        the State are affected by the determination.''; and
          (2) in paragraph (6) by amending all that precedes 
        subparagraph (B) to read as follows:
          ``(6) Publication of determination.--(A) Within the one-year 
        period beginning on the date on which general notice is 
        published in accordance with paragraph (5)(A)(i) regarding a 
        proposed regulation, the Secretary shall publish in the Federal 
        Register, if a determination as to whether a species is an 
        endangered species or a threatened species is involved, 
        either--
                  ``(i) a final regulation to implement such 
                determination,
                  ``(ii) a final regulation to implement such revision 
                or a finding that such revision should not be made,
                  ``(iii) notice that such one-year period is being 
                extended under subparagraph (B)(i), or
                  ``(iv) notice that the proposed regulation is being 
                withdrawn under subparagraph (B)(ii), together with the 
                finding on which such withdrawal is based.''.
  (c) Notice of Hearings and 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 other 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 meeting at least 30 days prior to the 
hearing or meeting.
  ``(b) Hearings.--Public hearings held pursuant to this Act shall 
provide an opportunity for the public to make statements and receive 
information from the agency regarding the impact of the proposal that 
is the subject of the public hearing. To the maximum extent 
practicable, the Secretary shall ensure that members of the public are 
provided with the information sought at the public hearing.''.

SEC. 304. IMPROVING THE PETITION AND DESIGNATION PROCESSES.

  (a) Petitions To List.--Section 4(b)(3) (16 U.S.C. 1533(b)(3)) is 
amended to read as follows:
          ``(3) Petitions.--(A) A petition submitted to the Secretary 
        asserting that a species is a threatened species or endangered 
        species and requesting that the Secretary make a determination 
        to that effect shall contain at a minimum the following:
                  ``(i) Information on the current population and range 
                of the species.
                  ``(ii) Any information on efforts to field test the 
                population estimates on the species.
                  ``(iii) If literature from scientific or other 
                journals, dissertations or other such scientific 
                writings of another person are submitted, they must be 
                accompanied by an affidavit that the literature or 
                writings have been peer reviewed.
                  ``(iv) The qualifications of any person asserting 
                expertise on the species or status of the species.
                  ``(v) Information about the demonstrated habitat 
                needs of the species, along with the known occupied 
                habitat of the species.
                  ``(vi) Known causes of the species decline.
          ``(B) Petitions to add a species to, or to remove a species 
        from, either of the lists published under subsection (c)(1) 
        shall be submitted in accordance with section 553(e) of title 
        5, United States Code. The Secretary may commence a review of 
        the status of the species concerned consistent with the 
        priorities set by the Secretary for the listing of species. The 
        Secretary shall promptly publish any finding made under this 
        subparagraph in the Federal Register.''.
  (b) Conforming Amendments.--Section 4(g), as redesignated by section 
507(b)(2), is amended--
          (1) by striking paragraph (2); and
          (2) by redesignating paragraphs (3) and (4) in order as 
        paragraphs (2) and (3).

SEC. 305. GREATER STATE INVOLVEMENT.

  (a) State Consultation on Petitions.--Section 4(b)(3) (16 U.S.C. 
1533(b)(3)), as amended by section 304(a) of this Act, is amended by 
adding after subparagraph (B) the following subparagraph:
          ``(C) At the time the review provided in subparagraph (B) is 
        commenced--
                  ``(i) the Secretary shall contact the Governor of 
                each State in which the proposed species is located and 
                shall solicit from the Governor information about the 
                action requested in the petition in that State 
                necessary to render a decision and shall solicit the 
                advice of the Governor on whether the status of species 
                merits the action petitioned for, and if the Governor 
                advises that the petition action is not warranted and 
                thereafter the Secretary proceeds with the action, the 
                Secretary shall have the burden of showing that the 
                information submitted by the Governor is incorrect and 
                that the action is warranted; and
                  ``(ii) the Secretary shall, to the maximum extent 
                feasible, require by field testing, the verification of 
                the information presented regarding the status of the 
                species.''.
  (b) Regulations To Implement Determinations.--Section 4(b)(5) (16 
U.S.C. 1533(b)(5)) is amended to read as follows:
          ``(5) Notice required.--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--
                  ``(A) not less than 90 days before the effective date 
                of the regulation--
                          ``(i) publish a general notice and the 
                        complete text of the proposed regulation in the 
                        Federal Register, and
                          ``(ii) give actual notice of the proposed 
                        regulation (including the complete text of the 
                        regulation) to the 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;
                  ``(B) 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;
                  ``(C) 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;
                  ``(D) publish a summary of the proposed regulation in 
                a newspaper of general circulation in each area of the 
                United States in which the species is believed to 
                occur; and''.
  (c) State Consultation on Final Determination.--Section 4(h), as 
redesignated by section 507(b)(2) of this Act, is amended to read as 
follows:
  ``(h) 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) of this section files comments disagreeing 
with all or part of the proposed regulation, the Secretary shall not 
issue a final regulation which 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) of this 
section, 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.''.
  (d) FACA.--Section 4(b) (16 U.S.C. 1533(b)), as amended by section 
301(a)(3) and (f) of this Act, is further amended by adding at the end 
the following new paragraph:
          ``(11) FACA.--Consultation with States regarding petitions 
        and proposed regulations under this subsection shall not be 
        subject to the Federal Advisory Committee Act (5 U.S.C. 
        App.).''.

SEC. 306. MONITORING THE STATUS OF SPECIES.

  Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections 304(a) 
and 305(a) of this Act, is amended by adding after subparagraph (C) the 
following subparagraph:
          ``(D) The Secretary shall implement a system to monitor 
        effectively the status of all species with respect to which a 
        finding is made that the petitioned action is warranted but 
        precluded by proposals to determine whether any species is an 
        endangered species or a threatened species and progress is 
        being made to add qualified species to the list published under 
        subsection (c) and to remove from lists published under that 
        subsection species for which protection of this Act is no 
        longer necessary, and shall make prompt use of the authority 
        under paragraph (7) to prevent an imminent threat to the 
        existence of any such species.''.

SEC. 307. PETITIONS TO DELIST SPECIES.

  Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections 
301(c), 303(a), 304(a), 305(a), and 306 of this Act, is further amended 
by adding at the end the following new subparagraphs:
          ``(G) Any person may submit to the Secretary a petition to 
        revise a previous determination by the Secretary under this Act 
        that a species is an endangered species or threatened species 
        and to remove the species from a list published under 
        subsection (c), on the basis that--
                  ``(i) new data or a reinterpretation of prior data 
                indicates that the previous determination was in error;
                  ``(ii) the species is extinct;
                  ``(iii) the population level target established for 
                the species in a conservation plan under section 
                5(c)(3)(C)(vii) has been achieved; or
                  ``(iv) the original listing of the species did not 
                undergo adequate peer review.
          ``(H)(i) After receiving a petition under subparagraph (G), 
        the Secretary shall complete a review of the species, which 
        review shall include the solicitation of information as 
        described in subparagraph (F).
          ``(ii) The determination of the Secretary with respect to 
        such petition shall be considered an action for purposes of 
        subsection (i).
          ``(iii) If the Secretary has not made a final determination 
        by the end of the 18-month period beginning on the date of the 
        filing of a petition under subparagraph (G), the species 
        covered by the petition shall not be considered to be an 
        endangered species or threatened species for the purposes of 
        this Act and shall not be included or considered to be included 
        in any list published under subsection (c).
          ``(iv) If, following review required under clause (i) of this 
        paragraph and subsection (i) of this section, the final 
        determination of the Secretary is to retain the species as an 
        endangered species or threatened species on a list published 
        under subsection (c), that decision shall be considered to be a 
        listing determination for purposes of section 5.
          ``(v) This subparagraph shall not apply to a petition to 
        delist a species for which a review, as required by this 
        subparagraph, has been conducted by the Secretary in the 
        preceding 10-year period.''.

SEC. 308. 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 population level target 
                        established for the species in a conservation 
                        plan under section 5(c)(3)(C)(vii) 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.''.

     TITLE IV--RECOGNIZING OTHER FEDERAL ACTION, LAWS, AND MISSIONS

SEC. 401. BALANCE ESA WITH OTHER LAWS AND MISSIONS.

  (a) Federal Agency Actions.--Section 7 (16 U.S.C. 1536) is amended by 
amending the matter preceding subsection (b) 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(d) and (e), 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.
          ``(2) Programs administered by other agencies.--Except as 
        provided in section 5(d) and (e), each Federal agency shall 
        ensure that any action authorized, funded, or carried out by 
        such agency (hereinafter in this section referred to as an 
        `agency action') is not likely to jeopardize the continued 
        existence of any endangered species or threatened species or 
        destroy or adversely modify any habitat that is designated by 
        the Secretary as critical habitat of the species in a manner 
        that is likely to jeopardize the continued existence of the 
        species. In the case of any agency action that the agency has 
        determined is subject to this paragraph and that is likely to 
        significantly and adversely affect an endangered species or a 
        threatened species, the Federal agency shall fulfill the 
        requirements of this paragraph in consultation with and with 
        the assistance of the Secretary. As provided in section 
        5(d)(2), each Federal agency may initiate consultation with the 
        Secretary to receive guidance from the Secretary on the 
        consistency of its action with the conservation objective or 
        conservation plan for such species developed pursuant to 
        section 5, with an incidental take permit for such species 
        issued pursuant to section 10(a), or with a cooperative 
        management agreement concerning such species executed pursuant 
        to section 6(b). In fulfilling the requirements of this 
        paragraph each agency shall use the best available scientific 
        and commercial data, shall consider expert opinion and any 
        reasonable and prudent alternatives developed under subsection 
        (b)(3)(A), and shall render the decision of the agency in a 
        manner consistent with the obligations and responsibilities of 
        the agency under each applicable law and treaty.
          ``(3) Involvement of applicants for federal approvals.--
        Subject to such guidelines as the Secretary may establish, a 
        Federal agency shall consult with the Secretary on any 
        prospective agency action at the request of, with the 
        involvement of, and in cooperation with, the prospective permit 
        or license applicant if the applicant has reason to believe 
        that an endangered species or a threatened species may be 
        present in the area affected by his project, that the project 
        is inconsistent with the conservation objective or plan for 
        such species developed pursuant to section 5, an incidental 
        take permit for such species issued pursuant to section 10(a), 
        or a cooperative management agreement for such species executed 
        pursuant to section 6(b), and that implementation of such 
        action will likely affect such species.
          ``(4) Conferring on species proposed for listing.--Each 
        Federal agency shall confer with the Secretary on any agency 
        action which is likely to jeopardize the continued existence of 
        any species proposed to be listed under section 4 or to destroy 
        or adversely modify any habitat that is proposed to be 
        designated by the Secretary as critical habitat of such a 
        species in a manner that is likely to jeopardize the continued 
        existence of the species. This paragraph does not require a 
        limitation on the commitment of resources as described in 
        subsection (d).
          ``(5) Limitations on modifications to land management.--
        Notwithstanding any other provision of this Act, the authority 
        in this Act shall not be construed to authorize or form the 
        basis for any Federal agency to modify a land management plan, 
        policy, standard, or guideline or water allocation plan unless 
        a determination has been made under section 4 that a species is 
        threatened or endangered. Notwithstanding any other law or 
        regulation, management plans, practices, policies, projects, or 
        guidelines, including management plans which, as of October 1, 
        1995, are subject to modification pending completion of a final 
        environmental impact statement, shall not be amended for the 
        purpose of maintaining viable populations of native and desired 
        non-native species unless it is determined under this Act that 
        current practices are likely to jeopardize the continued 
        existence of the species.
          ``(6) Demonstration by secretary required.--The Secretary 
        shall have the responsibility of demonstrating, based on the 
        best information available at the time of the request for 
        consultation, that--
                  ``(A) a threatened species or endangered species or 
                its respective critical habitat is located in the 
                geographic area that would be affected by the proposed 
                action; 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 or endangered species based on the 
        insufficiency of available data on the impact of a proposed 
        action on such species.''.
  (b) Resolving Conflicts Between Federal Agencies.--Section 7(a), as 
amended by subsection (a) of this section and section 402 of this Act, 
is amended by adding at the end the following new paragraphs:
          ``(10) 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 conservation objective or the purposes 
        of the conservation 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.
          ``(11) Modification of projects and facilities.--Any 
        consultation and conferencing required under paragraphs (2) and 
        (4) for an agency action that consists solely of a modification 
        of a Federal, State, local government, or private project or 
        facility shall be limited to the consideration of the effects 
        that result from the modification that comprises the agency 
        action.''.
  (c) Procedures for Consultation.--Section 7(b) (16 U.S.C. 1536(b)) is 
amended by striking so much as precedes paragraph (3)(B) and inserting 
the following:
  ``(b) Opinion of Secretary.--
          ``(1) Periods within which consultation must be completed.--
        (A) Consultation under subsection (a)(2) with respect to any 
        agency action shall be concluded within the 90-day period 
        beginning on the date on which initiated by the Federal agency. 
        The period may be extended by not more than 45 days by the 
        Secretary or head of the Federal agency by publication of 
        notice in the Federal Register that sets forth the reasons for 
        the extension. Consultation on an agency action involving a 
        permit or license applicant shall be concluded not later than 
        the earlier of--
                  ``(i) 1 year after the date of submission of the 
                application to the Federal agency; or
                  ``(ii) the end of the period established under 
                subparagraph (B).
          ``(B) Subject to subparagraph (A), in the case of an agency 
        action involving a permit or license applicant, the Secretary 
        and the Federal agency may not mutually agree to conclude 
        consultation within a period exceeding 90 days unless the 
        Secretary, before the close of the 90th day referred to in 
        subparagraph (A)--
                  ``(i) if the consultation period proposed to be 
                agreed to will end before the 150th day after the date 
                on which consultation was initiated, submits to the 
                applicant a written statement setting forth--
                          ``(I) the reasons why a longer period is 
                        required,
                          ``(II) the information that is required to 
                        complete the consultation, and
                          ``(III) the estimated date on which 
                        consultation will be completed; or
                  ``(ii) if the consultation period proposed to be 
                agreed to will end on or after the 150th day but before 
                the 210th day after the date on which consultation was 
                initiated, obtains the consent of the applicant to such 
                period.
          ``(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.
          ``(D) A permit or license applicant shall be entitled to 
        participate fully in any consultation or conferencing under 
        this section with respect to any agency action required for the 
        granting of an authorization or provision of funding to the 
        applicant.
          ``(2) Procedure for applicant consultation.--Consultation 
        under subsection (a)(3) shall be concluded within such period 
        as is agreeable to the Secretary, the Federal agency, and the 
        applicant concerned.
          ``(3) Written opinion of secretary.--(A)(i) Promptly after 
        conclusion of consultation under paragraph (2) or (3) of 
        subsection (a), the Secretary shall provide to the Federal 
        agency and the applicant, if any, a written statement setting 
        forth the Secretary's opinion, and a summary of the information 
        on which the opinion is based, detailing whether the agency 
        action is consistent with the conservation objective or plan 
        developed pursuant to section 5, an incidental taking permit 
        issued pursuant to section 10(a), or a cooperative management 
        agreement executed pursuant to section 6(b). If the Secretary 
        determines that the action is likely to jeopardize the 
        continued existence of the species as described in subsection 
        (a), the Secretary shall suggest reasonable and prudent 
        alternatives (considering any reasonable and prudent 
        alternatives undertaken by other Federal agencies) that are 
        consistent with subsection (a)(2) and that impose the least 
        social and economic costs. In the development of a biological 
        opinion, the Secretary shall solicit and utilize information 
        and advice from the Governor of any State in which is located a 
        species or land that is the subject of the Federal action 
        requiring consultation.
          ``(ii) Unless required by law other than subsections (a) 
        through (d), the Secretary, in any opinion or statement 
        concerning an agency action made under this subsection 
        (including any reasonable and prudent alternative suggested 
        under clause (i) 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. Nothing in this clause 
        prevents the Secretary from pursuing any appropriate remedy 
        under section 11 for any activity prohibited by section 4(d) or 
        9.
          ``(iii) The Secretary shall not require a reasonable and 
        prudent alternative that may or will result in a significant 
        adverse impact upon waterfowl populations, waterfowl habitat 
        management, or waterfowl hunting opportunities in a significant 
        waterfowl breeding, staging, or wintering habitat area. In this 
        clause, the term `significant adverse impact' means any 
        actions, proposed or in effect, which individually or 
        cumulatively are likely to reduce the carrying capacity of 
        habitat for waterfowl by 10 percent or more of its current 
        capability, as determined on a local, regional, statewide or 
        national basis. In this clause, the term `significant waterfowl 
        breeding, staging, or wintering habitat areas' means those 
        private or public lands managed primarily for, or providing, 
        waterfowl breeding, staging or wintering habitat including 
        seasonal/permanent marsh lands or land under rice cultivation 
        for three out of the past five years.
          ``(iv) Notwithstanding any other provision of law, if the 
        Secretary renders an opinion or suggests any reasonable and 
        prudent alternative which has general application to a group of 
        individuals conducting a commercial operation, the Secretary 
        may not promulgate an emergency rule without providing at least 
        30 days for public comment on the emergency rule.
          ``(v) No additional measures to minimize or mitigate impacts 
        on a species that is a subject of an opinion issued under this 
        paragraph shall be required of a permit applicant or licensee 
        that is in compliance with the opinion and any agreement or 
        permit issued to implement the opinion.''.
  (d) Activities Prior to Completion of Consultation.--Section 7(d) (16 
U.S.C. 1536(d)) is amended to read as follows:
  ``(d) Limitation on Commitment of Resources.--
          ``(1) In general.--Except as provided in paragraph (2), after 
        initiation of consultation required under subsection (a)(2), 
        the Federal agency and the permit or license applicant shall 
        not make any irreversible or irretrievable commitment of 
        resources with respect to the agency action which has the 
        effect of foreclosing the formulation or implementation of any 
        reasonable and prudent alternative measures which would not 
        violate subsection (a)(2).
          ``(2) Relationship to land management planning 
        requirements.--If the listing of a species, or other procedure 
        or decision related to a species listed under section 4(c)(1), 
        requires consultation under subsection (a)(2) on a land use 
        plan or land or resource management plan (or an amendment to or 
        revision of the plan) prepared under section 202 of the Federal 
        Land Policy and Management Act of 1976 (43 U.S.C. 1712) or 
        section 6 of the Forest and Rangeland Renewable Resources 
        Planning Act of 1974 (16 U.S.C. 1604), the land management 
        agency implementing the plan may authorize, fund, or carry out 
        an agency action that is consistent with the plan prior to the 
        completion of the consultation, if, under the procedures 
        established by this section, the head of the land management 
        agency responsible for the action determines or has determined 
        that the action--
                  ``(A) is not likely to significantly and adversely 
                affect the species; or
                  ``(B) is likely to significantly and adversely affect 
                the species, and the Secretary issues an opinion on the 
                action that finds that the action--
                          ``(i) is not likely to jeopardize the 
                        continued existence of the species; or
                          ``(ii) is likely to jeopardize the continued 
                        existence of the species, and the agency agrees 
                        to a reasonable and prudent alternative.''.
  (e) Definitions.--Section 3 (16 U.S.C. 1532) is amended--
          (1) by adding after paragraph (15) (as added by section 
        204(a) of this Act) the following new paragraph:
          ``(16) 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.'';
          (2) by amending paragraph (18) (as redesignated by section 
        102(a)(1) of this Act) to read as follows:
          ``(18) The term `permit or license applicant' means, with 
        respect to the consultation procedures established by section 
        7, any person that requires authorization or funding from a 
        Federal agency as a prerequisite to conducting an activity 
        (including a party to a written lease, right-of-way, license, 
        contract to purchase or provide a product or service, or other 
        permit with a Federal agency) that requires an action from the 
        agency to obtain the benefit of the activity.''; and
          (3) by adding after paragraph (20) (as redesignated by 
        section 102(a)(1) of this Act) the following new paragraph:
          ``(21) The term `reasonable and prudent alternative' means an 
        alternative action under section 7(b)(3) during consultation on 
        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; 
                and
                  ``(D) the Secretary believes would avoid being likely 
                to jeopardize the continued existence of the 
                species.''.
  (f) Restriction on New or Additional Requirements.--
          (1) Compliance with biological opinion.--Section 7(b) (16 
        U.S.C. 1536(b)) is amended by adding at the end the following 
        new paragraph:
  ``(5) The Secretary shall, once a Biological Opinion has been 
rendered and the applicant has agreed to the terms and conditions 
contained in the Biological Opinion, provide to the applicant a written 
approval which shall guarantee that, so long as the project at issue is 
pursued consistent with the Biological Opinion, the applicant shall not 
be subject to new or additional requirements for the specific 
protection of any species beyond the requirements set forth in the 
Biological Opinion. All public entities shall be bound by the 
Secretary's approval.''.
          (2) Compliance with permit.--Section 10(a) (16 U.S.C. 
        1539(a)) is further amended by adding at the end the following 
        new paragraph:
          ``(8) Restriction on new or additional requirements.--The 
        Secretary shall, as part of the conservation planning process, 
        guarantee that, so long as the permittee is complying with the 
        terms and conditions of the permit issued under this section, 
        the permittee shall not be subject to new or additional 
        requirements for the specific protection of any species beyond 
        the requirements set forth in the conservation plan. All public 
        entities shall be bound by this guarantee.''.

SEC. 402. EXEMPTIONS FROM CONSULTATION AND CONFERENCING.

  Section 7(a), as amended by section 401(a) of this Act, is amended by 
adding at the end the following new paragraphs:
          ``(8) Actions exempt from consultation and conferencing.--
        Consultation and conferencing under paragraphs (2) and (4) 
        shall not be required for any agency action that--
                  ``(A) is consistent with the provisions of a final 
                conservation plan under section 5(c)(5) or a 
                conservation objective described in section 5(b)(3);
                  ``(B) is consistent with a cooperative management 
                agreement or an incidental taking permit;
                  ``(C) addresses a critical, imminent threat to public 
                health or safety or a catastrophic natural event or 
                compliance with Federal, State, or local safety or 
                public health requirements;
                  ``(D) 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; 
                or
                  ``(E) permits activities that occur on private land.
          ``(9) 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 
                conservation plan under section 5(c)(5) or a 
                conservation objective described in section 5(b)(3);
                  ``(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. 403. ELIMINATING THE EXEMPTION COMMITTEE (GOD 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 and to reduce the potential loss of 
                human life; and
                  ``(B) involves an emergency situation that does not 
                allow the procedures of this Act (other than this 
                subsection) to apply.''.
  (c) Repeal.--Subsections (f) through (p) of section 7 (16 U.S.C. 
1536(f)-(p)) are repealed.

     TITLE V--BETTER MANAGEMENT AND CONSERVATION OF LISTED SPECIES

SEC. 501. SETTING CONSERVATION OBJECTIVES.

  Section 5 (16 U.S.C. 1534) is redesignated as section 5A, and the 
following new section is added after section 4:

``SEC. 5. SPECIES CONSERVATION PLANS.

  ``(a) In General.--Except as provided in subsection (b)(3)(C), the 
Secretary shall publish a conservation objective and a conservation 
plan for each species determined to be an endangered species or a 
threatened species pursuant to section 4.
  ``(b) Development of Conservation Objective.--
          ``(1) Assessment and planning team.--Not later than 30 days 
        after the listing determination, the Secretary shall appoint an 
        assessment and planning team which shall not be subject to the 
        Federal Advisory Committee Act (5 U.S.C. App.) and shall 
        consist of--
                  ``(A) experts in biology or pertinent scientific 
                fields, economics, property law and regulation, and 
                other appropriate disciplines from the Department of 
                the Secretary, other Federal agencies, and the private 
                sector;
                  ``(B) a representative nominated by the Governor of 
                each affected State;
                  ``(C) representatives nominated by each affected 
                local government, if the local government agrees to the 
                appointment of a representative; and
                  ``(D) representatives of persons who may be directly, 
                economically impacted by the conservation plan.
        The chairman of the team shall be selected from representatives 
        of participating States or local governments.
          ``(2) Assessments.--Not later than 180 days after the listing 
        determination, the assessment and planning team shall report to 
        the Secretary the assessment of the following biological, 
        economic, and intergovernmental factors with respect to the 
        listed species:
                  ``(A) The team shall assess--
                          ``(i) the biological considerations necessary 
                        to carry out this Act;
                          ``(ii) the biological significance of the 
                        species;
                          ``(iii) the geographic range and occupied 
                        habitat of the species, and the type and 
                        amounts of habitat needed, at a minimum, to 
                        maintain the existence of the species and, at a 
                        maximum, to secure recovery of the species;
                          ``(iv) the current population, and the 
                        population trend, of the species;
                          ``(v) the technical practicality of 
                        recovering the species;
                          ``(vi) the potential management measures 
                        capable of recovering, or reducing the risks to 
                        survival of, the species, including the 
                        contribution of existing or potential captive 
                        breeding programs for the species, predator 
                        control, enhancement of food sources, 
                        supplemental feeding, and other methods which 
                        enhance the survival of the young of the 
                        species; and
                          ``(vii) where appropriate, the demonstrable 
                        commercial or medicinal value of the species.
                  ``(B) The 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 and any 
                potential management measures identified under 
                subparagraph (A)(vi), including impacts on the cost of 
                governmental actions, tax and other revenues, 
                employment, the use and value of property, other 
                social, cultural, and community values, and an 
                assessment of any commercial activity which could 
                potentially result in a net benefit to the conservation 
                of the species.
                  ``(C) The team shall assess the impacts on State and 
                local land use laws, conservation measures, and water 
                allocation policies that may result from the listing 
                determination and from the potential management 
                measures identified under subparagraph (A)(vi).
                  ``(D) The Secretary shall provide funding to the team 
                to employ or obtain such technical assistance as 
                necessary to fulfill its duties under this paragraph.
                  ``(E) Upon completion of the assessment, the 
                Secretary shall publish in the Federal Register a 
                notice of availability of the report and allow 30 days 
                for public comment.
          ``(3) Secretarial review of assessments and establishment of 
        conservation objective.--(A) Not later than 210 days after a 
        listing determination, the Secretary shall review the report of 
        the assessment and planning team prepared pursuant to paragraph 
        (2), establish a conservation objective for the species, and 
        publish in the Federal Register the conservation objective, 
        along with a statement of findings on which the conservation 
        objective was established.
          ``(B) The conservation objective may be, in the discretion of 
        the Secretary--
                  ``(i) recovery of the listed species;
                  ``(ii) such level of conservation of the species 
                which the Secretary determines practicable and 
                reasonable to the extent that the benefits of the 
                potential conservation measures outweigh the economic 
                and social costs of such measures, including but not 
                limited to maintenance of existing population levels;
                  ``(iii) no Federal action other than enforcement 
                against any person whose activity violates the 
                prohibitions specified in section 9(a), including any 
                activity that results in a taking of the species, 
                unless the taking is incidental to, and not the purpose 
                of, the carrying out of an otherwise lawful activity; 
                or
                  ``(iv) such other objective as the Secretary may 
                determine that does not provide a lesser level of 
                protection than the level described in clause (iii).
          ``(C) If the conservation objective established by the 
        Secretary is the objective provided in subparagraph (B)(iii), 
        the Secretary shall not develop a conservation plan for the 
        affected species under subsection (c).''.

SEC. 502. PREPARING A CONSERVATION PLAN.

  (a) In General.--Section 5 (16 U.S.C. 1534), as added by section 501 
of this Act, is amended by adding at the end the following new 
subsections:
  ``(c) Development of Conservation Plan.--
          ``(1) Priorities.--In the development and implementation of a 
        conservation plan under this subsection, the Secretary shall 
        accord priority to--
                  ``(A) the development of an integrated plan for 2 or 
                more endangered species or threatened species that are 
                likely to benefit from an integrated conservation plan;
                  ``(B) the geographic areas where conflicts between 
                the conservation of the affected species and 
                development projects or other forms of economic 
                activity exist or are likely to exist;
                  ``(C) protection of the listed species on units of 
                the National Biological Diversity Reserve as provided 
                in section 5A(a);
                  ``(D) the implementation of conservation measures 
                that have the least economic and social costs;
                  ``(E) nonregulatory, incentive-based conservation 
                measures and commercial activities that provide a net 
                benefit to the conservation of the species; and
                  ``(F) plans in which States or private organizations 
                or persons are the primary implementors.
          ``(2) Publication of draft plan.--Not later than 12 months 
        after the date of a determination that a species is an 
        endangered species or a threatened species, the assessment and 
        planning team for the species shall publish a draft 
        conservation plan for the species which is based on the 
        assessments made pursuant to subsection (b)(2) and designed to 
        achieve the conservation objective established pursuant to 
        subsection (b)(3).
          ``(3) Contents of draft plan.--Each draft conservation plan 
        shall contain--
                  ``(A) recommendations for Federal agency compliance 
                with section 7(a)(1) and 7(a)(2);
                  ``(B) 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;
                  ``(C) alternative strategies to achieve the 
                conservation objective for the listed species which 
                range from a strategy requiring the least possible 
                Federal management to achieve the conservation 
                objective to a strategy involving more intensive 
                Federal management to achieve the objective, each of 
                which contains--
                          ``(i) an estimate of the risks to the 
                        survival and recovery of the species that the 
                        alternative would entail;
                          ``(ii) a description of any site-specific 
                        management measures recommended for the 
                        alternative;
                          ``(iii) an analysis of the relationship of 
                        any habitat of the species proposed for 
                        designation as critical habitat to the 
                        recommended management measures;
                          ``(iv) a description of the direct, indirect, 
                        and cumulative economic and social impacts on 
                        the public and private sectors including 
                        impacts on employment, the cost of government 
                        actions, tax and other revenues, the use and 
                        value of property, and other social, cultural, 
                        and community values;
                          ``(v) a description of any captive breeding 
                        program recommended for the alternative;
                          ``(vi) an analysis of whether the alternative 
                        would include any release of an experimental 
                        population outside the current range of the 
                        species and an identification of candidate 
                        geographic areas for the release;
                          ``(vii) objective and measurable criteria, 
                        including a population level target, that, if 
                        met, would result in a determination under 
                        section 4 that the species is no longer an 
                        endangered species or threatened species;
                          ``(viii) estimates of the time and costs 
                        required to carry out the management measures, 
                        including any intermediate steps; and
                          ``(ix) a description of the role of each 
                        affected State, if any, in achieving the 
                        conservation objective.
          ``(4) Plan preparation procedures.--(A) The Secretary shall 
        consult with the Governor of each State in which the affected 
        species is located during the preparation of each draft and 
        final conservation plan. Each plan shall provide for equitable 
        treatment of affected States and other non-Federal persons.
          ``(B) The Secretary shall publish in the Federal Register and 
        a newspaper of general circulation in each affected county and 
        parish a notice of the availability and a summary of, and a 
        request for the submission of comments on, each draft 
        conservation plan.
          ``(C) The Secretary shall hold at least 1 hearing on each 
        draft conservation plan in each State to which the plan would 
        apply in a location that is as close as possible to the center 
        of the habitat of the affected species in such State.
          ``(D) Prior to any decision to adopt a final conservation 
        plan, the Secretary shall consider and weigh carefully all 
        information presented during each hearing held under 
        subparagraph (C) or received in response to a request for 
        comments published under subparagraph (B).
          ``(5) Publication of final plan.--Not later than 18 months 
        from the date of a determination that a species is an 
        endangered species or a threatened species, the Secretary shall 
        publish in the Federal Register a notice of the availability, 
        and a summary, of a final conservation plan for the species. 
        The notice shall include a detailed description of--
                  ``(A) the reasons for the selection of the final 
                conservation plan;
                  ``(B) the reasons for not selecting each of the other 
                alternatives included in the draft conservation plan, 
                including, if any alternative is selected other than 
                the alternative that would impose the least total costs 
                on the public and private sectors, the reasons for such 
                selection;
                  ``(C) the effect of the priorities specified in 
                paragraph (1) on the selection; and
                  ``(D) the response of the Secretary to the 
                information referred to in paragraph (4).
          ``(6) Participation by other persons.--In developing and 
        implementing conservation plans, the Secretary may use the 
        services of appropriate public and private agencies and 
        institutions and other qualified persons.
          ``(7) Plan revision or amendment.--Any revision of or 
        amendment to a conservation plan shall be made in accordance 
        with the procedures and requirements of subsection (b) and this 
        subsection, except that the Secretary by regulation may provide 
        for other procedures and requirements for any amendment that 
        does not increase the direct or indirect cost of implementation 
        of the plan or enlarge the area to which the plan applies.
  ``(d) No Further Procedures or Requirements for Actions Consistent 
With the Conservation Plan.--If a conservation plan is prepared under 
subsection (c) or if a conservation objective is established under 
subsection (b)(3)(C)--
          ``(1) any Federal agency that determines that the actions of 
        the agency are consistent with the provisions of the 
        conservation plan or conservation objective shall be considered 
        to comply with section 7(a)(1) for the affected species;
          ``(2) any agency action that the Federal agency determines is 
        consistent with the provisions of the conservation plan or 
        conservation objective shall not be subject to section 7(a)(2) 
        for the affected species, except that a Federal agency may 
        initiate consultation under section 7(a)(2) if the agency 
        desires guidance from the Secretary on the consistency of the 
        action of the agency with the conservation plan or conservation 
        objective; and
          ``(3) any action of any person that is consistent with the 
        provisions of the conservation plan or conservation objective 
        shall not constitute a violation concerning the affected 
        species of any applicable prohibition under section 9(a) or 
        4(d), except that a non-Federal person may initiate 
        consultation under section 10(a)(2)--
                  ``(A) if the person desires guidance from the 
                Secretary on the consistency of the action with the 
                plan or objective; or
                  ``(B) in order to determine whether to apply for a 
                permit under section 10 for any action that is 
                inconsistent with the plan or objective.''.
  (b) Conservation Objective and Conservation Rule Defined.--Section 
3(4) (16 U.S.C. 1532), as redesignated by section 102(a) of this Act, 
is amended to read as follows:
          ``(4) The terms `conservation objective' and `conservation 
        plan' (except when modified by `non-Federal') mean a 
        conservation objective and a conservation plan, respectively, 
        developed under section 5.''.

SEC. 503. INTERIM MEASURES.

  Section 5, as added by section 501 of this Act and as amended by 
section 502 of this Act, is amended by adding at the end the following 
new subsections:
  ``(e) Management Prior to Publication of Conservation Plan.--
          ``(1) In general.--After a listing determination and before 
        the publication of a final conservation plan, or, if no plan is 
        required pursuant to subsection (b)(3)(C), a conservation 
        objective, for the species--
                  ``(A) the prohibitions of section 9(a) shall apply to 
                any person, except in the case of a taking of a member 
                of the species that is incidental to, and not the 
                purpose of, the carrying out of an otherwise lawful 
                activity which incidental taking activity may include 
                but is not limited to the routine operation, 
                maintenance, rehabilitation, replacement, or repair of 
                any structure, building, road, dam, airport, or any 
                irrigation or other facility which is in operation 
                prior to the publication of the determination under 
                section 4(b)(6); and
                  ``(B) no Federal agency shall be required to comply 
                with section 7(a)(1) and no consultation shall be 
                required on any agency action under section 7(a)(2), 
                except that the species shall continue to be treated as 
                a species proposed for listing under section 4 solely 
                for purposes of section 7(a)(4).
          ``(2) Emergency rulemaking protections.--Notwithstanding 
        paragraph (1), sections 7(a) and 9(a) shall apply fully to the 
        listed species during a period in which an emergency rulemaking 
        is in effect pursuant to section 4(b)(7) or if the President 
        declares, and advises the Secretary, that there exists an 
        imminent threat to the existence of the species. Such 
        declaration of the President expires upon the deadline for 
        publication of a final conservation plan for the species 
        pursuant to subsection (c)(5) or the publication of a 
        conservation objective for the species provided in subsection 
        (b)(3) or if no conservation plan is required pursuant to 
        subsection (b)(3)(C).
  ``(f) Suspension of Conservation Plan or Objective.--If the Secretary 
issues an incidental take permit or enters into a cooperative 
management agreement under section 6, the Secretary, by publication of 
notice in the Federal Register, shall suspend the conservation 
objective or conservation plan with respect to the geographic area or 
action applicable to the species to which the permit or agreement 
applies.
  ``(g) Nondelegation of Duties.--The Secretary may not delegate the 
authority to make the final decision to select a conservation 
objective, issue a conservation plan, or designate critical habitat 
under this section.
  ``(h) Review of Conservation Plans.--
          ``(1) Deadlines.--The Secretary shall review each 
        conservation plan and the conservation objective on which it is 
        based before the end of the 5-year period that begins on the 
        date of publication of the conservation plan, and before the 
        end of each 5- year period thereafter.
          ``(2) Revisions.--The Secretary shall revise a conservation 
        plan or the conservation objective on which it is based if the 
        Secretary determines--
                  ``(A) through a 5-year review under paragraph (1), 
                that the conservation plan or conservation objective 
                does not meet the requirements of this section; or
                  ``(B) at any time--
                          ``(i) that funding is not available for the 
                        implementation of a specific conservation 
                        measure that is integral to the conservation 
                        plan or that a more cost-effective alternative 
                        exists for a specific conservation measure that 
                        is integral to the conservation plan; or
                          ``(ii) on the basis of scientific or 
                        commercial data that were not available during 
                        the development of the conservation objective 
                        or conservation plan, that the conservation 
                        objective is not achievable or the conservation 
                        plan will not achieve the conservation 
                        objective.
          ``(3) No reopening of consultations.--Section 7 consultations 
        shall not be reopened as a result of modifications to a 
        conservation plan under paragraph (2).''.

SEC. 504. CRITICAL HABITAT FOR SPECIES.

  (a) Critical Habitat Designation.--Section 5, as added by section 501 
of this Act and as amended by sections 502 and 503 of this Act, is 
amended by adding at the end the following new subsections:
  ``(i) Critical Habitat Designation.--
          ``(1) Designation.--The Secretary--
                  ``(A) may, by regulation and to the extent prudent 
                and determinable, designate critical habitat of a 
                species determined to be an endangered species or 
                threatened species that meets the requirements of 
                paragraph (3) utilizing the National Biodiversity 
                Reserve established under section 5A(a) as a first 
                priority;
                  ``(B) may by regulation and to the extent prudent and 
                determinable, revise a critical habitat designation on 
                determining that the critical habitat does not meet the 
                requirements of paragraph (3); and
                  ``(C) shall, by regulation and upon receiving a 
                written request from a non-Federal person requesting a 
                review of the critical habitat designation on such 
                person's private property, revise a critical habitat 
                designation on such private property on determining 
                that the critical habitat does not meet the 
                requirements of paragraph (3).
        Designation or revision of critical habitat shall not result in 
        reopening or reinitiation of consultations on Federal actions 
        pursuant to section 7.
          ``(2) Deadlines for designation.--Any proposed regulation and 
        any final regulation to designate or revise critical habitat 
        shall be published not later than 12 months and 18 months, 
        respectively, after the date on which the affected species is 
        determined to be an endangered species or a threatened species, 
        or on which the Secretary receives a written request to review 
        a critical habitat designation under paragraph (1)(C).
          ``(3) Basis for designation.--The designation of critical 
        habitat, and any revision of the designation, shall be made on 
        the basis of the best available scientific and commercial data 
        after taking into consideration the economic impact, and any 
        other relevant impact, of designating any particular area as 
        critical habitat and of the determination that the affected 
        species is an endangered species or threatened species. The 
        Secretary shall exclude any area from critical habitat--
                  ``(A) which does not meet the definition of critical 
                habitat set forth in section 3(7);
                  ``(B) which is not necessary to achieve the 
                conservation objective for the affected species 
                established pursuant to subsection (b);
                  ``(C) for which the Secretary determines that the 
                benefits of the exclusion of the area from designation 
                as critical habitat outweigh the benefits of 
                designation, unless the Secretary determines, on the 
                basis of the best available scientific and commercial 
                data, that the failure to designate the area as 
                critical habitat will result in the extinction of the 
                affected species; or
                  ``(D) in the case of property owned by a non-Federal 
                person, where the owner thereof has not given written 
                consent to the designation, has withdrawn such consent 
                in writing, or has not been compensated as provided in 
                section 19.
          ``(4) Procedure for designation.--In the Federal Register 
        notice containing the proposed regulation to designate critical 
        habitat, the Secretary shall describe the economic impacts and 
        other relevant impacts that are to be considered, and the 
        benefits that are to be weighed, under paragraph (3) in 
        designating an area as critical habitat, along with maps 
        showing the location of the area to be designated as critical 
        habitat. The Secretary shall submit the description, and the 
        documentation supporting the description, to the Bureau of 
        Labor Statistics of the Department of Labor. The Commissioner 
        of Labor Statistics shall submit written comments during the 
        comment period on the proposed regulation. The Secretary shall 
        hold at least one public hearing in each State on the proposed 
        rule in which critical habitat is designated for a species. In 
        issuing any final regulation designating critical habitat, the 
        Secretary shall respond separately and fully to each comment.
          ``(5) Judicial review of critical habitat designation.--The 
        decision whether to designate critical habitat shall be subject 
        to a de novo judicial review with the court determining whether 
        the decision is supported by a preponderance of the evidence.
  ``(j) Judicial Review of Conservation Objective or Plan.--The 
standard for judicial review of any decision of the Secretary, or a 
Federal agency pursuant to this section shall be whether the decision 
is arbitrary, capricious, an abuse of discretion, or otherwise not in 
accordance with law.
  ``(k) Conservation Plans for Foreign Species.--In developing 
conservation objectives and conservation plans under this section, the 
Secretary shall, in regard to foreign species--
          ``(1) act consistently with the Convention; and
          ``(2) cooperate and support the conservation strategy adopted 
        for that species by any foreign nation in which the species 
        occurs.''.
  (b) Conforming Amendments.--Section 4(b)(6) (16 U.S.C. 1533(b)(6)) is 
amended--
          (1) in subparagraph (B)(i) by striking ``or revision 
        concerned'';
          (2) in subparagraph (B)(iii) by striking ``or revision 
        concerned, a finding that the revision should not be made,''; 
        and
          (3) by striking subparagraph (C).
  (c) Conforming Amendment.--Section 4(b)(8) (16 U.S.C. 1533(b)(8)) is 
amended by striking ``regulation'' the third time it appears and all 
that follows through the end of the paragraph and inserting 
``regulation.''.
  (d) Definition of Critical Habitat.--Section 3(7), as redesignated by 
section 102(a) of this Act, is amended to read as follows:
          ``(7)(A) The term `critical habitat' for an endangered 
        species or a threatened species means the specific areas which 
        are within the geographic area found to be occupied by a 
        species at the time the species is determined to be an 
        endangered species or a threatened species in accordance with 
        section 4 and which contain such physical or biological 
        features as--
                  ``(i) are essential to the persistence of the species 
                over the 50-year period beginning on the date the 
                regulation designating the critical habitat, or any 
                revision of the regulation, is promulgated; and
                  ``(ii) require special management considerations or 
                protection.
          ``(B) Except in those circumstances determined by the 
        Secretary, critical habitat shall not include the entire 
        geographical area occupied by the threatened species or 
        endangered species.''.

SEC. 505. RECOGNITION OF CAPTIVE PROPAGATION AS MEANS OF RECOVERY.

  Section 5, as added by section 501 of this Act and as amended by 
sections 502, 503, and 504 of this Act, is amended by adding at the end 
the following new subsection:
  ``(l) Recognition of Captive Propagation as Means of Conservation.--
          ``(1) In general.--In carrying out this Act, the Secretary 
        shall recognize to the maximum extent practicable, and may 
        utilize, captive propagation as a means of protecting or 
        conserving an endangered species or a threatened species.
          ``(2) Captive propagation grants.--The Secretary may, subject 
        to appropriations therefor, provide annual grants to non-
        Federal persons to fund captive propagation programs for the 
        purpose of protecting or conserving any species that is 
        determined under section 4 to be an endangered species or a 
        threatened species, if the Secretary determines that such a 
        program contributes to enhancement of the population of the 
        species.''.

SEC. 506. INTRODUCTION OF SPECIES.

  Section 10(j) (16 U.S.C. 1539(j)) is amended--
          (1) by amending paragraph (2)(B) to read as follows:
  ``(B) Before authorizing the release of any population under 
subparagraph (A), the Secretary shall by regulation--
          ``(i) identify the population and the precise boundaries of 
        the geographic area for the release and determine, on the basis 
        of the best available information, whether the release is in 
        the public interest, whether or not such population is 
        essential to the continued existence of an endangered species 
        or a threatened species; and
          ``(ii) in the case of a release of a species of predatory 
        mammal in a unit of the National Park System or the National 
        Wildlife Refuge System--
                  ``(I) require that if the species enters private 
                property, measures shall be taken to remove the species 
                from the property and protect the safety and welfare of 
                the public and domestic animals, including livestock; 
                and
                  ``(II) provide funding for such measures, including 
                compensation for dimunition of property values pursuant 
                to section 19 of this Act.'';
          (2) in paragraph (2)(C)--
                  (A) in clause (i) by striking ``and'' after the 
                semicolon; and
                  (B) by striking clause (ii) and inserting the 
                following:
          ``(ii) for the purposes of sections 4(d) and 9(a)(1)(B), any 
        member of an experimental population found outside the 
        geographic area in which the population is released shall not 
        be treated as a threatened species if the member poses a threat 
        to the welfare of the public; and
          ``(iii) critical habitat shall not be designated under this 
        Act or if designated prior to the Endangered Species 
        Conservation and Management Act of 1995, shall be removed from 
        any non-Federal land, for any experimental population 
        determined under subparagraph (B) to be not essential to the 
        continued existence of a species.'';
          (3) by adding at the end of paragraph (2) the following new 
        subparagraph:
  ``(D) The Secretary shall determine under subparagraph (B) that a 
population is not essential to the continued existence of an endangered 
species or threatened species, unless the Secretary determines on the 
basis of the best available scientific and commercial data that the 
loss of one or more of the members of the population will result in the 
extinction of the species.'';
          (4) by redesignating paragraph (3) as paragraph (6); and
          (5) by inserting after paragraph (2) the following new 
        paragraphs:
          ``(3) Requirements for releases.--In authorizing the release 
        of a population under paragraph (2), the Secretary shall 
        require that--
                  ``(A) to the maximum extent practicable, the release 
                occurs only in a unit of the National Park System or 
                the National Wildlife Refuge System;
                  ``(B) a release outside a unit occurs only in an area 
                that has been identified as a candidate site for 
                release of the population in a conservation plan for 
                the species;
                  ``(C) in the case of a release outside a unit, 
                measures to protect the safety and welfare of the 
                public and domestic animals and the funding for the 
                measures are identified in the regulations authorizing 
                the release and are implemented;
                  ``(D) the regulations authorizing the release 
                identify precisely the geographic area for the release;
                  ``(E) a release on non-Federal land occurs only with 
                the written consent of the owner of the land;
                  ``(F) the regulations authorizing the release include 
                measurable reintroduction goals to restore viable 
                populations only within the specific geographic area 
                identified for release in the regulations;
                  ``(G) the regulations authorizing the release 
                obligate the Secretary to remove members of the 
                population from non-Federal land at the written request 
                of the landowner and within a reasonable period of time 
                after receiving such a request, not to exceed 90 days; 
                and
                  ``(H) the regulations authorizing the release of a 
                population that is determined under this paragraph to 
                not be essential to the survival of a species shall 
                provide that, notwithstanding any other provision of 
                this Act, a taking of a member of such population shall 
                not be treated as a taking if it is--
                          ``(i) not knowing,
                          ``(ii) not willful, or
                          ``(iii) incidental to, and not the purpose 
                        of, otherwise lawful activity.
          ``(4) Compliance with state law.--In authorizing any release 
        under paragraph (2), the Secretary shall ensure that the 
        release does not conflict with the laws of affected States 
        relating to the species to be released.
          ``(5) Determination regarding populations authorized before 
        effective date of endangered species conservation and 
        management act of 1995.--(A) For each population of a species 
        that the Secretary, before the effective date of the Endangered 
        Species Conservation and Management Act of 1995, authorized the 
        release of in a geographical area separate from the other 
        populations of the species, the Secretary shall determine by 
        regulation whether or not the population is essential to the 
        continued existence of the species.
          ``(B) If the Secretary receives a written request for the 
        issuance of a regulation under subparagraph (A) for a 
        population for which the Secretary has not issued such a 
        regulation, the Secretary shall promptly issue such a 
        regulation by not later than 180 days after receiving the 
        request.''.

SEC. 507. CONSERVING THREATENED SPECIES.

  (a) Regulations.--Section 4(d) (16 U.S.C. 1533(d)) is amended to read 
as follows:
  ``(d) Regulations To Protect Threatened Species.--Whenever any 
species is listed as a threatened species pursuant to subsection (c), 
the Secretary shall issue, concurrently with the regulation that 
provides for the listing of the species, such regulations as the 
Secretary deems necessary and advisable to provide for the conservation 
of such species. Such regulations may apply to the threatened species 
one or more of the prohibitions under section 9(a)(1), in the case of 
fish and wildlife, or section 9(a)(2) in the case of plants, with 
respect to endangered species. The prohibition applied to the 
threatened species shall address the specific circumstances of such 
species and may not be as restrictive as such prohibition for 
endangered species. With respect to the taking of resident species of 
fish or wildlife, such regulations shall apply in any State which has 
entered into a cooperative agreement or delegation agreement pursuant 
to section 6 only to the extent that such regulations have also been 
adopted by such State.''.
  (b) Conforming Amendments.--Section 4 (16 U.S.C. 1533) is amended--
          (1) by striking subsection (f); and
          (2) by redesignating subsections (g), (h), and (i) in order 
        as subsections (f), (g), and (h).
  (c) Conservation Guidelines.--Section 4 is amended in subsection (g), 
as redesignated by subsection (b)(2) of this section, by amending 
paragraph (3), as redesignated by section 304(b)(2) of this Act, to 
read as follows:
          ``(3) a system for developing and implementing, on a priority 
        basis, conservation objectives and conservation plans. The 
        Secretary shall provide to the public notice of, and 
        opportunity to submit written comments on, any guideline 
        (including any amendment thereto) proposed to be established 
        under this subsection.''.

SEC. 508. DELEGATION OF AUTHORITY TO STATES.

  Section 5 is further amended by adding at the end the following new 
subsection:
  ``(n) Delegation to State.--(1) At the request of a State, the 
Secretary shall delegate either under a cooperative management plan or 
a delegation agreement as provided in section 6, to the State the 
authority to develop and implement conservation objectives and plans 
for a species or group of species determined to be endangered species 
or threatened species, unless the Secretary determines that the State 
lacks authority and capability to carry out the requirements of this 
Act. If the Secretary determines that the State lacks authority and 
capability, the Secretary shall notify the Governor of the State of the 
specific concerns and specify measures necessary to address those 
concerns and provide the Governor with the opportunity to take the 
actions necessary to address those concerns.
  ``(2) The Secretary shall monitor the actions of the State to develop 
and implement a conservation objective and conservation plan. The 
Secretary shall assist the States in coordinating their actions with 
other affected States where the species may occur.
  ``(3) If the Secretary determines that the State is not in compliance 
with this Act, the cooperative management agreement, or the delegation 
agreement, the Secretary shall so notify the State and shall specify 
the areas of noncompliance. The States shall have 60 days in which to 
respond and in which to come into compliance. If the State fails to 
adequately respond or to come into compliance, the Secretary is 
authorized to resume responsibility for the development and 
implementation of the conservation objective and plan.''.

                     TITLE VI--HABITAT PROTECTIONS

SEC. 601. FEDERAL BIOLOGICAL DIVERSITY RESERVE.

  Section 5A, as redesignated by section 501 of this Act, is amended to 
read as follows:

``SEC. 5A. PROTECTION OF HABITAT.

  ``(a) Establishment of National Biological Diversity Reserve.--
          ``(1) In general.--There is hereby established a National 
        Biological Diversity Reserve (hereinafter in this Act referred 
        to as the `Reserve'). The Reserve shall be composed of units of 
        Federal and State lands designated in accordance with paragraph 
        (2) and managed in accordance with paragraph (3).
          ``(2) Designation of reserve units.--(A) Not later than 18 
        months after the date of enactment of the Endangered Species 
        Conservation and Management Act of 1995, the Secretary of the 
        Interior and the Secretary of Agriculture shall designate to 
        the Reserve by regulation those units of the national 
        conservation systems which are within the jurisdiction of the 
        Secretary concerned and which the Secretary determines would 
        contribute to biological diversity in accordance with the 
        provisions of this Act. The term `national conservation 
        systems' means wholly federally owned lands within the National 
        Park System, the National Wildlife Refuge System, or the 
        National Wilderness Preservation System, and wild segments of 
        rivers within the National Wild and Scenic Rivers System.
          ``(B) The Secretary of the Interior shall--
                  ``(i) designate to the Reserve by regulation a unit 
                of State-owned lands if such unit is nominated for 
                designation by the Governor of the State and is managed 
                under State law in accordance with paragraph (3);
                  ``(ii) designate to the Reserve by regulation 
                privately owned land that is nominated for designation 
                by the owner of the land, and shall remove such land 
                from the Reserve if the owner requests removal;
                  ``(iii) remove from the Reserve by regulation any 
                unit designated pursuant to clause (i) which the 
                Secretary finds is not managed under State law in 
                accordance with paragraph (3); and
                  ``(iv) remove from the Reserve any State-owned lands 
                at the request of the Governor of that State.
          ``(C) Designation of a Reserve unit shall not affect any 
        valid existing permit, contract, license, right, right-of-way, 
        access, interest in land, right to use or receive water, or 
        property right.
          ``(3) Management of the reserve.--(A) Each unit of the 
        Reserve may have as a goal the conservation of biological 
        diversity. Such goal shall be supplementary and secondary to 
        other purposes established for such unit by or pursuant to any 
        provision of law applicable to such unit. Management for 
        biological diversity shall not be inconsistent with or diminish 
        other unit purposes, other provisions of law applicable to such 
        unit, and activities which occur or are authorized to occur on 
        such unit.
          ``(B) The manager of each Reserve unit should consistent with 
        paragraph (4) utilize his authority to use active management 
        and recovery measures, including those specified in section 
        5(b)(2)(A)(vi), and shall conduct a survey to determine the 
        populations of species within the Reserve.
          ``(C) Nothing in this section shall--
                  ``(i) alter, establish, or affect the respective 
                rights of the United States, the States, or any person 
                with respect to any water or water-related right; or
                  ``(ii) affect the laws, rules, and regulations 
                pertaining to hunting, fishing, and other lawful 
                wildlife harvest under existing State and Federal laws 
                and Indian treaties.
          ``(D) Within 1 year of the designation of a unit to the 
        Reserve, the manager of such unit shall complete, and the 
        Secretary concerned shall make available to the public by 
        notice in the Federal Register, an inventory of the species 
        composing the biological diversity within such unit.
          ``(4) Other federal lands.--Nothing in this Act shall be 
        construed as limiting the authority of the Secretary of the 
        Interior or the Secretary of Agriculture to take such actions 
        as are necessary and authorized by other law to protect, 
        maintain, and enhance biological diversity on other Federal 
        lands not designated to the Reserve except that, before taking 
        any such action, the Secretary concerned shall make a finding 
        based on the best available scientific and commercial data, 
        that the biological diversity for which such action is proposed 
        is not protected, maintained, or enhanced in whole or 
        substantial part on any unit of the Reserve. Such finding shall 
        be published, along with the reasons therefor in the Federal 
        Register.''.

SEC. 602. LAND ACQUISITION.

  Section 5A, as redesignated by section 501 of this Act and as amended 
by section 601 of this Act, is amended by adding at the end the 
following new subsection:
  ``(b) Land Acquisition.--
          ``(1) Program.--The Secretary, and the Secretary of 
        Agriculture with respect to the National Forest System, shall 
        establish and implement a program to conserve fish, wildlife, 
        and plants, including those which are determined to be 
        endangered species or threatened species pursuant to section 4. 
        To carry out such a program, the appropriate Secretary--
                  ``(A) shall utilize the land acquisition and other 
                authority under the Fish and Wildlife Act of 1956 (16 
                U.S.C. 742a et seq.), the Fish and Wildlife 
                Coordination Act (16 U.S.C. 661 et seq.), and the 
                Migratory Bird Conservation Act (16 U.S.C. 715 et 
                seq.), as appropriate; and
                  ``(B) is authorized to acquire by purchase, lease, 
                donation, or otherwise, lands, waters, or interest 
                therein, including short- or long-term conservation 
                easements, and such authority shall be in addition to 
                any other land acquisition authority vested in that 
                Secretary.
          ``(2) Availability of funds for acquisition of lands, water, 
        etc.--Funds made available pursuant to the Land and Water 
        Conservation Fund Act of 1965 (16 U.S.C. 4601-4 et seq.) and 
        funds made available under section 13(c)(4) may be used for the 
        purpose of acquiring or leasing lands, waters, or interests 
        therein under this subsection.''.

SEC. 603. PROPERTY EXCHANGES.

  Section 5A, as redesignated by section 501 of this Act and as amended 
by sections 601 and 602 of this Act, is amended by adding at the end 
the following new subsections:
  ``(c) Exchanges.--
          ``(1) In general.--In accordance with subsection (a), the 
        Secretary of the Interior and the Secretary of Agriculture 
        shall encourage exchanges of lands, waters, or interests in 
        land or water within the jurisdiction of each Secretary (other 
        than units of the National Park System and units of the 
        National Wilderness Preservation System) for lands, waters, or 
        interests in land or water that are not in Federal ownership 
        and that are affected by this Act.
          ``(2) Timing of exchanges.--An exchange under this subsection 
        may be made if the Secretary of the Interior or the Secretary 
        of Agriculture determines, without a formal appraisal, that the 
        lands to be exchanged are of approximately equal value after 
        allowing the State in which the land being exchanged is located 
        30 days in which to comment on the exchange.
          ``(3) Environmental assessment.--An environmental assessment 
        shall be the only document under section 102(2) of the National 
        Environmental Policy Act of 1976 (16 U.S.C. 4332(2)) that shall 
        be prepared with respect to any exchange under this subsection.
          ``(4) Expeditious exchange decisions.--An exchange under this 
        subsection shall be processed as expeditiously as practicable. 
        The Secretary of the Interior or the Secretary of Agriculture 
        shall periodically provide information to the non-Federal 
        landowner on the status of the exchange.
          ``(5) Applicable law.--The Secretary of the Interior and the 
        Secretary of Agriculture shall process exchanges under this 
        subsection in accordance with applicable laws that are 
        consistent with this subsection.
  ``(d) Valuation.--Any land, water, or interest in land or water to be 
acquired by the Secretary or the Secretary of Agriculture by purchase, 
exchange, donation, or otherwise under this section shall be valued as 
if the land, water, or interest in land or water were not subject to 
any restriction on use under this Act imposed after the date of 
acquisition by the current owner of the land, water, or interest in 
land or water.
  ``(e) Impacts on Adjacent Properties.--For any land or water acquired 
by the Secretary or the Secretary of Agriculture by purchase, exchange, 
lease, donation or otherwise under this section, the Secretary or 
Secretary of Agriculture shall ensure that such purchase, exchange, 
lease, donation, or other transfer shall not supersede, abrogate, or 
otherwise impair existing easements, rights-of-way, fencing, water 
sources, water delivery lines or ditches, and current uses of adjacent 
land.''.

TITLE VII--STATE AUTHORITY TO PROTECT ENDANGERED AND THREATENED SPECIES

SEC. 701. STATE AUTHORITY.

  (a) In General.--Section 6 (16 U.S.C. 1535) is amended by striking 
subsection (c) and all that follows through subsection (f) and 
inserting the following:
  ``(c) State Authority To Protect Endangered and Threatened Species.--
          ``(1) Delegation of authority.--In furtherance of the 
        purposes of this Act, the Secretary may delegate to a State 
        which establishes and maintains an adequate program for the 
        conservation of endangered species and threatened species the 
        authority contained in this Act with respect to species that 
        are residents in the State. Within 120 days after the Secretary 
        receives a certified copy of such a proposed State program, the 
        Secretary shall make a determination whether such program will 
        be adequate to provide protections to endangered species and 
        threatened species in such State. In order for a State program 
        to be determined to be an adequate program for the conservation 
        of endangered species and threatened species, the Secretary 
        must find that under the State program--
                  ``(A)(i) authority resides in the State agency to 
                conserve resident species that are determined by the 
                State agency or the Secretary to be endangered species 
                or threatened species;
                  ``(ii) the State agency has established acceptable 
                conservation programs, consistent with the purposes and 
                policies of this Act, for all resident species in the 
                State which are determined by the Secretary to be 
                endangered species or threatened species or for those 
                species or taxonomic groups of species which the State 
                proposes to cover under its program, and has furnished 
                a copy of such plan and program together with all 
                pertinent details, information, requested to the 
                Secretary;
                  ``(iii) the State agency is authorized to conduct 
                investigations to determine the status and requirements 
                for survival of resident endangered species and 
                threatened species;
                  ``(iv) an agency of the State is authorized to 
                establish programs, including the acquisition of land 
                or aquatic habitat or interests therein, for the 
                conservation of resident endangered species or 
                threatened species;
                  ``(v) provision is made for public participation in 
                designating resident species as endangered species or 
                threatened species; and
                  ``(vi) the State agency has initiated or encouraged 
                voluntary or incentive based programs to further the 
                conservation objectives for the species; or
                  ``(B)(i) the requirements set forth in clauses (iii), 
                (iv), and (v) of subparagraph (A) are complied with, 
                and
                  ``(ii) plans are included under which immediate 
                attention will be given to those resident species which 
                are determined by the Secretary or the State agency to 
                be endangered species or threatened species and which 
                the Secretary and the State agency agree are most 
                urgently in need of conservation programs.
          ``(2) Prohibitions not affected.--A delegation to a State 
        whose program is determined adequate under paragraph (1) shall 
        not affect the applicability of prohibitions set forth in or 
        authorized pursuant to section 4(d) or section 9(a)(1) or (2) 
        with respect to the taking of any resident endangered species 
        or threatened species in the State.
  ``(d) Allocation of Funds.--
          ``(1) Financial assistance.--(A) The Secretary may provide 
        financial assistance to any State, through its respective State 
        agency, which has entered into a cooperative management 
        agreement under subsection (b) or received authority under a 
        delegation pursuant to subsection (c) of this section to assist 
        in development of programs for the conservation of endangered 
        species and threatened species or to assist in monitoring the 
        status of candidate species pursuant to subparagraph (C) of 
        section 4(b)(3) and recovered species pursuant to section 4(f). 
        The Secretary shall allocate each annual appropriation made in 
        accordance with subsection (i) to such States based on 
        consideration of--
                  ``(i) the international commitments of the United 
                States to protect endangered species or threatened 
                species;
                  ``(ii) the readiness of a State to proceed with a 
                conservation program consistent with the objectives and 
                purposes of this Act;
                  ``(iii) the number of endangered species and 
                threatened species within a State;
                  ``(iv) the potential for restoring endangered species 
                and threatened species within a State;
                  ``(v) the relative urgency to initiate a program to 
                restore and protect an endangered species or threatened 
                species in terms of survival of the species;
                  ``(vi) the importance of monitoring the status of 
                candidate species within a State to prevent a 
                significant risk to the well-being of any such species; 
                and
                  ``(vii) the importance of monitoring the status of 
                recovered species within a State to assure that such 
                species do not return to the point at which the 
                measures provided pursuant to this Act are again 
                necessary.
          ``(B) So much of the annual appropriation made in accordance 
        with subsection (i) allocated for obligation to any State for 
        any fiscal year as remains unobligated at the close thereof may 
        be made available to that State until the close of the 
        succeeding fiscal year. Any amount allocated to any State which 
        is unobligated at the end of the period during which it is 
        available for expenditure may be made available for expenditure 
        by the Secretary in conducting programs under this section.
          ``(2) Contents of delegation agreement.--Such delegation 
        shall provide for--
                  ``(A) the actions to be taken by the Secretary and 
                the States;
                  ``(B) the benefits that are expected to be derived in 
                connection with the conservation of endangered species 
                or threatened species;
                  ``(C) the estimated cost of these actions; and
                  ``(D) the share of such costs to be borne by the 
                Federal Government and by the States; except that--
                          ``(i) the Federal share of such program costs 
                        shall not exceed 75 percent of the estimated 
                        program cost stated in the agreement; and
                          ``(ii) the Federal share may be increased to 
                        90 percent whenever two or more States having a 
                        common interest in one or more endangered 
                        species or threatened species, the conservation 
                        of which may be enhanced by cooperation of such 
                        States, enter jointly into an agreement with 
                        the Secretary.
        The Secretary may, in the Secretary's discretion, and under 
        such rules and regulations as he may prescribe, advance funds 
        to the State for financing the United States pro rata share 
        agreed upon in the cooperative agreement. For the purposes of 
        this section, the non-Federal share may, in the discretion of 
        the Secretary, be in the form of money or real property, the 
        value of which will be determined by the Secretary, whose 
        decision shall be final.
          ``(3) Compliance with procedures.--In implementing this Act 
        under authority delegated to a State by the Secretary, the 
        State shall comply with all requirements, prohibitions, and 
        procedures set forth by this Act.
  ``(e) Review of State Programs.--Any action taken by the Secretary 
under this section shall be subject to his periodic review at no 
greater than intervals of 5 years.
  ``(f) Conflicts Between Federal and State Laws.--Any State law or 
regulation which applies with respect to the importation or exportation 
of, or interstate or foreign commerce in, endangered species or 
threatened species is void to the extent that it may effectively--
          ``(1) permit what is prohibited by this Act or by any 
        regulation which implements this Act, or
          ``(2) prohibit what is authorized pursuant to an exemption or 
        permit provided for in this Act or in any regulation which 
        implements this Act. This Act shall not otherwise be construed 
        to void any State law or regulation which is intended to 
        conserve migratory, resident, or introduced fish or wildlife, 
        or to permit or prohibit sale of such fish or wildlife. Any 
        State law or regulation respecting the taking of an endangered 
        species or threatened species may be more restrictive than the 
        exemptions or permits provided for in this Act or in any 
        regulation which implements this Act.''.
  (b) Conforming Amendment.--Section 6(g)(2)(A) (16 U.S.C. 
1535(g)(2)(A)) is amended to read as follows:
          ``(A) to which the Secretary has delegated authority under 
        subsection (c); or''.
  (c) FACA.--Section 6 (16 U.S.C. 1535), as amended by sections 103 and 
105 of this Act, is further amended by adding at the end the following 
new subsection:
  ``(l) FACA.--Consultation with States regarding this section shall 
not be subject to the Federal Advisory Committee Act (5 U.S.C. 
App.).''.

SEC. 702. STATE PROGRAMS AFFECTED BY THE CONVENTION.

  Section 8A (16 U.S.C. 1537a), as amended by section 207(b) of this 
Act, is amended by adding at the end the following new subsection:
  ``(h) Issuance of Permits for Export.--
          ``(1) Compliance with state recommendation.--In any instance 
        in which a State has a program for management of a native 
        species which is the subject of a request for an export permit 
        under the Convention, the Secretary shall act in accordance 
        with the recommendation of the State unless the Secretary makes 
        a finding and publishes a notice in the Federal Register that 
        scientific evidence justifies a conclusion contrary to the 
        advice of the State.
          ``(2) Appeal.--The State which is the subject to such a 
        finding, or any person in that State directly affected because 
        of inability to obtain a permit, may appeal the finding to an 
        Administrative Law Judge or a court. The burden shall be on the 
        Secretary to show that the evidence supports a finding contrary 
        to the recommendation of the State.''.

SEC. 703. COLLABORATIVE RULEMAKING WITH THE STATES.

  Section 6(h) (16 U.S.C. 1535(h)) is amended to read as follows:
  ``(h) Rulemaking Authority and Procedures.--The Secretary is 
authorized to promulgate such regulations as may be appropriate to 
carry out the provisions of this subsection, subject to the following 
requirements:
          ``(1) The Secretary shall not propose a rule, under the 
        authority of this Act, that has application in a State, until 
        the Secretary and the State have consulted and the State has 
        been given a meaningful opportunity to assist in the 
        development of the rule, and shall seek to integrate into the 
        proposed rule the recommendations of the State, including 
        recommendations with regard to field practices.
          ``(2) The Secretary shall establish procedures for rulemaking 
        that include the applicable State within 60 days after the 
        effective date of the Endangered Species Conservation and 
        Management Act of 1995. If the rule will affect more than 1 
        State, the rule shall provide a means by which the States or 
        their representatives may participate in the rulemaking.
          ``(3) Where the term `in cooperation with the States' is used 
        in this Act, the requirements of this subsection shall 
        apply.''.

              TITLE VIII--FUNDING OF CONSERVATION MEASURES

SEC. 801. AUTHORIZING INCREASED APPROPRIATIONS.

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

``SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

  ``(a) In General.--In addition to the amounts authorized to be 
appropriated under section 6(i) and subsections (b) through (e), 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 
        $110,000,000 for fiscal year 1996, $120,000,000 for fiscal year 
        1997, $130,000,000 for fiscal year 1998, $140,000,000 for 
        fiscal year 1999, $150,000,000 for fiscal year 2000, and 
        $160,000,000 for fiscal year 2001;
          ``(2) to the Department of Commerce to carry out the duties 
        of the Secretary of Commerce under this Act $15,000,000 for 
        fiscal year 1996, $20,000,000 for fiscal year 1997, $25,000,000 
        for fiscal year 1998, $30,000,000 for fiscal year 1999, 
        $35,000,000 for fiscal year 2000, and $40,000,000 for fiscal 
        year 2001; 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 1996 through 2001.
  ``(b) Cooperative Management Agreements.--There are authorized to be 
appropriated to the Department of the Interior to carry out section 
16(b)(4), $20,000,000 for each of fiscal years 1996 through 2001, to 
remain available until expended.
  ``(c) Convention Implementation.--There are authorized to be 
appropriated to the Department of the Interior to carry out section 
8A(e) $1,000,000 for each of fiscal years 1996 through 2001, to remain 
available until expended.
  ``(d) Non-Federal Conservation Planning.--There are authorized to be 
appropriated to the Department of the Interior to carry out section 
16(b)(3) $20,000,000 for each of fiscal years 1996 through 2001, to 
remain available until expended.
  ``(e) Habitat Conservation Grants.--There are authorized to be 
appropriated to the Department of the Interior to provide habitat 
conservation grants under section 6(k) $20,000,000 for each of fiscal 
years 1996 though 2001, to remain available until expended.''.

SEC. 802. FUNDING OF FEDERAL MANDATES.

  Section 16 is amended to read as follows:

``SEC. 16. FEDERAL COST-SHARING REQUIREMENTS FOR CONSERVATION 
                    OBLIGATIONS.

  ``(a) Direct Costs Defined.--In this section, the term `direct costs' 
means--
          ``(1) expenditures on labor, material, facilities, utilities, 
        equipment, supplies and other resources which are necessary to 
        undertake a specific conservation measure;
          ``(2) increased purchase power costs and lost revenues caused 
        by changes in the operation of a hydropower system from which 
        the non-Federal person or Federal power marketing 
        administration markets power to meet a specific conservation 
        measure; and
          ``(3) other reimbursable costs specifically identified by the 
        Secretary as directly related to the performance of a specific 
        conservation measure.
  ``(b) Cost-Sharing.--
          ``(1) Conservation plans.--For any non-Federal person or 
        Federal power marketing administration, the Secretary shall pay 
        50 percent of any direct costs that result from the compliance 
        by the person or administration mandated by a conservation plan 
        issued under section 5 or any conservation measure that 
        provides protection to a listed species under a plan developed 
        under the Pacific Northwest Electric Power Planning and 
        Conservation Act (16 U.S.C. 839 et seq.) including a plan that 
        provides protection to a larger population unit of the same 
        listed species.
          ``(2) Consultation requirements.--For any non-Federal person 
        or Federal power marketing administration, the Secretary shall 
        pay 50 percent of direct costs that result solely from 
        requirements imposed by the Secretary on the person or 
        marketing administration under section 7.
          ``(3) Incidental take permits.--For any non-Federal person 
        issued an incidental take permit under section 10, the 
        Secretary shall pay to such person 50 percent of the direct 
        costs of preparing the application for the permit and 
        implementing the terms and conditions of the permit.
          ``(4) Cooperative management agreements.--The Secretary shall 
        pay 50 percent of the direct costs of preparing and 
        implementing the terms and conditions of a cooperative 
        management agreement under section 6(b) incurred by a party to 
        the agreement and any costs incurred by any other non-Federal 
        person or Federal power marketing administration subject to the 
        terms of such agreement.
  ``(c) Method of Cost-Sharing.--
          ``(1) In general.--Except as provided in paragraph (2), the 
        Secretary may make a contribution required under subsection (b) 
        by--
                  ``(A) providing a habitat reserve grant under section 
                6(b)(14);
                  ``(B) acquiring, from or for the party to the cost-
                share, land or an interest in land as provided in 
                section 5A; or
                  ``(C) providing appropriated funds.
          ``(2) Cost-share payment for federal power marketing 
        administrations and other state or local governmental 
        entities.--The Secretary shall make a contribution under 
        subsection (b) to a Federal power marketing administration or 
        any other State or local governmental entity by providing 
        appropriated funds directly to the administration or 
        governmental entity.
          ``(3) Appropriated funds.--To the maximum extent practicable, 
        any appropriated funds paid by the Secretary under paragraphs 
        (1) and (2) shall be paid directly (in lieu of reimbursement) 
        to the party, person, or administration.
          ``(4) Loans.--The Secretary may not consider a loan to the 
        party to the cost-share as a contribution or portion of a 
        contribution under subsection (b).
          ``(5) Recovered costs.--The Secretary may not claim as a 
        portion of the Federal share under subsection (b) any costs to 
        the Federal Government that are recovered through rates for the 
        sale or transmission of power or water.
          ``(6) Effect of federal nonpayment.--If the Secretary fails 
        to make the contribution required under subsection (b), the 
        application of the applicable provision of the conservation 
        plan, requirement under section 7, term under the incidental 
        take permit, or provision of the cooperative management 
        agreement shall be suspended until such time as the full 
        contribution is made. If the suspended provision or requirement 
        includes a conservation easement or other instrument 
        restricting title to the property of the non-Federal person, 
        nonpayment of the full contribution shall result in the 
        nullification of the previously granted restriction on title.
          ``(7) In-kind contributions.--A non-Federal person or Federal 
        power marketing administration may include in-kind 
        contributions in calculating the appropriate share of the costs 
        of the person or administration under this section.
          ``(8) Costs paid by the secretary.--Compensation from the 
        Federal Government under section 19 may not cover costs 
        incurred by a non-Federal person that were otherwise paid by 
        the Secretary under subsection (b).
  ``(d) Existing Cost-Sharing Agreements.--Any cost-sharing agreement 
with a non-Federal person provided in any recovery plan or other 
agreement in existence prior to the date of enactment of this 
subsection shall remain in effect unless the non-Federal person 
requests that the cost-sharing percentage be reconsidered.
  ``(e) Adjustments to Cost-Sharing Percentage.--At the request of the 
non-Federal person, the Secretary may adjust the percentage of the 
Federal contribution to a higher share.''.

SEC. 803. NATIONAL ENDOWMENT FOR FISH AND WILDLIFE.

  Section 13 is amended to read as follows:

``SEC. 13. NATIONAL ENDOWMENT FOR FISH AND WILDLIFE TRUST FUND.

  ``(a) Establishment.--There is established in the general fund of the 
Treasury a separate account which shall be known as the `National 
Endowment for Fish and Wildlife Trust Fund' (in this section referred 
to as the `Fund').
  ``(b) Contents.--The Fund shall consist of the following:
          ``(1) Amounts received as gifts, bequests, and devises under 
        subsection (d).
          ``(2) Other amounts appropriated to or otherwise deposited in 
        the Fund.
  ``(c) Use.--Amounts in the fund shall be available to the Secretary, 
subject to appropriations, for the following:
          ``(1) Payment of compensation under section 19.
          ``(2) Habitat conservation grants under section 6(k).
          ``(3) Payment of cost sharing under section 16.
          ``(4) Acquisition or leasing of lands, waters, or interests 
        therein under section 5A(b).
  ``(d) Gifts, Bequests, and Devises.--
          ``(1) In general.--The Secretary may accept, use, and dispose 
        of gifts, bequests, or devises of services or property, both 
        real and personal, for the purpose of carrying out this Act.
          ``(2) Deposit into fund.--Gifts, bequests, or devises of 
        money, and proceeds from sales of other property received as 
        gifts, bequests, or devises, shall be deposited in the Fund and 
        shall be available for disbursement upon order of the 
        Secretary.''.

                   TITLE IX--MISCELLANEOUS PROVISIONS

SEC. 901. AMENDMENTS TO DEFINITIONS.

  Section 3 (16 U.S.C. 1532) is amended--
          (1) by adding after paragraph (16) (as added by section 
        401(e)(1) of this Act) the following new paragraph:
          ``(17) The term `non-Federal person' means a person other 
        than an officer, employee, agent, department, or 
        instrumentality of the Federal Government or a foreign 
        government, acting in the official capacity of the person.''; 
        and
          (2) by amending paragraph (3) (as redesignated by section 
        102(a)(1) of this Act) to read as follows:
          ``(3) The term `commercial activity' means all activities of 
        industry and trade, including, but not limited to, the buying 
        or selling of commodities and activities conducted for the 
        purpose of facilitating such buying and selling, except that it 
        does not include exhibition of commodities or species by 
        exhibitors licensed under the Animal Welfare Act (7 U.S.C. 2131 
        et seq.), museums, or similar cultural or historical 
        organizations.''.

SEC. 902. REVIEW OF SPECIES OF NATIONAL INTEREST.

  No later than 60 days after the date of the enactment of this Act, 
the Secretary (as that term is defined in section 3 of the Endangered 
Species Act of 1973, as amended by this Act) shall identify those 
species which are listed under section 4 of that Act as a result of 
being determined to be a population segment. No later than one year 
after the date of the enactment of this Act, the Secretary shall review 
and determine whether or not it is in the national interest to continue 
to list each such population segment. Those population segments which 
the Secretary recommends for continued listing in the national interest 
shall be submitted to the Congress for approval. Any population segment 
which is not determined to be in the national interest shall be 
delisted within 180 days after that determination.

SEC. 903. PREPARATION OF CONSERVATION PLANS FOR SPECIES LISTED BEFORE 
                    ENACTMENT OF THIS ACT.

  (a) Listed Species Without Recovery Plans.--
          (1) Priority for development of conservation plans.--Not 
        later than 30 days after the date of enactment of this Act, the 
        Secretary (as defined in section 3 of the Endangered Species 
        Act of 1973, as amended by this Act) shall publish a list of 
        all species that were determined to be endangered species or 
        threatened species under section 4 of the Act (16 U.S.C. 1533) 
        for which no final recovery plans were issued under section 
        4(f) of the Act (16 U.S.C. 1533(f)) (as in effect on the day 
        before the date of enactment of this Act) divided equally into 
        three tiers of priority for preparation of conservation 
        objectives and conservation plans therefor pursuant to section 
        5 of the Act. Any species which is listed as an endangered 
        species or threatened species in more than one State shall be 
        placed in the first tier of priority.
          (2) Schedule for adoption of plans.--The Secretary shall 
        publish pursuant to section 5 of the Endangered Species Act of 
        1973 a conservation objective, draft conservation plan, and 
        final conservation plan (except when a conservation objective 
        is published pursuant to section 5(b)(3)(C) of such Act) for 
        each species within each tier of priority identified pursuant 
        to paragraph (1) within the following periods after the date of 
        enactment of this Act:
                  (A) Conservation objective: First tier, 120 days; 
                second tier, 12 months; and third tier, 24 months.
                  (B) Draft conservation plan: First tier, 6 months; 
                second tier, 18 months; and third tier, 30 months.
                  (C) Final conservation plan: First tier, 12 months; 
                second tier, 24 months; and third tier, 36 months.
  (b) Listed Species With Recovery Plans.--
          (1) Priority for revision of existing plans.--Except as 
        provided in paragraph (3), a final recovery plan issued under 
        section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 
        1533(f)) (as in effect on the day before the date of enactment 
        of this Act) shall continue in effect until the expiration of 
        the deadline for revision thereof established under this 
        paragraph. Within 90 days after the date of enactment of this 
        Act, the Secretary shall publish a list of all species that 
        were determined to be endangered species or threatened species 
        under section 4 of such Act (16 U.S.C. 1533) and for which 
        final recovery plans were issued under section 4(f) of such Act 
        (16 U.S.C. 1533(f)) (as in effect on the day before the date of 
        enactment of this Act) divided equally into three tiers of 
        priority for preparation of conservation objectives pursuant to 
        section 5(b) of such Act and revisions of the recovery plans 
        consistent with the requirements for conservation plans set 
        forth in section 5(c) of such Act. Any species which is listed 
        as an endangered species or threatened species in more than one 
        State shall be placed in the first tier of priority.
          (2) Schedule for revision of plans.--The Secretary shall 
        publish pursuant to section 5 of the Endangered Species Act of 
        1973 a conservation objective, draft revision of the existing 
        recovery plan, and final revision of the existing recovery plan 
        (except when a conservation objective is published pursuant to 
        section 5(b)(3)(C) of such Act) for each species within each 
        tier of priority identified pursuant to paragraph (1) within 
        the following periods after the date of enactment of this Act:
                  (A) Conservation objective: First tier, 180 days; 
                second tier, 18 months; and third tier, 30 months.
                  (B) Draft revised recovery plan: First tier, 12 
                months; second tier, 24 months; and third tier, 36 
                months.
                  (C) Final revised recovery plan: First tier, 18 
                months; second tier, 30 months; and third tier, 42 
                months.
          (3) Species for which no conservation plan is required.--If 
        the Secretary publishes a conservation objective for which no 
        conservation plan is required pursuant to section 5(b)(3)(C) of 
        the Endangered Species Act of 1973 for any species subject to 
        this subsection, the final recovery plan applicable to the 
        species shall be rescinded.
  (c) Prohibition on Additional Requirements.--The Secretary or any 
other Federal agency may not require any increase in any measurable 
criterion contained in, or any site specific management action in 
addition to those provided in, a final recovery plan issued under 
section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)) 
(as in effect on the day before the date of enactment of this Act) 
until such time as a conservation plan, or, pursuant to section 
5(b)(3)(C) of such Act, a conservation objective, has been published 
under section 5 of such Act.
  (d) Existing Biological Opinions.--In conjunction with the issuance 
of a conservation plan, or, pursuant to section 5(b)(3)(C) of the 
Endangered Species Act of 1973, a conservation objective under 
subsection (a) or (b), the Secretary (as defined in section 3 of such 
Act (16 U.S.C. 1532)) shall review and reissue, in accordance with 
section 7 of such Act, any written opinion of the Secretary that 
relates to the affected species and was issued after January 1, 1995, 
under section 7(b)(3) of such Act (16 U.S.C. 1536(b)(3)) (as in effect 
on the day before the date of enactment of this Act).

SEC. 904. APPLICATION OF CONSERVATION PLANS FOR SINGLE OR MULTIPLE 
                    SPECIES TO HABITAT CONSERVATION PLANS APPROVED 
                    PRIOR TO THIS ACT.

  A single or multiple species habitat conservation plan developed and 
approved under the Endangered Species Act of 1973 by the Secretary (as 
that term is defined in that Act) before the date of the enactment of 
this Act and a permit issued with respect to such plan shall remain in 
effect and shall not be required to be amended if a species to which 
the plan and permit apply is determined to be an endangered species or 
a threatened species under section 4 that Act. No further requirements 
shall be made by the Secretary for such plan for any reason. A party 
who has agreed prior to the effective date of this Act to manage an 
area under a single or multiple species habitat conservation plan under 
that Act shall demonstrate conservation of habitat, but shall not be 
required to relate such conservation specifically to each species with 
status under section 4 of the Endangered Species Act of 1973 or to 
species which are candidates for listing under that section.

SEC. 905. WASHINGTON COUNTY, UTAH, DESERT TORTOISE HABITAT CONSERVATION 
                    PLAN.

  (a) In General.--The document entitled ``WASHINGTON COUNTY, UTAH 
DESERT TORTOISE INCIDENTAL TAKE PERMIT APPLICATION/DOCUMENTS'', dated 
June 1995, in this section referred to as the ``Plan'', is deemed to 
comply with all requirements applicable to conservation plans under 
section 10 of the Endangered Species Act of 1973, as amended by this 
Act. The Secretary (as that term is defined in that Act) shall promptly 
issue a permit under section 10(a)(1)(B) of that Act for all activities 
covered by the Plan.
  (b) Exchanges of Lands for Habitat Reserve.--
          (1) In general.--The Secretary shall take all appropriate 
        steps to acquire by exchange for Bureau of Land Management 
        lands, in accordance with the Plan, lands of equivalent value 
        that are under State or private ownership and that are offered 
        to the Secretary for such exchange by the owner of the lands. 
        Lands acquired by the Secretary under this subsection shall be 
        included in the Mojave Desert habitat reserve provided for in 
        the Plan and shall be managed in accordance with the Plan.
          (2) Valuation of lands.--For purposes of exchanges of lands 
        under this subsection, the value of lands shall be determined 
        without regard to the presence on the lands of species that are 
        listed under section 4(c) of the Endangered Species Act of 
        1973.

SEC. 906. TAKING OF SPECIES TO CONSERVE LISTED SPECIES.

  (a) In General.--Notwithstanding any other provision of law (other 
than subsection (b)), the taking of a species for the purpose of 
conserving any other species that is listed under section 4 of the 
Endangered Species Act of 1973, as amended by this Act, is not 
prohibited by the Endangered Species Act of 1973 (as so amended) or any 
other Federal law.
  (b) Limitation.--Subsection (a) does not authorize the taking of any 
species that is--
          (1) listed as a threatened species or endangered species 
        under the Endangered Species Act of 1973, as amended by this 
        Act;
          (2) depleted; or
          (3) a strategic stock.
  (c) Definitions.--In this section:
          (1) Depleted.--The term ``depleted'' means a species which 
        the Secretary (as that term is defined in the Endangered 
        Species Act of 1973, as amended by this Act), determines is 
        below its optimum sustainable population.
          (2) Strategic stock.--The term ``strategic stock'' means a 
        species stock--
                  (A) for which the level of direct human-caused 
                mortality exceeds the potential biological removal 
                level; or
                  (B) which, based on the best available scientific 
                information, is declining and is likely to be listed as 
                a threatened species under the Endangered Species Act 
                of 1973 within the foreseeable future.
          (3) Miscellaneous terms.--Each of the terms ``Secretary'', 
        ``species'', and ``taking'' has the meaning that term has in 
        the Endangered Species Act of 1973, as amended by this Act.

SEC. 907. CONFORMING AMENDMENTS.

  The Endangered Species Act of 1973, is amended by striking the 
material that follows the enacting clause and precedes section 2 and 
inserting the following:

``SECTION 1. SHORT TITLE: TABLE OF CONTENTS.

  ``(a) Short Title.--This Act may be cited as the `Endangered Species 
Act of 1973'.
  ``(b) Table of Contents.--The table of contents for this Act is as 
follows:

``Sec. 1. Short title; table of contents.
``Sec. 2. Findings, purposes, and policy.
``Sec. 3. Definitions.
``Sec. 4. Determination of endangered species and threatened species.
``Sec. 5. Species conservation plans.
``Sec. 5A. Protection of habitat.
``Sec. 6. Cooperation with non-Federal persons.
``Sec. 7. Interagency cooperation.
``Sec. 8. International cooperation.
``Sec. 8A. Convention implementation.
``Sec. 9. Prohibited acts.
``Sec. 10. Exceptions.
``Sec. 11. Penalties and enforcement.
``Sec. 12. Endangered plants.
``Sec. 13. National Endowment for Fish and Wildlife Trust Fund.
``Sec. 14. Public hearings and public meetings.
``Sec. 15. Authorization of appropriations.
``Sec. 16. Federal cost-sharing requirements for conservation 
obligations.
``Sec. 17. Marine Mammal Protection Act of 1972.
``Sec. 18. Annual cost analysis by the Fish and Wildlife Service.
``Sec. 19. Right to compensation.
``Sec. 20. Recognizing net benefits to aquatic species.''.

SEC. 908. APPLICATION OF PROVISIONS TO CERTIFIED APPLICATORS OF 
                    REGISTERED PESTICIDES.

  Section 1010(a) of the Act to authorize appropriations to carry out 
the Endangered Species Act of 1973 during fiscal years 1988, 1989, 
1990, 1991, and 1992, and for other purposes (7 U.S.C. 136a note) is 
amended by inserting after the first sentence the following: ``Nothing 
in this Act or the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
seq.) shall be construed as prohibiting certified applicators, as that 
term is defined in section 2(e) of the Federal Insecticide, Fungicide, 
and Rodenticide Act (7 U.S.C. 136(e)), or persons working under their 
direct supervision, from applying a registered pesticide in or around a 
commercial facility located within the critical habitat of a listed or 
endangered species for the purpose of preventing, destroying, 
repelling, or mitigating any pest, including but not limited to rats, 
mice, ground squirrels, or other rodents that may pose a threat to 
public health or safety; nor shall anything in this Act or the 
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) be construed as 
requiring or authorizing the Administrator of the Environmental 
Protection Agency by means of pesticide labeling, regulation, or 
otherwise from prohibiting certified applicators, as that term is 
defined in section 2(e) of the Federal Insecticide, Fungicide, and 
Rodenticide Act (7 U.S.C. 136(e)), or persons working under their 
direct supervision, from engaging in the activities described in the 
foregoing clause. The term `commercial facility' as used in the 
preceding sentence means any structure or other facility that is 
intended for nonresidential use, including but not limited to food 
processing plants, food warehouses, grocery stores, feed lots, 
restaurants, and retail shopping malls. Neither this Act nor the 
Endangered Species Act of 1973 (15 U.S.C. 1531 et seq.) shall place any 
additional restrictions on the use of the United States Department of 
Agriculture registered toxicants.''.

                          Purpose of the Bill

    The purpose of H.R. 2275 is to reauthorize and amend the 
Endangered Species Act of 1973.

                  Background and Need for Legislation

    The Federal Government has been concerned about endangered 
species since the Endangered Species Preservation Act was 
enacted in 1966. In its present form, the Endangered Species 
Act of 1973 (ESA, Public Law 93-205, 16 U.S.C. 1531 et seq.) 
has evolved into one of our Nation's strictest and most 
stringent environmental laws. Passed in response to a concern 
that various species, like bald eagles and leopards, had become 
or were in danger of becoming extinct, the ESA embodies a rigid 
and comprehensive approach to maintaining species diversity in 
the United States and throughout the world.
    The Secretaries of the Interior and Commerce, with 
operational authority delegated to the U.S. Fish and Wildlife 
Service (FWS) and the National Marine Fisheries Service (NMFS), 
are responsible for implementing the ESA. In addition, the 
Department of Agriculture's Animal and Plant Inspection Service 
oversees the import and export of endangered species.
    Under the ESA, Federal protection is provided to species 
listed as endangered or threatened under Section 4 of the ESA. 
Any species or subspecies of fish, wildlife, or plants may be 
listed, as well as geographically distinct populations of 
vertebrate species. The appropriate Secretary must adopt 
regulations listing species and must rely on the ``best 
scientific and commercial data available'' after considering 
the status of the species and efforts being made to protect the 
species. A decision to list a species may be based on a 
recommendation made by the Secretary or by a petition filed by 
an interested private citizen. Denials of petitions to list are 
subject to judicial review, while the granting of the petition 
to list is not.
    At the time of listing, the Secretary is directed to 
identify and designate areas of habitat that are critical for 
each species under Section 4(b)(2) of the ESA. In designating 
critical habitat, the Secretary is to make decisions based on 
the best scientific data available and must take into 
consideration the economic impact and other relevant impacts of 
specifying any area as critical habitat. The Secretary may 
exclude an area from the critical habitat designation if he or 
she determines that the benefits of exclusion outweigh the 
benefits of inclusion, unless the exclusion would result in the 
species becoming extinct.
    Section 4(f) of the ESA requires the Secretary to develop a 
recovery plan for each species, unless the Secretary finds that 
such a plan will not promote the conservation of the species. 
When developing a recovery plan, no consideration is given to 
the cost, the amount of affected acreage, private property 
rights, or impacts on State or local municipalities.
    Section 4(d) of the ESA authorizes special protective rules 
for threatened species. While it was intended that there be a 
distinction between rules for threatened species and those for 
endangered species, in reality, this distinction has been 
blurred through the regulatory process. There is little, if 
any, difference in the type of protections and prohibitions 
that have been established for these two lists of species.
    Section 7 of the ESA provides that when a Federal agency 
takes an action, authorizes an action, or funds an action which 
might affect a listed species, the agency is required to 
consult with FWS to ensure that the action will not likely 
jeopardize the continued existence of any listed species or 
result in the destruction or adverse modification of critical 
habitat of that species. This consultation requirement applies 
to all Federal permits and licenses, including permits under 
Section 404 of the Clean Water Act. Where the consultation 
process breaks down, there is a procedure for convening a 
Cabinet-level exemption committee to resolve the conflict. This 
process, however, is only available to the parties involved in 
a Federal consultation involving a Federal activity.
    Section 9 of the ESA prohibits the ``take'' of an 
endangered or threatened species. The ``take'' prohibition has 
the greatest impact on private landowners. The method by which 
a private landowner is prevented from using property or 
carrying out a particular activity is usually through a warning 
that the activity in question may constitute a ``take'' of a 
listed species in violation of the ESA. ``Take'' is defined in 
the ESA as ``to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or to attempt to engage in any such 
conduct.'' The Secretary has, by regulation, defined ``take'' 
to include habitat modification which might harm the species. 
Penalties for ``taking'' an endangered species can include both 
civil and criminal penalties up to $50,000 and imprisonment.
    Section 11 of the ESA establishes penalties and enforcement 
procedures. Civil penalties can range from $500 to $25,000. 
Criminal fines can range from $25,000 to $50,000 and prison 
sentences can range between six months to one year. In 
addition, the ESA authorizes citizens to sue to enforce the 
provisions of the ESA. Citizens may sue both governmental 
agencies and other private citizens whom they believe to be in 
violation of the ESA. Citizens must give 60 days notice before 
a suit may be filed. The judge may award the citizen bringing 
the suit all costs of litigation, including reasonable attorney 
and expert witness fees when the judge determines the award to 
be appropriate. There is no requirement that the citizen must 
win the suit to receive attorney and expert witness fees.
    In many areas of the country where wetlands are present 
there is a great deal of overlap between the wetlands 
regulatory program (Section 404 of the Clean Water Act) and the 
ESA. Where a wetlands permit is sought that affects habitat for 
an endangered species, the ESA requires that the Army Corps of 
Engineers, which issues the wetlands permit, consult with FWS 
on the impacts on endangered species. The Army Corps of 
Engineers can require the permit applicant to mitigate the loss 
of the wetlands.
    In 1988, the Congress enacted the Endangered Species Act 
Amendments (Public Law 100-478) to reauthorize appropriations 
for the ESA until September 30, 1992. This authorization has 
since expired. Since that time, funds have been routinely 
appropriated to allow the provisions of the ESA, such as 
listing decisions, recovery plans, habitat designations, and 
the various prohibitions, to remain in effect.
    During the 103rd Congress, the Committee on Merchant Marine 
and Fisheries conducted several oversight hearings on the ESA. 
While two major pieces of legislation were pending before the 
Committee, no action was scheduled on either measure. The 
Merchant Marine and Fisheries Committee was abolished at the 
beginning of the 104th Congress, and its jurisdiction over the 
ESA transferred to the Committee on Resources.
    On Thursday, February 23, 1995, the House of 
Representatives adopted by voice vote an amendment to H.R. 450, 
the Regulatory Transition Act. This Act extends the regulatory 
moratorium for new listings of endangered species or 
designation of critical habitat under the ESA until December 
31, 1996, or upon the enactment of a reauthorization bill, 
whichever occurs first. The moratorium became effective on 
April 10, 1995, when the President signed Public Law 104-6 and 
remained in effect until April 26, 1996, when Congress enacted 
the Department of the Interior Appropriations Act for Fiscal 
Year 1996, giving the President authority to lift the 
moratorium. The President, by executive order, lifted the 
moratorium on April 26, 1996.
    Also during the 104th Congress, the Committee on Resources 
received testimony on the escalating numbers of conflicts 
around the nation between the efforts of the Federal Government 
to protect endangered and threatened species and the economic 
activities important to many regional economies. As follows is 
a summary of testimony relating to a few high profile 
conflicts:

        Critical Habitat for the Louisiana Black Bear--Louisiana

    The Louisiana Black Bear is a subspecies of the common 
black bear found throughout the eastern United States. Its 
historic range includes portions of Louisiana, southern 
Mississippi, and eastern Texas. On January 7, 1992, FWS listed 
the Louisiana Black Bear as a ``threatened species'' within its 
historic range. This designation extends all the protections of 
the ESA to the Louisiana Black Bear.
    In 1990, prior to the listing, the Black Bear Conservation 
Committee was organized to stabilize and manage existing bear 
populations and to restore the bear to suitable habitats in 
Mississippi, Louisiana and Texas. This coalition consists of 
landowners, State and Federal agencies, private conservation 
groups, forest products companies, agricultural interests and 
universities. Current membership includes over 60 
organizations. Through their efforts, a special rule was 
developed for the bear that exempted normal forestry activities 
from the prohibitions of Section 9 of the ESA. This has 
prevented the bear from becoming a liability to private 
landowners covered by the rule, and makes bears welcome on 
private timberland in these States since there is no economic 
penalty for providing bear habitat. In addition, the Committee 
provides educational materials, newsletters, a Black Bear 
Management Handbook, and a Black Bear Restoration Plan. Their 
efforts have been generally accepted by the citizens of the 
area.
    Subsequent to the listing of the subspecies as 
``threatened,'' the FWS also proposed to designate an area of 
approximately three million acres in Louisiana, most of which 
is privately owned, as critical habitat for the bear. The 
impact of the designation as critical habitat includes the 
requirement that there be consultation on any Federal action, 
whether on public or private lands. Federal action could 
include the issuance of Federal authorizations, licenses, 
permits, or funding. An example would be the issuance of a 
Clean Water Act Section 404 wetlands permit. Much of the 
property within the proposed critical habitat is wetlands and, 
therefore, subject to the permitting requirements of Section 
404. Private landowners expressed concerns that other unknown 
consequences could also flow from the designation. Private 
property owners in the area have expressed strong opposition to 
the designation, fearing new Federal restrictions on the use of 
and devaluation of their land.

          Red-Cockaded Woodpecker--Southeastern United States

    Red-cockaded woodpeckers (RCWs) were listed by the FWS as 
endangered in 1970. Since that time, and this species' listing 
has had major economic impacts on the timber industry in the 
Southeast. According to the FWS, the RCW populations continue 
to decline.
    One impact of the listing has been on local government 
revenues. By law, counties that contain national forest land 
annually receive 25 percent of all Forest Service timber 
receipts in those counties as payments in lieu of taxes that 
the county would have otherwise received if this property were 
privately owned. Half of the money goes to county roads and 
bridges and the other half to the various school districts.
    In 1988, U.S. District Judge Robert Parker issued a ruling 
which prohibited clearcutting on about one-third of the Federal 
forest land in Texas based on the presence of the RCW. The 
impact of this decision on East Texas county revenues has been 
substantial. The peak year for revenue in East Texas was in 
1983, when the Forest Service provided payments in lieu of 
taxes to the 12 counties of $4.2 million. Revenue has 
fluctuated since then but by 1992 was down to $2.3 million. 
Trinity County, Texas, for example, received $722,519 from the 
Forest Service in 1986 and $290,311 in 1992, a decrease of 
almost 60 percent.
    Private lands have been equally affected by the RCW 
listing, as landowners are prevented from undertaking an 
activity that would ``take'' an RCW. In recent years, some 
larger companies have been able to ameliorate the effect of the 
listing of the RCW by signing creative agreements with the 
Federal Government. Smaller landowners have not been as 
successful. Many small landowners take preemptive action 
against the consequences of RCW habitation by clear cutting 
their private timber before RCW occupancy or managing the 
timberland so that is does not attract the bird. The long-term 
consequences of landowner fear of the ESA for the RCW are dire, 
and its population is currently declining. The Committee 
received testimony about a lawsuit filed against the United 
States in the U.S. Court of Claims seeking compensation under 
the Fifth Amendment to the Constitution for a taking of private 
property under the ESA relating to the RCW.

        Turtle Excluder Device Experience in the Gulf of Mexico

    There are five subspecies of sea turtles that have the most 
far-reaching impact for the shrimping community in the Gulf of 
Mexico and to a lesser extent in the south Atlantic. The 
National Marine Fisheries Service (NMFS), an agency within the 
National Oceanographic and Atmospheric Administration (NOAA) of 
the Department of Commerce, is the primary Federal agency which 
implements the ESA with respect to marine species, including 
sea turtles. The NMFS issued regulations in 1987 requiring 
shrimpers to install a turtle excluder device (TED) in their 
shrimp trawls or to limit trawling times in certain waters. 
This was to ensure that sea turtles do not drown if caught in 
the trawl. However, subsequent amendments to the regulations 
have extended the requirement to all waters of the Gulf of 
Mexico and to areas of the Atlantic on a year-round basis.
    The requirement for TEDs has been criticized by the 
shrimping community because shrimp catch is reduced by varying 
percentages when trawling with a TED. Since TEDs are designed 
to release turtles, they also release shrimp, greatly reducing 
the shrimp catch of each shrimper.
    In addition, NMFS and the U.S. Coast Guard have an 
aggressive enforcement effort in place that includes the 
frequent boarding of vessels during shrimping operations to 
ensure that TEDs are in use and are properly installed. When a 
vessel is boarded, shrimp trawling ceases. Shrimpers have 
complained of being boarded more than once in a day, increasing 
their down-time, reducing catch and dramatically increasing 
their operating costs. Fines for violation of the TEDs 
regulations result in both criminal and civil penalties, with 
fines as high as $25,000 and up to one year in jail, as well as 
the seizure of boats, nets, fishing gear, and shrimp catch. In 
addition, NMFS has reported unpaid fines to the Internal 
Revenue Service where the unpaid fine is considered ``income'' 
subject to additional taxes and penalties. In July 1991 the 
Subcommittee on Coast Guard and Navigation of the Committee on 
Merchant Marine and Fisheries (Committee Print No. 102-39) held 
a hearing on the enforcement of the ESA by NMFS and Coast 
Guard. The testimony revealed that although the ESA mandates a 
hearing before a civil penalty can be assessed, NMFS was 
assessing penalties without giving accused shrimpers an 
opportunity for a hearing after one was requested. In 1993, a 
Federal district court threw out an $8,000 fine against a 
shrimper because NMFS had not given the defendant a hearing as 
required by the ESA.
    In September and October of 1994, Earth Island Institute 
and the Center for Marine Conservation filed separate lawsuits 
against NOAA under the ESA seeking additional relief against 
shrimping in the Gulf of Mexico. In November 1994, NMFS issued 
a jeopardy opinion under Section 7 of the ESA proposing to 
further increase restrictions on shrimpers, including the 
possibility of further fisheries closures. The litigation is 
pending.

                 Fountain Darter--Edwards Aquifer/Texas

    The fountain darter is a small freshwater fish. According 
to the FWS, the species' well-being is threatened by severely 
reduced spring flows from the Edwards Aquifer in central Texas. 
Despite the hundreds of thousands of fountain darters in the 
Comal and San Marcos Springs, the species was listed as 
endangered on October 13, 1970, and critical habitat was 
designated on July 14, 1980.
    The Sierra Club sued to obtain protection for the fountain 
darter and other endangered species living in the Comal and San 
Marcos Springs. The U.S. District Court for the Western 
District of Texas ruled on February 1, 1993, that under the 
ESA, to preserve these species, it is mandatory to maintain 
flows of water at these Springs at a level that would require 
the City of San Antonio to severely reduce, or even in an 
extreme drought, to stop all pumping of water from the Edwards 
Aquifer, which feeds the Comal and San Marcos Springs.
    The Court's decision makes it an unlawful ``taking'' of the 
fountain darter for the City of San Antonio to pump water from 
the Edwards Aquifer at certain times of the year. Since the 
Edwards Aquifer is the sole source of water for the City of San 
Antonio and its 1.5 million citizens, the consequences of 
severely reducing the availability of water would be 
devastating. There is currently no alternative source of water 
to replace the Edwards Aquifer. It will take five to ten years 
for a significant amount of non-aquifer water to become 
available at a cost of $500 million to $1.5 billion.
    The Honorable Nelson W. Wolff, Mayor of San Antonio, 
testified about the enormous adverse economic impacts that the 
Court's decision was having on his city. He also testified that 
the over $2 million in attorneys' fees in this case could have 
been better spent on protecting endangered species and their 
habitat. Attorneys' fees awarded under the citizen suit 
provision of the ESA are paid by the U.S. taxpayer.

                      Golden Cheek Warbler--Texas

    The golden-cheeked warbler is a small, insect-eating 
songbird that nests and feeds in the oak-juniper woodlands of 
central Texas. On May 4, 1990, the golden-cheeked warbler was 
emergency listed by the FWS as an endangered species, providing 
temporary protection under the ESA. On December 27, 1990, it 
was formally added to the list of endangered species. A plan to 
recover the golden-cheeked warbler, finalized in September 
1992, outlined the steps necessary to delist the species in the 
future.
    Texas State officials have indicated that property values 
have dropped nearly $400 million since the FWS listed the 
golden-cheeked warbler as an endangered species. As a result, 
local property tax assessments declined for those affected 
lands, meaning the State of Texas is losing $2 million in 
property taxes each year. Local landowners are finding it 
difficult, if not impossible, to sell their property because it 
has been, or may be, designated as critical habitat.
    In addition, developers and landowners in Travis County 
have decided that one way to eliminate conflicts with the 
golden-cheeked warbler is to harvest ash junipers trees that 
might be used as warbler nesting sites in the future. While 
this practice is not illegal, it is likely to be 
counterproductive to the long-term interests of both the 
warbler and private property owners. Testimony was received at 
the Texas hearing regarding this perverse disincentive to 
wildlife conservation caused by the ESA's severe consequences 
associated with the presence of a listed species on private 
property.

                    Arkansas River Shiner--Southwest

    The Arkansas River shiner is a small fish found in the 
Canadian River in New Mexico, Oklahoma, and Texas, as well as 
in the Cimmaron River in Kansas and Oklahoma.
    According to the FWS, the Arkansas River basin population 
is threatened by habitat destruction and modification from 
stream dewatering or depletion due to the diversion of surface 
water and excessive groundwater pumping, water quality 
degradation, and construction of impoundments.
    On July 19, 1994, the FWS proposed to list the Arkansas 
River basin population of the Arkansas River shiner as an 
endangered species. While a final decision has not been made by 
the FWS, the Texas Parks and Wildlife Department has stated for 
the record that they do not believe the Arkansas River shiner 
should be listed as a threatened or endangered species. In 
fact, the FWS itself funded a study that indicated the Arkansas 
River shiner is thriving and abundant in the Canadian River in 
Texas.
    While it was difficult for witnesses to quantify the 
financial impact of listing the Arkansas River shiner, 
testimony was received that the listing is likely to have a 
devastating effect on the region since the economic health of 
the Texas High Plains is inexplicably tied to the use of water 
from the Ogalla Aquifer for irrigated agriculture. There were 
concerns that future restrictions on water usage from the 
Canadian River might be the result of the listing.

                        Red Wolf--North Carolina

    Section 10(j) of the ESA authorizes the Secretary of the 
Interior to release ``experimental populations'' of endangered 
or threatened species outside the current range of the species 
if the Secretary determines that the release will further the 
conservation of the species. However, before authorizing the 
release, the Secretary is required to make a determination that 
the experimental population is essential to the continued 
existence of an endangered species or a threatened species. 
``Experimental populations'' are not as stringently protected 
under the ESA as endangered or threatened populations.
    The Red Wolf Reintroduction Program was begun in Eastern 
North Carolina in 1987 when 63 wolves were released. Since 
1987, 70 pups have been born to the released wolves. The wolves 
were originally introduced into the Alligator River National 
Wildlife Refuge and the Pocosin Lakes National Wildlife Refuge. 
There are approximately 300,000 acres of Federally-owned land 
available as habitat for the wolves, and under various 
agreements with landowners, another 187,000 acres of privately-
owned lands is also available.
    In 1991, the FWS initiated a red wolf reintroduction 
project in western North Carolina in the Great Smokey Mountain 
National Park. Currently there are only two wolves in the Park, 
but the Service intends to introduce three additional family 
groups.
    The State of North Carolina passed a law to allow private 
landowners to trap and kill red wolves found on private land in 
Hyde and Washington Counties. It became effective on January 1, 
1995. FWS opposed the State law.
    Landowners have organized a citizens group to oppose 
reintroduction of wolves called C.R.O.W.N. (Citizens Rights 
Over Wolves Now). Concern was expressed for the safety of local 
citizens, the safety of their children and of their pets. 
Testimony was also received that the wolves are leaving the 
designated release area and are eliminating many game species 
from privately-owned land not in the release area.

              The Northern Spotted Owl--Pacific Northwest

    The FWS listed the northern spotted owl (NSO) as a 
threatened species on June 26, 1990. In 1992, the FWS 
designated 190 separate areas consisting of 6.88 million acres 
in Washington, Oregon, and California as critical habitat for 
the NSO. The listing and designation of critical habitat were 
both proposed as a result of court orders obtained by 
environmental organizations seeking enforcement of the ESA. In 
addition, lawsuits were filed under other Federal statutes, 
including the National Forest Management Act, the Migratory 
Bird Treaty Act and the National Environmental Policy Act, 
which also resulted in the issuance of injunctions prohibiting 
the sales of timber on Federal, State and private lands. A 
petition was filed to delist the NSO in California, which was 
rejected on September 1, 1994.
    In April 1993 the Clinton Administration held a ``timber 
summit'' in Portland, Oregon, to seek a resolution of the 
crisis in the Pacific Northwest resulting from the injunctions 
against timber operations. On July 1, 1993, the administration 
released their proposal, ``The Forest Plan for a Sustainable 
Economy and a Sustainable Environment,'' which included 
numerous recommendations, including limited timber harvesting. 
Many of these recommendations have yet to be carried out.
    In addition, in an attempt to ease restrictions on private 
lands, the Department of the Interior is proposing a new 
Section 4(d) rule for the NSO. Section 4(d) of the ESA gives 
the Secretary discretion to make less stringent rules for 
species that are ``threatened'' rather than ``endangered''. The 
reason given by the FWS for the new 4(d) rule is that it is no 
longer necessary and advisable to apply a blanket prohibition 
against the incidental take of the owl throughout its entire 
range. The rule will allow some increases in harvest from 
private lands in certain areas, but contains numerous 
exceptions. Therefore, current restrictions will continue to 
apply to many private lands.
    The Administration's Forest Plan also proposed economic 
assistance in the form of grants to both communities and 
individuals dislocated by NSO restrictions. The Northwest 
Economic Adjustment Fund was set up as a substitute for 
payments in lieu of taxes. Individuals would be eligible for 
job retraining and other services. The Interior Department 
received $56,400,000 in Fiscal Year 1995 to soften the impacts 
of the forest plan reductions in the Pacific Northwest.
    A witness representing the Western Council of Industrial 
Workers, the union representing many of the timber workers in 
the area, testified that the President's proposal prohibits 
timber harvesting on 88 percent of Federal lands in the NSO 
habitat regions of Oregon, Washington, and northern California. 
She also testified that NSO restrictions also included State 
and private lands, resulting in over 200 mill closures and the 
layoff of 18,000 mill workers. She described how the ESA was 
destroying many small towns. Other witnesses testified about 
the faulty assumption that NSO can only thrive in old growth 
forests. One scientist also testified that efforts to preserve 
large blocks of forests may be having adverse effects on the 
biodiversity of those forests including many of the species 
that might thrive in more diverse stands. The Superintendent of 
Schools for Siskiyou County, California, described the enormous 
problems his schools face in providing services for the 
children of laid off timber workers and the impacts of job 
losses on his community. In his words, ``Those who tell you 
that the ESA does not have an impact on a community could come 
to my town and we could show them that day in and day out.''

              Salmon Recover--Pacific Northwest and Alaska

    The Columbia River Basin, which includes portions of 
several northwestern States and Canada, is habitat for various 
types of Pacific Salmon, including chinook, coho, sockeye, pink 
and chum, and for steelhead trout. Biologists apply the names 
of the rivers where the salmon are found and the seasons when 
the adult salmon are spawning to further categorize these 
species. This results in hundreds of ``stocks'' or ``runs'' of 
the five salmon species. NMFS is the primary Federal agency 
with responsibility for the enforcement of the ESA with respect 
to Pacific salmon stocks. The Snake River sockeye salmon have 
been found by the NMFS to be an evolutionarily significant unit 
of the species and to be endangered. According to NMFS, the 
Snake River salmon range is from northern California to the 
Gulf of Alaska and into the high seas of the North Pacific.
    On April 18, 1995, NMFS proposed a recovery plan for the 
Snake River Salmon which will have far reaching implications 
for the entire Columbia basin. According to NMFS, there are 
many causes of salmon stocks' decline, including dams, water 
use, overharvest, habitat destruction, hatchery impacts and 
other human-induced factors. NMFS has also asserted that other 
causes are land use activities in the Snake River watersheds, 
such as logging, grazing, mining, and road building. The NMFS 
Recovery plan has as its goal the recovery of the salmon stocks 
and the restoration of the Columbia and Snake River ecosystem. 
Because many of the actions required by the recovery plan will 
involve other Federal agencies, there will be a regional 
implementation team established to provide a framework for 
implementation by various Federal agencies of the 
recommendations. The recommendations of the recovery plan 
include protection of ecosystems, stricter management of salmon 
harvest and improvements in propagation and hatcheries. 
Improvement of habitat will affect many sectors, but will more 
seriously affect water users of various types, including 
recreational users.
    While the commercial and recreational salmon fishery is 
extremely important to the Pacific Northwest, testimony at the 
Vancouver, Washington, hearing revealed that the NMFS Recovery 
Plan could cost the region $600 million annually, with the 
potential loss of thousands of additional jobs in the aluminum 
industry, forestry, agriculture, and other sectors. In 
addition, one scientist testified that part of the cause of 
salmon decline could be ocean conditions over which man has 
little or no control. This same scientist also criticized the 
failure of the ESA to fully consider good science in the 
listing process and developing recovery measures.
    The President of the Alaska Senate, Senator Drue Pearce, 
testified that, although Alaska has record salmon production, 
Alaska fishermen are being asked to take a 50 percent reduction 
in harvest of nonlisted salmon because of the possibility of 
catching one or two Snake River chinook salmon.

             The Stephens Kangaroo Rat--Central California

    The Stephens Kangaroo Rat (SKR) was listed as an endangered 
species in October 1988. The SKR is found in southern 
California and inhabits underground burrows. The SKR's 
preferred habitat is in areas with annual grasses and 
herbaceous plants. The listing of the SKR affects activities 
such as construction and farming which require the disturbance 
of soils. Riverside County has been particularly impacted by 
the SKR, freezing development in 22,000 acres of Riverside 
County.
    In an effort to avoid the stringent restrictions of the 
ESA, a number of cities in Riverside County joined together to 
form the Riverside County Habitat Conservation Agency (RCHCA) 
which prepared a short-term Habitat Conservation Plan (HCP) 
designed to protect the SKR while developing a plan for 
permanent preserves. The plan set up nine study areas 
consisting of 78,000 acres. In these study areas the ``take'' 
of the SKR was prohibited and a permit was required for 
development if there was a finding that the project would have 
no adverse effects on the study area as an eventual preserve. 
The plan calls for mitigation fees of $1,950 per acre which is 
assessed on all new construction. In return for the study area 
set asides, the member communities are allowed the incidental 
take of up to 4,400 acres of habitat outside of the study 
areas. For each acre taken, the RCHCA must acquire a 
replacement acre within the study area.
    In February 1995 the RCHCA submitted a long-term HCP to the 
FWS and the California Department of Fish and Game. It proposes 
a habitat conservation plan for a 30 year period, which will 
include seven core preserves, including 42,000 acres, dedicated 
to conservation of the SKR throughout western Riverside County. 
Federal land trades with the Bureau of Land Management will 
expand these areas in the future. It will continue a mitigation 
fee for development outside the core reserves. Bona fide 
agricultural activities will not be subject to the SKR 
biological surveys or the mitigation fee. The RCHCA is awaiting 
approval from the FWS for this new HCP.
    Witnesses at the Riverside, California, hearing described 
the enormous costs to the County of compliance with ESA 
requirements necessary to protect the SKR. One witness 
testified that local builders had paid over $30 million for 
mitigation and that local utilities would pay another $120 
million. One farmer whose property was in the study area was 
precluded from farming her land for several years, losing 
$400,000 over three years. The County fire chief directly 
blamed the regulations of the FWS for losses associated with 
the 1993 fires that devastated homes in his County. Another 
witness complained about the inability of local flood control 
agencies to complete flood control projects due to the presence 
of the SKR, as well as other listed species.

            The California Gnatcatcher--Southern California

    On March 25, 1993, the FWS declared the California 
Gnatcatcher a threatened species. This small bird prefers 
coastal scrub habitat. The range of the bird is southern 
California and northwestern Baja California, Mexico. In 1989, 
the American Ornithologists' Union recognized the California 
Gnatcatcher as a distinct subspecies from black-tailed 
gnatcatchers, which are abundant in Baja California, Mexico 
just below the area occupied by the California Gnatcatcher. 
This recent change in gnatcatcher taxonomy raised some 
questions about the legitimacy of the three coastal gnatcatcher 
subspecies. On March 16, 1993, three Southern California 
building industry associations sued to stop the listing of the 
California Gnatcatcher. In May 1994, a District of Columbia 
Federal district court enjoined and vacated the listing based 
on the failure of the FWS to obtain and make available for 
public review the data underlying the listing decision. The 
judge later allowed the FWS to comply with the Administrative 
Procedures Act by allowing public comment and requiring the 
release of the data. The plaintiffs in the lawsuit took the 
deposition of the single ornithologist upon whose report the 
listing was based and found that much of the underlying data 
supporting the listing had been destroyed by the ornithologist. 
Therefore, it was impossible for the public to have access to 
the public information, or to independently review or verify 
the data.
    The Secretary of the Interior relisted the California 
Gnatcatcher on March 27, 1995.

                  The Desert Tortoise--Western Deserts

    The Desert Tortoise is found in the deserts of the western 
United States, including deserts in California, Nevada, 
Arizona, Utah, and parts of Mexico. The Mojave Tortoise 
population is listed as threatened throughout its natural 
range. In Arizona south and east of the Colorado River and in 
Mexico, the Sonoran Tortoise population is listed as threatened 
by similarity of appearance to the Mojave population. The FWS 
has identified activities such as grazing, housing, energy 
development, agriculture, road building, off-road-vehicle use, 
disease and pet collecting as the major threats to the 
Tortoise. Most of the lands occupied by the Desert Tortoise are 
Federally-owned and managed lands.
    In 1993, several environmental organizations sued the FWS 
for failure to designate critical habitat for the Desert 
Tortoise. The court ordered the FWS to propose critical habitat 
by August 1, 1993, and required that habitat be designated by 
January 1, 1994. Critical habitat designation would then 
trigger consultation by the Bureau of Land Management when 
developing livestock Range Management Plans to ensure that 
these plans do not negatively affect critical habitat. Concerns 
have been expressed that cattle grazing may be eliminated or 
greatly reduced in areas where the Desert Tortoise may be 
present, including Bureau of Land Management lands that have 
been leased for grazing in the past.

                  The Fairy Shrimp--Central California

    In September 1994, the FWS listed three subspecies of Fairy 
Shrimp as endangered and one subspecies as threatened. Fairy 
Shrimp are crustacea typically associated with highly saline 
waters or seasonal ponds. They produce ``resting eggs'' which 
may remain dormant for long periods of time, hatching in 
response to changes in water chemistry and climate. Their life 
cycle varies from a few weeks to a year. In California, Fairy 
Shrimp are found throughout the entire Central Valley and are 
typically found in vernal pools. Vernal pools are ephemeral in 
nature, typically being wet only during the spring or wettest 
times of the year in California.
    This listing has been highly criticized because of the 
dearth of data on the Fairy Shrimp and because the original 
study on which the listing was based was later found to have 
serious flaws. In addition, another study on Fairy Shrimp 
habitat grossly underestimated the extent of acreage containing 
such habitat. The consequences for the Central Valley have been 
that many projects currently under consideration have either 
been stopped, delayed, or the costs of mitigation for the Fairy 
Shrimp have sharply driven up the costs of the projects. In 
addition, testimony before the Committee indicated that Fairy 
Shrimp are found in areas such as tire ruts, ditches, and man-
made quarries. One expert witness involved in the Fairy Shrimp 
listing testified before the Committee that the vernal pool 
Fairy Shrimp should be considered for delisting because of 
information on significant populations developed since the 
listing. He also testified that at the time he reviewed the 
listing, he did not have all the information given to him that 
was available to the FWS. Another scientist testified that the 
more they look for Fairy Shrimp the more they find. The 
scientific data upon which this listing was based were simply 
insufficient. There were criticisms of the current standard for 
listing, which is ``best available data''.

                       Predictions of Extinctions

    The primary goal of both the Endangered Species 
Preservation Act enacted in 1966 and the ESA is the prevention 
of extinctions. The current ESA requires the Secretary of the 
Interior or Secretary of Commerce to list all species that are 
either in danger of becoming extinct or may be threatened with 
extinction. However, since enactment seven species have, in 
spite of our efforts, become extinct and therefore delisted.
    The ESA seeks to protect ``species'' from extinction. 
However, since the definition of ``species'' includes 
subspecies and regional populations, many of the species on the 
list are in actuality subspecies and isolated populations where 
there are substantial populations in other areas. Many species 
that have been listed are not threatened with extinction but 
may simply be declining in numbers from some historic 
population estimate. The Committee heard substantial testimony 
on the policy question of whether we should be focusing our 
efforts on preventing species from becoming extinct, or 
protecting isolated populations which occur in other areas of 
the continent in abundance. In addition, the Committee heard 
testimony about the use of the ESA to prevent declines in 
populations, where extinction is not now nor in the future a 
foreseeable possibility.
    The Committee also heard from a representative of an 
environmental organization that ``there are estimates that the 
current extinction rate in the tropical rainforests is 
somewhere between 1,000 to 10,000 times the rate that would 
exist without human disturbances of the environment.'' He 
further testified that ``This rapid loss of biodiversity is 
occurring not just in the tropical rainforests. In the nearly 
400 years since the Pilgrims arrived to settle in North 
America, roughly 500 extinctions of plant and animal species 
and subspecies have occurred'' and that ``over the next five to 
ten years another 4,000 species in the U.S. alone could become 
extinct.''
    If true, these figures are alarming. However, many of these 
claims are simply unsupported by factual data. The prediction 
that we are undergoing mass extinctions is based on the work of 
scientists such as E.O. Wilson (Harvard University), Paul 
Ehrlich (Stanford University) and Norman Myers (Oxford 
University and World Wildlife Fund). However, even the work of 
these eminent scientists present numerous uncertainties. The 
total number of species in existence is a matter of 
speculation.
    The methods used to derive these relationships are probably 
not generally reliable in most ecosystems. Widely used habitat 
loss relationships have been deduced from studies which 
determined the number of species living on islands of differing 
sizes. Whether or not the impact on species from habitat losses 
on mainlands mimics that found on islands is highly debatable. 
Evidence to date does not indicate that there is a parallel 
between the two differing environments.
    In addition, the Committee is faced with applying 
extinction theories developed and applicable in the tropics of 
equatorial nations in Africa and South America on conservation 
policies in the United States. One scientist testified that 
these extinction rates are likely exaggerated and concluded 
that basing our conservation efforts on extinction rates is not 
the best way to approach our conservation efforts. No evidence 
was submitted to the Committee to support claims of mass 
extinctions or even substantial numbers of extinctions in North 
America, much less in the United States, since passage of the 
ESA. Therefore, the mass extinction theory may not serve as a 
suitable basis for U.S. policy for conservation and management 
of domestic endangered and threatened species.

          Protection of Plants That May Have Value To Medicine

    One of the most emotional and appealing claims in support 
of the current ESA is that it protects plants that may provide 
the basis for future medicines or agricultural products. While 
the goal of the ESA is to protect endangered and threatened 
species, there is no stated mission to make plants available 
for medical research or other such uses. In an earlier 
Congressional hearing on the medicinal uses of plants, a number 
of witnesses testified about their programs to survey, sample 
and test plants and bring to market those drugs that might be 
produced from plants (House Committee on Merchant Marine and 
Fisheries, Report No. 103-74). Under the ESA, the Section 9 
prohibitions which serve to protect plants are not as stringent 
and prohibitions on private lands are not as extensive.
    At hearings conducted by the Committee, witnesses testified 
about the potential uses of plants for medicinal purposes and 
the implications of biodiversity for future discoveries with 
regard to the medicinal value of plants. Testimony revealed 
that privately-funded efforts have been completed to survey all 
flora in the U.S. However, there was a hesitancy to sample and 
test those plants protected under the ESA. There was also some 
concern that the current prohibitions applicable to plants in 
the ESA are an impediment to further research.
    Testimony was received about the current successful program 
by Weyerhauser Corporation, a privately-owned timber company, 
to propagate the Pacific Yew tree. The Pacific Yew is currently 
used in the production of the anti-cancer drug taxol. It is 
found primarily in Pacific Northwest forests, a substantial 
portion of which are Federally owned. Although it was at one 
time proposed for listing, the Pacific Yew is not listed under 
the ESA as either endangered or threatened. Since the discovery 
of its anti-cancer properties, it has been propagated and 
harvested in substantial numbers and is no longer harvested 
from the wild. If the Pacific Yew had been listed under the 
ESA, there would have been many new regulatory obstacles to 
impede the production of taxol.
    In addition to drug manufacturers, a number of universities 
and private institutions are involved in research and 
development of plants that may contain medicinal properties. 
The Committee made no proposal to change the prohibitions 
applicable to listed plants contained in the current ESA. 
However, in enacting programs to encourage propagation of 
endangered or threatened plants, programs and funding for 
propagation may provide a better solution to preventing 
extinctions of plant species.

        Captive Propagation of Endangered and Threatened Species

    The role of captive propagation programs has been the 
subject of much debate in previous Congresses. The current ESA 
recognizes propagation, live trapping, and transplantation as 
tools for conservation of species. There have been numerous 
programs to propagate endangered or threatened species with 
some being more successful than others. One such program worthy 
of mention is the efforts of the Peregrine Fund, founded by Dr. 
Tom Cade, and currently located in Boise, Idaho. The Peregrine 
Fund has been instrumental in the recovery of a number of 
birds, including the Peregrine Falcon, eagles, hawks, falcons, 
owls, and the California Condor.
    The ESA does not have any special provisions authorizing 
the ``take'' of species for scientific or research purposes or 
for propagation. An organization that wishes to take members of 
a species for captive breeding purposes must go through the 
Section 10 permit process. There have been many complaints 
about the difficulty, expense and slowness of obtaining Section 
10 permits to take not only members of the species, but also 
blood samples, sperm, and other body tissues to be used in 
captive breeding programs.
    In an effort to save those species throughout the world 
that are nearing extinction, the American Zoo and Aquarium 
Association established a Species Survival Plan (SSP) in 1981. 
The SSP states five ways that zoos are able to strengthen and 
coordinate captive breeding programs, including: reinforcing 
natural populations which may be so small that they are no 
longer genetically or demographically viable; repopulation of 
original habitats when practical; serving as refuges for 
species destined for extinction in nature; maintaining 
repositories of germ plasm in addition to populations of wild 
animals; and conducting research and developing techniques of 
animal husbandry.
    Several zoos have already established outstanding captive 
breeding facilities. The Smithsonian National Zoological Park 
has operated a Conservation and Research Center at Front Royal, 
Virginia for over 20 years. They are responsible for saving a 
number of species from extinction including the black-footed 
ferret and Pere David's deer. The Center also works with other 
zoos around the world to foster the same type of research and 
sustainable conservation programs.
    The Audubon Zoo in New Orleans recently opened the 
Freeport-McMoran Audubon Species Survival Center which includes 
a 1,500 acre breeding and research center. Other zoos are 
making similar contributions to insuring the survival of the 
rarest of species.
    The Committee concluded that propagation efforts should be 
encouraged, not only through grants, but by providing special 
permits and streamlined permitting processes so that they act 
quickly when necessary to save rare species from extinction. 
Captive propagation and reintroduction into the habitat of the 
species have been instrumental in a number of recovery 
successes including the Peregrine Falcon, Blackfooted Ferret, 
California Condor and others.

      The Convention on International Trade in Endangered Species

    In the 1966 Endangered Species Preservation Act, Congress 
limited the protections of the ESA to ``native fish and 
wildlife''. In 1969, Congress broadened the law to forbid the 
importation from a foreign country of any species threatened 
with worldwide extinction. It was felt that the 1969 extension 
of the law to foreign species was needed because at that time 
there was no international organization working to ensure the 
worldwide conservation of endangered species. Congress directed 
the Secretary of State to convene a meeting of the world's 
nations for the purpose of creating an international convention 
on the conservation of endangered species. The Convention on 
International Trade in Endangered Species of Wild Flora and 
Fauna (known as CITES) entered into force on July, 1975. 
Currently 128 nations are parties to CITES.
    The purpose of CITES is to regulate the trade in animals 
and plants that may be in danger of extinction due to trade. 
CITES works on a permit system, the type of permit depending on 
which of three appendices the species is listed. In the United 
States the ESA is the implementing legislation for CITES. To 
trade in a species listed in one of the appendices requires 
either a permit or certificate of exemption. Permits are issued 
if there is a finding that the trade will not be detrimental to 
the survival of the species.
    Each member nation must appoint a Scientific and Management 
Authority to carry out the requirements of CITES. Under the 
ESA, the Secretary of the Interior is the Management Authority 
and the Scientific Authority implementing CITES for the United 
States. The Secretary lists species found in foreign countries 
as endangered or threatened under the ESA and implements the 
permitting requirements for importing or exporting species on 
both the U.S. list and the CITES appendices.
    The Committee heard testimony from representatives of 
several African countries urging the Congress to direct the 
Secretary of the Interior to cooperate and refrain from 
interfering in the wildlife conservation programs of nations 
that are members of and are in compliance with CITES. These 
nations testified that their wildlife management programs are 
wholly dependent on their ability to use their wildlife 
resources both to generate funds for the governmental programs 
and to provide a source of revenues to local communities. 
Without these types of sustainable programs, many citizens of 
these countries begin to see wildlife as competition for scarce 
land and food supplies. Viewed in this light, many well meaning 
U.S. conservation decisions may well become a hindrance to 
effective long-term conservation programs. It is important that 
countries with good conservation programs be given substantial 
support from the United States to continue these programs.

                               Conclusion

    In conclusion, while the ESA has helped to prevent 
extinction of several high profile species like alligators, 
bald eagles, and whooping cranes, only a few species have been 
removed from the list, impacts on human needs are not 
considered, no compensation has been provided to private 
property owners whose property has been used as habitat, and 
there are many Americans who believe that the ESA is being used 
as a pretext to limit or stop legitimate use of land. The ESA 
has not lived up to the expectations of most Americans while 
imposing unequal and arbitrary burdens on those who have done 
the most to maintain habitat for wildlife and plants.

                            Committee Action

    On February 9, 1995, the Chairman of the Committee on 
Resources, Congressman Don Young of Alaska appointed an ad hoc 
task force to hold oversight hearings into the implementation 
of the ESA. The Endangered Species Act Task Force was chaired 
by Congressman Richard W. Pombo of California. Under the 
auspices of the Committee, the Task Force conducted field 
hearings in the following seven locations: Belle Chasse, 
Louisiana (Printed Hearing No. 104-6); Boerne, Texas (Printed 
Hearing No. 104-6); New Bern, North Carolina (Printed Hearing 
No. 104-7); Bakersfield, California (Printed Hearing No. 104-
13); Vancouver, Washington (Printed Hearing No. 104-15); 
Riverside, California (Printed Hearing No. 104-11); and 
Stockton, California (Printed Hearing No. 104-16). In addition, 
three hearings were conducted in Washington, D.C. on May 10, 
1995 (Printed Hearing No. 104-10), May 18, 1995 (Printed 
Hearing No. 104-14) and May 25, 1995 (Printed Hearing No. 104-
18). The Task Force heard oral testimony from approximately 150 
individuals and received hundreds of written comments and 
letters. Witnesses represented many diverse viewpoints and 
presented recommendations for changes to the ESA and to the 
implementation of the ESA.
    The Task Force identified a number of concerns to be 
addressed in legislation, based on the testimony received from 
the witnesses. The major areas of concern are:
          Reform the ESA to balance the methods by which 
        endangered or threatened species are protected while 
        protecting rights of private property owners and 
        workers, meeting public safety and health needs, and 
        achieving species conservation and recovery.
          Provide protection for private property rights and 
        provide incentives that would encourage private 
        landowners to protect species. Compensate private 
        property owners, through short- or long-term contracts, 
        when their property must be used by the public for 
        habitat for endangered or threatened species.
          Give the States a greater role in Federal decision 
        making processes and encourage more delegation of the 
        ESA to the States.
          Encourage voluntary measures that protect species.
          Streamline and simplify the process for obtaining 
        permits or for using the consultation process to obtain 
        approvals for activities in areas where species might 
        be present.
          Authorize general permits for routine activities with 
        minimal impacts.
          Require the Federal Government to share the costs of 
        expensive ESA-mandated mitigation measures.
          Limit the application of the ``take'' prohibition on 
        private property to only those actions that proximately 
        and foreseeably kill or physically injure an 
        identifiable member of an endangered species rather 
        than the broader prohibition on modification of 
        potential, as well as, actual habitat.
          Provide sufficient funds to pay for the programs 
        authorized in the ESA.
          Improve the credibility of the scientific 
        decisionmaking processes, particularly the listing 
        decision.
          Protect endangered species and subspecies but limit 
        the listing of ``distinct population segments'' to 
        those of national interest as determined by Congress.
          Clarify the distinction between regulations to 
        protect ``endangered species'' and those for 
        ``threatened species''.
          Give the Secretary more flexibility after listing to 
        set achievable conservation objectives for the species 
        and develop conservation plans that consider economic 
        impacts, relying heavily on the advice and assistance 
        of a special assessment team.
          Make better use of Federal lands already in 
        conservation status through the establishment of the 
        National Biological Diversity Reserve system.
          Ensure that the ESA would not preempt other Federal 
        laws and is implemented consistently with other 
        important Federal missions.
          Discourage unnecessary and frivolous litigation and 
        ensure that all parties have equal access to judicial 
        review.
    H.R. 2275 was introduced on September 7, 1995, by the 
Congressman Don Young, Chairman of the Committee on Resources, 
Congressman Richard W. Pombo, Chairman of the ESA Task Force, 
Congressman Billy Tauzin, Congressman Bill K. Brewster and 91 
other cosponsors. The bill was referred to the Committee on 
Resources and the Committee on Agriculture. On September 20, 
1995, the Resources Committee held a hearing on H.R. 2275, 
where testimony was received both in support of and in 
opposition to the bill from numerous individuals, trade 
associations, and representatives of the Administration and 
State governments (Printed Hearing 104-37).
    On September 12, 1995, the Full Resources Committee met to 
consider H.R. 2275. Chairman Young and Congressman Pombo 
offered an amendment in the nature of a substitute to the bill. 
The following amendments were then offered to the Young/Pombo 
amendment:
    1. Congressman Wayne Gilchrest offered a substitute 
amendment based on the text of H.R. 2374, which failed on a 
roll-call vote of 17 yeas/28 nays, as follows:

                   Committee on Resources--Roll No. 1

    Bill No.: H.R. 2275.
    Short title: Endangered Species Act of 1973.
    Amendment or matter voted on: Gilchrest substitute.

----------------------------------------------------------------------------------------------------------------
         Representative             Yea       Nay     Present     Representative      Yea       Nay     Present 
----------------------------------------------------------------------------------------------------------------
Mr. Young, Chairman............  ........        X   .........  Mr. Miller.......        X   ........  .........
Mr. Tauzin.....................  ........        X   .........  Mr. Rahall.......  ........  ........  .........
Mr. Hansen.....................  ........        X   .........  Mr. Vento........        X   ........  .........
Mr. Saxton.....................        X   ........  .........  Mr. Kildee.......        X   ........  .........
Mr. Gallegly...................  ........        X   .........  Mr. Williams.....        X   ........  .........
Mr. Duncan.....................  ........        X   .........  Mr. Gejdenson....        X   ........  .........
Mr. Hefley.....................  ........        X   .........  Mr. Richardson...        X   ........  .........
Mr. Doolittle..................  ........        X   .........  Mr. DeFazio......        X   ........  .........
Mr. Allard.....................  ........  ........  .........  Mr. Faleomavaega.        X   ........  .........
Mr. Gilchrest..................        X   ........  .........  Mr. Johnson......        X   ........  .........
Mr. Calvert....................  ........        X   .........  Mr. Abercrombie..        X   ........  .........
Mr. Pombo......................  ........        X   .........  Mr. Studds.......        X   ........  .........
Mr. Torkildsen.................        X   ........  .........  Mr. Ortiz........  ........        X   .........
Mr. Hayworth...................  ........        X   .........  Mr. Pickett......  ........        X   .........
Mr. Cremeans...................  ........        X   .........  Mr. Pallone......        X   ........  .........
Mrs. Cubin.....................  ........        X   .........  Mr. Dooley.......  ........        X   .........
Mr. Cooley.....................  ........        X   .........  Mr. Romero-        ........        X   .........
                                                                 Barcelo.                                       
Mrs. Chenoweth.................  ........        X   .........  Mr. Hinchey......        X   ........  .........
Mrs. Smith.....................  ........        X   .........  Mr. Underwood....  ........        X   .........
Mr. Radanovich.................  ........        X   .........  Mr. Farr.........        X   ........  .........
Mr. Jones......................  ........        X   .........                                                  
Mr. Thornberry.................  ........        X   .........                                                  
Mr. Hastings...................  ........        X   .........                                                  
Mr. Metcalf....................  ........        X   .........                                                  
Mr. Longley....................  ........        X   .........                                                  
Mr. Shadegg....................  ........        X   .........                                                  
Mr. Ensign.....................  ........        X   .........                                                  
----------------------------------------------------------------------------------------------------------------

    2. Congressman Jim Saxton offered a substitute amendment 
based on the text of H.R. 2444. The amendment was withdrawn.
    3. Congresswoman Helen Chenoweth offered an amendment to 
Section 101 amending Section 19(i) of the ESA to clarify that 
agencies may not proceed with restrictions on property without 
compensation due to unavailability of appropriations. The 
amendment was amended for a technical change by unanimous 
consent. The amendment was withdrawn.
    4. Congressman John B. Shadegg offered an amendment to 
clarify that Federal agencies shall seek to conserve and manage 
endangered and threatened species consistent with and not 
prevailing over their other primary missions. The amendment was 
adopted by a rollcall of 25 yeas/10 nays/1 present as follows:

                   committee on resources--roll no. 2

    Bill No.: H.R. 2275.
    Short title: Endangered Species Act of 1973.
    Amendment or matter voted on: Shadegg Amendment to Title I.

----------------------------------------------------------------------------------------------------------------
         Representative             Yea       Nay     Present     Representative      Yea       Nay     Present 
----------------------------------------------------------------------------------------------------------------
Mr. Young, Chairman............        X   ........  .........  Mr. Miller.......  ........  ........         X 
Mr. Tauzin.....................        X   ........  .........  Mr. Rahall.......  ........  ........  .........
Mr. Hansen.....................        X   ........  .........  Mr. Vento........  ........        X   .........
Mr. Saxton.....................  ........        X   .........  Mr. Kildee.......  ........        X   .........
Mr. Gallegly...................  ........  ........  .........  Mr. Williams.....  ........  ........  .........
Mr. Duncan.....................  ........  ........  .........  Mr. Gejdenson....  ........        X   .........
Mr. Hefley.....................        X   ........  .........  Mr. Richardson...  ........  ........  .........
Mr. Doolittle..................  ........  ........  .........  Mr. DeFazio......  ........  ........  .........
Mr. Allard.....................  ........  ........  .........  Mr. Faleomavaega.        X   ........  .........
Mr. Gilchrest..................  ........        X   .........  Mr. Johnson......  ........        X   .........
Mr. Calvert....................        X   ........  .........  Mr. Abercrombie..  ........        X   .........
Mr. Pombo......................        X   ........  .........  Mr. Studds.......  ........        X   .........
Mr. Torkildsen.................        X   ........  .........  Mr. Ortiz........        X   ........  .........
Mr. Hayworth...................        X   ........  .........  Mr. Pickett......        X   ........  .........
Mr. Cremeans...................        X   ........  .........  Mr. Pallone......  ........        X   .........
Mrs. Cubin.....................        X   ........  .........  Mr. Dooley.......        X   ........  .........
Mr. Cooley.....................        X   ........  .........  Mr. Romero-        ........  ........  .........
                                                                 Barcelo.                                       
Mrs. Chenoweth.................        X   ........  .........  Mr. Hinchey......  ........  ........  .........
Mrs. Smith.....................        X   ........  .........  Mr. Underwood....  ........        X   .........
Mr. Radanovich.................        X   ........  .........  Mr. Farr.........  ........  ........  .........
Mr. Jones......................        X   ........  .........                                                  
Mr. Thornberry.................        X   ........  .........                                                  
Mr. Hastings...................        X   ........  .........                                                  
Mr. Metcalf....................        X   ........  .........                                                  
Mr. Longley....................        X   ........  .........                                                  
Mr. Shadegg....................        X   ........  .........                                                  
Mr. Ensign.....................        X   ........  .........                                                  
----------------------------------------------------------------------------------------------------------------

    5. Congressman John B. Shadegg offered an amendment to 
Section 101 regarding the right to compensation to require the 
government to make the payment within 90 days after an 
agreement has been reached to pay compensation. The amendment 
was adopted by a voice vote.
    6. Congressman John B. Shadegg offered an amendment to 
Section 101 specifying that an agency may not take action 
limiting use of private property until the agency has given the 
property owner notice of his or her right to seek compensation 
and the procedures for doing so. The amendment was adopted by a 
voice vote.
    7. Congressman Sam Gejdenson offered an amendment to 
Section 207(c) to delete the limitation on importation of 
specimens of threatened species from foreign countries taken 
for an inherently limited use. The amendment failed by a vote 
of 16 yeas/23 nays, as follows:

                   committee on resources--roll no. 3

    Bill No.: H.R. 2275.
    Short title: Endangered Species Act of 1973.
    Amendment or matter voted on: Gejdenson Amendment to Title 
II.

----------------------------------------------------------------------------------------------------------------
         Representative             Yea       Nay     Present     Representative      Yea       Nay     Present 
----------------------------------------------------------------------------------------------------------------
Mr. Young, Chairman............  ........        X   .........  Mr. Miller.......  ........  ........           
Mr. Tauzin.....................  ........        X   .........  Mr. Rahall.......  ........  ........  .........
Mr. Hansen.....................  ........        X   .........  Mr. Vento........        X   ........  .........
Mr. Saxton.....................  ........        X   .........  Mr. Kildee.......        X   ........  .........
Mr. Gallegly...................  ........  ........  .........  Mr. Williams.....        X   ........  .........
Mr. Duncan.....................  ........  ........  .........  Mr. Mr. Gejdenson        X   ........  .........
Mr. Hefley.....................        X   ........  .........  Mr. Richardson...  ........  ........  .........
Mr. Doolittle..................  ........        X   .........  Mr. DeFazio......        X   ........  .........
Mr. Allard.....................  ........  ........  .........  Mr. Faleomavaega.        X   ........  .........
Mr. Gilchrest..................  ........        X   .........  Mr. Johnson......  ........  ........  .........
Mr. Calvert....................  ........        X   .........  Mr. Abercrombie..        X   ........  .........
Mr. Pombo......................  ........        X   .........  Mr. Studds.......        X   ........  .........
Mr. Torkildsen.................  ........        X   .........  Mr. Ortiz........  ........        X   .........
Mr. Hayworth...................  ........        X   .........  Mr. Pickett......  ........        X   .........
Mr. Cremeans...................  ........        X   .........  Mr. Pallone......        X   ........  .........
Mrs. Cubin.....................  ........        X   .........  Mr. Dooley.......  ........  ........  .........
Mr. Cooley.....................  ........        X   .........  Mr. Romero-              X   ........  .........
                                                                 Barcelo.                                       
Mrs. Chenoweth.................  ........        X   .........  Mr. Hinchey......        X   ........  .........
Mrs. Smith.....................  ........        X   .........  Mr. Underwood....        X   ........  .........
Mr. Radanovich.................  ........        X   .........  Mr. Farr.........        X   ........  .........
Mr. Jones......................  ........        X   .........                                                  
Mr. Thornberry.................  ........        X   .........                                                  
Mr. Hastings...................  ........        X   .........                                                  
Mr. Metcalf....................  ........        X   .........                                                  
Mr. Longley....................        X   ........  .........                                                  
Mr. Shadegg....................  ........  ........  .........                                                  
Mr. Ensign.....................  ........        X   .........    ...............                               
----------------------------------------------------------------------------------------------------------------

    8. Congressman Billy Tauzin offered an amendment to Section 
207, which specify that importations are not prohibited if the 
species is taken for an inherently limited use, to clarify that 
it applies only to those countries that are parties to CITES. 
The amendment was adopted by a voice vote.
    9. Congressman Calvin M. Dooley offered an amendment to 
Section 201 to provide that those activities incidental to and 
for on-going maintenance, routine operation and emergency 
repairs of certain public facilities and utilities, roads, 
emergency repairs as a result of a disaster are not a ``take'' 
under the ESA. The amendment was adopted by a voice vote.
    10. Congresswoman Helen Chenoweth offered an amendment to 
Section 203 regarding the use of consultation procedures by 
nonfederal persons to prohibit anyone who is not an owner of 
the property that is the subject of the consultation from 
participating in the consultation without the consent of the 
owner. The amendment was adopted by a voice vote.
    11. Congressman Sam Farr offered an amendment to Section 
201 to strike the specification that certain activities in the 
territorial sea or the exclusive economic zone are not a 
``take'' under Section 9 of the ESA, to strike Section 208 
authorizing the Secretary to exempt trawls from certain 
regulations under a program developed by the Secretary to 
provide incentives for protection of marine species, and to 
amend Section 305 to strike the requirement that the Secretary 
consult with foreign nations when listing a foreign species. 
The amendment failed on a rollcall vote of 14 yeas/23 nays, as 
follows:

                   committee on resources--roll no. 4

    Bill No: H.R. 2275.
    Short title: Endangered Species Act of 1973.
    Amendment or matter voted on: Farr Amendment to Title II.

----------------------------------------------------------------------------------------------------------------
         Representative             Yea       Nay     Present     Representative      Yea       Nay     Present 
----------------------------------------------------------------------------------------------------------------
Mr. Young, Chairman............  ........        X   .........  Mr. Miller.......        X   ........  .........
Mr. Tauzin.....................  ........        X   .........  Mr. Rahall.......  ........  ........  .........
Mr. Hansen.....................  ........        X   .........  Mr. Vento........        X   ........  .........
Mr. Saxton.....................  ........  ........  .........  Mr. Kildee.......        X   ........  .........
Mr. Gallegly...................  ........  ........  .........  Mr. Williams.....  ........  ........  .........
Mr. Duncan.....................  ........        X   .........  Mr. Gejdenson....        X   ........  .........
Mr. Hefley.....................  ........        X   .........  Mr. Richardson...  ........  ........  .........
Mr. Doolittle..................  ........  ........  .........  Mr. DeFazio......        X   ........  .........
Mr. Allard.....................  ........  ........  .........  Mr. Faleomavaega.  ........  ........  .........
Mr. Gilchrest..................        X   ........  .........  Mr. Johnson......  ........  ........  .........
Mr. Calvert....................  ........        X   .........  Mr. Abercrombie..        X   ........  .........
Mr. Pombo......................  ........        X   .........  Mr. Studds.......        X   ........  .........
Mr. Torkildsen.................        X   ........  .........  Mr. Ortiz........  ........        X   .........
Mr. Hayworth...................  ........        X   .........  Mr. Pickett......  ........        X   .........
Mr. Cremeans...................  ........        X   .........  Mr. Pallone......        X   ........  .........
Mrs. Cubin.....................  ........        X   .........  Mr. Dooley.......  ........        X   .........
Mr. Cooley.....................  ........        X   .........  Mr. Romero-        ........        X   .........
                                                                 Barcelo.                                       
Mrs. Chenoweth.................  ........        X   .........  Mr. Hinchey......        X   ........  .........
Mrs. Smith.....................  ........        X   .........  Mr. Underwood....        X   ........  .........
Mr. Radanovich.................  ........        X   .........  Mr. Farr.........        X   ........  .........
Mr. Jones......................  ........        X   .........                                                  
Mr. Thornberry.................  ........        X   .........                                                  
Mr. Hastings...................  ........        X   .........                                                  
Mr. Metcalf....................  ........        X   .........                                                  
Mr. Longley....................  ........        X   .........                                                  
Mr. Shadegg....................  ........  ........  .........                                                  
Mr. Ensign.....................        X   ........  .........                                                  
----------------------------------------------------------------------------------------------------------------

    12. Congressman James B. Longley and Congressman Jack 
Metcalf offered an amendment to Section 202 to clarify the 
definition of ``harm'' to mean an action that proximately and 
foreseeably kills or physically injures an identifiable member 
of an endangered species. The amendment was adopted by a voice 
vote.
    13. Congresswoman Helen Chenoweth offered an amendment to 
Section 207 regarding compliance with international 
requirements and treaties to clarify that the Secretary in 
seeking to find funding for further studies should seek to find 
private funding, rather than public funding. After the 
amendment was amended for technical reasons by unanimous 
consent, the amendment was adopted by a voice vote.
    14. Congresswoman Linda Smith offered an amendment to 
Section 204 to require the Secretary to develop a permit form 
and expedited process for low-impact activities. The amendment 
was adopted by a voice vote.
    15. Congressman James V. Hansen offered an amendment to 
Section 301 to require the Secretary to prepare an analysis of 
the economic and social impacts of listing a species. The 
amendment was adopted by unanimous consent.
    16. Congressman Bruce F. Vento offered an amendment to 
require the National Academy of Sciences to report to the House 
Committee on Resources and the Senate Committee on Environment 
and Public Works on the certain affects of the bill and to 
establish the effective date of certain sections of the bill. 
The amendment failed by a voice vote of 11 yeas/21 nays, as 
follows:

                   COMMITTEE ON RESOURCES--Roll No. 5

    Bill No.: H.R. 2275.
    Short title: Endangered Species Act of 1973.
    Amendment or matter voted on: Vento Amendment to Title III.

----------------------------------------------------------------------------------------------------------------
         Representative             Yea       Nay     Present     Representative      Yea       Nay     Present 
----------------------------------------------------------------------------------------------------------------
Mr. Young, Chairman............  ........        X   .........  Mr. Miller.......        X   ........  .........
Mr. Tauzin.....................  ........        X   .........  Mr. Rahall.......  ........  ........  .........
Mr. Hansen.....................  ........        X   .........  Mr. Vento........        X   ........  .........
Mr. Saxton.....................        X   ........  .........  Mr. Kildee.......        X   ........  .........
Mr. Gallegly...................  ........  ........  .........  Mr. Williams.....  ........  ........  .........
Mr. Duncan.....................  ........  ........  .........  Mr. Gejdenson....        X   ........  .........
Mr. Hefley.....................  ........        X   .........  Mr. Richardson...  ........  ........  .........
Mr. Doolittle..................  ........        X   .........  Mr. DeFazio......        X   ........  .........
Mr. Allard.....................  ........  ........  .........  Mr. Faleomavaega.        X   ........  .........
Mr. Gilchrest..................        X   ........  .........  Mr. Johnson......  ........  ........  .........
Mr. Calvert....................  ........  ........  .........  Mr. Abercrombie..        X   ........  .........
Mr. Pombo......................  ........        X   .........  Mr. Studds.......  ........  ........  .........
Mr. Torkildsen.................        X   ........  .........  Mr. Ortiz........  ........        X   .........
Mr. Hayworth...................  ........        X   .........  Mr. Pickett......  ........        X   .........
Mr. Cremeans...................  ........        X   .........  Mr. Pallone......  ........  ........  .........
Mrs. Cubin.....................  ........  ........  .........  Mr. Dooley.......  ........        X   .........
Mr. Cooley.....................  ........        X   .........  Mr. Romero-        ........  ........  .........
                                                                 Barcelo.                                       
Mrs. Chenoweth.................  ........        X   .........  Mr. Hinchey......  ........  ........  .........
Mrs. Smith.....................  ........        X   .........  Mr. Underwood....  ........  ........  .........
Mr. Radanovich.................  ........  ........  .........  Mr. Farr.........        X   ........  .........
Mr. Jones......................  ........        X   .........                                                  
Mr. Thornberry.................  ........        X   .........                                                  
Mr. Hastings...................  ........        X   .........                                                  
Mr. Metcalf....................  ........        X   .........                                                  
Mr. Longley....................  ........        X   .........                                                  
Mr. Shadegg....................  ........        X   .........                                                  
Mr. Ensign.....................  ........        X   .........                                                  
----------------------------------------------------------------------------------------------------------------

    17. Congressman Calvin M. Dooley offered an amendment to 
Section 307 to require specific procedures for the review of 
petitions to change the status of, or delist, a species listed 
as endangered or threatened. The amendment was adopted by a 
voice vote.
    18. Congressman Richard (Doc) Hastings offered an amendment 
to require that when public hearings on proposed listings are 
held, at least one hearing must be held, at the request of the 
Governor, in a rural area. The amendment was adopted by voice 
vote.
    19. Congresswoman Helen Chenoweth offered an amendment to 
strike Title IV. The amendment was withdrawn.
    20. Congressman John T. Doolittle offered an amendment to 
Section 401 to require that during consultation and before 
issuing a jeopardy opinion, the Secretary must demonstrate that 
a listed species is in the geographic area and that the 
proposed action will jeopardize the continued existence of the 
species. The amendment was adopted by voice vote.
    21. Congresswoman Barbara Cubin offered an amendment (which 
was further amended by Congressman Jim Saxton) to require that 
where a predatory mammal is released as an experimental 
population into a Federal wildlife refuge or park and the 
animal leaves the Federal property and goes onto private 
property, the Secretary must provide for its removal and must 
provide for compensation for damage to personal property. The 
amendment was adopted by a voice vote.
    22. Congresswoman Helen Chenoweth offered an amendment to 
Section 506 regarding release of experimental populations 
requiring the Secretary to comply with State law. The amendment 
was adopted by a voice vote.
    23. Congressman Richard W. Pombo offered an amendment to 
Section 504 to provide for review of previously designated 
critical habitat areas, and amendments to Section 506 to 
require the Secretary to propose regulations for experimental 
populations, and remove experimental populations from private 
lands upon request. The amendment was adopted by a voice vote.
    24. Congresswoman Helen Chenoweth offered an amendment 
striking Title VI. The amendment was withdrawn.
    25. Congressman James V. Hansen offered an amendment to 
recognize the habitat conservation plan proposed for Washington 
County, Utah, as final and require the issuance of a permit. 
The amendment was adopted by voice vote.
    26. Congressman Jack Metcalf offered an amendment to 
provide that the taking of a nonlisted species to conserve a 
listed species is not prohibited. The amendment was adopted by 
a rollcall vote of 23 yeas/17 nays, as follows:

                   committee on resources--roll no. 6

    Bill No.: H.R. 2275.
    Short title: Endangered Species Act of 1973.
    Amendment or matter voted on: Metcalf Amendment to Title 
IX.

----------------------------------------------------------------------------------------------------------------
         Representative             Yea       Nay     Present     Representative      Yea       Nay     Present 
----------------------------------------------------------------------------------------------------------------
Mr. Young, Chairman............        X   ........  .........  Mr. Miller.......  ........        X   .........
Mr. Tauzin.....................        X   ........  .........  Mr. Rahall.......  ........        X   .........
Mr. Hansen.....................        X   ........  .........  Mr. Vento........  ........        X   .........
Mr. Saxton.....................        X   ........  .........  Mr. Kildee.......  ........        X   .........
Mr. Gallegly...................        X   ........  .........  Mr. Williams.....  ........        X   .........
Mr. Duncan.....................        X   ........  .........  Mr. Gejdenson....  ........        X   .........
Mr. Hefley.....................        X   ........  .........  Mr. Richardson...  ........        X   .........
Mr. Doolittle..................        X   ........  .........  Mr. DeFazio......  ........  ........  .........
Mr. Allard.....................  ........  ........  .........  Mr. Faleomavaego.  ........        X   .........
Mr. Gilchrest..................        X   ........  .........  Mr. Johnson......  ........  ........  .........
Mr. Calvert....................        X   ........  .........  Mr. Abercrombie..  ........        X   .........
Mr. Pombo......................        X   ........  .........  Mr. Studds.......  ........  ........  .........
Mr. Torkildsen.................  ........        X   .........  Mr. Ortiz........  ........        X   .........
Mr. Hayworth...................        X   ........  .........  Mr. Pickett......        X   ........  .........
Mr. Cremeans...................        X   ........  .........  Mr. Pallone......  ........        X   .........
Mrs. Cubin.....................        X   ........  .........  Mr. Dooley.......        X   ........  .........
Mr Cooley......................        X   ........  .........  Mr. Romero-        ........        X   .........
                                                                 Barcelo.                                       
Mrs. Chenoweth.................        X   ........  .........  Mr. Hinchey......  ........        X   .........
Mrs. Smith.....................        X   ........  .........  Mr. Underwood....  ........        X   .........
Mr. Radanovich.................  ........  ........  .........  Mr. Farr.........  ........  ........  .........
Mr. Jones......................        X   ........  .........                                                  
Mr. Thornberry.................        X   ........  .........                                                  
Mr. Hastings...................        X   ........  .........                                                  
Mr. Metcalf....................        X   ........  .........                                                  
Mr. Longley....................        X   ........  .........                                                  
Mr. Shadegg....................  ........  ........  .........                                                  
Mr. Ensign.....................  ........        X   .........                                                  
----------------------------------------------------------------------------------------------------------------

    27. Congressman Richard W. Pombo offered an amendment to 
Section 201 to require specific intent to assess civil 
penalties over $500 or to be found guilty of a criminal 
offense. The amendment was adopted by a voice vote.
    The Young-Pombo amendment in the nature of a substitute, as 
amended, was then adopted by voice vote. The bill, as amended, 
was then ordered favorably reported to the House of 
Representatives, in a rollcall vote of 27 yeas/17 nays, as 
follows:

                   committee on resources--roll no. 7

    Bill No.: H.R. 2275.
    Short title: Endangered Species Act of 1973.
    Amendment or matter voted on: Final Passage--Young/Pombo 
Substitute.

----------------------------------------------------------------------------------------------------------------
         Representative             Yea       Nay     Present     Representative      Yea       Nay     Present 
----------------------------------------------------------------------------------------------------------------
Mr. Young, Chairman............        X   ........  .........  Mr. Miller.......  ........        X   .........
Mr. Tauzin.....................        X   ........  .........  Mr. Rahall.......  ........        X   .........
Mr. Hansen.....................        X   ........  .........  Mr. Vento........  ........        X   .........
Mr. Saxton.....................  ........        X   .........  Mr. Kildee.......  ........        X   .........
Mr. Gallegly...................  ........  ........  .........  Mr. Williams.....  ........        X   .........
Mr. Duncan.....................        X   ........  .........  Mr. Gejdenson....  ........        X   .........
Mr. Hefley.....................        X   ........  .........  Mr. Richardson...  ........        X   .........
Mr. Doolittle..................        X   ........  .........  Mr. DeFazio......  ........        X   .........
Mr. Allard.....................  ........  ........  .........  Mr. Faleomavaega.  ........        X   .........
Mr. Gilchrest..................  ........        X   .........  Mr. Johnson......  ........        X   .........
Mr. Calvert....................        X   ........  .........  Mr. Abercrombie..  ........        X   .........
Mr. Pombo......................        X   ........  .........  Mr. Studds.......  ........  ........  .........
Mr. Torkildsen.................  ........        X   .........  Mr. Ortiz........        X   ........  .........
Mr. Hayworth...................        X   ........  .........  Mr. Pickett......        X   ........  .........
Mr. Cremeans...................        X   ........  .........  Mr. Pallone......  ........        X   .........
Mrs. Cubin.....................        X   ........  .........  Mr. Dooley.......        X   ........  .........
Mr. Cooley.....................        X   ........  .........  Mr. Romero-              X   ........  .........
                                                                 Barcelo.                                       
Mrs. Chenoweth.................        X   ........  .........  Mr. Hinchey......  ........        X   .........
Mrs. Smith.....................        X   ........  .........  Mr. Underwood....        X   ........  .........
Mr. Radanovich.................        X   ........  .........  Mr. Farr.........  ........        X   .........
Mr. Jones......................        X   ........  .........                                                  
Mr. Thornberry.................        X   ........  .........                                                  
Mr. Hastings...................        X   ........  .........                                                  
Mr. Metcalf....................        X   ........  .........                                                  
Mr. Longley....................        X   ........  .........                                                  
Mr. Shadegg....................        X   ........  .........                                                  
Mr. Ensign.....................        X   ........  .........                                                  
----------------------------------------------------------------------------------------------------------------

                      Section-by-Section Analysis

Section 1. Short title; table of contents

    Section 1 indicates that the Act may be cited as the 
``Endangered Species Conservation and Management Act of 1995''.

Section 2. References to Endangered Species Act of 1973

    All amendments or repeals are references to the Endangered 
Species Act of 1973.

Section 3. Findings, purposes, and policy of Endangered Species Act of 
        1973

    Section 3 specifically amends the findings, purposes, and 
policies of the ESA to state that economic impacts and private 
property rights are to be given much greater consideration 
while protecting species. This section also places greater 
emphasis on balancing the use of Federal authorities to 
conserve and manage endangered species with other Federal 
missions; greater emphasis on State involvement and cooperation 
with States; and an increase in emphasis on properly conserving 
and managing endangered and threatened species.
    The amendments made by this section are intended to set 
forth the principle that Federal agency action taken pursuant 
to the ESA shall not use or limit the use of privately owned 
property when the action diminishes the value of the property 
without payment of fair market value to the owner of private 
property.

 TITLE I. PRIVATE PROPERTY RIGHTS AND VOLUNTARY INCENTIVES FOR PRIVATE 
                            PROPERTY OWNERS

Section 101. Compensation for use or taking of private property

    Protecting private property rights was identified by a 
majority of those testifying before the ESA Task Force as a top 
priority for reform of the ESA. Many witnesses, including 
industries, landowners, and environmental organizations also 
voiced support for compensating private property owners when 
their property must be used as habitat for wildlife.
    Section 101 sets forth a prohibition that the Federal 
Government should not take an agency action that diminishes the 
value of any portion of private or nonfederally owned property 
by 20 percent or more unless compensation is paid for an 
otherwise lawful use. If the reduction in value exceeds 50 
percent, the agency must buy the property, at the option of the 
property owner.
    This section sets forth the procedures for seeking 
compensation and for payment of compensation. The owner must 
request compensation in writing within one year of actual 
notice of the limit on the use of property and the agency is 
authorized to negotiate compensation. If no agreement is 
reached within 180 days of the request, the owner may seek 
binding arbitration or proceed with a civil action. Arbitration 
would be conducted under the procedures in Title 9 of the U.S. 
Code, which govern arbitration by the U.S. Government, and 
shall include attorneys' fees and arbitration costs. Where an 
owner prevails in court, the agency must pay compensation, 
along with attorneys' fees and costs, from the agency's annual 
appropriation.
    Under new ESA Section 19(j) an agency may not take an 
action that limits the use of private property, unless the 
agency has given the owner notice of the right to seek 
compensation. Subsection 19(l) illustrates those agency actions 
that are considered to use or restrict use of property, but is 
not intended to be an exclusive list. Other actions may also 
constitute an agency action if the impact is to use or restrict 
the use of private property for a public benefit and reduces 
the value of any portion of the property by 20 percent or more. 
An agency action would not result in compensation under this 
Title unless it also reduces the property value of any affected 
portion of the property by 20 percent or more.
    Property is defined to include land, an interest in land, 
the right to use or receive water, and personal property 
subject to the use or restriction on use. Whether certain 
rights are property is intended to be governed by applicable 
State property laws.
    The Committee intends that only the portion of the property 
subject to use or restriction by the ESA be considered in 
determining whether the property has been reduced in value. It 
is not intended that the entire property owned by the 
nonfederal person be used in calculating whether the property 
has been reduced in value by 20 percent or more.
    It is intended that this section be used to negotiate 
contracts of varying lengths and terms, depending on the 
conservation needs of the species, and that land acquisition be 
used only as a last resort when other voluntary incentives and 
contractual arrangements are not acceptable to the parties. 
Contractual arrangements could include rentals, leases, short- 
or long-term conservation easements, or use agreements. Land 
exchanges may also be used as a form of compensation. It is the 
view of the Committee that these types of agreements would 
provide maximum conservation benefits at the least cost to the 
government, while protecting the rights of the property owners.
    The Committee was also concerned that property owners not 
be required to file lawsuits to receive compensation, but that 
such cases be handled administratively and arbitrated to reach 
an expeditious and inexpensive resolution. The preferred 
resolution recommended by the Committee is that the agency work 
with property owners to minimize the impacts of agency actions 
on private property and utilize, where possible, the other 
provisions of the ESA which provide technical assistance, 
grants, and incentives to private property owners to use good 
conservation practices. Where negotiation, arbitration and 
compromise are used to resolve these disputes, both the private 
party and the government benefit from reduced expenses relating 
to litigation.
    Some criticize this section as going beyond the minimal 
requirements of the Fifth Amendment of the Constitution. 
Without debating the standard required by the Fifth Amendment, 
the Committee takes note that this provision is intended to 
provide fair treatment of landowners above any minimal standard 
provided by the Fifth Amendment. It is not intended to restate 
or preempt the Fifth Amendment or to prevent any person from 
asserting any legal right or privilege under the Constitution 
or Federal, State, or local law. While the Committee set the 
trigger for the use of this remedy at the 20 percent 
devaluation level on an affected portion, the Committee intends 
that compensation to the nonfederal property owner be for the 
``use'' of his property by the public and at an amount equal to 
the lost value of the property. Contrary to many other 
environmental enactments, the ESA is not intended to prevent 
harmful activities, but is intended to derive a public benefit 
from the use of private property. The ESA has been most 
frequently used to stop activities that are not in themselves 
harmful but provide a general benefit to the public, such as 
farming, timber harvesting, cattle grazing, homebuilding, and 
other such lawful and beneficial uses.

Section 102. Voluntary cooperative management agreements

    Section 102 amends Section 6 of the ESA to require the 
Secretary to cooperate with States and other nonfederal persons 
to the maximum extent possible to attain the goals of the ESA. 
The Secretary is authorized to enter into voluntary cooperative 
management agreements (CMAs) with a State, a group of States, 
local governments, or individuals for the management of species 
listed as either threatened, endangered, as candidates for 
these designations, or for the management or acquisition of 
habitat. The CMA may cover species on both public and private 
lands and may include acquisition or designation of habitat for 
such species. A CMA may not place restrictions on private 
property without the written consent of the owner. The 
Secretary is authorized to allow a party to a CMA to enhance 
populations or habitats of species on Federally-owned lands, 
but such authority may not conflict with other uses authorized 
by the Secretary or Congress. The Secretary is authorized to 
fund CMAs out of appropriations or from the National Endowment 
for Fish and Wildlife created under Section 803 of the bill.
    This section sets forth the procedures for submission of a 
CMA to the Secretary and the procedures for review and approval 
by the Secretary. It is intended that the processes for 
entering into a CMA are to be as simple and expeditious as 
possible and, therefore, are not subject to the requirements of 
the National Environmental Policy Act (NEPA). During the term 
of the CMA, for either the species or the area covered by it, a 
party shall not be required to make additional payments for any 
purpose or accept additional restrictions or to undertake other 
measures to minimize or mitigate impacts not covered by the 
CMA. This is intended to codify the Clinton Administration's 
``deal is a deal'' concept to ensure certainty for landowners 
and the States. The CMA is binding even when new species are 
listed. Once CMAs are entered into, the conservation planning 
requirements of Section 5 of the ESA, the consultation 
requirement of Section 7, and the prohibition on take in 
Section 9 do not apply to actions or activities consistent with 
the CMA. If there are violations, the Secretary must first 
notify the party. If the party fails to take corrective action, 
the Secretary may rescind the CMA, and other provisions of the 
law regarding conservation planning, consultation, and the 
``take'' prohibition would then apply to the area. It is 
intended that the CMA would govern all conservation practices 
within the area covered by the CMA.
    CMAs that cover large areas and multiple species are 
encouraged. An example that the Committee found appealing is 
the Louisiana Black Bear Conservation Committee. This Committee 
model brought together many diverse interests to propose 
reasonable and broadly supported measures to increase the 
populations of the Louisiana Black Bear.

Section 103. Grants for improving and conserving habitat for species

    Section 103 authorizes the Secretary to use funds in the 
National Endowment for Fish and Wildlife Trust Fund created 
under Section 803 of the bill or other funds appropriated for 
the purpose, to make grants to a private person, a State, or a 
local government for the purpose of conserving, preserving, or 
improving habitat for a listed species or other conservation 
measures that enhance the survivability of the species.
    It is intended that these grants could be used for 
conservation measures on private property or State property 
that the person undertaking the conservation might not 
otherwise be able to fund. This could include food 
supplementation, predator control, conservation easements or 
tree planting.

Section 104. Technical assistance programs

    Section 104 requires the Secretary to initiate a technical 
assistance program to provide advice and assistance to either 
private persons or State or local governments to help achieve 
the conservation goal of the species. The assistance includes 
information on the habitat needs, optimum management, methods 
of propagation, feeding needs, predator controls of the species 
and any other pertinent information. The Secretary is to 
establish certain ``take'' exemptions for those persons who 
participate in conservation programs under this provision.
    The Committee intends that this program be used in 
conjunction with other incentives and programs to provide 
helpful conservation information to private landowners and to 
the States to optimize the use of CMAs and other such 
agreements.

Section 105. Water rights

    Section 105 makes it clear that 103 years of Congressional 
intent to defer to the States in matters of water 
administration and allocation and the creation of water rights 
under State law is not to be usurped by the implementation of 
the ESA. Similar language was adopted by the House Public Works 
Committee in H.R. 961, the Clean Water Act Reauthorization 
bill.
    While it is clear that the intent of Congress has 
previously been to respect State primacy over water matters, 
the Committee has become increasingly concerned about attempts 
by Federal agencies to circumvent State jurisdiction by either 
(1) asserting erroneous Federal water rights claims without 
pursuing adjudications of such claims under the McCarran Act; 
or (2) usurping the exercise of existing water rights as a 
condition of permits for existing water facilities; and (3) 
utilizing Federal acts to take water from existing water rights 
to serve other purposes.
    The language in Section 105 is intended to prevent the 
Federal Government and its agencies under the authority of ESA 
from diminishing or interfering in any way with a State's 
authority to allocate and administer water and protect water 
rights within its borders. Failure to respect the water rights 
systems of the individual States would result in chaos and most 
likely a taking of private property.
    Section 105 makes it clear that Federal agencies shall not 
use their authority granted by this Act to: (1) usurp State 
authority over water allocation and administration; (2) damage, 
take or harm the water rights of any water rights holder 
including individual citizens, or public districts and 
municipalities; (3) impair or alter interstate water compacts 
or equitable apportionment decrees; or (4) abrogate contract 
rights to water.
    Water needed for species conservation should be acquired 
pursuant to State law, and administered under State law. 
Federal agencies cannot summarily demand water from sponsors of 
existing or new water projects as a condition of a permit, 
license, or other Federal action without compensation. In cases 
where Federal water projects are re-operated to benefit 
endangered species, re-operation must not interfere with 
contract deliveries of water that are consistent with the 
authorized purposes of the project.

 TITLE II. IMPROVING ABILITY TO COMPLY WITH THE ENDANGERED SPECIES ACT 
                                OF 1973

Section 201. Enforcement procedures

    Section 201 makes it clear that the ``take'' prohibition of 
Section 9 of the ESA is not applicable to those activities in 
compliance with CMAs under Section 6, approved conservation 
plans under Section 5, consultation opinions under Section 7, 
or incidental take permits under Section 10. These types of 
agreements and permit planning activities are to be encouraged. 
In return, the landowner or State is given future certainty as 
to what activities can be conducted without the risk of being 
in violation of the take prohibition. In exchange for these 
activities, the public receives the benefit of activities or 
measures that contribute to the short- or long-term 
conservation of the species.
    Section 201(a) amends Section 9 of the ESA to clarify those 
activities which are not to be considered a ``take'' punishable 
under Section 11 of the ESA. These activities include those 
that are necessary to address a situation in which important 
public health or safety needs must be met, as well as 
activities which are routine in nature and necessary to operate 
and maintain facilities used to bring utility and utility-type 
services to the public. The Committee particularly intends that 
local government entities should be able to maintain facilities 
to serve the public without fear of penalty for a de minimis 
taking. In addition, in those portions of the territorial sea 
or the exclusive economic zone (EEZ) of the U.S. which have not 
been designated as critical habitat by the Secretary, the 
accidental take of a nonfish species, such as a sea turtle, 
when trawling and when not in violation of any other law, would 
not be considered an incidental take. The Committee takes note 
of the intensive efforts by the U.S. Coast Guard and the 
National Marine Fisheries Service to ensure compliance with the 
ESA by the shrimping community and the extensive efforts of the 
shrimping community to achieve compliance. The Coast Guard has 
reported a high degree of compliance with TEDs regulations by 
shrimpers. However, sea turtle strandings have continued to 
occur in spite of the very high degree of compliance. In 
addition, due to better protections for nesting beaches, sea 
turtle populations are rebounding. Therefore, there is concern 
that individual shrimpers who are in compliance with law should 
not be penalized for the accidental catch of a sea turtle. 
This, however, does not mean that a person may violate any 
other law, including but not limited to, the Marine Mammal 
Protection Act (Public Law 92-552, 86 Stat. 1027), the 
Migratory Bird Treaty Act (40 Stat. 755), the Oil Pollution Act 
of 1990 (Public Law 101-380, 104 Stat. 514), or any other 
statute. An activity that is in violation of one of those laws 
or any other applicable law, that results in the take of a 
listed species would be a violation of the ESA. In addition, 
activities requiring Federal approval in the territorial sea or 
EEZ must still meet the Section 7 ``jeopardy standard.'' The 
new incentives and requirements of Section 208 and 209 of the 
bill will provide opportunity to improve the status and 
protections afforded to sea turtles and other similar marine 
species.
    Section 201(b) amends Section 11 of the ESA to require 
intentional acts for assessments of civil penalties in excess 
of $500 and criminal prosecutions. The standard for such a 
prosecution under the ESA is that it be a ``knowing'' 
violation. The Committee is concerned that since many listed 
species are difficult to detect in an area, an accidental 
violation may occur without an intent to affect a listed 
species, but a person may be held liable because he or she 
``knowingly'' conducted the activity that had the unintended 
effect. This result has been that, in most cases, actions being 
regulated which are common, beneficial activities, such as 
standard agricultural or construction practices, and have no 
connection with culpable behavior apart from the remote 
potential that such routine activities may, in a particular 
instance, appear to violate the ESA. The ESA is not intended to 
impose a strict liability standard. Therefore, the Committee 
intends that penalties should only be imposed where it can be 
shown that the violator intended to violate the ESA.
    The Committee is concerned that the ESA is wrongly 
interpreted to require that the Secretary need only establish 
that an individual generally knew that it was unlawful to take 
an endangered species. Therefore, the Committee believes that a 
greater distinction is necessary between an act intentionally 
committed and one where no intention to violate the ESA is 
demonstrated.
    Section 201(b)(8) of the bill requires that policies, 
guidelines, interpretations or other such determinations may 
not be relied upon in enforcement of the ESA unless the 
Secretary promulgates a rule subject to review and comment. 
This section clarifies that no refusal of entry into the United 
States, seizure of evidence, or other enforcement action can be 
based solely on a notification under the Convention on 
International Trade in Endangered Species of Wild Flora and 
Fauna (CITES) or on a resolution of the parties to CITES. The 
Committee intends that the Secretary promulgate rules through 
the Administrative Procedure Act so that the general public has 
an opportunity to comment on, and be aware of, the requirements 
with regard to imports and exports. This section places the 
burden of proof on the Secretary to show that a particular 
specimen is listed as endangered or threatened if an 
enforcement action is taken. This provision is intended to 
prevent abuses in the form of detention of property for 
unreasonable periods without having made an identification upon 
which a determination that a violation of law may have 
occurred. The provision is not intended to limit the power of 
the Secretary to detain property if the detention is for some 
legal purpose other than identification.
    Section 201(b)(9) modifies the citizen suit provision of 
ESA Section 11 in several important respects. In light of a 
number of cases denying standing, this section clarifies that 
those persons who suffer or are threatened with economic or 
other injury have standing to sue under Section 11. It is the 
intent of the Committee that those who are harmed economically 
by any action of the Secretary under the authority of the ESA 
have standing to sue without regard to whether the violation 
may harm a species protected by the ESA. It is intended that 
the case of Bennett, et al v. Plenert, et al, Docket No. 94-
35008, decided by the U.S. Court of Appeals for the Ninth 
Circuit on August 24, 1995, be overturned by the language 
adopted here. The Committee believes that unnecessary and 
excessive litigation should not be encouraged. The bill 
therefore, removes the ``private attorney general'' authority 
that encourages citizens to sue other citizens, but retains the 
authority for citizens to sue the Federal Government. This 
section prohibits the award of attorneys fees and expert 
witness fees under the authority of the ESA. It also gives 
persons who may suffer economic injury the right to intervene 
in citizen suits and to accept or reject a settlement of the 
suit. Suit may be filed against the United States for violation 
of the ESA, to compel enforcement of the take prohibitions, to 
compel the Secretary to apply or modify permitting 
requirements, and to compel the Secretary to list or delist a 
species where the action is not discretionary.

Section 202. Removing punitive disincentives

    Section 202 defines the term ``take'', as used in Section 9 
of the ESA, to mean harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect or to attempt to engage in that 
conduct. The term ``harm'' is further defined to mean an action 
that proximately and foreseeably kills or physically injures an 
identifiable member of an endangered species.
    The definition of ``harm'' is intended to clarify the scope 
of prohibited activities under Section 9 of the ESA, 
particularly as it relates to the modification of habitat. The 
definition requires the death of, or physical injury to, a 
specific endangered animal. Generalized impacts as a whole do 
not fall within the definition of ``harm''.
    The Committee based its definition on the reasoning of 
Justice O'Connor in her concurring opinion in Babbitt v. Sweet 
Home Chapter of Communities for a Great Oregon, 94 U.S. 859 
(1995) decided by the U.S. Supreme Court on June 29, 1995, 
stating that ``private parties should be held liable under 
Section 1540(1) only if their habitat-modifying actions 
proximately cause death or injury to protected animals. `` 
Justice O'Connor further stated that ``proximate cause 
principles inject a foreseeability element into the statute.'' 
The majority opinion also twice states that liability for 
``harm'' is limited by ``ordinary requirements of proximate 
causation and foreseeability'' and requires ``injury to 
particular animals.'' In summary, the Committee agrees with the 
view of Justice O'Connor, supporting the majority, that ``the 
`harm' regulation applies where significant habitat 
modification, by impairing essential behaviors, proximately 
(foreseeably) causes actual death or injury to identifiable 
animals that are protected under the Endangered Species Act.''
    The Committee does not intend that the ``take'' definition 
be used to prohibit modification of areas where there is no 
physical impact on a member of a protected species. 
Modification of areas not currently used by a species for 
essential life functions will not result in harm as defined in 
the bill. In addition, the death or injury must be proximately 
caused by the action and must be foreseeable. This is intended 
to clarify that individuals are not to be held liable for 
taking an endangered animal if the injury is remote in time, 
place or causation. ``But for'' causation is an essential 
element for establishing liability for harm. In this 
connection, the Committee is sensitive to concerns that 
otherwise ordinary behavior could result in liability for 
violations of the ESA, and therefore provides that such actions 
must result in foreseeable physical injury to a specific, 
identifiable endangered animal to constitute ``harm''.
    One result of the new ``harm'' definition, as noted by 
Justice O'Connor in her opinion, would be to overturn the 
holdings of the U.S. Court of Appeals for the Ninth Circuit in 
Palila v. Hawaii Department of Land and Natural Resources, 639 
F. 2d 495 (9th Cir., 1981) and 852 F.2d 1106 (9th Cir., 1988), 
which found a take through inaction and without any injury to 
identifiable members of the species, and also Sierra Club v. 
Yeutter, 926 F.2d 429 (5th Cir. 1991). Both of these cases go 
well beyond the intent of Congress.
    Some object to the Committee's adoption of the Supreme 
Court's majority and concurring opinions and would go further 
in restricting and using private property for a public use--
habitat for endangered species. However, it is the Committee 
majority view that the ``take'' definition is not the only tool 
in the government's substantial arsenal for providing habitat 
for wildlife. There are numerous other statutory tools in the 
ESA and a host of additional Federal and State laws for 
achieving protection of necessary habitat. In answers to 
questions submitted to the Department of the Interior by the 
Committee as to the total acreage in the United States 
available for habitat on Federal lands, the Department 
responded that there are 706 million acres of Federally-owned 
land that could be used for habitat purposes. The General 
Accounting Office has estimated that there are 280 million 
acres that are in a designated conservation status. In 
addition, the Land and Water Conservation Fund is used to add 
to the millions of acres already owned by the Federal 
Government each year. These figures do not include efforts 
being made by States, local governments, and private 
organizations to provide habitat for wildlife and plants.
    The ``take'' definition will continue to provide a means by 
which essential habitat will be protected as a consequence of 
avoiding harm to a member of an endangered species. However, if 
that habitat is on nonfederal lands, the department cannot 
``use'' that land for a public benefit, wildlife habitat, 
without the payment of compensation to the nonfederal owner. 
The National Endowment for Fish and Wildlife as proposed in 
Section 803 of the bill and other appropriations, along with 
the Land and Water Conservation Fund and other legal 
authorities should be used to provide funds for the acquisition 
of such ``use'' rights as are necessary to protect habitat for 
species on private lands.
    Some have ignored all other provisions of the ESA and all 
other Federal, State, and local environmental and land use 
laws, in their view these changes would allow for wholesale 
destruction of various types of habitat. The majority of the 
Committee takes strong exception to these views.
    The Committee also recognizes that this provision, as well 
as others in the ESA, are very similar to provisions contained 
in other wildlife conservation statutes, including the Marine 
Mammal Protection Act. In light of these similarities, it is 
the Committee's intention that the agencies responsible for 
implementing such other programs would do so in a manner which 
is consistent with Section 202 of the bill and other relevant 
provisions of H.R. 2275.

Section 203. Allowing non-Federal persons to use the consultation 
        procedures

    Consultation is only available to Federal agencies or those 
who may be applicants for Federal approvals. Private parties 
must seek relief under the time-consuming and expensive 
incidental take permit provisions of Section 10 of the ESA. 
Section 203 of the bill allows a nonfederal person to take 
advantage of the less cumbersome consultation procedures 
provided in ESA Section 7 to determine whether their activities 
would violate the ESA. This section prohibits someone who is 
not an owner of property subject to the consultation from 
participating in the consultation without the consent of the 
property owner. This is intended to be a voluntary procedural 
option available to those who might not otherwise be subject to 
Section 7.

Section 204. Permitting requirements for incidental takes

    Section 204 amends Section 10 of the ESA, which authorizes 
the Secretary to issue an ``incidental take permit'' for any 
activity which is otherwise prohibited but which is for 
scientific purposes, to enhance the propagation or survival of 
the species, or for any taking which is incidental to and not 
the purpose of a lawful activity. Section 10 requires the 
submission of a permit application along with a conservation 
plan that specifies the impact of the activities on the species 
covered by the permit, how the impacts will be minimized, the 
alternatives considered and why they cannot be used, and 
requires the Secretary to make certain findings before a permit 
can be issued.
    Section 10 of the ESA provides a means whereby activities 
and projects that might otherwise be stopped because of the 
presence of a listed species, may proceed under certain terms 
and conditions. However, the Committee notes that Section 10 
permits have been very difficult to obtain, require expensive 
and time-consuming habitat conservation plans and have not been 
very useful.
    Under Subsection 204(b) of the bill the Secretary cannot 
require the application to include land or water that the 
applicant does not own or to address a species other than the 
one for which the application is made. To encourage the use of 
conservation plans and to reduce expense and delay, the 
preparation and approval of the plan and the issuance of the 
permit are not subject to NEPA. Once the permit is issued, no 
additional measures shall be required nor any additional 
payments or additional restrictions imposed as long as the 
applicant is in compliance with the permit. This codifies the 
``deal is a deal'' concept also proposed by the Administration. 
Subsection 204(e) requires the Secretary to develop an 
expedited process and a simple form for permits for low impact 
activities. The purpose of this requirement is to reduce the 
complexity of obtaining permits for most private property 
owners who minimally impact listed species.
    Subsection 204(c) authorizes the Secretary to assist in the 
development of multiple species conservation plans and 
authorizes the Secretary to issue incidental take permits for 
such plans. Both the multiple species plan and the permit 
remain in effect and are not amendable if a species to which 
the plan applies is thereafter listed.
    The Secretary is required to work with the States to 
develop procedures for multiple species planning, giving full 
consideration to State recommendations for standards and 
guidelines for multi-species plans. The Secretary is to develop 
criteria for approval of plans, encourage plans that reduce 
economic impacts while conserving species, provide assurances 
that further measures will not be required if a species covered 
by the plan is listed, and provide incentives for voluntary 
agreements and provide technical assistance.
    Subsection 204(d) requires the Secretary in permitting 
foreign species to recognize the benefit that occurs from 
takings for limited uses, such as scientific collecting, 
captive breeding, sport hunting, and falconry, in accordance 
with the laws of the nation in which it is found. The Secretary 
may not refuse a permit or limit imports unless the Secretary 
finds that the detriment from the taking outweighs the benefit 
and promulgates a regulation containing the limitation. The 
Secretary must send the regulation to the affected nation and 
allow that nation to comment on it.

Section 205. General, research and educational permits

    Section 205 amends Section 10 of the ESA to authorize 
``general permits'' for categories of activities that are 
similar in nature, cause only minimal adverse impacts on the 
species, have only minimal cumulative adverse effects on the 
species, and which are effective for not more than five years. 
A general permit may be implemented by a regulation authorizing 
broad categories of activities that affect small landowners, 
farmers, public agencies or other categories of activities.
    This section also authorizes research, captive breeding, or 
educational permits and accords them priority for issuance if 
the research is to develop alternative technologies to reduce 
takings of listed species. Testimony before the Committee 
indicated that although many scientists and researchers are 
trying to improve methods for conserving listed species, they 
frequently must overcome the same bureaucratic hurdles in 
obtaining permits that are applicable to commercial activities. 
The Committee wishes to encourage scientific research and 
propagation that leads to recovery or increases in populations 
of listed species. Therefore, the agency should attempt to 
expedite and facilitate the issuance of scientific and 
propagation permits and should provide for consolidation of all 
necessary permits into one consolidated permit as required 
under section 10(a)(6)(H) of the ESA. The Committee recognizes 
that such methods are not a substitute for species 
conservation, but an important tool in the enhancement of 
conservation planning.

Section 206. Maintenance of aquatic habitats for listed species

    Section 206 provides that if the number of listed species 
exiting an aquatic habitat area, which is under the control or 
ownership of a person, is equal to or greater than the number 
entering that area, the Secretary cannot impose restrictions or 
obligations on the activities of that person that would require 
that person to support the maintenance of a greater number of 
the species than that entering the habitat. Calculations would 
include hatchery populations. The Secretary may not impose 
restrictions or obligations on a person in an aquatic habitat 
to remedy adverse impacts resulting from activities of some 
other party.
    This provision is applicable only to aquatic habitat under 
the control or ownership of a particular person along a river 
or stream. It would not be applicable to restrictions on 
nonfederal persons in areas under Federal control or ownership. 
It is intended to prevent mitigation measures being required of 
a person to offset losses over which that person has no 
control.

Section 207. Compliance with international requirements and treaties

    Section 207 requires that actions taken by the Secretary 
regarding foreign species in a country that is a party to CITES 
must be done in cooperation with the wildlife authorities of 
that country and shall not obstruct the wildlife conservation 
programs of that country, assuming such programs are consistent 
with CITES. The Secretary in making findings under CITES 
whether the purposes of an importation of a foreign species is 
detrimental to the survival of the species must not duplicate 
the findings of the exporting nation. With regard to 
regulations to protect foreign species listed as threatened 
(but not endangered), the Secretary may not prohibit any act 
that is permissible under CITES and must publish regulations to 
protect threatened foreign species, transmit the text of the 
regulation to the foreign country and provide for review and 
comment by that country. The Secretary must discuss the 
regulations with the affected country and if further studies of 
the species are needed shall assist in finding private funding 
for the studies. The Secretary must obtain the written 
concurrence of the nation to the regulations, and if not 
obtained, the President may order that the regulation be 
approved.
    Subsection 207(c) makes the prohibitions on importation of 
species inapplicable to those listed as threatened (as opposed 
to endangered) where the species is taken for an inherently 
limited use, which is defined as either scientific collection, 
live export for captive breeding, sport hunting, or falconry. 
In addition, the species must be ``taken'' in accordance with 
the laws of the foreign nation where the species was ``taken'' 
(and the nation must be a party to CITES) and accompanied by a 
valid export permit or equivalent document. The Secretary is 
required to adopt regulations for the shipment of live 
specimens and procedures to be followed when shipments are not 
in compliance with regulations. This is intended to ensure that 
the public may participate in the development of the rules on 
shipments.
    The purpose of these provisions are to support the 
conservation efforts of range countries. In many developing 
countries, particularly those in southern Africa, wildlife is 
their most valuable economic resource. The economic use of 
these resources may provide the only source of funding for 
programs to protect wildlife from poaching or to support 
habitat management. The flexibility to use wildlife to improve 
their economic well being, while fully complying with CITES, 
should in the long term improve both the protection of wildlife 
populations and their habitat, and serve as a source of 
economic stability for the citizens who inhabit the same area 
and are impoverished, as is the case in many countries.
    Some have criticized Section 207, but the Committee 
majority notes that it is only applicable to threatened species 
and that the authority to ban the importation of endangered 
species remains. The Secretary must respect the position of 
other countries with respect to the best conservation of their 
wildlife. If the President chooses, however, he may proceed 
with a regulation limiting the import of a species. This 
provision would allow the President to do so, thereby elevating 
the decision to the President in cases where the range country 
disagrees with the Secretary of the Interior.

Section 208. Incentives for protection of marine species

    Section 208 authorizes the Secretary to exempt an operator 
of a trawl vessel required to use a turtle excluder device 
(TED) if the operator agrees to support certain conservation 
activities specified by the Secretary. The Secretary is to 
review programs to conserve listed sea turtles, approve 
programs determined to be of significant benefit to the 
recovery of sea turtles and publish a notice of the 
determination in the Federal Register. Persons or groups of 
persons may request an exemption and the Secretary shall 
determine that the support is appropriate if the benefits 
outweigh any harm to the recovery of the species as a result of 
not using a turtle excluder device.
    This provision gives incentives for participation in 
programs designed to achieve a net benefit to sea turtle 
populations; however, participation may involve the expenditure 
of additional funds or commitment of resources. The exemption 
from the TEDs regulations would only be available if the 
program involves a significant benefit to recovery of sea 
turtles.

Section 209. International cooperation to conserve sea turtles

    Section 209 authorizes the Secretary of State, in 
consultation with the Secretaries of Commerce and the Interior, 
to enter into international agreements for the conservation of 
sea turtles. These agreements should provide for habitat and 
nesting beaches, and encourage national programs to enhance sea 
turtle populations. These programs should also seek to reduce 
the capture, injury and mortality of sea turtles incidental to 
fishing to the extent practicable, ensure productivity of 
commercial fisheries, and ensure that comparable measures to 
reduce mortality of sea turtles are taken by other countries. 
The agreement shall institute a mechanism for international 
cooperation for adopting measures related to commercial 
fishing, scientific research and effective monitoring. The 
Secretary of State is authorized to act for the U.S. with 
respect to the agreements, but the Secretaries of Commerce or 
Interior would promulgate the regulations necessary to carry 
out the agreement. An annual report to Congress is required, 
describing the efforts to implement this provision, along with 
a list of participating countries.
    The Committee recognizes that many activities which cause 
sea turtle mortality occur in international waters over which 
the U.S. has no control. At present, U.S. fishermen bear most 
of the regulatory burden for protecting sea turtles. It is 
intended that the Secretary of State negotiate international 
sea turtle agreements that protect and conserve the sea turtles 
that migrate through the waters of many countries so that the 
citizens of those countries do not have a substantial 
competitive advantage over the U.S. citizens who are currently 
being required to use turtle excluder devices.

  TITLE III. IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND 
                               PROCEDURES

Section 301. Improving the validity and credibility of decisions

    Section 301 amends Section 4 of the ESA to require 
substantial improvements in the processes for listing species 
as endangered or threatened.
    The number of species protected under the ESA as of June 
30, 1995, were:

Species on list................................................... 1,524
    U.S. species..................................................   962
    Endangered....................................................   759
    Threatened....................................................   203
    Foreign species...............................................   562
    Endangered....................................................   521
    Threatened....................................................    41

    There are approximately 4,000 species that are candidates 
and species of concern for listing.
    The Committee identified as a priority improving the 
scientific credibility of the listing process. This Title of 
the bill is intended to ensure that the process of listing is 
credible, is open to the public, and is better supported by the 
public in general.
    Section 301 authorizes the Secretary of the Interior to 
determine whether a species is endangered or threatened, except 
that the Secretary of Commerce retains jurisdiction over marine 
species. Under this section, the Secretary is to make decisions 
on the basis of the best scientific and commercial data 
available. This term is defined to require factual information, 
including peer-reviewed scientific information. The definition 
of ``best available data'' and Subsection 301(c) require the 
Secretary to make a determination after soliciting and fully 
considering all data available from any affected State or 
nonfederal person and taking into account efforts being made by 
others to protect the species. In making a determination, the 
Secretary is to consider populations that are bred for release 
in the habitat of the species. The Secretary is also required 
within 18 months to promulgate standards for making taxonomic 
determinations of species and subspecies.
    Under subsection 301(a)(3), the Secretary is not authorized 
to list a foreign species that is listed under CITES, unless 
the Secretary finds that CITES does not provide adequate 
protection. If the Secretary lists a foreign species, the 
Secretary must transmit a description of the proposal and enter 
into discussions with the foreign nation. If the foreign nation 
fails to concur in the findings of the Secretary, the President 
may propose the listing of the species.
    This section retains the current definition of species, 
except that a ``distinct population of national interest'' is 
defined to include vertebrate species that are not endangered 
or threatened in North America, but because of the national 
value of the population segment, Congress invokes the 
protections of the ESA. The Committee acknowledges that certain 
population segments have special national importance, such as 
the bald eagle, which is protected by the Bald Eagle and Golden 
Eagle Protection Act (16 U.S.C. 668-668(d)). However, the 
Committee also recognizes that those population segments 
limited to one State may be best protected under the laws of 
that State, if the State determines that the species warrants 
such protection. The Committee received testimony about the 
enormous economic and social impacts of protecting population 
segments that are not otherwise endangered or threatened in 
other parts of the U.S., Mexico or Canada. The Committee 
believes that the public support for the ESA will further erode 
if the public is asked to make sacrifices to protect a 
population segment in a given area, where the subspecies or 
species simply is not in any danger of becoming extinct 
throughout the remainder of its North American range. This 
concern was identified by the witness representing the National 
Research Council of the National Academy of Sciences. He 
stated: ``What I mean by this is that although there may be 
persuasive reasons unrelated to science to protect certain 
plants and animals, there might not be scientific reasons for 
listing them as evolutionary units. For example, bald eagles in 
the lower 48 United States and in Canada intermix and are not 
biologically distinct, so there is no scientific justification 
for identifying the U.S. population as an evolutionary unit'' 
(May 25, 1995, Report No. 104-18).
    Subsection 301(c) adds a new subparagraph (F) to ESA 
Section 4(b)(3) to require the Secretary to publish a 
solicitation in the Federal Register for information regarding 
a species before it is proposed for listing and give equal 
weight to the information submitted. The Secretary is required 
to publish in the Federal Register, along with each rule 
listing a species, a description of the data considered in 
making the decision, data that has yet to be collected and is 
needed in making the final determination, and data necessary to 
ensure scientific validity of the decision. Determinations of 
the Secretary are subject to a de novo judicial review with the 
court determining whether the decision is supported by a 
preponderance of the evidence. The Committee intends that the 
court will review all evidence regarding the status of a 
species and that the Secretary will have the burden of 
demonstrating that the determination is supported by a 
preponderance of the evidence.
    This section requires the Secretary, in conducting a 
listing determination, to issue an analysis of the economic and 
social effects the listing may have and to publish the analysis 
in the Federal Register with the listing determination. The 
analysis is to inform the public and in no way requires the 
Secretary to refuse to list because of this analysis.
    Section 301(d) retains the authority of the Secretary to 
list a species as endangered or threatened on an emergency 
basis where there is an imminent threat to the existence of any 
species, which is defined as a significant likelihood that the 
species will become extinct or be placed on an irreversible 
course to extinction during a two-year period. This subsection 
is intended to restrict the use of the Secretary's emergency 
listing authority to situations in which there is a genuine 
crisis concerning the continued existence of a species. Since 
an emergency listing is done without any notice or opportunity 
for public comment, it must be considered an extraordinary 
remedy that should be used only in extraordinary circumstances. 
The Committee is aware of instances in which it has not been 
clear that a real emergency existed. In particular, the 
emergency listing of the golden-cheeked warbler based on 
imminent clearing of habitat on a single tract when the 
species' habitat covers a wide area of central Texas has raised 
questions regarding the appropriate use of the emergency 
listing authority. The amendment clarifies this authority, 
requiring an imminent threat to the existence of a species 
rather than a threat to the ``well-being'' of a species, a less 
precise standard that is more subject to misinterpretation. The 
Committee strongly supports the full rule-making process 
required by the Administrative Procedure Act for the listing of 
species.
    Section 301(f) amends ESA Section 4(b) to add a new 
provision to require the Secretary to identify, along with the 
publication of a proposed rule to list a species or designate 
critical habitat, a description of all data on which the 
Secretary will rely to make the decision and the data that has 
not yet been collected or field verified, necessary data that 
can be collected prior to making the decision, and other data 
that are necessary to ensure the scientific validity of the 
determination and any deadlines for collection of the data. 
With respect to a listing determination, such data should 
include data regarding population status and trends, current 
range, habitat needs, minimum viable population and threats to 
the species. The data should be field verified to the maximum 
extent practicable. The Committee expects that the Secretary 
will attempt to collect this data as early in the process as 
possible, including prior to a listing proposal where 
practicable. All such data should be made available to the 
public as expeditiously as possible. While the Secretary 
ultimately must make the determination on the basis of the best 
scientific data available, the Committee believes that early 
and comprehensive collection of data will minimize the 
likelihood of listing species based on assumptions regarding 
species population and range that prove to be seriously flawed.

Section 302. Peer review

    Section 302 amends ESA Section 4 to add a new Subsection 
(I) to mandate that scientific peer review of certain actions 
by the Secretary be conducted. Actions to be reviewed include 
listing and delisting decisions, designation of critical 
habitat, a determination that an action is likely to jeopardize 
the continued existence of a species and any reasonable and 
prudent alternatives proposed by the Secretary. Peer review 
must be conducted by ``qualified individuals'' which includes 
persons with advanced scientific training or experience, 
someone not otherwise employed or under contract with the 
Secretary, someone who has not participated in the listing 
decision and who has no direct financial interest in the 
decision. The Secretary is required to solicit names of peer 
reviewers through general publication of the solicitation. The 
Secretary may appoint from the list of qualified peer reviewers 
two individuals and the Governor of each State in which the 
species is located may appoint two individuals. The peer 
reviewers are required to give opinions regarding the 
procedures used and whether the proposal is supported by 
scientific evidence.
    The Secretary should seek to include on peer review panels 
experts in statistical science such as biometricians. The panel 
should always include its view whether the Secretary's 
conclusion is warranted by the data. The panels should also be 
wary of accepting ``peer review'' conducted for published 
articles, particularly articles which form a significant basis 
for the Secretary's conclusion without examining how the peer 
review was conducted.

Section 303. Making data public

    To ensure that the listing process is fully open to the 
public, Section 303 amends ESA Section 4(b)(3) to require that 
all data used is considered public data unless the Secretary 
shows good cause for keeping the data confidential. The burden 
is on the Secretary to prove good cause. The Secretary is 
required to minimize the release of identification of private 
property as habitat for species, unless the Secretary first 
notifies the owner thereof and receives his or her consent or 
the information is otherwise public information.
    The Secretary is to hold at least one public hearing in 
each State in which the species to be listed is believed to 
occur in a geographic area as close to the center of the 
habitat of the species as possible, including but not limited 
to a rural area specified by the Governor.
    Subsection (c) adds a new section to the ESA to set forth 
required procedures to be followed when the Secretary holds a 
public hearing or meeting. The Committee intends that public 
hearings and meetings held by the Secretary provide not only an 
opportunity for the presentation of testimony by the public, 
but also a meaningful opportunity for questions by the public 
and answers from the Secretary regarding the proposed action 
and its impacts. There should be a permanent record of the 
hearing either through recordings or transcripts. The Committee 
believes that the current implementation of the ESA does not 
provide adequate opportunity for public participation in the 
listing process. In order to improve the integrity of this 
process, those citizens who will be most impacted by a listing 
decision should be directly involved, or at least should have 
an ample opportunity to comment on and review the listing of a 
threatened or endangered species in that area.

Section 304. Improving the petition and designation processes

    Section 304 retains the authority to submit private 
petitions asking the Secretary to list a species but amends ESA 
Section (4)(b)(3) to require that the petition must contain: 
(1) information on the current population of the species; (2) 
information on efforts to field test the population estimates 
on the species; (3) peer-reviewed literature; (4) the 
qualification of any person asserting expertise on the species; 
(5) information on the habitat needs of the species; and (6) 
known causes of the species' decline. The Secretary may review 
the status of the species that is the subject of the petition, 
consistent with the priorities set by the Secretary for the 
listing of species, and must promptly publish any finding 
regarding the petition.
    The Committee is aware of the increase in litigation based 
on petitions to list species and is concerned that such 
litigation derails efforts by the Secretary to prioritize the 
listing process based on the scientific data and identification 
of those species most in need of listing. A comprehensive 
approach to setting of national priorities is much needed and 
would use public funds in a more effective and efficient 
manner.

Section 305. Greater State involvement

    Section 305 amends ESA Section 4(b)(3) which requires the 
Secretary, at the time the review of a petition is commenced or 
the Secretary initiates listing, to contact the Governor of 
each State where the species is located and solicit information 
about the proposed listing. If the Governor advises that the 
listing is not warranted and the Secretary proceeds with the 
listing, the Secretary bears the burden of proving that the 
Governor is incorrect and must provide the Governor with a 
record of the decision.
    For each final regulation to list, the Secretary is 
required to: (1) publish a notice and the text of the 
regulation in the Federal Register; (2) give actual notice of 
the regulation to the Governor of each State where the species 
is believed to occur; (3) in cooperation with the Secretary of 
State, give notice to each foreign nation where a listed 
species occurs; (4) give notice to each person who requested 
such notice, each State and local government where the species 
occurs or which is likely to experience effects of measures to 
protect the species and such scientific organizations as the 
Secretary deems appropriate; and (5) publish a summary of the 
rule in a newspaper of general circulation where the species 
occurs.

Section 306. Monitoring the status of species

    Section 306 requires the Secretary to implement a system to 
monitor the status of species where a petition to list a 
species is warranted but precluded and thereby removed from 
protection.

Section 307. Petitions to delist species

    Section 307 amends Section 4(b)(3) to authorize petitions 
to delist a species where new data or a reinterpretation of 
prior data indicates that the species was listed in error, the 
species is extinct, the population target set by the 
conservation plan has been achieved, or the original listing 
did not undergo adequate peer review. If the Secretary has not 
made a final determination on the petition within 18 months, 
the species is not considered endangered or threatened. If the 
Secretary completes the review and determines to retain the 
species on a list, the conservation objective and plan for the 
species must be developed pursuant to the ESA. When the 
Secretary makes a determination to remove a species from a list 
the Secretary should include in the rule a statement specifying 
the measures or actions that resulted in the determination.

Section 308. Determinations by the Secretary to delist

    Section 308 requires the Secretary, in conducting a five 
year review of the status of a species under ESA Section 
4(c)(2), to determine whether to remove a species from a list 
as either endangered or threatened. This section requires such 
removal to occur within 90 days if new data or reinterpretation 
of prior data indicate that the prior listing was in error, the 
species is extinct, or the population targets in the 
conservation plan have been achieved.

     title iv. recognizing other federal action, laws and missions

Section 401. Balance ESA with other laws and missions

    Section 401 maintains the requirement of Section 7 of the 
ESA that the Secretary review programs administered by the 
Secretary and that they be used to further the purposes of the 
ESA. This section also requires all other agencies to use their 
authorities to further the ESA but such use of their authority 
must be consistent with their primary missions established by 
law and must be consistent with any conservation plan developed 
for the species. This section amends ESA Section 7(a) (2) and 
(4) to clarify the standard against which Federal actions are 
to be measured. Federal agencies are required to ensure that 
any action they authorize, fund, or carry out is not likely to 
jeopardize the continued existence of a species or adversely 
modify critical habitat of a species in a manner likely to 
jeopardize the continued existence of a species (``the jeopardy 
standard''). Currently, the ESA provides no criterion by which 
to determine when an action has adversely modified critical 
habitat. The criterion for adverse modification of critical 
habitat should be unified with that of the ``jeopardy 
standard'' to provide a single, clear criterion.
    Section 401 requires a Federal agency that determines that 
it's action is likely to significantly and adversely affect the 
species to consult with the Secretary to ensure that the action 
is not likely to jeopardize the continued existence of the 
species. The current ESA provides no threshold for the 
commencement of consultation, causing confusion and controversy 
among the agencies and public. This section emphasizes that all 
decisions by agencies under ESA Section 7(a)(2) must be 
consistent with the obligations and responsibilities of the 
agency under all applicable laws and treaties.
    This section also allows Federal agencies to voluntarily 
consult with the Secretary to determine whether their programs 
are consistent with the conservation objective or plan 
established by the Secretary, with an incidental take permit, 
or with a CMA. If the actions are consistent, Section 402 
provides that no further consultation is necessary. However, if 
actions are not consistent, then the agency must determine 
whether the action will significantly and adversely affect the 
species. If so, the agency must consult with the Secretary to 
ensure that the action is not likely to jeopardize the 
continued existence of the species.
    Consultations may be at the request of, and must be with 
the involvement of and in cooperation with, the private 
applicant. Federal agencies are required to confer on proposed 
species if the action is likely to violate the ``jeopardy 
standard.'' The ESA is not to be used to require the 
modification of a land management plan, unless the species has 
been listed as endangered or threatened. Management plans are 
not to be amended to maintain viable populations of species 
unless it is determined by the Secretary that current practices 
would violate the ``jeopardy standard.'' The Secretary must 
demonstrate during consultation that a listed species, or its 
critical habitat, is in the area affected by the proposed 
action and that the action would likely jeopardize the 
continued existence of the species.
    Subsection 401(b) requires that the ESA be implemented 
consistently with other laws or treaties. If there is an 
irreconcilable conflict between the ESA and the requirements of 
other laws, the agency is to request the President to resolve 
the conflict. The President is to choose the course of action 
that best balances the conservation objective with economic and 
social needs. Any consultation or conferencing that involves a 
modification of a project should consider the effects of the 
modification only. Consultation is required to be concluded 
within 90 days, although it can be extended for 45 days. 
Applicants for permits or licenses are entitled to participate 
fully in the consultation involving their application.
    Subsection 401(c) provides that, after consultation is 
concluded, the Secretary is required to render an opinion 
whether the action is consistent with the conservation 
objective or plan for the species, an incidental take permit, 
or a CMA. If there is a finding that the activity is 
inconsistent, the Secretary must apply the ``jeopardy 
standard.'' If the Secretary determines that the action 
violates the ``jeopardy standard,'' the Secretary must suggest 
reasonable and prudent alternatives that impose the least 
social and economic costs. The Secretary is required to use 
information on species from the States in developing a 
biological opinion after a consultation process. Unless 
otherwise required by law, the Secretary may not impose 
restrictions under ESA Section 7 on the activities of a person 
if not authorized by, funded by, or carried out by the agency 
or subject to regulation by that agency. This does not prevent 
enforcement under other provisions of the ESA. The Secretary 
may not require an alternative that results in significant 
adverse impacts on waterfowl populations, habitat, or waterfowl 
hunting opportunities. In promulgating an emergency rule under 
ESA Section 7, the Secretary must allow 30 days for public 
comment.
    Subsection 401(d) maintains the requirement that private 
persons and Federal agencies may not make an irreversible or 
irretrievable commitment of resources before consultation is 
completed that would foreclose a reasonable and prudent 
alternative. This subsection provides that if a listing or 
other decision requires consultation for a land use plan 
prepared under the Federal Land Policy and Management Act or 
the Forest and Rangeland Renewable Resources Planning Act, the 
implementing agency may carry out an action that is consistent 
with the plan prior to completion of consultation on the plan 
if the agency determines that, in an individual consultation on 
the specific action, there is no violation of the ``jeopardy 
standard.'' This section defines the terms ``likely to 
jeopardize the continued existence of,'' ``permit or license 
applicant,'' and ``reasonable and prudent alternatives.''

Section 402. Exemptions from consultation and conferencing

    Section 402 amends ESA Section 7 to exempt the following 
actions from consultation: (1) actions consistent with a 
conservation plan or objective; (2) actions consistent with a 
CMA or an incidental take permit; (3) actions that address a 
critical, imminent threat to public safety or health or a 
catastrophic natural event; (4) actions consisting of a routine 
nature on facilities in accord with a previously issued permit; 
or (5) activities on private lands. An agency action is not to 
be considered the taking of a species if the action is 
consistent with a final conservation plan or objective, a CMA, 
or an incidental take permit.

Section 403. Eliminating the exemption committee

    Section 403 repeals the Cabinet level committee established 
to grant exemptions from the ESA for agency actions subject to 
the consultation requirement of ESA Section 7. However, the 
Secretary may grant an exemption if the Secretary of the 
Department of Defense determines that the activity is necessary 
for reasons of national security and the President may grant an 
exemption where the President declares a disaster to replace 
certain facilities.

     TITLE V. BETTER MANAGEMENT AND CONSERVATION OF LISTED SPECIES

Section 501. Setting conservation objectives

    When developing a recovery plan under the ESA, no 
consideration is given to the cost, the amount of affected 
acreage, private property rights, or impacts on State or local 
municipalities. As of June 30, 1995, 513 recovery plans had 
been completed for the 962 domestic species listed as 
endangered or threatened. In the 23 years since ESA enactment, 
no species has been fully recovered solely due to an ESA 
recovery plan. However, the Committee believes that setting 
conservation goals and planning to reach those goals through 
better management of species is essential to prevent species 
extinctions and to improving the status of listed species. The 
purpose of this Title is to use conservation planning to 
prevent extinctions and where possible, recover species so that 
they no longer need the protections of the ESA. Therefore, it 
is the Committee's view that the Secretary may not select 
``extinction'' as a conservation objective. However, there have 
been some cases in which species have gone extinct since the 
passage of the ESA in spite of efforts by the Secretary. It is 
recognized that there may be species in the future that will 
reach extinction because of natural, evolutionary, or other 
factors beyond human control.
    Section 501 substitutes a new Section 5 of the ESA to 
require the Secretary to develop and publish a conservation 
objective and conservation plan for each listed species. Within 
30 days of the listing, the Secretary must appoint an 
assessment and planning team consisting of experts in various 
disciplines, and representatives of State government, local 
governments, and those economically impacted by the plan. The 
team is required within 180 days to report to the Secretary on: 
(1) the biological considerations necessary to carry out the 
ESA; (2) the biological significance of the species; (3) the 
range and habitat of the species; (4) the populations of the 
species; (5) the technical practicality of recovering the 
species; (6) potential management measures capable of 
recovering or reducing the risk to survival of the species; and 
(7) where appropriate, the demonstrable commercial or medicinal 
value of the species. The team is to assess the economic and 
social impacts that result from the listing and analyze any 
potential management measures they identify. They are also 
required to assess the impacts on State and local land use 
laws, conservation measures, and water allocation policies.
    The Secretary is required within 210 days after listing to 
review the team report and establish a conservation objective, 
and publish it in the Federal Register. It is the intent of the 
Committee that the Secretary will give great weight to the 
recommendations of the assessment and planning team. The 
conservation objective may include: (1) recovery of the 
species; (2) conservation levels at which the Secretary 
determines that the benefits of the conservation measures to 
the species outweigh the economic and social costs of the 
measures; (3) imposition of the take prohibition only; or (4) 
such other objective as the Secretary determines does not 
provide lesser protection than the ``no take'' prohibition. If 
the Secretary determines that the only conservation objective 
shall be to prohibit a take of the species, the Secretary is 
not required to develop a conservation plan. The Committee 
takes note of the inadequacies of the current ESA to best 
utilize conservation or recovery plans based upon the available 
resources of the agency. The Committee also notes that the 
number of currently listed species without a recovery plan is 
an indication of the failure of the recovery planning process.

Section 502. Preparing a conservation plan

    Under Section 502, the Secretary is required to set 
priorities for the development of conservation plans. The 
priorities are: (1) plans for two or more species; (2) plans in 
areas where there are conflicts between the conservation of the 
species and economic activities; (3) protection of species in a 
Biodiversity Reserve; (4) conservation measures that have the 
least economic and social costs; (5) incentive-based 
conservation measures that provide a net benefit to the 
species; and (6) plans in which the primary implementing party 
is a nonfederal person.
    The draft conservation plan must be published within 12 
months after a listing. Each draft plan must contain: (1) 
recommendations for compliance by Federal agencies with the 
consultation requirements of ESA Section 7, (2) recommendations 
for avoiding a ``take'' and a list of activities that would 
constitute a ``take'' of a species, and (3) alternative 
strategies to achieve the conservation goal. This provision 
contains a list of issues to be addressed in each alternative. 
It is important that all of these issues be addressed and 
considered. The conservation plan is the appropriate vehicle by 
which to seek a balance between consideration of socioeconomic 
impacts and measures designed to conserve species.
    The Secretary shall consult with the Governor of each State 
where the species is located in the preparation of the draft 
and final plan. The plan must also provide for the equitable 
treatment of States and other nonfederal persons. The Secretary 
must publish a summary of the draft plan and seek comments. The 
Secretary must hold at least one public hearing in each 
affected State.
    Not later than 18 months after a listing, the Secretary 
must select and publish the summary of a final conservation 
plan along with: (1) the reasons for selection of the final 
plan; (2) the reasons for not selecting other alternatives; (3) 
the effect of the priorities on the selection of the plan; and 
(4) the response of the Secretary to the comments received.
    Federal actions that are consistent with the conservation 
plan (or a conservation objective, where no plan is published) 
are to be considered in compliance with the ``take'' 
prohibition, except that an agency may seek guidance from the 
Secretary on consistency.
    FWS has estimated that under the ESA for each recovery 
plan, it will cost $2 million and at least 10 years to delist a 
species. Plans should be as cost effective and realistic as 
possible while achieving the conservation goal for the species.

Section 503. Interim measures

    Section 503 sets forth protection measures during the 
interim period between listing and the final conservation plan. 
During that period the ``take'' prohibitions apply except for 
those considered to be incidental takes, and Federal agencies 
are required to confer with the Secretary in the same manner as 
required for proposed species.
    Where an incidental take permit has been issued or a CMA 
applies, the Secretary is to suspend the conservation objective 
or plan for the area covered by the permit or CMA. The 
Secretary is required to review each conservation plan or 
objective once every five years. The Secretary must revise a 
plan or objective if the Secretary makes certain findings.

Section 504. Critical habitat for species

    Section 504 retains authority to designate critical habitat 
for a listed species but moves the authority from Section 4 to 
Section 5 of the ESA. Section 504 also moves the timing of the 
designation from the date of listing to the date of publication 
of the conservation plan. The Secretary must first consider 
land in a National Biodiversity Reserve as a first priority in 
designating critical habitat for a listed species. The 
Secretary must also revise a critical habitat designation 
established before the effective date of H.R. 2275, if it does 
not meet the new requirements for designation of critical 
habitat provided in the bill. The proposed rule to designate 
critical habitat must be published within 12 months of listing 
and the final rule within 18 months of listing. The decision 
must be based on best available scientific and commercial data 
after considering economic impacts of the critical habitat 
designation and the listing of the species. The Committee 
intends that this economic analysis be cumulative in nature. 
The Secretary is to exclude from designation as critical 
habitat an area that: (1) does not meet the definition of 
critical habitat; (2) is not necessary to achieve the 
conservation objective of the species; (3) where the benefits 
of exclusion outweigh the benefits of designation unless the 
failure to designate will result in extinction of the species; 
and (4) in the case of nonfederally-owned property, where the 
owner has not given written permission or has not been 
compensated. The Secretary must publish the proposed rule and 
include a description of the economic impacts and benefits, 
along with a map showing the area designated.
    Conservation plans and objectives are subject to judicial 
review based on whether the decision is arbitrary, capricious 
or an abuse of discretion. In developing a conservation plan or 
objective for a foreign species, the Secretary must act 
consistent with the CITES treaty and cooperate and support the 
conservation program in the foreign nation for that species.

Section 505. Recognition of captive propagation as means of recovery

    Under Section 505, the Secretary is required to recognize 
and utilize, to the maximum extent possible captive propagation 
as a means of protecting and conserving a listed species. The 
Secretary may award a grant for a captive propagation program 
to a nonfederal person if the program contributes to the 
enhancement of the population of a listed species. Captive 
breeding has played an important role in saving numerous 
species from extinction. It also has played an important role 
in increasing populations of species by substantial numbers to 
the point that the species achieved viable levels leading to 
recovery. The Committee intends that captive propagation, which 
has been an important tool in recovery of many species, shall 
be recognized and encouraged.

Section 506. Introduction of species

    Section 506 retains ESA Section 10(j) which gives the 
Secretary authority to release experimental populations of 
listed species, and retains the provision that they are to be 
generally treated as though they are listed as a ``threatened 
species''. This section requires the Secretary, before 
releasing an experimental population, to publish a rule 
identifying the population and the boundaries of the area for 
the release. The Secretary must determine whether the release 
is in the public interest and whether the population is 
essential to the continued existence of the species. Section 
506 amends Section 10(j) to require the Secretary to adopt 
regulations regarding the release of predatory mammals to 
national parks or wildlife refuges. If the species enters 
private lands, the regulation must provide for removal back to 
the park or refuge, measures for public safety, and for 
compensation for damage to property. For the purposes of the 
protective regulations for threatened species and for the 
``take'' prohibition, members of the experimental population 
found outside the area of the release are not treated as 
threatened species if the member poses a threat to the welfare 
of the public, and critical habitat is not to be designated or, 
if designated prior to passage of H.R. 2275, shall be removed 
from private property for an experimental population unless 
determined to be essential to the continued existence of the 
species. The Secretary must determine those experimental 
populations that are essential and those that are nonessential 
populations.
    Releases should be done to the maximum extent practicable 
only in units of a national park or wildlife refuge. If outside 
a unit, releases must be in areas identified as a candidate 
site for releases in a conservation plan. Where the release is 
outside a unit, measures must be taken to protect the safety 
and welfare of the public and domestic animals. The rule 
authorizing the release must identify the area for release. 
Releases on nonfederal lands require the consent of the owners. 
The rule authorizing the release must include measurable goals 
to restore viable populations within the area of the release. 
The Secretary must remove a member of an experimental 
population from private land at the request of the landowner. 
The regulations must define what action would constitute a take 
of a member of an experimental population.
    A number of States in which there have been releases of 
experimental populations have expressed by various legislative 
enactments opposition to the releases. The Committee has 
adopted specific language that the Secretary shall comply with 
the laws of affected States relating to the species to be 
released. Therefore, if a State enacts legislation opposing the 
release of a specific species, the Secretary must not proceed 
with the release in opposition to the State's expressed 
legislative will.

Section 507. Conserving threatened species

    While the ESA provides that there be a legal distinction 
between regulations to protect a threatened species and 
regulations to protect an endangered species, this distinction 
has been blurred through the regulatory process. There is 
little, if any, difference in the type of protections and 
prohibitions that have been established for these two lists of 
species. The practical impact for the regulated community has 
been that in many cases extremely restrictive measures that may 
be appropriate to prevent extinction are imposed on species 
which are not in danger of extinction and where less 
restrictive and more flexible approaches might work as well, if 
not better, while accomplishing the goal of preventing further 
endangerment.
    Section 507 amends Section 4(d) of the ESA, to require that 
when a species is listed as ``threatened'' the Secretary must 
publish concurrent with the listing regulations applicable to 
the species. The regulation may include the prohibitions 
contained in ESA Section 9, including the ``take'' prohibition. 
The prohibitions applied to threatened species may not be as 
restrictive as those for endangered species. A rule to protect 
threatened species applies only to the extent the State has 
adopted the rule, where the State is working to conserve the 
species under a cooperative management agreement or delegation 
agreement.

Section 508. Delegation of authority to States

     Section 508 adds a provision to ESA Section 5 to authorize 
the Secretary to delegate to a State the authority to develop 
and implement conservation objectives and conservation plans 
for a species or group of species, unless the Secretary 
determines the State lacks authority and capability to carry 
out the requirements of the law with respect to conservation 
planning. The Secretary is required, if the Secretary finds the 
State lacks authority, to give the State notice of specific 
concerns and specify measures to address those concerns. This 
section requires the Secretary to monitor the actions of the 
State and to assist the State in coordinating its actions with 
other States. The Secretary must first notify the State of any 
noncompliance and give the State 60 days in which to respond 
and come into compliance. If the State fails to comply, the 
Secretary may resume authority for the conservation objective 
and plan. The Committee strongly encourages State involvement 
in the conservation of species. The Committee encourages the 
Secretary to facilitate the delegation of authority to the 
States for the development and implementation of conservation 
objectives.

                     TITLE VI. HABITAT PROTECTIONS

Section 601. Federal biological diversity reserve

    The Federal Government owns more than one-third of all land 
in the United States, and more than 280 million acres of land 
is currently in a legal status that is primarily dedicated to 
conservation according to the General Accounting Office. While 
these lands are in some type of conservation status, they do 
not have as a primary use, the proactive protection of 
endangered or threatened species. The provisions of this Title 
are intended to be the primary means by which habitat for 
listed species is acquired.
    Section 601 establishes a National Biological Diversity 
Reserve to be composed of units of Federal and State lands, to 
be designated by the Secretary of the Interior and the 
Secretary of Agriculture, from those units of national 
conservation systems that would contribute to the protection, 
maintenance, and enhancement of biological diversity. The lands 
eligible would include Federally-owned lands within the 
National Park System, the National Wildlife Refuge System, the 
National Wilderness Preservation System, and wild segments of 
rivers within the National Wild and Scenic Rivers System. The 
designation to the Reserve of any particular unit must be done 
under the Administrative Procedure Act and shall provide for 
full and meaningful public comment.
    The Secretary may also designate State lands if the unit is 
nominated by the Governor and managed under State law. 
Privately-owned land can also be designated if nominated by the 
owner of the land, but the owner may request its immediate 
removal. Designation is not to affect any valid existing legal 
rights or interests.
    The Reserve may have as a management goal for units of the 
reserve the conservation of biological diversity. This goal is 
to be supplementary to other objectives established in the law 
applicable to each unit and the purpose for which the unit was 
established. The Committee does not intend that these lands be 
restricted to all other uses. In fact, those uses stated in any 
legislative authorization should continue to be allowed and 
encouraged as long as they can be conducted consistent with 
this section. The burden should be on the Secretary to 
demonstrate that any of those uses cannot be conducted 
consistent with this section.
    The manager of each reserve unit is to use his or her 
authority for active management and recovery and must survey 
the land to determine the populations of species in the 
Reserve. This section is not to be construed to alter existing 
water-related rights or to affect any laws related to hunting, 
fishing, trapping or other lawful wildlife harvest. The species 
inventory is to be conducted within one year of the designation 
of the unit to the Reserve. Nothing in this section may be 
construed to prevent land managers of land not located in the 
Reserve from protecting biological diversity on those lands, 
but the Secretary must first find that the biological diversity 
for which the action is to be taken is not protected on any 
unit of the Reserve.

Section 602. Land acquisition

    Section 602 provides the Secretary of the Interior and the 
Secretary of Agriculture with authority to acquire land, 
including by way of short- or long-term conservation easements, 
as part of a program to conserve fish, wildlife, and plants, 
including listed species. Funds available from the Land and 
Water Conservation Fund may be used for that purpose.
    This section should be used in conjunction with Title I to 
ensure that, where necessary to provide permanent habitat for 
species, the acquisition authority is used rather than placing 
the burden on private landowners to provide such habitat 
without compensation.

Section 603. Property exchanges

    Section 603 authorizes and encourages the Secretary of the 
Interior and the Secretary of Agriculture to exchange land or 
water for land or water not under Federal jurisdiction. The 
exchanges may be made if the Secretary determines that the 
lands are of approximately equal value. An environmental 
assessment would be the only document under NEPA that would be 
required for the exchange. Any property to be purchased, 
exchanged, donated, or otherwise transferred is to be valued as 
though not subject to the restrictions of the ESA. The 
Secretary is to ensure that such transfers do not impair 
existing legal rights of adjacent landowners.
    Exchanges are intended to be another method for 
compensation of private property owners under Title I, where 
permanent habitat must be provided for species.

TITLE VII. STATE AUTHORITY TO PROTECT ENDANGERED AND THREATENED SPECIES

Section 701. State authority

    Section 701 authorizes the Secretary to delegate to a State 
which has an adequate program for the conservation of 
endangered or threatened species the authority to implement the 
ESA. This section provides for a more comprehensive delegation 
of authority than delegations under ESA Section 508, which are 
limited to conservation objectives and plans. For the program 
to be adequate the Secretary must find that: (1) the State has 
the authority to conserve resident endangered or threatened 
species; (2) the State has acceptable conservation programs 
that are consistent with the ESA and has submitted copies of 
such plans to the Secretary; (3) the State is authorized to 
conduct investigations to determine the status for survival of 
resident species; (4) the State has programs to acquire land or 
habitat for the conservation of species; (5) provision is made 
for public participation in the designation of species as 
endangered or threatened; and (6) the State has voluntary or 
incentive-based programs to further conservation objectives of 
the species.
    The delegation to a State of the program does not affect 
the applicability of the take prohibition or the taking of 
threatened species.
    This section authorizes the Secretary to provide financial 
assistance to a delegated State. Allocations of funds are to be 
based on: (1) international commitments of the U.S. to protect 
listed species; (2) the readiness of a State to proceed 
consistently with the ESA; (3) the number of listed species in 
a State; (4) the potential for restoring listed species in a 
State; (4) the urgency to initiate a program in terms of 
survival of the species; (5) the importance of monitoring 
candidate species to prevent significant risk to the well being 
of any such species; and (6) the importance of monitoring the 
status of recovered species to ensure they do not require 
listing again.
    Delegation agreements must provide: (1) the action to be 
taken; (2) the benefits to be derived; (3) the estimated costs; 
and (4) the share of costs to be borne by the U.S. and by the 
State, except that the Federal share shall not exceed 75 
percent. However, the Federal share may be increased to 90 
percent whenever two or more States with a common interest in 
one or more species enters into a joint agreement with the 
Secretary. State delegation agreements are to be reviewed every 
five years.
    The Committee urges the Secretary to delegate the 
implementation of the ESA to those States which seek 
delegation. States have demonstrated that they have the 
knowledge and expertise to operate good programs for the 
conservation and management of wildlife and plants.

Section 702. State programs affected by the convention

    Section 702 provides that if a State has a program for 
management of a native species which is the subject of an 
export permit request under CITES, the Secretary shall act in 
accordance with the State recommendation, unless the Secretary 
finds that scientific evidence supports a conclusion contrary 
to the advice of the State. The decision is appealable to an 
administrative law judge or a court and the burden is on the 
Secretary to show that the evidence supports a finding contrary 
to the State.

Section 703. Collaborative rulemaking with the States

    Section 703 precludes the Secretary of the Interior from 
proposing a rule that has application in a State until the 
Secretary and the State have consulted and the State has been 
given a meaningful opportunity to assist in the development of 
the rule. The Secretary is required to develop procedures to 
carry out this requirement within 60 days of the effective date 
of the Act.

              title viii. funding of conservation measures

Section 801. Authorizing increased authorizations

    The authorization for the ESA expired on September 30, 
1992. Since that time, funds have been routinely appropriated 
to allow the provisions of the ESA, such as listing decisions, 
recovery plans, habitat designations, and the various 
prohibitions, to remain in effect.
    Section 801 authorizes appropriations to the Secretary of 
the Interior of $110 million for Fiscal Year 1996; $120 million 
for Fiscal Year 1997; $130 million for Fiscal Year 1998; $140 
million for Fiscal Year 1999; $150 million for Fiscal Year 
2000; and $160 million for Fiscal Year 2001. Authorization of 
appropriations for the Secretary of Commerce are $15 million 
for Fiscal Year 1996; $20 million for Fiscal Year 1997; $25 
million for Fiscal Year 1998; $30 million for Fiscal Year 1999; 
$35 million for Fiscal Year 2000; and $40 million for Fiscal 
Year 2001. The Secretary of Agriculture is authorized to be 
appropriated $4 million for each of Fiscal Years 1996 through 
2001.
    For each of Fiscal Years 1996 through 2001, the section 
also authorizes $20 million for cooperative management 
agreements, $1 million for the implementation of CITES, $20 
million for species conservation planning under ESA Section 10 
and $20 million for habitat conservation grants.

Section 802. Funding of Federal mandates

    Section 802 requires the Federal Government to share 50 
percent of those direct costs which must be undertaken because 
of a Federal mandate under the ESA. This section provides for 
various methods of meeting the cost share requirements.

Section 803. National endowment for fish and wildlife

    Section 803 establishes a trust fund to be used for payment 
of compensation to nonfederal property owners including habitat 
acquisition, habitat conservation grants, and costs sharing 
requirements. The Secretary may receive and deposit gifts into 
the trust fund. This section provides a means whereby private 
organizations and individuals may contribute through private 
donations to programs that conserve and protect wildlife and 
plants listed as endangered or threatened. The Committee 
encourages public participation in the funding of conservation 
programs.

                   title ix. miscellaneous provisions

Section 901. Amendments to definitions

    Section 901 defines general terms used throughout the bill.

Section 902. Review of species of national interest

    Section 902 provides for transition for population segments 
and requires the Secretary, within 60 days of enactment, to 
review and identify those species which are listed as 
population segments and determine whether it is in the national 
interest to continue to list those population segments. The 
Secretary would then make recommendations to Congress. Any 
population segment not determined by Congress to be in the 
national interest must be delisted within 180 days of the 
Secretary's submission.

Section 903. Preparation of conservation plans for species listed 
        before enactment of this act

    Section 903 is transitional and sets up a priority system 
for insuring that conservation objectives and plans are 
developed for species already listed and sets forth a schedule 
for the development of conservation plans and objectives.

Section 904. Application of conservation plans for single or multiple 
        species to habitat conservation plans approved prior to this 
        act

    Section 904 provides that conservation plans approved prior 
to the effective date of this bill remain in effect if a 
species to which it applies is listed as endangered or 
threatened.

Section 905. Washington County, Utah, Desert Tortoise Habitat 
        Conservation Plan

    Section 905 deems the Washington County Utah Desert 
Tortoise Incidental Take Permit Habitat Conservation Plan dated 
June 1995 in compliance with Section 10 of the ESA and requires 
the Secretary to promptly issue a permit for activities covered 
by that document.

Section 906. Taking of species to conserve listed species

    Section 906 provides that the taking of a nonlisted species 
to conserve a listed species is not a violation of any other 
Federal law, unless the species is listed as endangered or 
threatened, depleted, or a strategic stock, as those terms are 
defined in this section.

Section 907. Conforming amendments

    This section makes conforming amendments to the table of 
contents of the ESA reflecting changes to that Act made by H.R. 
2275.

Section 908. Application of provisions to certified applicators of 
        registered pesticides

    Section 908 clarifies that nothing in the bill is to be 
construed to prohibit a certified applicator from applying a 
registered pesticide at a commercial facility located in 
critical habitat to prevent, destroy, or repel pests that may 
pose a public health or safety threat. Commercial facility 
means food processing plants, food warehouses, grocery stores, 
restaurants and shopping malls.
    The Committee is aware of potential situations in which 
public health and safety may be compromised to protect 
endangered species. The concern is that food processing or 
handling plants located in critical habitat areas be able to 
apply a rodenticide around the facility to prevent rodent 
infestations. This could result in the spread of rodent-borne 
diseases and serious public health consequences. This provision 
is intended to allow these diseases to be prevented by allowing 
certified applicators or persons under their direct supervision 
to apply pesticides or rodenticides in or around commercial 
food establishments in critical habitat areas.

            Committee Oversight Findings and Recommendations

    With respect to the requirements of clause 2(l)(3) of rule 
XI of the Rules of the House of Representatives, and clause 
2(b)(1) of Rule X of the Rules of the House of Representatives, 
the Committee on Resources' oversight findings and 
recommendations are reflected in the body of this report.

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that the 
enactment of H.R. 2275 will have no significant inflationary 
impact on prices and costs in the operation of the national 
economy.

                        Cost of the Legislation

    Clause 7(a) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs which would be incurred in carrying out 
H.R. 2275. However, clause 7(d) of that Rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under Section 403 of the Congressional Budget Act of 1974.

                     Compliance With House Rule XI

    1. With respect to the requirement of clause 2(l)(3)(B) of 
rule XI of the Rules of the House of Representatives and 
Section 308(a) of the Congressional Budget Act of 1974, H.R. 
2275 does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in tax 
expenditures. Section 802 of H.R. 2275 will reduce offsetting 
receipts to the Treasury by approximately $1.5 million in 1997; 
however, beginning in 1998, section 802 will result in an 
estimated net reduction in direct spending of $3.5 million a 
year. In addition, under section 201, direct spending will be 
further reduced by less than $500,000 per year.
    2. With respect to the requirement of clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform and 
Oversight on the subject of H.R. 2275.
    3. With respect to the requirement of clause 2(l)(3)(C) of 
rule XI of the Rules of the House of Representatives and 
Section 403 of the Congressional Budget Act of 1974, the 
Committee has received the following cost estimate for H.R. 
2275 from the Director of the Congressional Budget Office.

               Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, March 7, 1996.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2275, the 
Endangered Species Conservation and Management Act of 1995.
    Enactment of H.R. 2275 would affect direct spending. 
Therefore, pay-as-you-go procedures would apply to the bill. 
H.R. 2275 contains no intergovernmental or private sector 
mandates, as defined in Public Law 104-4.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                         June E. O'Neill, Director.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    1. Bill number: H.R. 2275.
    2. Bill title: Endangered Species Conservation and 
Management Act of 1995.
    3. Bill status: As ordered reported by the House Committee 
on Resources on October 12, 1995.
    4. Bill purpose: H.R. 2275 would amend the Endangered 
Species Act (ESA) and authorize funding for programs carried 
out under the statute. A major focus of the bill is the 
protection of property rights, which the legislation would 
address by granting local property owners a greater role in 
planning and conservation activities, by authorizing agencies 
to provide technical and financial assistance to landowners who 
wish to participate in conservation projects, and by requiring 
federal agencies to compensate nonfederal property owners 
whenever actions by the agencies reduce property values by 20 
percent or more. Other provisions of the bill would give states 
a greater voice in federal regulatory decisions and would 
encourage states and localities to participate in endangered 
species conservation efforts by authorizing additional funds 
for grants to nonfederal entities.
    Title VIII of the bill would address the financing of 
conservation measures by providing for appropriations from a 
combination of sources. In particular:
    Section 801 would authorize specific appropriations for 
federal agencies responsible for administering the ESA (the 
Interior, Commerce, and Agriculture Departments) and for 
financial assistance to state and local governments or other 
nonfederal entities. In aggregate, the bill would authorize 
annual appropriations of between $190 million (for fiscal year 
1996) and $265 million (for 2001), for a total of about $1.4 
billion over a six-year period. These authorizations are in 
addition to any grants authorized by the ESA from the 
Cooperative Endangered Species Conservation Fund or any amounts 
authorized under section 802.
    Section 802 would establish federal cost-sharing 
requirements for conservation activities carried out by 
nonfederal entities (including government agencies and private 
persons) and by federal power marketing administrations (PMAs). 
This section would require the Secretary of the Interior to pay 
50 percent of all direct costs of conservation measures 
required under ESA, including expenses related to applying for 
permits and complying with habitat conservation plans or other 
conservation requirements imposed by the federal government. 
For PMAs, direct costs also would include the effects of 
operational changes made to comply with conservation measures, 
such as revenue losses and increases in purchases of power from 
other sources. The Secretary would have to make direct payments 
from appropriated funds directly to PMAs, states, and local 
governments for the entire federal share of their eligible 
costs but could satisfy the federal government's 50 percent 
matching requirement for costs incurred by other parties, such 
as local landowners, by providing habitat conservation grants 
or by acquiring their property. If the Secretary fails to 
provide the federal share or such costs, the terms and 
provisions of any related permits, conservation plans, 
management agreements or other requirements imposed under the 
ESA would be suspended until payment is made. Finally, section 
802 would provide that the Interior Department's share of 
conservation expenditures would be considered a nonreimbursable 
cost for purposes of setting PMA electricity rates.
    Section 803 would establish the National Endowment for Fish 
and Wildlife Trust Fund, consisting of contributions received 
by the Secretary and any amounts that may be appropriated from 
other federal funds. Amounts in the fund would be used for 
habitat conservation grants to private persons or 
organizations, compensation payments to landowners under Title 
I, and federal cost-sharing obligations under section 802. 
Section 803 also would authorize the Secretary to accept and 
use amounts contributed by the public in support of endangered 
species programs.
    Finally, section 201 would amend section 11 of the ESA, 
which addresses lawsuits brought against the federal government 
by private citizens. As amended, section 11 would continue to 
allow suits to compel the government to carry out certain 
duties, but under more limited circumstances. Other amendments 
to section 11 would clarify the rights of persons who may 
suffer economic harm as a result of agency actions to carry out 
the ESA, including the right to intervene in citizen suits. 
Finally, the bill would remove a provision currently in section 
11 that authorizes federal courts to award attorney and expert 
witness fees to any party in a citizen suit.
    Other provisions of the bill would have no significant 
impact on federal spending.
    5. Estimated cost to the Federal Government: Although 
authorizations for funding under the ESA expired in 1992, the 
Congress has continued to appropriate funds each year for 
programs carried out under the act. For fiscal year 1995, the 
Congress earmarked about $80 million for these programs. The 
Congress has not yet enacted full-year funding for fiscal year 
1996, but funding to date has been at an annualized level of 
roughly $73 million--higher than the 1992 authorization level 
of about $51 million but considerably less than the annual 
amounts authorized by H.R. 2275. Assuming appropriation of the 
entire amounts authorized by section 802 for each fiscal year, 
1996 funding for ESA activities would total $190 million--an 
increase of $110 million over the 1995 level. The budgetary 
effects of the new authorization amounts and of the implicit 
authorizations of funds to satisfy the new federal cost-sharing 
requirements of section 802 are summarized in the following 
table, along with small estimated changes in mandatory 
spending.

                                    [By fiscal year, in millions of dollars]                                    
----------------------------------------------------------------------------------------------------------------
                                                              1995     1996     1997     1998     1999     2000 
----------------------------------------------------------------------------------------------------------------
Spending subject to appropriations:                                                                             
    Spending under current law:                                                                                 
        Bugdet authority..................................   \1\ 80   \2\ 32     ----     ----     ----     ----
        Estimated outlays.................................       72       48     ----     ----     ----     ----
    Proposed changes:                                                                                           
        Authorization level...............................     ----      158      430      445      460      475
        Estimated outlays.................................     ----       15      435      421      447      471
    Spending under H.R. 2275:                                                                                   
        Specified authorization level.....................       80      190      205      220      235      250
        Estimated authorization level.....................     ----     ----      220      225      225      225
                                                           -----------------------------------------------------
          Total estimated authorizations..................       80      190      425      445      460      475
        Estimated Outlays.................................       72       63      430      421      447      471
Changes in direct spending:                                                                                     
    Estimated budget authority............................     ----    (\3\)        1       -4       -4       -4
    Estimated outlays.....................................     ----    (\3\)        1       -4       -4      -4 
----------------------------------------------------------------------------------------------------------------
\1\ The 1995 level is the amount actually appropriated for programs authorized by this bill.                    
\2\ The current law total for fiscal year 1996 includes amounts that have already been appropriated under       
  continuing resolutions enacted thus far. To date, the Congress has provided funding for the first five and one-
  half months of the fiscal year at an annualized level of $73 million.                                         
\3\ Less than $500,000.                                                                                         

    The costs of this bill fall within budget function 300.
    No amounts have been included in the above table for 
compensation payments to private property owners under Title I 
of H.R. 2275. While there is no basis for estimating precisely 
the cost of compensating property owners in any given year, CBO 
estimates that total compensation payments would not be 
significant over the 1996-2000 period because only a small 
number of claims would be paid during this time--most of which 
probably would be for very small amounts. Title I may encourage 
more sizable claims, but we expect that such claims would take 
several years to resolve.
    The table also does not include any amounts for 
transactions related to the National Endowment for Fish and 
Wildlife because there is no basis for estimating how much may 
be appropriated to or from the fund that the bill would 
establish. Spending of amounts contributed to the endowment 
(which apparently would not be subject to appropriations) would 
be offset by additional receipts and would thus have no net 
impact on the federal budget. In any event, such amounts are 
not expected to be significant.
    6. Basis of estimate:

Spending subject to appropriations

    For purposes of this estimate, CBO has assumed that H.R. 
2275 would be enacted by August 1996 and that the entire 
amounts specifically authorized or estimated to be necessary 
would be appropriated for each fiscal year. Outlays have been 
estimated on the basis of historical spending patterns for 
ongoing ESA programs and similar conservation activities.
    Specific authorizations of appropriations. Section 801 of 
H.R. 2275 would authorize the appropriation of operating funds 
to the three federal agencies responsible for carrying out the 
ESA. For fiscal years 1996 through 2001, the bill would 
authorize between $110 million and $160 million a year for the 
Department of the Interior (DOI), which has primary 
responsibility for implementing and enforcing the act through 
the U.S. Fish and Wildlife Service (USFWS). H.R. 2275 also 
would authorize between $15 million and $40 million annually 
for the Department of Commerce, which administers ESA programs 
for marine species through the National Marine Fisheries 
Service, and $4 million annually for the Department of 
Agriculture for animal and plant inspections. The bill would 
authorize the appropriation of $1 million annually to DOI for 
implementing CITES--the Convention on International Trade in 
Endangered Species--and $60 million annually for assisting 
nonfederal entities, including $20 million for conservation 
planning, $20 million for carrying out cooperative management 
agreements (including land acquisition and financial assistance 
to participants), and $20 million for habitat conservation 
grants.
    In total, the funding levels specified in H.R. 2275 for 
each year are more than double the recent appropriated levels. 
The higher operating authorizations for DOI reflect the greater 
costs of carrying out the ESA under the many new requirements 
imposed by H.R. 2275. These provisions would affect regulatory 
costs by requiring additional public notice and hearings, 
consultation with affected states, and scientific peer review 
of agency decisions. Other provisions would increase 
administrative costs-particularly those of Title I, which would 
require the USFWS to establish a system for processing 
landowner requests for compensation. The $60 million authorized 
annually for assistance to nonfederal parties would be used in 
large part to comply with the federal matching requirements of 
section 802--for grants, land purchases, and other payments to 
state and local agencies and private land owners.
    Estimated authorizations. The estimated authorizations 
shown in the table reflect the potential net effect on 
discretionary spending of section 802, which would require DOI 
to fund 50 percent of the costs of conservation measures taken 
by PMAs that sell hydroelectricity in the western and 
southeastern United States. The estimate of about $225 million 
a year is equal to one half of projected annual expenditures 
for conservation activities conducted primarily by the 
Bonneville Power Administration (BPA), and, to a much lesser 
extent, by the Western Area Power Administration (WAPA). BPA's 
conservation activities and certain WAPA projects do not 
receive appropriated funds for such purposes. (The impact of 
this authorization on BPA's electricity receipts is discussed 
in the direct spending subsection below.) Over the 1996-2000 
period, BPA projects spending of about $435 million annually 
for mitigation measures (including purchases of power from our 
sources) to protect endangered fish species in the Columbia 
River basin. Under current law, the self-financed BPA would 
reflect the entire cost of such measures in its rates and would 
spend the resulting collections without further appropriation. 
Section 802, in contrast, would require BPA to recover half of 
such costs from DOI rather than from its ratepayers. In order 
to make such payments to BPA and to WAPA's self-financed 
projects, DOI would need additional appropriations of about 
$225 million a year. The department also would have to pay a 
total of roughly $6 million annually to other PMAs, but any 
appropriations to DOI for this purpose would be offset by an 
identical decrease in appropriations directly to those power 
marketing administrations.
    Costs of compensating private property owners. Title I 
would add a new section to the ESA addressing the rights of 
property owners. Specifically, the new provisions would 
prohibit the federal government from taking any action under 
the ESA that diminishes the market value of nonfederal property 
by 20 percent or more unless it offers to compensate the 
owners. The acting agency or agencies would be required to 
offer an affected property owner an amount equal to the 
diminution in value resulting from any federal action that 
limits an otherwise lawful use of the property. Property owners 
could seek compensation by writing the appropriate agency, 
electing binding arbitration, or bringing a civil action 
against the government. In all cases, any compensation amount 
negotiated or awarded (including related costs such as legal 
fees, and, in the case of litigation, interest awards) would be 
paid by the agency from appropriated funds. The bill specifies 
that all obligations of the United States for such compensation 
would be subject to the availability of appropriations.
    The costs of Title I would depend on future actions taken 
by the USFWS and other federal agencies and by affected 
property owners, and on the outcome of future arbitration and 
court proceedings. These factors are extremely difficult to 
predict.
    On the one hand, several provisions of Title I would 
probably cause more landowners to seek--and possibly obtain--
compensation than do so under current law. CBO believes that 
the most important of these, accounting for the vast majority 
of new claims for compensation, is the establishment of a new 
administrative process for landowners who believe they have 
been harmed by an agency action. Allowing property owners to 
request payment directly from an agency without having to 
initiate a lawsuit would make it easier (and much cheaper) to 
seek compensation, particularly for the small landowners most 
often affected by endangered species regulations. Other 
provisions of the bill, such as the 20 percent loss threshold, 
probably would increase the number of lawsuits brought against 
the United States, at least in the short run, but we expect the 
increase in litigation would be much less costly to the federal 
government than the direct compensation cited above, because 
most such suits would probably be for large claims that would 
have been brought under current law anyway.
    On the other hand, many provisions of Title I and other 
titles of H.R. 2275 could have the effect of limiting potential 
costs. For example, the bill would reduce the number of 
landowners affected by the ESA be exempting certain activities 
from permitting requirements and other regulations and by 
requiring the federal government to obtain landowner permission 
before any private property is designated as critical habitat 
for a listed species. Other provisions of the bill address 
general concerns of landowners who still must comply with the 
act by simplifying the regulatory process and by providing more 
certainty (for example, by preventing agencies from expanding 
or changing permit terms of conservation plan requirements 
after they have been agreed to). Also, section 802 would 
further reduce landowners' costs of complying with the ESA by 
requiring DOI to pay one half of all direct compliance 
expenses, including those incurred to apply for permits. 
Finally, the requirement that agencies pay all compensation 
awards, including interest and legal costs, from their 
appropriation would probably minimize the costs of Title I by 
encouraging the affected agencies to avoid actions that would 
cause property owners to bring claims, to the greatest extent 
allowed by applicable law.
    While the net effect of these factors on total compensation 
costs is impossible to estimate, CBO expects that the total 
cost of compensation payment would be higher than under current 
law (especially because there are so few claims brought or paid 
at present), at least in the short run. Because most claims 
would be for very small amounts, the additional cost would 
probably not add significantly to the costs of carrying out the 
ESA. Compensation costs in the long run would depend on how 
federal agencies respond to landowner claims and on the outcome 
of future litigation.

Direct spending

    PMA cost sharing. CBO estimates that implementing the 
federal cost-sharing requirements of section 802 would reduce 
offsetting receipts by about $1.5 million in 1997. This amount 
is equal to one half of the cost of ESA conservation activities 
carried out by the Southeastern Power Administration (SEPA), 
the Southwestern Power Administration (SWPA), the Alaska Power 
Administration (APA), and portions of the Western Area Power 
Administration. We estimate that these agencies will spend a 
total of about $3 million annually from appropriated funds to 
comply with the ESA over the next several years, all of which 
would be fully reimbursed by electricity customers under 
current law. Section 802 would make the DOI share of such costs 
nonreimbursable for purposes of setting electricity rates. As a 
result, the PMAs would have lower electricity rates, reducing 
their receipts by $1.5 million each year. Receipt losses 
incurred by BPA and WAPA's self-financed projects, which also 
would be required to cut rates, are not included in the $1.5 
million total because they would be offset by an identical 
reduction in mandatory spending authority. (No receipt losses 
are included for WAPA operations at Shasta Dam in California 
because all costs of conservation measures at these facilities 
are already nonreimbursable for ratemaking purposes.)
    After 1997, the full cost of conservation measures carried 
out at one of WAPA's self-financing projects--Glen Canyon Dam--
will become nonreimbursable under the provisions of the Grand 
Canyon Protection Act in Public Law 102-575. Beginning in 1998, 
enactment of the bill would reduce direct spending for the Glen 
Canyon Dam by $5 million annually, replacing it with 
appropriated spending, without any corresponding reduction in 
electricity receipts. Combining the direct spending savings at 
this project of $5 million annually starting in 1998, with the 
cost of about $1.5 million annually at other projects, results 
in an estimated net savings of about $3.5 million annually in 
direct spending starting in 1998.
    Elimination of cost reimbursements in citizen suits. 
Section 201 would amend the ESA to terminate the authority of 
courts to award legal and expert witness fees to litigants in 
citizen suits. At present, such payments are made by the 
Department of Justice to parties (usually conservation groups) 
in citizen suits brought against the USFWS. Because these 
payments are made from the permanent judgment appropriation 
established by 31 United States Code 1304, repeal of the 
authority to award such amounts would reduce direct spending. 
In the past, individual payments have varied from a few 
thousand dollars to as much as $2 million. CBO estimates that 
savings from section 201 would average less than $500,000 a 
year.
    7. Pay-as-you-go considerations: Section 252 of the 
Balanced Budget and Emergency Deficit Control Act of 1985 sets 
up pay-as-you-go procedures for legislation affecting direct 
spending or receipts through 1998. CBO estimates that enactment 
of H.R. 2275 would affect direct spending overt this period. 
Section 802 of the bill, which would make the cost of 
conservation projects non-reimbursable for purposes of setting 
utility rates, would result in a $1.5 million increase in 
spending in 1997 and a $3.5 million decrease in 1998. Section 
201, which would repeal existing authority to pay certain legal 
fees in citizen suits, would decrease spending by less than 
$500,000 annually staring in 1996. Finally, section 803 could 
increase receipts from contributions, but such amounts are not 
expected to be significant. The estimated pay-as-you-go effects 
are summarized in the following table.

                [By fiscal year, in millions of dollars]                
------------------------------------------------------------------------
                                                 1996     1997     1998 
------------------------------------------------------------------------
Change in outlays............................        0        1       -4
Change in receipts...........................        0        0        0
------------------------------------------------------------------------

    8. Estimated impact on State, local, and tribal 
governments: H.R. 2275 contains no intergovernmental mandates 
as defined in Public Law 104-4. The bill would affect state and 
local governments in a number of ways, but would not require 
any additional spending by these governments. State and local 
governments would benefit from many provisions in the bill that 
would enhance their role in implementing the ESA. Any 
additional state or local costs would result from voluntary 
decisions to accept greater responsibilities under the act. The 
bill would authorize appropriations to cover some of the costs 
of these voluntary activities as well as activities currently 
mandated by the ESA that would otherwise be borne by state and 
local governments or private individuals.
    Federal cost-sharing provisions. H.R. 2275 would direct the 
federal government to pay 50 percent of certain ESA-related 
costs incurred by state and local governments, private 
entities, and federal power marketing administrations and would 
authorize appropriations for some of these costs. These 
payments would be subject to the availability of 
appropriations. Should the required funds not be available to 
pay any of these costs, the relevant requirements placed upon 
any state or local government, private entity, or power 
marketing administration by a permit, plan, or agreement would 
be suspended until payment is made. H.R. 2275 would authorize 
annual appropriations of $20 million per year for fiscal years 
1996-2000 for the federal share of costs incurred under section 
6 cooperative management agreements and $20 million for the 
same period for the federal share of costs incurred to apply 
for and implement certain permits authorized by section 10 of 
the ESA. State and local governments as well as private 
entities would be eligible for these grants.
    Section 6 agreements. Amendments to section 6 of the ESA 
would authorize the Secretary of the Interior to enter into 
cooperative management agreements with state or local 
governments for management of a particular species or group of 
species or a habitat for a species. Another amendment to that 
section would replace the existing authority for cooperative 
agreements with states with a provision for delegation 
agreements with states under which a state would assume 
responsibility for implementing the ESA within it borders. Any 
such agreement would be entered into voluntarily by a state. As 
is the case with existing cooperative agreement program, the 
federal government would pay up to 75 percent of the cost of a 
state's program from either the existing Cooperative Endangered 
Species Conservation Fund or some portion of the federal cost-
sharing assistance authorized by H.R. 2275.
    Planning and assessment teams. The bill would add a new 
section to the ESA concerning conservation objectives. This 
section would provide for planning and assessment teams for 
each newly listed species. These teams would include a 
representative nominated by the governor of each affected state 
and representative nominated by each affected local government. 
Participation by state and local governments would be 
voluntarily, however, and CBO does not expect that 
participation in these teams would entail significant costs for 
these governments.
    Power marketing administrations. CBO estimates that PMA 
customers (primarily customers of the Bonneville Power 
Administration) would save over $200 million per year through 
lower electricity rates as a result of the new federal cost-
sharing provisions. Almost half of BPA power sales in fiscal 
year 1994 were to public utilities, so we estimate that these 
customers would save over $100 million per year. Under current 
law, BPA expects to spend $435 million per year on conservation 
measures to protect salmon. H.R. 2275 would require that the 
federal government assume 50 percent of these costs or suspend 
the applicable conservation plan. The bill would not authorize 
any appropriations specifically for this purpose, however.
    9. Estimated impact on the private sector: This bill would 
impose no new federal private sector mandates as defined in 
Public Law 104-4. By limiting the definition of ``harm'' to an 
action that would ``proximately and foreseeably'' kill or 
physically injure an identifiable member of an endangered 
species, this bill would permit certain activities that are now 
not permissible under current law. Moreover, H.R. 2275 adds a 
new requirement that the federal government must pay 50 percent 
of the direct costs of complying with certain existing mandates 
under the Endangered Species Act, including requirements 
promulgated in federal conservation plans for listed species. 
If the federal government failed to make the required 
contribution, H.R. 2275 stipulates that the applicable mandates 
would be suspended until such time as the full contribution is 
made.
    Enactment of H.R. 2275 would result in an electricity rate 
decrease at BPA and WAPA's self-financed projects equivalent to 
about $225 million annually. If no appropriations were made 
from DOI to the PMAs to pay for 50 percent of ESA costs, the 
bill calls for the suspension of ESA efforts, and could 
potentially result in a savings to PMA customers of $450 
million annually.
    10. Previous CBO estimate: None.
    11. Estimate prepared by: Federal Cost Estimate--Deborah 
Reis and Kim Cawley; State and Local Government Cost Estimate--
Marjorie Miller; Private Sector Cost Estimate--Patrice Gordon.
    12. Estimated approved by: Robert A. Sunshine, for Paul N. 
Van de Water, Assistant Director for Budget Analysis.

                    Compliance With Public Law 104-4

    H.R. 2275 contains no unfunded mandates.

                          Departmental Reports

    The Committee received an unfavorable report on H.R. 2275 
from the Department of Justice on October 19, 1995. No other 
reports have been received on H.R. 2275.

                             Department of Justice,
                             Office of Legislative Affairs,
                                  Washington, DC, October 12, 1995.
Hon. Don Young,
Chairman, Committee on Resources,
 House of Representatives, Washington, DC.
    Dear Mr. Chairman: This is to apprise you of the Department 
of Justice's substantial concerns regarding H.R. 2275, the 
``Endangered Species Conservation and Management Act of 1995.'' 
If H.R. 2275 were presented to the President, the Attorney 
General would recommend that he veto the bill for the reasons 
noted below.
    The Department is opposed to this legislation because it 
would impost massive and unfair costs on the public, radically 
depart from 200 years of constitutional jurisprudence, unfairly 
compensate certain property owners for simply complying with 
the law, prevent enforcement of national and international 
wildlife laws, and create administrative burdens. Rather than 
provide discreet changes to improve conservation efforts under 
the ESA, H.R. 2275 would take discretion away with overly-
prescriptive requirements that would probably result in a 
significant increase in litigation at the expense of endangered 
species protection. This legislation is contrary to the 
Administration's efforts to conserve biological diversity by 
making the ESA more flexible and effective. The Department's 
general comments are stated below; other Departments may have 
additional substantive concerns which are not reflected below.

Radical departure from the Constitution, with massive costs to the 
        taxpayer

    Section 101 of the bill would require agencies to 
compensate a property owner whenever agency action under the 
ESA diminishes the value of any portion of the property by 20 
percent or more. If loss in value exceeds 50 percent of the 
affected portion, the owner would have the additional option of 
the insisting that the government purchase the affected portion 
for fair market value.
    Substantial Costs. Like the compensation provisions in H.R. 
9, the precise costs of the bill are unknown but certain to be 
tremendously expensive. The compensation requirement 
necessarily entails substantial costs of administering a 
compensation claims program, and of managing the patchwork 
quilt of parcels of land that the Federal government could be 
forced to acquire.
    Unfair Results. Section 101 would result in such hugh 
costs, because it would require compensation in situations in 
which payment would be neither fair nor just. It is based on a 
radical premise that has never been a part of our law or 
tradition: that a private property owner has the absolute right 
to the greatest possible profit from that property, regardless 
of the consequences of the proposed use on other individuals or 
the public generally. Under the Fifth Amendment to the 
Constitution, the government must pay just compensation 
whenever it takes private property for public use. The ultimate 
standards for deciding whether compensation is required under 
the Constitution are fairness and justice. Armstrong v. United 
States, 364 U.S. 40, 49 (1959). In determining whether 
compensation would be fair, the Constitution requires 
consideration of the nature of the property interest at issue, 
the character and purpose of the agency action, the landowner's 
legitimate expectations, the harm a proposed land use would 
cause others, the public interest, and any other relevant 
factors. Penn Central Transp. Co. v. City of New York, 438 U.S. 
104 (1978).
    Section 101 would replace the constitutional standards of 
fairness and justice with a rigid, ``one-size-fits-all'' 
mandate that focuses on the extent to which regulations affect 
property value. Just two years ago, very Justice of the U.S. 
Supreme Court joined an opinion stating that diminution in 
value by itself is insufficient to demonstrate a taking. See 
Concrete Pipe & Products of California, Inc. v. Construction 
Laborers Pension Trust for Southern California, 113 S. Ct. 
2264, 2291 (1993). This principle is based on a recognition 
that other factors--such as the landowner's legitimate 
expectations, the landowner's benefit for government action, 
and the effect of the proposed land use on the public--must be 
considered in deciding whether compensation would be fair and 
just. Because Section 101 would preclude consideration of these 
factors, its single-factor test would necessarily result in 
myriad unjustified windfalls at the taxpayers' expense.
    Section 101 2ould apply not only to land and water rights, 
but also to personal property. It would thus render exeedingly 
difficult, if not impossible, efforts to protect species by 
restricting the trade of the feathers, pelts, nests, eggs, and 
other items. Application of the compensation mandate and other 
items. Application of the compensation mandate to personal 
property contravenes longstanding understandings of our 
citizens, which recognize that the government may regulate or 
prohibit certain commercial transactions without giving rise to 
expectations of compensation. Lucas v. South Carolina Coastal 
Council 112 S. Ct. 2886 (1922) Andrus v. Allard, 444 U.S. 51 
(1979).
    Unworkable ``Affected Portion'' Standard. The bill's focus 
on the reduction in value of any portion of the property is 
particularly unfair, for it ignores the effect of the agency 
action on the parcel as a whole. If an owner is allowed to 
harvest timber on 99 acres of a 100-acre parcel, but required 
to leave one acre unharvested to protect a bald eagle's nest, 
the bill could require compensation. Compensation could be 
required even whether the agency action enhances the remaining 
portion of the property (for example, where the value of the 
unregulated portion is enhanced due to its proximity to 
biologically diverse habitat). The ``affected portion'' 
standard also lends itself to the arbitrary segmentation or 
manipulation of parcels or property rights specifically for the 
purpose of meeting the statutory threshold. Owners who suffer 
any loss in value could frequently show a 50 percent loss with 
respect to the affected portion, and thus force federal 
acquisition of isolated parcels across the country, resulting 
in massive additional costs and administrative burdens.
    New Bureaucracies. Section 101 would greatly expand the 
grounds for filing judicial claims for compensation. It would 
also establish an administrative compensation scheme with 
binding arbitration at the option of the property owner. 
Agencies would need to hire more employees to process 
compensation claims, more lawyers to handle claims, more 
experts to determine the validity of claims, more appraisers to 
assess the extent to which agency action has affected property 
value, and more arbiters to resolve claims. The sheer volume of 
claims would likely be overwhelming. The result would be far 
more government, not less.
    Obstacle to Cooperation. Section 101 would also remove any 
incentive on the part of developers and other property owners 
to devise plans that protect species, or to reach a compromise 
on the appropriate balance between property use and species 
protection. Rather, the bill would encourage property owners to 
structure their land use proposals in a way that maximizes 
compensation, which would exacerbate controversies while 
driving up compensation costs. Section 105 of the bill 
compounds this problem for the conservation of salmon and other 
riparian species by prohibiting any officer or agency of the 
United States from relying on the ESA as authority to seek any 
limitation on the use of a water right or on delivery of water 
under a contract or State law. Like other property rights, a 
water right is not absolute and the scope of a water right is 
determined by State law. U.S. v. Cappaert, 508 F.2d 313, 318 
(9th Cir. 1974), aff'd 426 U.S. 128 (1976). Agencies of the 
Federal government look to state law to determine the scope of 
a water right and the limits within which regulation may 
restrict the use of that right. Section 105, may be used to 
halt a variety of conservation efforts, including those pursued 
through negotiations, regardless of the merits of the 
conservation objective and its consistency with State law.

Encouraging destruction of threatened and endangered species by 
        preventing enforcement

    Narrow Definition of ``Take.'' H.R. 2275 would undermine 
the government's ability to use law enforcement as a part of 
the Nation's conservation efforts, primarily by altering the 
prohibition on the ``take'' of threatened or endangered 
species. Section 202 of the bill, entitled ``Removing Punitive 
Disincentives,'' redefines the term ``take'' to mean ``a direct 
action . . . that actually injures or kills a member of the 
species.'' This definition makes little sense from the 
standpoint of law enforcement or conservation, because it 
eliminates arguably ``indirect'' actions that harm these 
species, such as the poisoning of eagles through toxic 
pollution, and may require proof of the intent of the actor in 
all cases. It would strip away almost all authority to protect 
the habitat that threatened and endangered species need to 
survive, eliminating the 1975 Department of the Interior 
regulations that prohibit ``significant habitat modification or 
degradation'' that ``actually kills or injures'' an endangered 
or threatened species, which the Supreme Court recently upheld. 
See Babbitt v. Sweet Home Chapter of Communities, 115 S. Ct. 
2407 (1995). It would also impact the United States' pledge to 
conserve species of fish, wildlife and plants pursuant to the 
Convention on International Trade in endangered Species of Wild 
Fauna and Flora (CITES) and other international agreements 
cited in ESA subsection 2(a)(4). 16 U.S.C. Sec. 1531(a)(4).
    Broad Exemptions from Law Enforcement. In section 201, the 
bill further weakens enforcement powers by adding several new 
exemptions from enforcement to the ESA's existing provisions 
for compliance with an agreed State conservation program or a 
Federal permit. Section 201 adds a broad list of ``permitted 
takings'' that could be raised as defenses to enforcement 
efforts, including:
          Activity that is claimed to be ``consistent with'' a 
        conservation objective. This would provide an open-
        ended exception to the take prohibition, and would 
        allow defendants to raise extremely difficult issues of 
        proof regarding whether a particular take is consistent 
        with a broadly defined ``objective.'' It would allow 
        defendants to raise a wide range of policy had 
        scientific defenses to what is ordinarily a simple 
        agency prohibition established through rulemaking.
          A taking ``for public health or safety purposes,'' 
        which would allow any government agency to authorize 
        the killing of endangered species regardless of a 
        conservation program's provisions for public health and 
        safety. Public health and safety should be protected as 
        part of conservation efforts, not by creating 
        exceptions to Federal enforcement of species 
        protections.
          A taking that is ``incidental to'' fishing or other 
        activities in the territorial waters of the United 
        States. This exemption could have an immediate impact 
        on the conservation of sea turtles, whales, the Florida 
        manatee and other marine species.
          Actions authorized by Federal agencies consistent 
        with the consultation provision (section 7(a)), 
        creating the potential that a disagreement between FWS 
        and another agency over an action's ``consistency'' 
        with conservation efforts will be used by others to 
        prevent enforcement.
    Limited Law Enforcement Tools. Section 201 also amends the 
``Penalties and Enforcement'' section, ESA section 11, to limit 
the legal tools for enforcement. First, it limits seizure 
powers used to combat the illegal trade in threatened and 
endangered species and requires ``positive identification'' of 
specimens within an unreasonable 30-day timeframe. Detention of 
items suspected to be parts or products of endangered or 
threatened species is essential to endangered species 
protection, and should be allowed to continue within the limits 
of due process and the Federal Rules of Criminal Procedure, 
rather than be subject to an arbitrary standard or time period.
    Second, it prohibits the agencies from relying on any 
``interpretation, policy, guideline, finding, or other informal 
determination'' without first adopting it through formal 
rulemaking procedures. In other words, the government may be 
required to publish a memo instructing agents to search for 
suspected criminal activity before agents could use the memo as 
part of a clandestine enforcement action. This could be used by 
those who traffic in endangered species to require the 
government, prior to enforcement, to anticipate all the 
possible decisions that would be subject to rulemaking, 
evaluate the impact of the proposed rule, show that the 
``restoration benefit of the proposed rule outweighs any 
negative conservation impact,'' and proposed them for public 
comment. The result would be an inability to respond quickly to 
crisis situations regarding the taking of threatened or 
endangered species.
    Section 201 would also end the Department of the Interior's 
current practice of relying upon notifications from the CITES 
Secretariat, or upon resolutions of the party nations, to seize 
or detain illegal wildlife importations. Such information from 
CITES sources frequently is the only reliable information to 
establish probable cause. Frequently, party countries report to 
the CITES Secretariat about the theft of permits or security 
stamps and cancel affected permits. In turn, the CITES 
Secretariat disseminates that information to the U.S. and other 
party countries. Without the ability to use this notification, 
the U.S. may not be able to undertake appropriate enforcement 
action.
    Vastly Curtailing Protection of Foreign Species. 
Enforcement of conservation efforts could be undermined by the 
bill's changes to the permit provisions of ESA section 10, 
which authorizes permits for the taking of threatened and 
endangered species. For example:
          Section 204(d) establishes a presumption that foreign 
        endangered species would benefit from any taking for 
        sport hunting and other uses in accordance with the 
        wildlife management laws and policies of the nation in 
        which it is found. The Secretary of the Interior would 
        not be able to deny a permit to hunt these species or 
        limits the importation of endangered species trophies 
        unless he finds ``substantial evidence'' that the 
        ``benefit derived'' from taking these species is 
        outweighed by the detriment of their being taken from 
        the wild, and he publishes this finding, promulgates a 
        regulation, and provides 6 months for comments from 
        foreign nations.
          Section 205 requires the Secretary to issue 
        endangered species take permits to almost any licensed 
        animal exhibitor and denies the protections of the ESA 
        to the offspring of captive species, providing a 
        dramatic loophole that easily could be used to avoid 
        compliance with the ESA.
          Section 207 would prohibit the Secretary from 
        protecting foreign species in a way that would 
        ``obstruct'' the conservation program of another 
        country unless the Secretary finds ``substantial 
        evidence'' that the country's program is not consistent 
        with CITES. The Secretary is forced to allow the 
        importation of endangered species based on the judgment 
        of the exporting nation unless he denies that permit 
        for good cause supported by substantial evidence. 
        Finally, the Secretary would not be able to issue rules 
        protecting foreign threatened species without obtaining 
        the ``concurrence'' of the nation's in which the 
        species is found, or the approval of the President.
    These amendments impairs the sovereign powers of the United 
States for the benefit of sport hunting and other trade in 
endangered species. They would present substantial barriers to 
our enforcement of conservation laws and our participation in 
CITES. By themselves, they would change the United States from 
an international leader in species conservation to an 
international pariah and a haven for illegal traffic in species 
and their body parts. In conjunction with the procedural 
barriers to conservation, described below, they would make 
effective administration of the ESA virtually impossible.

More government and litigation, but less conservation

    Citizen Suit Provisions that Increase Litigation Without 
Benefitting Conservation. H.R. 2275 amends the ESA citizen suit 
provisions to the disadvantage of conservation efforts by 
requiring public interest plaintiffs to show that a violation 
``poses immediate and irreparable harm'' to a species and by 
stripping the provision for the award of reasonable attorney 
and expert fees, which would ensure that only those who can 
afford to fund a lawsuit will do so. ESA reauthorization should 
not make it more difficult for environmental concerns to be 
resolved in court, and increase pressure for the use of civil 
disobedience.
    However, H.R. 2275 would allow increased litigation by 
economic interests in several ways. Section 201 of the bill 
adds economic injury as a basis for bringing suit and includes 
``injuries'' based on an agencies' regulation, application, 
nonapplication and a failure to act. In addition, the current 
provision for suits to enjoin violations of the ESA by any 
person is replaced by provisions that only allow suits against 
the United States. This new citizen suit provision also allows 
suits to compel the agencies to permit the taking of listed 
species. This provision may be interpreted as significantly 
expanding the ESA's zone of protected interests, which courts 
have limited to environmental concerns. The likely result of 
these provisions will be more challenges to the government 
actions taken to protect species, and less protection for 
species.
    New Standards and Burdensome Procedures. H.R. 2275 also 
provides numerous new opportunities for litigation. For 
example, the bill would add several new analytical and 
procedural steps to the process for listing a species as 
threatened or endangered, and for defining the species' 
critical habitat, such as extensive peer review of scientific 
data and a hearing in every state. However, the Secretary's 
decision that a species is threatened or endangered is not 
entitled to deference by generalist Federal judges, as is 
ordinary and necessary for such technical decisions. Instead, 
section 301 requires that the decision survive ``de novo 
judicial review with the court determining whether the decision 
is supported by a preponderance of the evidence.'' Under the 
usual APA standard of review, courts review agency decisions 
under the arbitrary and capricious standard, and traditionally 
courts accord deference to agency expertise; this standard is 
especially relevant where the agency's decision is based on 
scientific or technical expertise. The bill would replace 
record review of the expert agency decision with a lengthy and 
scientifically complex trial. We strongly object to changing 
the standard of review to allow courts to substitute their 
judgement for the agency's, especially when the decision 
reviewed is one that requires biological expertise.
    Once species are listed as threatened or endangered, H.R. 
2275 would deny them most ESA protection until the Secretary 
develops a conservation plan or selects a conservation 
objective. To adopt a conservation plan, the Secretary must 
comply with unreasonably short deadlines and requirements that 
are overly prescriptive, which will bog the process down in 
regulatory activity and litigation. The bill requires a 
detailed, lengthy report by each assessment team within 5 
months. The conservation plan requirements contain detailed 
prescriptions on what the draft plans and final plans must 
require, including an analysis of alternative management 
measures and a detailed analysis of a range of social and 
economic impacts of each alternative. Once a plan is published, 
it could be challenged on the grounds that any of the specific 
analytic requirements was not met, or alternatives not 
adequately considered, resulting in delay of implementation for 
years, during which time a listed species may become extinct.
    Title IX extends the conservation plan requirements for all 
listed species. Under this provision, the Department of the 
Interior is required complete conservation plans for over 900 
species within a period of three and one-half years. Given the 
amount of work and procedures involved in developing each plan, 
these deadlines are entirely unrealistic and will no doubt 
result in extensive legal challenges.
    Similarly, the bill's revisions to ESA section 7 provisions 
for interagency consultation on impacts to species create new, 
unclear standards that will result in further opportunity for 
legal challenge. For example, section 401 may create 
unnecessary conflicts over conservation duties by providing 
that agencies shall render their decisions ``in a manner 
consistent with the obligations and responsibilities of the 
agency under each applicable law and treaty.'' In addition, the 
consultation provisions, as revised, require the consultation 
to meet unreasonably short deadlines; if the deadlines are not 
met, the requirements of the section are deemed met, a result 
that is contrary to the ESA's goal of protecting threatened and 
endangered species.
    Section 203(a) amends ESA section 10(a) to allow any person 
to consult with the agencies on whether an activity is 
consistent with a conservation plan or conservation objective, 
or is likely to jeopardize a listed species. This consultation 
process is similar to the process for agencies under section 7, 
except that the person initiating the consultation is not 
required to submit a biological assessment and is entitled to a 
decision in 90 days. Without the necessary information provided 
in a biological assessment, the agency is required to issue a 
permit if it finds consistency with the conservation plan or 
conservation objective or that the action is not likely to 
jeopardize a listed species. It also makes the new consultation 
and permitting procedure, (paragraph 10(a)(3) added by 203(a)), 
an exception to the ESA's requirement that permits be based on 
a conservation plan. These changes to the ``consultation'' 
aspect of the ESA will hamstring the Fish and Wildlife Service, 
and result in agency activities that may harm endangered or 
threatened species simply because consultation was not done 
within the time period allowed. It will also divert agency 
attention from protection of listed species to defense of 
deadline suits.
    Finally, H.R. 2275 includes provisions that affect every 
Federal agency involved in species conservation, and may be 
used to prevent agencies from assisting in conservation 
efforts. The bill requires agencies to ensure that consultation 
provisions are ``consistent with the primary mission of the 
agency.'' These provisions will provide the opportunity to 
challenge agency action to protect listed species on the 
grounds that the action is not consistent with the primary 
mission or authority of the agency. In addition, Section 401 
amends the Act to prohibit agencies from amending regulations, 
land management plans and other documents ``for the purpose of 
maintaining viable populations of native and desired non-native 
species'' unless it is determined that current practices are 
likely to jeopardize the continued existence of the species. 
This is an unwieldy standard that could be used to prevent 
agencies from taking common-sense measures to protect the 
environment and prevent species from becoming threatened, 
endangered, or extinct.

Summary

    The Justice Department strongly supports the protection of 
private property rights. The right to own, use, and enjoy 
private property is at the very core of our Nation's 
constitutional heritage and our continued economic strength. To 
the extent government regulations impose unreasonable burdens 
on private property, the Administration is committed to 
reforming those regulations to make them more fair and 
flexible. The Department cannot support legislation that would 
impose billions of dollars of unfair costs on American 
taxpayers, invite crippling litigation, and undermine the 
protection of endangered and threatened species.
    Moreover, the Justice Department cannot support legislation 
that would render the Endangered Species Act unenforceable 
through enforcement loopholes and multiple opportunities for 
litigation. Effective Federal law enforcement is a small but 
essential aspect of this Nation's global efforts to conserve 
threatened and endangered species. If enacted as currently 
drafted, H.R. 2275 would undermine the Department's ability to 
prosecute activities that destroy or exploit threatened and 
endangered species. For these reasons, the Department of 
Justice stands firmly opposed to enactment of these 
reauthorization provisions. If H.R. 2275 were presented to the 
President, the Attorney General would recommend that he veto 
the bill.
    The Office of Management and Budget advises that there is 
no objection to the submission of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                               Andrew Fois,
                                        Assistant Attorney General.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italics, existing law in which no change is proposed 
is shown in roman):

                     ENDANGERED SPECIES ACT OF 1973

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

                           [TABLE OF CONTENTS

[Sec. 2. Findings, purposes, and policy.
[Sec. 3. Definitions.
[Sec. 4. Determination of endangered species and threatened species.
[Sec. 5. Land acquisition.
[Sec. 6. Cooperation with the States.
[Sec. 7. Interagency cooperation.
[Sec. 8. International cooperation.
[Sec. 8A. Convention implementation.
[Sec. 9. Prohibited acts.
[Sec. 10. Exceptions.
[Sec. 11. Penalties and enforcement.
[Sec. 12. Endangered plants.
[Sec. 13. Conforming amendments.
[Sec. 14. Repealer.
[Sec. 15. Authorization of appropriations.
[Sec. 16. Effective date.
[Sec. 17. Marine Mammal Protection Act of 1972.]

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``Endangered 
Species Act of 1973''.
  (b) Table of Contents.--The table of contents for this Act is 
as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings, purposes, and policy.
Sec. 3. Definitions.
Sec. 4. Determination of endangered species and threatened species.
Sec. 5. Species conservation plans.
Sec. 5A. Protection of habitat.
Sec. 6. Cooperation with non-Federal persons.
Sec. 7. Interagency cooperation.
Sec. 8. International cooperation.
Sec. 8A. Convention implementation.
Sec. 9. Prohibited acts.
Sec. 10. Exceptions.
Sec. 11. Penalties and enforcement.
Sec. 12. Endangered plants.
Sec. 13. National Endowment for Fish and Wildlife Trust Fund.
Sec. 14. Public hearings and public meetings.
Sec. 15. Authorization of appropriations.
Sec. 16. Federal cost-sharing requirements for conservation obligations.
Sec. 17. Marine Mammal Protection Act of 1972.
Sec. 18. Annual cost analysis by the Fish and Wildlife Service.
Sec. 19. Right to compensation.
Sec. 20. Recognizing net benefits to aquatic species.

                     findings, purposes, and policy

  Sec. 2. (a) Findings.--The Congress finds and declares that--
          [(1) various species of fish, wildlife, and plants in 
        the United States have been rendered extinct as a 
        consequence of economic growth and development 
        untempered by adequate concern and conservation;]
          (1) various species of fish, wildlife, and plants in 
        the United States have been rendered extinct because of 
        inadequate conservation practices and natural 
        processes;
          * * * * * * *
          (4) the United States has pledged itself as a 
        sovereign state in the international community to 
        conserve to the extent practicable the various species 
        of fish or wildlife and plants facing extinction, 
        pursuant to--
                  (A)  * * *
          * * * * * * *
                  (G) other international agreements; [and]
          (5) encouraging the States and other interested 
        parties, through Federal financial assistance and a 
        system of incentives, to develop and maintain 
        conservation programs which meet national and 
        international standards is a key to meeting the 
        Nation's international commitments and to better 
        safeguarding, for the benefit of all citizens, the 
        Nation's heritage in fish, wildlife, and plants[.]; and
          (6) the Nation's economic well-being is essential to 
        the ability to maintain a sustainable resource base, 
        therefore economic impacts and private property owners' 
        rights must be considered while encouraging practices 
        that protect species.
  [(b) Purposes.--The purposes of this Act are to provide a 
means whereby the ecosystems upon which endangered species and 
threatened species depend may be conserved, to provide a 
program for the conservation of such endangered species and 
threatened species, and to take such steps as may be 
appropriate to achieve the purposes of the treaties and 
conventions set forth in subsection (a) of this section.
  [(c) Policy.--(1) It is further declared to be the policy of 
Congress that all Federal departments and agencies shall seek 
to conserve endangered species and threatened species and shall 
utilize their authorities in furtherance of the purposes of 
this Act.
  [(2) It is further declared to be the policy of Congress that 
Federal agencies shall cooperate with State and local agencies 
to resolve water resource issues in concert with conservation 
of endangered species.]
  (b) Purposes.--The purposes of this Act are the following:
          (1) To provide a feasible and practical means to 
        conserve endangered species and threatened species 
        consistent with protection of the rights of private 
        property owners and ensuring economic stability.
          (2) To provide a program for the conservation and 
        management of such endangered species and threatened 
        species taking into account the economic and social 
        consequences of such program.
          (3) To take such steps as may be practicable to 
        achieve the purposes of the treaties and conventions 
        set forth in subsection (a) of this section.
  (c) Policy.--
          (1) Federal authority.--It is further declared to be 
        the policy of Congress that all Federal departments and 
        agencies shall seek to conserve and manage endangered 
        species and threatened species and shall, consistent 
        with and not prevailing over their primary missions, 
        utilize their authorities in furtherance of the 
        purposes of this Act.
          (2) Cooperation with states.--It is further declared 
        to be the policy of Congress that Federal agencies 
        shall cooperate with State and local agencies to 
        resolve water resource issues in concert with 
        conservation of endangered species and consistent with 
        State and local water laws.
          (3) Protection of private property rights.--It is the 
        policy of the Federal Government that agency action 
        taken pursuant to this Act shall not use or limit the 
        use of privately owned property when such action 
        diminishes the value of such property without payment 
        of fair market value to the owner of private property. 
        Each Federal agency, officer, and employee shall 
        exercise authority under this Act to ensure that agency 
        action will not violate the policy established in this 
        paragraph.

                              definitions

  Sec. 3. For the purposes of this Act--
  (1) The term ``alternative courses of action'' means all 
alternatives and thus is not limited to original project 
objectives and agency jurisdiction.
  [(2) The term ``commercial activity'' means all activities of 
industry and trade, including, but not limited to, the buying 
or selling of commodities and activities conducted for the 
purpose of facilitating such buying and selling: Provided, 
however, That it does not include exhibitions of commodities by 
museums or similar cultural or historical organizations.]
          (2) 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.
          (3) The term ``commercial activity'' means all 
        activities of industry and trade, including, but not 
        limited to, the buying or selling of commodities and 
        activities conducted for the purpose of facilitating 
        such buying and selling, except that it does not 
        include exhibition of commodities or species by 
        exhibitors licensed under the Animal Welfare Act (7 
        U.S.C. 2131 et seq.), museums, or similar cultural or 
        historical organizations.
  [(3) The terms ``conserve,'' ``conserving,'' and 
``conservation'' mean to use and the use of all methods and 
procedures which are necessary to bring any endangered species 
or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all 
activities associated with scientific resources management such 
as research, census, law enforcement, habitat acquisition and 
maintenance, propagation, live trapping, and transplantation, 
and, in the extraordinary case where population pressures 
within a given ecosystem cannot be otherwise relieved, may 
include regulated taking.]
          (4) The terms ``conservation objective'' and 
        ``conservation plan'' (except when modified by ``non-
        Federal'') mean a conservation objective and a 
        conservation plan, respectively, developed under 
        section 5.
  [(4)] (5) The term ``Convention'' means the Convention on 
International Trade in Endangered Species of Wild Fauna and 
Flora, signed on March 3, 1973, and the appendices thereto.
  (6) The term ``cooperative management agreement'' means a 
voluntary agreement entered into under section 6(b).
  [(5)(A) The term ``critical habitat'' for a threatened or 
endangered species means--
          [(i) the specific areas within the geographical area 
        occupied by the species, at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, on which are found those physical or biological 
        features (I) essential to the conservation of the 
        species and (II) which may require special management 
        considerations or protection; and
          [(ii) specific areas outside the geographical area 
        occupied by the species at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, upon a determination by the Secretary that such 
        areas are essential for the conservation of the 
        species.
  [(B) Critical habitat may be established for those species 
now listed as threatened or endangered species for which no 
critical habitat has heretofore been established as set forth 
in subparagraph (A) of this paragraph.
  [(C) Except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire 
geographical area which can be occupied by the threatened or 
endangered species.]
          (7)(A) The term ``critical habitat'' for an 
        endangered species or a threatened species means the 
        specific areas which are within the geographic area 
        found to be occupied by a species at the time the 
        species is determined to be an endangered species or a 
        threatened species in accordance with section 4 and 
        which contain such physical or biological features as--
                  (i) are essential to the persistence of the 
                species over the 50-year period beginning on 
                the date the regulation designating the 
                critical habitat, or any revision of the 
                regulation, is promulgated; and
                  (ii) require special management 
                considerations or protection.
          (B) Except in those circumstances determined by the 
        Secretary, critical habitat shall not include the 
        entire geographical area occupied by the threatened 
        species or endangered species.
          (8) The term ``distinct population of national 
        interest'' means a distinct population of a vertebrate 
        species that is not otherwise an endangered species or 
        threatened species in the United States, Canada, or 
        Mexico, but which because of its value to the Nation as 
        a whole has been designated by Congress as needing 
        protection under this Act.
          (8a) The term ``foreign species'' means a species 
        naturally occurring outside the territory of the United 
        States, but does not include any marine species, any 
        species having a significant population occurring in 
        the wild within the United States, or any migratory 
        species whose migration route includes United States 
        territory.
  [(6)] (9) The term ``endangered species'' means any species 
which is in danger of extinction throughout all or a 
significant portion of its range other than a species of the 
Class Insecta determined by the Secretary to constitute a pest 
whose protection under the provisions of this Act would present 
an overwhelming and overriding risk to man.
  [(7)] (10) The term ``Federal agency'' means any department, 
agency, or instrumentality of the United States.
  [(8)] (11) The term ``fish or wildlife'' means any member of 
the animal kingdom, including without limitation any mammal, 
fish, bird (including any migratory, nonmigratory, or 
endangered bird for which protection is also afforded by treaty 
or other international agreement), amphibian, reptile, mollusk, 
crustacean, arthropod or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the dead body or 
parts thereof.
  [(9)] (12) The term ``foreign commerce'' includes, among 
other things, any transaction--
          (A) between persons within one foreign country;
          (B) between persons in two or more foreign countries;
          (C) between a person within the United States and a 
        person in a foreign country; or
          (D) between persons within the United States, where 
        the fish and wildlife in question are moving in any 
        country or countries outside the United States.
  [(10)] (13) The term ``import'' means to land on, bring into, 
or introduce into or attempt to land on, bring into, or 
introduce into, any place subject to the jurisdiction of the 
United States, whether or not such landing, bringing, or 
introduction constitutes an importation within the meaning of 
the customs laws of the United States.
          (14) The term ``imminent threat to the existence 
        of'', with respect to a species, means, as determined 
        by the Secretary under section 4(b)(7) or the President 
        under section 5(e)(2) solely on the basis of the best 
        scientific and commercial data available, that there is 
        a significant likelihood that the species will become 
        extinct, or will be placed on an irreversible course to 
        extinction, during the 2-year period beginning on the 
        date of the determination that the species is an 
        endangered species or a threatened species, unless the 
        species is accorded fully the protection available 
        under this Act during such period.
          (15) The term ``incidental take permit'' means a 
        permit issued under section 10(a)(1)(B).
          (16) 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.
          (17) The term ``non-Federal person'' means a person 
        other than an officer, employee, agent, department, or 
        instrumentality of the Federal Government or a foreign 
        government, acting in the official capacity of the 
        person.
  [(12) The term ``permit or license applicant'' means, when 
used with respect to an action of a Federal agency for which 
exemption is sought under section 7, any person whose 
application to such agency for a permit or license has been 
denied primarily because of the application of section 7(a) to 
such agency action.]
          (18) The term ``permit or license applicant'' means, 
        with respect to the consultation procedures established 
        by section 7, any person that requires authorization or 
        funding from a Federal agency as a prerequisite to 
        conducting an activity (including a party to a written 
        lease, right-of-way, license, contract to purchase or 
        provide a product or service, or other permit with a 
        Federal agency) that requires an action from the agency 
        to obtain the benefit of the activity.
  [(13)] (19) ``The term person means an individual, 
corporation, partnership, trust, association, or any other 
private entity; or any officer, employee, agent, department, or 
instrumentality of the Federal Government, of any State, 
municipality, or political subdivision of a State, or of any 
foreign government; any State, municipality, or political 
subdivision of a State; or any other entity subject to the 
jurisdiction of the United States.''
  [(14)] (20) The term ``plant'' means any member of the plant 
kingdom, including seeds, roots and other parts thereof.
          (21) The term ``reasonable and prudent alternative'' 
        means an alternative action under section 7(b)(3) 
        during consultation on 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; and
                  (D) the Secretary believes would avoid being 
                likely to jeopardize the continued existence of 
                the species.
  [(15)] (22) The term ``Secretary'' means, except as otherwise 
herein provided, the Secretary of the Interior or the Secretary 
of Commerce as program responsibilities are vested pursuant to 
the provisions of Reorganization Plan Numbered 4 of 1970; 
except that with respect to the enforcement of the provisions 
of this Act and the Convention which pertain to the importation 
or exportation of terrestrial plants, the term also means the 
Secretary of Agriculture.
  [(16) The term ``species'' includes any subspecies of fish or 
wildlife or plants, and any distinct population segment of any 
species or vertebrate fish or wildlife which interbreeds when 
mature.]
          (23) The term ``species'' includes any subspecies of 
        fish or wildlife or plants, and any distinct population 
        of national interest of any species or vertebrate fish 
        or wildlife which interbreeds when mature.
  [(17)] (24) The term ``State'' means any of the several 
States, the District of Columbia, the Commonwealth of Puerto 
Rico, American Samoa, the Virgin Islands, Guam, and the Trust 
Territory of the Pacific Islands.
  [(18)] (25) The term ``State agency'' means any State agency, 
department, board, commission, or other governmental entity 
which is responsible for the management and conservation of 
fish, plant, or wildlife resources within a State.
  [(19) The term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to 
engage in any such conduct.]
          (26)(A) The term ``take'' means to harm, pursue, 
        hunt, shoot, wound, kill, trap, capture, or collect, or 
        to attempt to engage in that conduct.
          (B) In subparagraph (A), the term ``harm'' means an 
        action that proximately and foreseeably kills or 
        physically injures an identifiable member of an 
        endangered species.
  [(20)] (27) The term ``threatened species'' means any species 
which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of 
its range.
  [(21)] (28) The term ``United States,'' when used in a 
geographical context, includes all States.

      [determination of endangered species and threatened species

  [Sec. 4. (a) General.--(1) The Secretary shall by regulation 
promulgated in accordance with subsection (b) determine whether 
any species is an endangered species or a threatened species 
because of any of the following factors:
          [(A) the present or threatened destruction, 
        modification, or curtailment of its habitat or range;
          [(B) overutilization for commercial, recreational, 
        scientific, or educational purposes;
          [(C) disease or predation;
          [(D) the inadequacy of existing regulatory 
        mechanisms; or
          [(E) other natural or manmade factors affecting its 
        continued existence.
  [(2) With respect to any species over which program 
responsibilities have been vested in the Secretary of Commerce 
pursuant to Reorganization Plan Numbered 4 of 1970--
          [(A) in any case in which the Secretary of Commerce 
        determines that such species should--
                  [(i) be listed as an endangered species or a 
                threatened species, or
                  [(ii) be changed in status from a threatened 
                species to an endangered species, he shall so 
                inform the Secretary of the Interior, who shall 
                list such species in accordance with this 
                section;
          [(B) in any case in which the Secretary of Commerce 
        determines that such species should--
                  [(i) be removed from any list published 
                pursuant to subsection (c) of this section, or
                  [(ii) be changed in status from an endangered 
                species to a threatened species, he shall 
                recommend such action to the Secretary of the 
                Interior, and the Secretary of the Interior, if 
                he concurs in the recommendation, shall 
                implement such action; and
          [(C) the Secretary of the Interior may not list or 
        remove from any list any such species, and may not 
        change the status of any such species which are listed, 
        without a prior favorable determination made pursuant 
        to this section by the Secretary of Commerce.
  [(3) The Secretary, by regulation promulgated in accordance 
with subsection (b) and to the maximum extent prudent and 
determinable--
          [(A) shall, concurrently with making a determination 
        under paragraph (1) that a species is an endangered 
        species or a threatened species, designate any habitat 
        of such species which is then considered to be critical 
        habitat; and
          [(B) may, from time-to-time thereafter as 
        appropriate, revise such designation.
  [(b) Basis for Determinations.--(1)(A) The Secretary shall 
make determinations required by subsection (a)(1) solely on the 
basis of the best scientific and commercial data available to 
him after conducting a review of the status of the species and 
after taking into account those efforts, if any, being made by 
any State or foreign nation, or any political subdivision of a 
State or foreign nation, to protect such species, whether by 
predator control, protection of habitat and food supply, or 
other conservation practices, within any area under its 
jurisdiction, or on the high seas.
  [(B) In carrying out this section, the Secretary shall give 
consideration to species which have been--
          [(i) designated as requiring protection from 
        unrestricted commerce by any foreign nation, or 
        pursuant to any international agreement; or
          [(ii) identified as in danger of extinction, or 
        likely to become so within the foreseeable future, by 
        any State agency or by any agency of a foreign nation 
        that is responsible for the conservation of fish or 
        wildlife or plants.
  [(2) The Secretary shall designate critical habitat, and make 
revisions thereto, under subsection (a)(3) on the basis of the 
best scientific data available and after taking into 
consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. 
The Secretary may exclude any area from critical habitat if he 
determines that the benefits of such exclusion outweight the 
benefits of specifying such area as part of the critical 
habitat, unless he determines, based on the best scientific and 
commercial data available, that the failure to designate such 
area as critical habitat will result in the extinction of the 
species concerned.
  [(3)(A) To the maximum extent practicable, within 90 days 
after receiving the petition of an interested person under 
section 553(e) of title 5, United States Code, to add a species 
to, or to remove a species from, either of the lists published 
under subsection (c), the Secretary shall make a finding as to 
whether the petition presents substantial scientific or 
commercial information indicating that the petitioned action 
may be warranted. If such a petition is found to present such 
information, the Secretary shall promptly commence a review of 
the status of the species concerned. The Secretary shall 
promptly publish each finding made under this subparagraph in 
the Federal Register.
  [(B) Within 12 months after receiving a petition that is 
found under subparagraph (A) to present substantial information 
indicating that the petitioned action may be warranted, the 
Secretary shall make one of the following findings:
          [(i) The petitioned action is not warranted, in which 
        case the Secretary shall promptly publish such finding 
        in the Federal Register.
          [(ii) The petitioned action is warranted in which 
        case the Secretary shall promptly publish in the 
        Federal Register a general notice and the complete text 
        of a proposed regulation to implement such action in 
        accordance with paragraph (5).
          [(iii) The petitioned action is warranted but that--
                  [(I) the immediate proposal and timely 
                promulgation of a final regulation implementing 
                the petitioned action in accordance with 
                paragraphs (5) and (6) is precluded by pending 
                proposals to determine whether any species is 
                an endangered species or a threatened species, 
                and
                  [(II) expeditious progress is being made to 
                add qualified species to either of the lists 
                published under subsection (c) and to remove 
                from such lists species for which the 
                protections of the Act are no longer necessary
        in which case the Secretary shall promptly publish such 
        finding in the Federal Register, together with a 
        description and evaluation of the reasons and data on 
        which the finding is based.
  [(C)(i) A petition with respect to which a finding is made 
under subparagraph (B)(iii) shall be treated as a petition that 
is resubmitted to the Secretary under subparagraph (A) on the 
date of such finding and that presents substantial scientific 
or commercial information that the petitioned action may be 
warranted.
  [(ii) Any negative finding described in subparagraph (A) and 
any finding described in subparagraph (B)(i) or (iii) shall be 
subject to judicial review.
  [(iii) The Secretary shall implement a system to monitor 
effectively the status of all species with respect to which a 
finding is made under subparagraph (B)(iii) and shall make 
prompt use of the authority under paragraph 7 to prevent a 
significant risk to the well being of any such species.
  [(D)(i) To the maximum extent practicable, within 90 days 
after receiving the petition of an interested person under 
section 553(e) of title 5, United States Code, to revise a 
critical habitat designation, the Secretary shall make a 
finding as to whether the petition presents substantial 
scientific information indicating that the revision may be 
warranted. The Secretary shall promptly publish such finding in 
the Federal Register.
  [(ii) Within 12 months after receiving a petition that is 
found under clause (i) to present substantial information 
indicating that the requested revision may be warranted, the 
Secretary shall determine how he intends to proceed with the 
requested revision, and shall promptly publish notice of such 
intention in the Federal Register.]

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

  (a) Generally.--(1) The Secretary shall by regulation 
promulgated in accordance with subsection (b) determine whether 
any species is an endangered species or a threatened species 
because of any of the following factors:
          (A) The present or threatened loss of its habitat.
          (B) Overutilization for commercial, recreational, 
        scientific, or educational purposes.
          (C) Disease or predation.
          (D) The inadequacy of existing Federal, State, and 
        local government regulatory mechanisms.
          (E) Other natural or manmade factors affecting its 
        continued existence.
  (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, any political 
        subdivision of a State, 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 making a determination whether a species is an 
        endangered species or a threatened species under this 
        section, the Secretary shall fully consider populations 
        of the species that are bred through private sector, 
        university, and Federal, State, and local government 
        breeding programs for release in the habitat of the 
        species. In the case of fish species, the bred 
        populations referred to in the preceding sentence shall 
        include hatchery populations.
          (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 cooperative management 
        agreement entered into under section 6.
          (D) Within 18 months after the date of the enactment 
        of the Endangered Species Conservation and Management 
        Act of 1995, the Secretary shall promulgate 
        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.
          (2) Consideration of state recommendations.--In 
        making a determination pursuant to paragraph (1), the 
        Secretary shall give consideration to species which 
        have been identified as in danger of extinction, or 
        likely to become so within the foreseeable future, by 
        any State agency that is responsible for the 
        conservation of fish or wildlife or plants.
          (3) Petitions.--(A) A petition submitted to the 
        Secretary asserting that a species is a threatened 
        species or endangered species and requesting that the 
        Secretary make a determination to that effect shall 
        contain at a minimum the following:
                  (i) Information on the current population and 
                range of the species.
                  (ii) Any information on efforts to field test 
                the population estimates on the species.
                  (iii) If literature from scientific or other 
                journals, dissertations or other such 
                scientific writings of another person are 
                submitted, they must be accompanied by an 
                affidavit that the literature or writings have 
                been peer reviewed.
                  (iv) The qualifications of any person 
                asserting expertise on the species or status of 
                the species.
                  (v) Information about the demonstrated 
                habitat needs of the species, along with the 
                known occupied habitat of the species.
                  (vi) Known causes of the species decline.
          (B) Petitions to add a species to, or to remove a 
        species from, either of the lists published under 
        subsection (c)(1) shall be submitted in accordance with 
        section 553(e) of title 5, United States Code. The 
        Secretary may commence a review of the status of the 
        species concerned consistent with the priorities set by 
        the Secretary for the listing of species. The Secretary 
        shall promptly publish any finding made under this 
        subparagraph in the Federal Register.
          (C) At the time the review provided in subparagraph 
        (B) is commenced--
                  (i) the Secretary shall contact the Governor 
                of each State in which the proposed species is 
                located and shall solicit from the Governor 
                information about the action requested in the 
                petition in that State necessary to render a 
                decision and shall solicit the advice of the 
                Governor on whether the status of species 
                merits the action petitioned for, and if the 
                Governor advises that the petition action is 
                not warranted and thereafter the Secretary 
                proceeds with the action, the Secretary shall 
                have the burden of showing that the information 
                submitted by the Governor is incorrect and that 
                the action is warranted; and
                  (ii) the Secretary shall, to the maximum 
                extent feasible, require by field testing, the 
                verification of the information presented 
                regarding the status of the species.
          (D) The Secretary shall implement a system to monitor 
        effectively the status of all species with respect to 
        which a finding is made that the petitioned action is 
        warranted but precluded by proposals to determine 
        whether any species is an endangered species or a 
        threatened species and progress is being made to add 
        qualified species to the list published under 
        subsection (c) and to remove from lists published under 
        that subsection species for which protection of this 
        Act is no longer necessary, and shall make prompt use 
        of the authority under paragraph (7) to prevent an 
        imminent threat to the existence of any such species.
          (E)(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 minimize releasing the 
        identification 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 his or her consent, or the 
        information is otherwise public information.
          (F) Before any further action is taken in accordance 
        with this paragraph, the Secretary shall publish in the 
        Federal Register a solicitation for further information 
        regarding the status of a species which is the subject 
        of a proposed rule to list the species as an endangered 
        species or threatened species, including current 
        population, populations trends, current habitat, 
        Federal conservation lands which 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 which may 
        assist in making a determination under this section. 
        The solicitation shall give a time limit within which 
        to submit the information which shall be not less than 
        180 days. The time limit shall be extended for an 
        additional 180 days at the request of any person who 
        submits a request for such extension along with the 
        reasons therefor. The Secretary in making the 
        determination required in this subsection, shall give 
        equal weight to the information submitted in accordance 
        with this paragraph.
          (G) Any person may submit to the Secretary a petition 
        to revise a previous determination by the Secretary 
        under this Act that a species is an endangered species 
        or threatened species and to remove the species from a 
        list published under subsection (c), on the basis 
        that--
                  (i) new data or a reinterpretation of prior 
                data indicates that the previous determination 
                was in error;
                  (ii) the species is extinct;
                  (iii) the population level target established 
                for the species in a conservation plan under 
                section 5(c)(3)(C)(vii) has been achieved; or
                  (iv) the original listing of the species did 
                not undergo adequate peer review.
          (H)(i) After receiving a petition under subparagraph 
        (G), the Secretary shall complete a review of the 
        species, which review shall include the solicitation of 
        information as described in subparagraph (F).
          (ii) The determination of the Secretary with respect 
        to such petition shall be considered an action for 
        purposes of subsection (i).
          (iii) If the Secretary has not made a final 
        determination by the end of the 18-month period 
        beginning on the date of the filing of a petition under 
        subparagraph (G), the species covered by the petition 
        shall not be considered to be an endangered species or 
        threatened species for the purposes of this Act and 
        shall not be included or considered to be included in 
        any list published under subsection (c).
          (iv) If, following review required under clause (i) 
        of this paragraph and subsection (i) of this section, 
        the final determination of the Secretary is to retain 
        the species as an endangered species or threatened 
        species on a list published under subsection (c), that 
        decision shall be considered to be a listing 
        determination for purposes of section 5.
          (v) This subparagraph shall not apply to a petition 
        to delist a species for which a review, as required by 
        this subparagraph, has been conducted by the Secretary 
        in the preceding 10-year period.
  (4) Except as provided in paragraphs (5) and (6) of this 
subsection, the provisions of section 553 of title 5, United 
States Code (relating to rulemaking procedures), shall apply to 
any regulation promulgated to carry out the purposes of this 
Act.
  [(5) With respect to any regulation proposed by the Secretary 
to implement a determination, designation, or revision referred 
to in subsection (a)(1) or (3), the Secretary shall--
          [(A) not less than 90 days before the effective date 
        of the regulation--
                  [(i) publish a general notice and the 
                complete text of the proposed regulation in the 
                Federal Register, and
                  [(ii) give actual notice of the proposed 
                regulation (including the complete text of the 
                regulation) to the State agency in each State 
                in which the species is believed to occur, and 
                to each county or equivalent jurisdiction in 
                which the species is believed to occur, and 
                invite the comment of such agency, and each 
                such jurisdiction, thereon;
          [(B) insofar as practical, and in cooperation with 
        the Secretary of State, give notice of the proposed 
        regulation to each foreign nation in which the species 
        is believed to occur or whose citizens harvest the 
        species on the high seas, and invite the comment of 
        such nation thereon;
          [(C) give notice of the proposed regulation to such 
        professional scientific organizations as he deems 
        appropriate;
          [(D) publish a summary of the proposed regulation in 
        a newspaper of general circulation in each area of the 
        United States in which the species is believed to 
        occur; and
          [(E) promptly hold one public hearing on the proposed 
        regulation if any person files a request for such a 
        hearing within 45 days after the date of publication of 
        general notice.
  [(6)(A) Within the one-year period beginning on the date on 
which general notice is published in accordance with paragraph 
(5)(A)(i) regarding a proposed regulation, the Secretary shall 
publish in the Federal Register--
          [(i) if a determination as to whether a species is an 
        endangered species or a threatened species, or a 
        revision of critical habitat, is involved, either--
                  [(I) a final regulation to implement such 
                determination,
                  [(II) a final regulation to implement such 
                revision or a finding that such revision should 
                not be made,
                  [(III) notice that such one-year period is 
                being extended under subparagraph (B)(i), or
                  [(IV) notice that the proposed regulation is 
                being withdrawn under subparagraph (B)(ii), 
                together with the finding on which such 
                withdrawal is based; or
          [(ii) subject to subparagraph (C), if a designation 
        of critical habitat is involved, either--
                  [(I) a final regulation to implement such 
                designation, or
                  [(II) notice that such one-year period is 
                being extended under such subparagraph.]
          (5) Notice required.--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--
                  (A) not less than 90 days before the 
                effective date of the regulation--
                          (i) publish a general notice and the 
                        complete text of the proposed 
                        regulation in the Federal Register, and
                          (ii) give actual notice of the 
                        proposed regulation (including the 
                        complete text of the regulation) to the 
                        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;
                  (B) 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;
                  (C) 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;
                  (D) publish a summary of the proposed 
                regulation in a newspaper of general 
                circulation in each area of the United States 
                in which the species is believed to occur; and
                  (E) promptly hold at least 1 hearing in each 
                State in which the species proposed for 
                determination as an endangered species or a 
                threatened species is believed to occur, and in 
                a location that is as close as possible to the 
                center of the habitat of such species in such 
                State, including at least one hearing in an 
                affected rural area specified by the Governor 
                of the State, if the Governor determines that 1 
                or more rural areas within the State are 
                affected by the determination.
          (6) Publication of determination.--(A) Within the 
        one-year period beginning on the date on which general 
        notice is published in accordance with paragraph 
        (5)(A)(i) regarding a proposed regulation, the 
        Secretary shall publish in the Federal Register, if a 
        determination as to whether a species is an endangered 
        species or a threatened species is involved, either--
                  (i) a final regulation to implement such 
                determination,
                  (ii) a final regulation to implement such 
                revision or a finding that such revision should 
                not be made,
                  (iii) notice that such one-year period is 
                being extended under subparagraph (B)(i), or
                  (iv) notice that the proposed regulation is 
                being withdrawn under subparagraph (B)(ii), 
                together with the finding on which such 
                withdrawal is based.
  (B)(i) If the Secretary finds with respect to a proposed 
regulation referred to in subparagraph (A)(i) that there is 
substantial disagreement regarding the sufficiency or accuracy 
of the available data relevant to the determination [or 
revision concerned], the Secretary may extend the one-year 
period specified in subparagraph (A) for not more than six 
months for purposes of soliciting additional data.
  (ii) If a proposed regulation referred to in subparagraph 
(A)(i) is not promulgated as a final regulation within such 
one-year period (or longer period if extension under clause (i) 
applies) because the Secretary finds that there is not 
sufficient evidence to justify the action proposed by the 
regulation, the Secretary shall immediately withdraw the 
regulation. The finding on which a withdrawal is based shall be 
subject to judicial review. The Secretary may not propose a 
regulation that has previously been withdrawn under this clause 
unless he determines that sufficient new information is 
available to warrant such proposal.
  (iii) If the one-year period specified in subparagraph (A) is 
extended under clause (i) with respect to a proposed 
regulation, then before the close of such extended period the 
Secretary shall publish in the Federal Register either a final 
regulation to implement the determination [or revision 
concerned, a finding that the revision should not be made,] or 
a notice of withdrawal of the regulation under clause (ii), 
together with the finding on which the withdrawal is based.
  [(C) A final regulation designating critical habitat of an 
endangered species or a threatened species shall be published 
concurrently with the final regulation implementing the 
determination that such species is endangered or threatened, 
unless the Secretary deems that--
          [(i) it is essential to the conservation of such 
        species that the regulation implementing such 
        determination be promptly published; or
          [(ii) critical habitat of such species is not then 
        determinable, in which case the Secretary, with respect 
        to the proposed regulation to designate such habitat, 
        may extend the one-year period specified in 
        subparagraph (A) by not more than one additional year, 
        but not later than the close of such additional year 
        the Secretary must publish a final regulation, based on 
        such data as may be available at that time, 
        designating, to the maximum extent prudent, such 
        habitat.
  [(7) Neither paragraph (4), (5), or (6) of this subsection 
nor section 553 of title 5, United States Code, shall apply to 
any regulation issued by the Secretary in regard to any 
emergency posing a significant risk to the well-being of any 
species of fish and wildlife or plants, but only if--]
          (7) Emergency regulations.--Neither paragraph (4), 
        (5), or (6) of this subsection nor section 553 of title 
        5, United States Code, shall apply to any regulation 
        issued by the Secretary in regard to any emergency 
        posing an imminent threat to the existence of any 
        species of fish or wildlife or plants, but only if--
          (A) at the time of publication of the regulation in 
        the Federal Register the Secretary publishes therein 
        detailed reasons why such regulation is necessary; and
          (B) in the case such regulation applies to resident 
        species of fish or wildlife, or plants, the Secretary 
        gives actual notice of such regulation to the State 
        agency in each State in which such species is believed 
        to occur.
Such regulation shall, at the discretion of the Secretary, take 
effect immediately upon the publication of the regulation in 
the Federal Register. Any regulation promulgated under the 
authority of this paragraph shall cease to have force and 
effect at the close of the 240-day period following the date of 
publication unless, during such 240-day period, the rulemaking 
procedures which would apply to such regulation without regard 
to this paragraph are complied with. If at any time after 
issuing an emergency regulation the Secretary determines, on 
the basis of the best appropriate data available to him, that 
substantial evidence does not exist to warrant such regulation, 
he shall withdraw it. The Secretary may not delegate the final 
decision to issue an emergency regulation under this paragraph.
  (8) The publication in the Federal Register of any proposed 
or final regulation which is necessary or appropriate to carry 
out the purposes of this Act shall include a summary by the 
Secretary of [the data] the best scientific and commercial data 
available on which such regulation is based and shall show the 
relationship of such data to such [regulation; and if such 
regulation designates or revises critical habitat, such summary 
shall, to the maximum extent practicable, also include a brief 
description and evaluation of those activities (whether public 
or private) which, in the opinion of the Secretary, if 
undertaken may adversely modify such habitat, or may be 
affected by such designation.] regulation. Each regulation 
proposed by the Secretary to implement a determination referred 
to in subsection (a)(1) shall be based only upon peer-reviewed 
scientific information obtainable from any source, including 
governmental and nongovernmental sources, which has been to the 
maximum extent feasible verified by field testing.
          (9) Publication in federal register.--(A) The 
        Secretary shall identify and publish in the Federal 
        Register with each proposed rule under paragraph (1) or 
        section 5(i) a description of--
                  (i) all data that are to be considered in 
                making the determination under the subsection 
                to which the proposed rule relates and that 
                have yet to be collected or field verified;
                  (ii) data that are necessary to make 
                determinations and that can be collected prior 
                to any determination; and
                  (iii) data that are necessary to ensure the 
                scientific validity of the determination, and 
                each deadline for collecting these data.
          (B) In making a determination pursuant to paragraph 
        (1) or section 5(i), the Secretary shall collect and 
        consider the data identified and described pursuant to 
        subparagraph (A)(ii).
          (C) The Secretary shall identify and publish in the 
        Federal Register with each final rule promulgated under 
        paragraph (1) or section 5(i)--
                  (i) a description of any data that have not 
                been collected and considered in the 
                determination to which the rule relates and 
                that are necessary to ensure the continued 
                scientific validity of the determination; and
                  (ii) each deadline by which the Secretary 
                shall collect and consider the data in 
                accordance with subparagraph (D).
          (D) Not later than the deadline published by the 
        Secretary pursuant to subparagraph (C)(ii), the 
        Secretary shall--
                  (i) collect the data referred to in each 
                paragraph;
                  (ii) provide an opportunity for public review 
                and comment on the data;
                  (iii) consider the data after the 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.
          (10) Foreign species.--(A) In determining under 
        subsection (a) whether a foreign species is an 
        endangered species or a threatened species, the 
        Secretary shall not determine that a species that is 
        listed under the Convention is endangered or threatened 
        unless he makes an adequate finding, supported by 
        substantial evidence, that the Convention does not 
        provide adequate regulation.
          (B) The Secretary shall, prior to publishing a 
        proposal in the Federal Register to determine that a 
        foreign species is endangered or threatened, transmit 
        the full text and a complete description of the 
        proposed listing directly to the appropriate wildlife 
        management authority of that nation, in the language of 
        that nation, with at least 180 days allowed for review 
        and comment. The 180 days shall be counted from the 
        date of delivery of the materials supporting the 
        proposed listing to the wildlife authorities of the 
        country.
          (C) Such transmission must be accompanied by--
                  (i) a plain-language explanation of the 
                objective criteria for and purpose of the 
                proposed listing;
                  (ii) an analysis of the anticipated 
                beneficial impact or detrimental impact of the 
                listing on the economic, social, and cultural 
                utilization of the species, if any, and of the 
                beneficial or detrimental impact on the 
                resource management and conservation programs 
                of that nation; and
                  (iii) a summary of the literature reviewed 
                and experts consulted by the Secretary in 
                regard to the species involved, and a summary 
                of the Secretary's findings based on that 
                review and consultation.
          (D) The Secretary shall enter into discussions with 
        the appropriate wildlife management officials of the 
        nations to which he has sent the transmission referred 
        to in subparagraph (C). If those officials feel that 
        further studies of the species are indicated, the 
        Secretary shall assist in finding the funds for such 
        studies and in carrying out the studies.
          (E) The Secretary must obtain the written concurrence 
        of all the nations contacted. If such concurrence is 
        not obtained, the Secretary may not issue the proposed 
        regulation except by an order submitted to and approved 
        by the President.
          (11) FACA.--Consultation with States regarding 
        petitions and proposed regulations under this 
        subsection shall not be subject to the Federal Advisory 
        Committee Act (5 U.S.C. App.).
          (12) Analysis of economic and social costs.--
        Concurrently with a determination that a species 
        warrants listing as an endangered species or threatened 
        species, the Secretary shall issue an analysis of the 
        economic and social effects the listing may have. The 
        analysis shall be published in the Federal Register 
        with the listing determination and shall include an 
        estimate of the effects the listing may have on 
        Federal, State, and local expenditures and revenues, 
        and the costs and benefits of the listing for the 
        private sector, including lost opportunity costs.
  (c) Lists.--(1) The Secretary of the Interior shall publish 
in the Federal Register a list of all species determined by him 
or the Secretary of Commerce to be endangered species and a 
list of all species determined by him or the Secretary of 
Commerce to be threatened species. Each list shall refer to the 
species contained therein by scientific and common name or 
names, if any, specify with respect to such species over what 
portion of its range it is endangered or threatened, and 
specify any critical habitat within such range. The Secretary 
shall from time to time revise each list published under the 
authority of this subsection to reflect recent determinations, 
designations, and revisions made in accordance with subsections 
(a) and (b).
  [(2) The Secretary shall--
          [(A) conduct, at least once every five years, a 
        review of all species included in a list which is 
        published pursuant to paragraph (1) and which is in 
        effect at the time of such review; and
          [(B) determine on the basis of such review whether 
        any such species should--
                  [(i) be removed from such list;
                  [(ii) be changed in status from an endangered 
                species to a threatened species; or
                  [(iii) be changed in status from a threatened 
                species to an endangered species.
[Each determination under subparagraph (B) shall be made in 
accordance with the provisions of subsection (a) and (b).
  [(d) Protective Regulations.--Whenever any species is listed 
as a threatened species pursuant to subsection (c) of this 
section, the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of such 
species. The Secretary may by regulation prohibit with respect 
to any threatened species any act prohibited under section 
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in 
the case of plants, with respect to endangered species; except 
that with respect to the taking of resident species of fish or 
wildlife, such, regulations shall apply in any State which has 
entered into a cooperative agreement pursuant to section 6(c) 
of this Act only to the extent that such regulations have also 
been adopted by such State.]
  (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 population level target 
                        established for the species in a 
                        conservation plan under section 
                        5(c)(3)(C)(vii) 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.
  (d) Regulations To Protect Threatened Species.--Whenever any 
species is listed as a threatened species pursuant to 
subsection (c), the Secretary shall issue, concurrently with 
the regulation that provides for the listing of the species, 
such regulations as the Secretary deems necessary and advisable 
to provide for the conservation of such species. Such 
regulations may apply to the threatened species one or more of 
the prohibitions under section 9(a)(1), in the case of fish and 
wildlife, or section 9(a)(2) in the case of plants, with 
respect to endangered species. The prohibition applied to the 
threatened species shall address the specific circumstances of 
such species and may not be as restrictive as such prohibition 
for endangered species. With respect to the taking of resident 
species of fish or wildlife, such regulations shall apply in 
any State which has entered into a cooperative agreement or 
delegation agreement pursuant to section 6 only to the extent 
that such regulations have also been adopted by such State.
  (e) Similarity of Appearance Cases.--The Secretary may, by 
regulation of commerce or taking, and to the extent he deems 
advisable, treat any species as an endangered species or 
threatened species even though it is not listed pursuant to 
section 4 of this Act if he finds that--
          (A) such species so closely resembles in appearance, 
        at the point in question, a species which has been 
        listed pursuant to such section that enforcement 
        personnel would have substantial difficulty in 
        attempting to differentiate between the listed and 
        unlisted species;
          (B) the effect of this substantial difficulty is an 
        additional threat to an endangered or threatened 
        species; and
          (C) such treatment of an unlisted species will 
        substantially facilitate the enforcement and further 
        the policy of this Act.
  [(f)(1) Recovery Plans.--The Secretary shall develop and 
implement plans (hereinafter in this subsection referred to as 
``recovery plans'') for the conservation and survival of 
endangered species and threatened species listed pursuant to 
this section, unless he finds that such a plan will not promote 
the conservation of the species. The Secretary, in development 
and implementing recovery plans, shall, to the maximum extent 
practicable--
          [(A) give priority to those endangered species or 
        threatened species, without regard to taxonomic 
        classification, that are most likely to benefit from 
        such plans, particularly those species that are, or may 
        be, in conflict with construction or other development 
        projects or other forms of economic activity;
          [(B) incorporate in each plan--
                  [(i) a description of such site-specific 
                management actions as may be necessary to 
                achieve the plan's goal for the conservation 
                and survival of the species;
                  [(ii) objective, measurable criteria which, 
                when met, would result in a determination, in 
                accordance with the provisions of this section, 
                that the species be removed from the list; and
                  [(iii) estimates of the time required and the 
                cost to carry out those measures needed to 
                achieve the plan's goal and to achieve 
                intermediate steps toward that goal.
  [(2) The Secretary, in developing and implementing recovery 
plans, may procure the services of appropriate public and 
private agencies and institutions and other qualified persons. 
Recovery teams appointed pursuant to this subsection shall not 
be subject to the Federal Advisory Committee Act.
  [(3) The Secretary shall report every two years to the 
Committee on Environment and Public Works of the Senate and the 
Committee on Merchant Marine and Fisheries of the House of 
Representatives on the status of efforts to develop and 
implement recovery plans for all species listed pursuant to 
this section and on the status of all species for which such 
plans have been developed.
  [(4) The Secretary shall, prior to final approval of a new or 
revised recovery plan, provide public notice and an opportunity 
for public review and comment on such plan. The Secretary shall 
consider all information presented during the public comment 
period prior to approval of the plan.
  [(5) Each Federal agency shall, prior to implementation of a 
new or revised recovery plan, consider all information 
presented during the public comment period under paragraph (4).
  [(g)] (f) Monitoring.--(1) The Secretary shall implement a 
system in cooperation with the States to monitor effectively 
for not less than five years the status of all species which 
have recovered to the point at which the measures provided 
pursuant to this Act are no longer necessary and which, in 
accordance with the provisions of this section, have been 
removed from either of the lists published under subsection 
(c).
  (2) The Secretary shall make prompt use of the authority 
under paragraph 7 of subsection (b) of this section to prevent 
a significant risk to the well being of any such recovered 
species.
  [(h)] (g) Agency Guidelines.--The Secretary shall establish, 
and publish in the Federal Register, agency guidelines to 
insure that the purposes of this section are achieved 
efficiently and effectively. Such guidelines shall include, but 
are not limited to--
          (1) procedures for recording the receipt and the 
        disposition of petitions submitted under subsection 
        (b)(3) of this section;
          [(2) criteria for making the findings required under 
        such subsection with respect to petitions;
          [(3)] (2) a ranking system to assist in the 
        identification of species that should receive priority 
        review under subsection (a)(1) of the section; and
          [(4) a system for developing and implementing, on a 
        priority basis, recovery plans under subsection (f) of 
        this section. The Secretary shall provide to the public 
        notice of, and opportunity to submit written comments 
        on, any guideline (including any amendment thereto) 
        proposed to be established under this subsection.]
          (3) a system for developing and implementing, on a 
        priority basis, conservation objectives and 
        conservation plans. The Secretary shall provide to the 
        public notice of, and opportunity to submit written 
        comments on, any guideline (including any amendment 
        thereto) proposed to be established under this 
        subsection.
  [(i) If, in the case of any regulation proposed by the 
Secretary under the authority of this section, a State agency 
to which notice thereof was given in accordance with subsection 
(b)(5)(A)(ii) files comments disagreeing with all or part of 
the proposed regulation, and the Secretary issues a final 
regulation which is in conflict with such comments, or if the 
Secretary fails to adopt a regulation pursuant to an action 
petitioned by a State agency under subsection (b)(3), the 
Secretary shall submit to the State agency a written 
justification for his failure to adopt regulations consistent 
with the agency's comments or petition.]
  (h) 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) of this section files comments disagreeing with 
all or part of the proposed regulation, the Secretary shall not 
issue a final regulation which 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) of this section, 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.
  (i) 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(i); 
                        and
                          (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).
                  (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 
        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 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.
  (j) Judicial Review of Determinations.--Any determination 
with regard to whether 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.

                           [land acquisition

  [Sec. 5. (a) Program.--The Secretary, and the Secretary of 
Agriculture with respect to the National Forest System, shall 
establish and implement a program to conserve fish, wildlife, 
and plants, including those which are listed as endangered 
species or threatened species pursuant to section 4 of this 
Act. To carry out such a program, the appropriate Secretary--
          [(1) shall utilize the land acquisition and other 
        authority under the Fish and Wildlife Act of 1956, as 
        amended, the Fish and Wildlife Coordination Act, as 
        amended, and the Migratory Bird Conservation Act, as 
        appropriate; and
          [(2) is authorized to acquire by purchase, donation, 
        or otherwise, lands, waters, or interest therein, and 
        such authority shall be in addition to any other land 
        acquisition vested in him.
  [(b) Acquisitions.--Funds made available pursuant to the Land 
and Water Conservation Fund Act of 1965, as amended, may be 
used for the purpose of acquiring lands, waters, or interests 
therein under subsection (a) of this section.]

SEC. 5. SPECIES CONSERVATION PLANS.

  (a) In General.--Except as provided in subsection (b)(3)(C), 
the Secretary shall publish a conservation objective and a 
conservation plan for each species determined to be an 
endangered species or a threatened species pursuant to section 
4.
  (b) Development of Conservation Objective.--
          (1) Assessment and planning team.--Not later than 30 
        days after the listing determination, the Secretary 
        shall appoint an assessment and planning team which 
        shall not be subject to the Federal Advisory Committee 
        Act (5 U.S.C. App.) and shall consist of--
                  (A) experts in biology or pertinent 
                scientific fields, economics, property law and 
                regulation, and other appropriate disciplines 
                from the Department of the Secretary, other 
                Federal agencies, and the private sector;
                  (B) a representative nominated by the 
                Governor of each affected State;
                  (C) representatives nominated by each 
                affected local government, if the local 
                government agrees to the appointment of a 
                representative; and
                  (D) representatives of persons who may be 
                directly, economically impacted by the 
                conservation plan.
        The chairman of the team shall be selected from 
        representatives of participating States or local 
        governments.
          (2) Assessments.--Not later than 180 days after the 
        listing determination, the assessment and planning team 
        shall report to the Secretary the assessment of the 
        following biological, economic, and intergovernmental 
        factors with respect to the listed species:
                  (A) The team shall assess--
                          (i) the biological considerations 
                        necessary to carry out this Act;
                          (ii) the biological significance of 
                        the species;
                          (iii) the geographic range and 
                        occupied habitat of the species, and 
                        the type and amounts of habitat needed, 
                        at a minimum, to maintain the existence 
                        of the species and, at a maximum, to 
                        secure recovery of the species;
                          (iv) the current population, and the 
                        population trend, of the species;
                          (v) the technical practicality of 
                        recovering the species;
                          (vi) the potential management 
                        measures capable of recovering, or 
                        reducing the risks to survival of, the 
                        species, including the contribution of 
                        existing or potential captive breeding 
                        programs for the species, predator 
                        control, enhancement of food sources, 
                        supplemental feeding, and other methods 
                        which enhance the survival of the young 
                        of the species; and
                          (vii) where appropriate, the 
                        demonstrable commercial or medicinal 
                        value of the species.
                  (B) The 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 and any 
                potential management measures identified under 
                subparagraph (A)(vi), including impacts on the 
                cost of governmental actions, tax and other 
                revenues, employment, the use and value of 
                property, other social, cultural, and community 
                values, and an assessment of any commercial 
                activity which could potentially result in a 
                net benefit to the conservation of the species.
                  (C) The team shall assess the impacts on 
                State and local land use laws, conservation 
                measures, and water allocation policies that 
                may result from the listing determination and 
                from the potential management measures 
                identified under subparagraph (A)(vi).
                  (D) The Secretary shall provide funding to 
                the team to employ or obtain such technical 
                assistance as necessary to fulfill its duties 
                under this paragraph.
                  (E) Upon completion of the assessment, the 
                Secretary shall publish in the Federal Register 
                a notice of availability of the report and 
                allow 30 days for public comment.
          (3) Secretarial review of assessments and 
        establishment of conservation objective.--(A) Not later 
        than 210 days after a listing determination, the 
        Secretary shall review the report of the assessment and 
        planning team prepared pursuant to paragraph (2), 
        establish a conservation objective for the species, and 
        publish in the Federal Register the conservation 
        objective, along with a statement of findings on which 
        the conservation objective was established.
          (B) The conservation objective may be, in the 
        discretion of the Secretary--
                  (i) recovery of the listed species;
                  (ii) such level of conservation of the 
                species which the Secretary determines 
                practicable and reasonable to the extent that 
                the benefits of the potential conservation 
                measures outweigh the economic and social costs 
                of such measures, including but not limited to 
                maintenance of existing population levels;
                  (iii) no Federal action other than 
                enforcement against any person whose activity 
                violates the prohibitions specified in section 
                9(a), including any activity that results in a 
                taking of the species, unless the taking is 
                incidental to, and not the purpose of, the 
                carrying out of an otherwise lawful activity; 
                or
                  (iv) such other objective as the Secretary 
                may determine that does not provide a lesser 
                level of protection than the level described in 
                clause (iii).
          (C) If the conservation objective established by the 
        Secretary is the objective provided in subparagraph 
        (B)(iii), the Secretary shall not develop a 
        conservation plan for the affected species under 
        subsection (c).
  (c) Development of Conservation Plan.--
          (1) Priorities.--In the development and 
        implementation of a conservation plan under this 
        subsection, the Secretary shall accord priority to--
                  (A) the development of an integrated plan for 
                2 or more endangered species or threatened 
                species that are likely to benefit from an 
                integrated conservation plan;
                  (B) the geographic areas where conflicts 
                between the conservation of the affected 
                species and development projects or other forms 
                of economic activity exist or are likely to 
                exist;
                  (C) protection of the listed species on units 
                of the National Biological Diversity Reserve as 
                provided in section 5A(a);
                  (D) the implementation of conservation 
                measures that have the least economic and 
                social costs;
                  (E) nonregulatory, incentive-based 
                conservation measures and commercial activities 
                that provide a net benefit to the conservation 
                of the species; and
                  (F) plans in which States or private 
                organizations or persons are the primary 
                implementors.
          (2) Publication of draft plan.--Not later than 12 
        months after the date of a determination that a species 
        is an endangered species or a threatened species, the 
        assessment and planning team for the species shall 
        publish a draft conservation plan for the species which 
        is based on the assessments made pursuant to subsection 
        (b)(2) and designed to achieve the conservation 
        objective established pursuant to subsection (b)(3).
          (3) Contents of draft plan.--Each draft conservation 
        plan shall contain--
                  (A) recommendations for Federal agency 
                compliance with section 7(a)(1) and 7(a)(2);
                  (B) 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;
                  (C) alternative strategies to achieve the 
                conservation objective for the listed species 
                which range from a strategy requiring the least 
                possible Federal management to achieve the 
                conservation objective to a strategy involving 
                more intensive Federal management to achieve 
                the objective, each of which contains--
                          (i) an estimate of the risks to the 
                        survival and recovery of the species 
                        that the alternative would entail;
                          (ii) a description of any site-
                        specific management measures 
                        recommended for the alternative;
                          (iii) an analysis of the relationship 
                        of any habitat of the species proposed 
                        for designation as critical habitat to 
                        the recommended management measures;
                          (iv) a description of the direct, 
                        indirect, and cumulative economic and 
                        social impacts on the public and 
                        private sectors including impacts on 
                        employment, the cost of government 
                        actions, tax and other revenues, the 
                        use and value of property, and other 
                        social, cultural, and community values;
                          (v) a description of any captive 
                        breeding program recommended for the 
                        alternative;
                          (vi) an analysis of whether the 
                        alternative would include any release 
                        of an experimental population outside 
                        the current range of the species and an 
                        identification of candidate geographic 
                        areas for the release;
                          (vii) objective and measurable 
                        criteria, including a population level 
                        target, that, if met, would result in a 
                        determination under section 4 that the 
                        species is no longer an endangered 
                        species or threatened species;
                          (viii) estimates of the time and 
                        costs required to carry out the 
                        management measures, including any 
                        intermediate steps; and
                          (ix) a description of the role of 
                        each affected State, if any, in 
                        achieving the conservation objective.
          (4) Plan preparation procedures.--(A) The Secretary 
        shall consult with the Governor of each State in which 
        the affected species is located during the preparation 
        of each draft and final conservation plan. Each plan 
        shall provide for equitable treatment of affected 
        States and other non-Federal persons.
          (B) The Secretary shall publish in the Federal 
        Register and a newspaper of general circulation in each 
        affected county and parish a notice of the availability 
        and a summary of, and a request for the submission of 
        comments on, each draft conservation plan.
          (C) The Secretary shall hold at least 1 hearing on 
        each draft conservation plan in each State to which the 
        plan would apply in a location that is as close as 
        possible to the center of the habitat of the affected 
        species in such State.
          (D) Prior to any decision to adopt a final 
        conservation plan, the Secretary shall consider and 
        weigh carefully all information presented during each 
        hearing held under subparagraph (C) or received in 
        response to a request for comments published under 
        subparagraph (B).
          (5) Publication of final plan.--Not later than 18 
        months from the date of a determination that a species 
        is an endangered species or a threatened species, the 
        Secretary shall publish in the Federal Register a 
        notice of the availability, and a summary, of a final 
        conservation plan for the species. The notice shall 
        include a detailed description of--
                  (A) the reasons for the selection of the 
                final conservation plan;
                  (B) the reasons for not selecting each of the 
                other alternatives included in the draft 
                conservation plan, including, if any 
                alternative is selected other than the 
                alternative that would impose the least total 
                costs on the public and private sectors, the 
                reasons for such selection;
                  (C) the effect of the priorities specified in 
                paragraph (1) on the selection; and
                  (D) the response of the Secretary to the 
                information referred to in paragraph (4).
          (6) Participation by other persons.--In developing 
        and implementing conservation plans, the Secretary may 
        use the services of appropriate public and private 
        agencies and institutions and other qualified persons.
          (7) Plan revision or amendment.--Any revision of or 
        amendment to a conservation plan shall be made in 
        accordance with the procedures and requirements of 
        subsection (b) and this subsection, except that the 
        Secretary by regulation may provide for other 
        procedures and requirements for any amendment that does 
        not increase the direct or indirect cost of 
        implementation of the plan or enlarge the area to which 
        the plan applies.
  (d) No Further Procedures or Requirements for Actions 
Consistent With the Conservation Plan.--If a conservation plan 
is prepared under subsection (c) or if a conservation objective 
is established under subsection (b)(3)(C)--
          (1) any Federal agency that determines that the 
        actions of the agency are consistent with the 
        provisions of the conservation plan or conservation 
        objective shall be considered to comply with section 
        7(a)(1) for the affected species;
          (2) any agency action that the Federal agency 
        determines is consistent with the provisions of the 
        conservation plan or conservation objective shall not 
        be subject to section 7(a)(2) for the affected species, 
        except that a Federal agency may initiate consultation 
        under section 7(a)(2) if the agency desires guidance 
        from the Secretary on the consistency of the action of 
        the agency with the conservation plan or conservation 
        objective; and
          (3) any action of any person that is consistent with 
        the provisions of the conservation plan or conservation 
        objective shall not constitute a violation concerning 
        the affected species of any applicable prohibition 
        under section 9(a) or 4(d), except that a non-Federal 
        person may initiate consultation under section 
        10(a)(2)--
                  (A) if the person desires guidance from the 
                Secretary on the consistency of the action with 
                the plan or objective; or
                  (B) in order to determine whether to apply 
                for a permit under section 10 for any action 
                that is inconsistent with the plan or 
                objective.
  (e) Management Prior to Publication of Conservation Plan.--
          (1) In general.--After a listing determination and 
        before the publication of a final conservation plan, 
        or, if no plan is required pursuant to subsection 
        (b)(3)(C), a conservation objective, for the species--
                  (A) the prohibitions of section 9(a) shall 
                apply to any person, except in the case of a 
                taking of a member of the species that is 
                incidental to, and not the purpose of, the 
                carrying out of an otherwise lawful activity 
                which incidental taking activity may include 
                but is not limited to the routine operation, 
                maintenance, rehabilitation, replacement, or 
                repair of any structure, building, road, dam, 
                airport, or any irrigation or other facility 
                which is in operation prior to the publication 
                of the determination under section 4(b)(6); and
                  (B) no Federal agency shall be required to 
                comply with section 7(a)(1) and no consultation 
                shall be required on any agency action under 
                section 7(a)(2), except that the species shall 
                continue to be treated as a species proposed 
                for listing under section 4 solely for purposes 
                of section 7(a)(4).
          (2) Emergency rulemaking protections.--
        Notwithstanding paragraph (1), sections 7(a) and 9(a) 
        shall apply fully to the listed species during a period 
        in which an emergency rulemaking is in effect pursuant 
        to section 4(b)(7) or if the President declares, and 
        advises the Secretary, that there exists an imminent 
        threat to the existence of the species. Such 
        declaration of the President expires upon the deadline 
        for publication of a final conservation plan for the 
        species pursuant to subsection (c)(5) or the 
        publication of a conservation objective for the species 
        provided in subsection (b)(3) or if no conservation 
        plan is required pursuant to subsection (b)(3)(C).
  (f) Suspension of Conservation Plan or Objective.--If the 
Secretary issues an incidental take permit or enters into a 
cooperative management agreement under section 6, the 
Secretary, by publication of notice in the Federal Register, 
shall suspend the conservation objective or conservation plan 
with respect to the geographic area or action applicable to the 
species to which the permit or agreement applies.
  (g) Nondelegation of Duties.--The Secretary may not delegate 
the authority to make the final decision to select a 
conservation objective, issue a conservation plan, or designate 
critical habitat under this section.
  (h) Review of Conservation Plans.--
          (1) Deadlines.--The Secretary shall review each 
        conservation plan and the conservation objective on 
        which it is based before the end of the 5-year period 
        that begins on the date of publication of the 
        conservation plan, and before the end of each 5-year 
        period thereafter.
          (2) Revisions.--The Secretary shall revise a 
        conservation plan or the conservation objective on 
        which it is based if the Secretary determines--
                  (A) through a 5-year review under paragraph 
                (1), that the conservation plan or conservation 
                objective does not meet the requirements of 
                this section; or
                  (B) at any time--
                          (i) that funding is not available for 
                        the implementation of a specific 
                        conservation measure that is integral 
                        to the conservation plan or that a more 
                        cost-effective alternative exists for a 
                        specific conservation measure that is 
                        integral to the conservation plan; or
                          (ii) on the basis of scientific or 
                        commercial data that were not available 
                        during the development of the 
                        conservation objective or conservation 
                        plan, that the conservation objective 
                        is not achievable or the conservation 
                        plan will not achieve the conservation 
                        objective.
          (3) No reopening of consultations.--Section 7 
        consultations shall not be reopened as a result of 
        modifications to a conservation plan under paragraph 
        (2).
  (i) Critical Habitat Designation.--
          (1) Designation.--The Secretary--
                  (A) may, by regulation and to the extent 
                prudent and determinable, designate critical 
                habitat of a species determined to be an 
                endangered species or threatened species that 
                meets the requirements of paragraph (3) 
                utilizing the National Biodiversity Reserve 
                established under section 5A(a) as a first 
                priority;
                  (B) may by regulation and to the extent 
                prudent and determinable, revise a critical 
                habitat designation on determining that the 
                critical habitat does not meet the requirements 
                of paragraph (3); and
                  (C) shall, by regulation and upon receiving a 
                written request from a non-Federal person 
                requesting a review of the critical habitat 
                designation on such person's private property, 
                revise a critical habitat designation on such 
                private property on determining that the 
                critical habitat does not meet the requirements 
                of paragraph (3).
        Designation or revision of critical habitat shall not 
        result in reopening or reinitiation of consultations on 
        Federal actions pursuant to section 7.
          (2) Deadlines for designation.--Any proposed 
        regulation and any final regulation to designate or 
        revise critical habitat shall be published not later 
        than 12 months and 18 months, respectively, after the 
        date on which the affected species is determined to be 
        an endangered species or a threatened species, or on 
        which the Secretary receives a written request to 
        review a critical habitat designation under paragraph 
        (1)(C).
          (3) Basis for designation.--The designation of 
        critical habitat, and any revision of the designation, 
        shall be made on the basis of the best available 
        scientific and commercial data after taking into 
        consideration the economic impact, and any other 
        relevant impact, of designating any particular area as 
        critical habitat and of the determination that the 
        affected species is an endangered species or threatened 
        species. The Secretary shall exclude any area from 
        critical habitat--
                  (A) which does not meet the definition of 
                critical habitat set forth in section 3(7);
                  (B) which is not necessary to achieve the 
                conservation objective for the affected species 
                established pursuant to subsection (b);
                  (C) for which the Secretary determines that 
                the benefits of the exclusion of the area from 
                designation as critical habitat outweigh the 
                benefits of designation, unless the Secretary 
                determines, on the basis of the best available 
                scientific and commercial data, that the 
                failure to designate the area as critical 
                habitat will result in the extinction of the 
                affected species; or
                  (D) in the case of property owned by a non-
                Federal person, where the owner thereof has not 
                given written consent to the designation, has 
                withdrawn such consent in writing, or has not 
                been compensated as provided in section 19.
          (4) Procedure for designation.--In the Federal 
        Register notice containing the proposed regulation to 
        designate critical habitat, the Secretary shall 
        describe the economic impacts and other relevant 
        impacts that are to be considered, and the benefits 
        that are to be weighed, under paragraph (3) in 
        designating an area as critical habitat, along with 
        maps showing the location of the area to be designated 
        as critical habitat. The Secretary shall submit the 
        description, and the documentation supporting the 
        description, to the Bureau of Labor Statistics of the 
        Department of Labor. The Commissioner of Labor 
        Statistics shall submit written comments during the 
        comment period on the proposed regulation. The 
        Secretary shall hold at least one public hearing in 
        each State on the proposed rule in which critical 
        habitat is designated for a species. In issuing any 
        final regulation designating critical habitat, the 
        Secretary shall respond separately and fully to each 
        comment.
          (5) Judicial review of critical habitat 
        designation.--The decision whether to designate 
        critical habitat shall be subject to a de novo judicial 
        review with the court determining whether the decision 
        is supported by a preponderance of the evidence.
  (j) Judicial Review of Conservation Objective or Plan.--The 
standard for judicial review of any decision of the Secretary, 
or a Federal agency pursuant to this section shall be whether 
the decision is arbitrary, capricious, an abuse of discretion, 
or otherwise not in accordance with law.
  (k) Conservation Plans for Foreign Species.--In developing 
conservation objectives and conservation plans under this 
section, the Secretary shall, in regard to foreign species--
          (1) act consistently with the Convention; and
          (2) cooperate and support the conservation strategy 
        adopted for that species by any foreign nation in which 
        the species occurs.
  (l) Recognition of Captive Propagation as Means of 
Conservation.--
          (1) In general.--In carrying out this Act, the 
        Secretary shall recognize to the maximum extent 
        practicable, and may utilize, captive propagation as a 
        means of protecting or conserving an endangered species 
        or a threatened species.
          (2) Captive propagation grants.--The Secretary may, 
        subject to appropriations therefor, provide annual 
        grants to non-Federal persons to fund captive 
        propagation programs for the purpose of protecting or 
        conserving any species that is determined under section 
        4 to be an endangered species or a threatened species, 
        if the Secretary determines that such a program 
        contributes to enhancement of the population of the 
        species.
  (m) Technical Assistance Program.--
          (1) In general.--The Secretary shall initiate a 
        technical assistance program to provide technical 
        advice and assistance to non-Federal persons who wish 
        to participate in achieving the conservation objective 
        for a species. The technical assistance provided shall 
        include information on habitat needs of species, 
        optimum management of habitat for species, methods for 
        propagation of species, feeding needs and habits, 
        predator controls, and any other information which a 
        non-Federal person may utilize or request for the 
        purpose of conserving a species determined to be an 
        endangered species or threatened species or proposed to 
        be determined as an endangered species or threatened 
        species.
          (2) Regulations to provide exemptions from section 
        9.--The Secretary shall promulgate regulations that 
        establish exemptions from section 9 for any person who 
        participates in a conservation program under this 
        subsection.
  (n) Delegation to State.--(1) At the request of a State, the 
Secretary shall delegate either under a cooperative management 
plan or a delegation agreement as provided in section 6, to the 
State the authority to develop and implement conservation 
objectives and plans for a species or group of species 
determined to be endangered species or threatened species, 
unless the Secretary determines that the State lacks authority 
and capability to carry out the requirements of this Act. If 
the Secretary determines that the State lacks authority and 
capability, the Secretary shall notify the Governor of the 
State of the specific concerns and specify measures necessary 
to address those concerns and provide the Governor with the 
opportunity to take the actions necessary to address those 
concerns.
  (2) The Secretary shall monitor the actions of the State to 
develop and implement a conservation objective and conservation 
plan. The Secretary shall assist the States in coordinating 
their actions with other affected States where the species may 
occur.
  (3) If the Secretary determines that the State is not in 
compliance with this Act, the cooperative management agreement, 
or the delegation agreement, the Secretary shall so notify the 
State and shall specify the areas of noncompliance. The States 
shall have 60 days in which to respond and in which to come 
into compliance. If the State fails to adequately respond or to 
come into compliance, the Secretary is authorized to resume 
responsibility for the development and implementation of the 
conservation objective and plan.

SEC. 5A. PROTECTION OF HABITAT.

  (a) Establishment of National Biological Diversity Reserve.--
          (1) In general.--There is hereby established a 
        National Biological Diversity Reserve (hereinafter in 
        this Act referred to as the ``Reserve''). The Reserve 
        shall be composed of units of Federal and State lands 
        designated in accordance with paragraph (2) and managed 
        in accordance with paragraph (3).
          (2) Designation of reserve units.--(A) Not later than 
        18 months after the date of enactment of the Endangered 
        Species Conservation and Management Act of 1995, the 
        Secretary of the Interior and the Secretary of 
        Agriculture shall designate to the Reserve by 
        regulation those units of the national conservation 
        systems which are within the jurisdiction of the 
        Secretary concerned and which the Secretary determines 
        would contribute to biological diversity in accordance 
        with the provisions of this Act. The term ``national 
        conservation systems'' means wholly federally owned 
        lands within the National Park System, the National 
        Wildlife Refuge System, or the National Wilderness 
        Preservation System, and wild segments of rivers within 
        the National Wild and Scenic Rivers System.
          (B) The Secretary of the Interior shall--
                  (i) designate to the Reserve by regulation a 
                unit of State-owned lands if such unit is 
                nominated for designation by the Governor of 
                the State and is managed under State law in 
                accordance with paragraph (3);
                  (ii) designate to the Reserve by regulation 
                privately owned land that is nominated for 
                designation by the owner of the land, and shall 
                remove such land from the Reserve if the owner 
                requests removal;
                  (iii) remove from the Reserve by regulation 
                any unit designated pursuant to clause (i) 
                which the Secretary finds is not managed under 
                State law in accordance with paragraph (3); and
                  (iv) remove from the Reserve any State-owned 
                lands at the request of the Governor of that 
                State.
          (C) Designation of a Reserve unit shall not affect 
        any valid existing permit, contract, license, right, 
        right-of-way, access, interest in land, right to use or 
        receive water, or property right.
          (3) Management of the reserve.--(A) Each unit of the 
        Reserve may have as a goal the conservation of 
        biological diversity. Such goal shall be supplementary 
        and secondary to other purposes established for such 
        unit by or pursuant to any provision of law applicable 
        to such unit. Management for biological diversity shall 
        not be inconsistent with or diminish other unit 
        purposes, other provisions of law applicable to such 
        unit, and activities which occur or are authorized to 
        occur on such unit.
          (B) The manager of each Reserve unit should 
        consistent with paragraph (4) utilize his authority to 
        use active management and recovery measures, including 
        those specified in section 5(b)(2)(A)(vi), and shall 
        conduct a survey to determine the populations of 
        species within the Reserve.
          (C) Nothing in this section shall--
                  (i) alter, establish, or affect the 
                respective rights of the United States, the 
                States, or any person with respect to any water 
                or water-related right; or
                  (ii) affect the laws, rules, and regulations 
                pertaining to hunting, fishing, and other 
                lawful wildlife harvest under existing State 
                and Federal laws and Indian treaties.
          (D) Within 1 year of the designation of a unit to the 
        Reserve, the manager of such unit shall complete, and 
        the Secretary concerned shall make available to the 
        public by notice in the Federal Register, an inventory 
        of the species composing the biological diversity 
        within such unit.
          (4) Other federal lands.--Nothing in this Act shall 
        be construed as limiting the authority of the Secretary 
        of the Interior or the Secretary of Agriculture to take 
        such actions as are necessary and authorized by other 
        law to protect, maintain, and enhance biological 
        diversity on other Federal lands not designated to the 
        Reserve except that, before taking any such action, the 
        Secretary concerned shall make a finding based on the 
        best available scientific and commercial data, that the 
        biological diversity for which such action is proposed 
        is not protected, maintained, or enhanced in whole or 
        substantial part on any unit of the Reserve. Such 
        finding shall be published, along with the reasons 
        therefor in the Federal Register.
  (b) Land Acquisition.--
          (1) Program.--The Secretary, and the Secretary of 
        Agriculture with respect to the National Forest System, 
        shall establish and implement a program to conserve 
        fish, wildlife, and plants, including those which are 
        determined to be endangered species or threatened 
        species pursuant to section 4. To carry out such a 
        program, the appropriate Secretary--
                  (A) shall utilize the land acquisition and 
                other authority under the Fish and Wildlife Act 
                of 1956 (16 U.S.C. 742a et seq.), the Fish and 
                Wildlife Coordination Act (16 U.S.C. 661 et 
                seq.), and the Migratory Bird Conservation Act 
                (16 U.S.C. 715 et seq.), as appropriate; and
                  (B) is authorized to acquire by purchase, 
                lease, donation, or otherwise, lands, waters, 
                or interest therein, including short- or long-
                term conservation easements, and such authority 
                shall be in addition to any other land 
                acquisition authority vested in that Secretary.
          (2) Availability of funds for acquisition of lands, 
        water, etc.--Funds made available pursuant to the Land 
        and Water Conservation Fund Act of 1965 (16 U.S.C. 
        4601-4 et seq.) and funds made available under section 
        13(c)(4) may be used for the purpose of acquiring or 
        leasing lands, waters, or interests therein under this 
        subsection.
  (c) Exchanges.--
          (1) In general.--In accordance with subsection (a), 
        the Secretary of the Interior and the Secretary of 
        Agriculture shall encourage exchanges of lands, waters, 
        or interests in land or water within the jurisdiction 
        of each Secretary (other than units of the National 
        Park System and units of the National Wilderness 
        Preservation System) for lands, waters, or interests in 
        land or water that are not in Federal ownership and 
        that are affected by this Act.
          (2) Timing of exchanges.--An exchange under this 
        subsection may be made if the Secretary of the Interior 
        or the Secretary of Agriculture determines, without a 
        formal appraisal, that the lands to be exchanged are of 
        approximately equal value after allowing the State in 
        which the land being exchanged is located 30 days in 
        which to comment on the exchange.
          (3) Environmental assessment.--An environmental 
        assessment shall be the only document under section 
        102(2) of the National Environmental Policy Act of 1976 
        (16 U.S.C. 4332(2)) that shall be prepared with respect 
        to any exchange under this subsection.
          (4) Expeditious exchange decisions.--An exchange 
        under this subsection shall be processed as 
        expeditiously as practicable. The Secretary of the 
        Interior or the Secretary of Agriculture shall 
        periodically provide information to the non-Federal 
        landowner on the status of the exchange.
          (5) Applicable law.--The Secretary of the Interior 
        and the Secretary of Agriculture shall process 
        exchanges under this subsection in accordance with 
        applicable laws that are consistent with this 
        subsection.
  (d) Valuation.--Any land, water, or interest in land or water 
to be acquired by the Secretary or the Secretary of Agriculture 
by purchase, exchange, donation, or otherwise under this 
section shall be valued as if the land, water, or interest in 
land or water were not subject to any restriction on use under 
this Act imposed after the date of acquisition by the current 
owner of the land, water, or interest in land or water.
  (e) Impacts on Adjacent Properties.--For any land or water 
acquired by the Secretary or the Secretary of Agriculture by 
purchase, exchange, lease, donation or otherwise under this 
section, the Secretary or Secretary of Agriculture shall ensure 
that such purchase, exchange, lease, donation, or other 
transfer shall not supersede, abrogate, or otherwise impair 
existing easements, rights-of-way, fencing, water sources, 
water delivery lines or ditches, and current uses of adjacent 
land.

                      [cooperation with the states

  [Sec. 6. (a) General.--In carrying out the program authorized 
by this Act, the Secretary shall cooperate to the maximum 
extent practicable with the States. Such cooperation shall 
include consultation with the States concerned before acquiring 
any land or water, or interest therein, for the purpose of 
conserving any endangered species or threatened species.
  [(b) Management Agreements.--The Secretary may enter into 
agreements with any State for the administration and management 
of any area established for the conservation of endangered 
species or threatened species. Any revenues derived from the 
administration of such areas under these agreements shall be 
subject to the provisions of section 401 of the Act of June 15, 
1935 (49 Stat. 383; 16 U.S.C. 715s).
  [(c)(1) Cooperative Agreements.--In furtherance of the 
purposes of this Act, the Secretary is authorized to enter into 
a cooperative agreement in accordance with this section with 
any State which establishes and maintains an adequate and 
active program for the conservation of endangered species and 
threatened species. Within one hundred and twenty days after 
the Secretary receives a certified copy of such a proposed 
State program, he shall make a determination whether such 
program is in accordance with this Act. Unless he determines, 
pursuant to this paragraph, that the State program is not in 
accordance with this Act, he shall enter into a cooperative 
agreement with the State for the purpose of assisting in 
implementation of the State program. In order for a State 
program to be deemed an adequate and active program for the 
conservation of endangered species and threatened species, the 
Secretary must find, and annually thereafter reconfirm such 
finding, that under the State program--
          [(A) authority resides in the State agency of 
        conserve resident species of fish or wildlife 
        determined by the State agency or the Secretary to be 
        endangered or threatened;
          [(B) the State agency has established acceptable 
        conservation programs, consistent with the purposes and 
        policies of this Act, for all resident species of fish 
        or wildlife in the State which are deemed by the 
        Secretary to be endangered or threatened, and has 
        furnished a copy of such plan and program together with 
        all pertinent details, information, and data requested 
        to the Secretary;
          [(C) the State agency is authorized to conduct 
        investigations to determine the status and requirements 
        for survival of resident species of fish and wildlife;
          [(D) the State agency is authorized to establish 
        programs, including the acquisition of land or aquatic 
        habitat or interests therein, for the conservation of 
        resident endangered or threatened species of fish or 
        wildlife; and
          [(E) provision is made for public participation in 
        designating resident species of fish or wildlife as 
        endangered or threatened, or that under the State 
        program--
          [(i) the requirements set forth in paragraph (3), 
        (4), and (5) of this subsection are complied with, and
          [(ii) plans are included under which immediate 
        attention will be given to those resident species of 
        fish and wildlife which are determined by the Secretary 
        or the State agency to be endangered or threatened and 
        which the Secretary and the State agency agree are most 
        urgently in need of conservation programs; except that 
        a cooperative agreement entered into with a State whose 
        program is deemed adequate and active pursuant to 
        clause (i) and this clause and this subparagraph shall 
        not affect the applicability of prohibitions set forth 
        in or authorized pursuant to section 4(d) or section 
        9(a)(1) with respect to the taking of any resident 
        endangered or threatened species.
  [(2) The prohibitions set forth in or authorized pursuant to 
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with 
respect to the taking of any resident endangered species or 
threatened species (other than species listed in Appendix I to 
the Convention or otherwise specifically covered by any other 
treaty or Federal law) within any State--
          [(A) which is then a party to a cooperative agreement 
        with the Secretary pursuant to section 6(c) of this Act 
        (except to the extent that the taking of any such 
        species is contrary to the law of such State); or
          [(B) except for any time within the establishment 
        period when--
                  [(i) the Secretary applies such prohibition 
                to such species at the request of the State, or
                  [(ii) the Secretary applies such prohibition 
                after he finds, and publishes his finding, that 
                an emergency exists posing a significant risk 
                to the well-being of such species and that the 
                prohibition must be applied to protect such 
                species. The Secretary's finding and 
                publication may be made without regard to the 
                public hearing or comment provisions of section 
                553 of title 5, United States Code, or any 
                other provision of this Act; but such 
                prohibition shall expire 90 days after the date 
                of its imposition unless the Secretary further 
                extends such prohibition by publishing notice 
                and a statement of justification of such 
                extension.
  [(h) Regulations.--The Secretary is authorized to promulgate 
such regulations as may be appropriate to carry out the 
provisions of this section relating to financial assistance to 
States.]

SEC. 6. COOPERATION WITH NON-FEDERAL PERSONS.

  (a) Generally.--In carrying out the program authorized by 
this Act, the Secretary shall cooperate to the maximum extent 
practicable with the States and other non-Federal persons. Such 
cooperation shall include consultation with the States and non-
Federal persons concerned before acquiring any land or water, 
or interest therein, for the purpose of conserving any 
endangered species or threatened species.
  (b) Cooperative Management Agreements.--
          (1) In general.--The Secretary may enter into a 
        cooperative management agreement with any State or 
        group of States, political subdivision of a State, 
        local government, or non-Federal person--
                  (A) for the management of a species or group 
                of species listed as endangered species or 
                threatened species under section 4, a species 
                or group of species proposed to be listed under 
                section 4, or species or group of species which 
                are candidates for listing; or
                  (B) for the management or acquisition of an 
                area which provides habitat for a species.
          (2) Scope of cooperative management agreements.--(A) 
        A cooperative management agreement entered into under 
        this subsection--
                  (i) may provide for the management of a 
                species or group of species on both public and 
                private lands which are under the authority, 
                control or ownership of a State or group of 
                States, political subdivision of a State, local 
                government, or non-Federal person and which are 
                affected by a listing determination, proposed 
                determination, or proposed candidacy for 
                determination; and
                  (ii) may include the acquisition or 
                designation of land as habitat for species.
          (B) A cooperative management agreement may not 
        restrict private or non-Federal property unless written 
        consent to such restrictions by the non-Federal owner 
        is given either to the Secretary or the State, 
        political subdivision, local government, or non-Federal 
        person who is a party to the agreement.
          (C) The Secretary may grant to a party to an 
        agreement the authority to undertake programs to 
        enhance the population or habitat of a species on 
        federally owned lands, except that such authority shall 
        not otherwise conflict with other uses of such land 
        which are approved by the Secretary or authorized by 
        the Congress.
          (D) The Secretary is authorized, in conjunction with 
        entering into and as a part of any agreement under this 
        section, to provide funds to carry out the agreement to 
        a non-Federal person, as provided in paragraph (11).
          (3) Notification.--Not later than 30 days after 
        submission of a request to enter into a cooperative 
        management agreement, the party submitting the request 
        shall provide notice of the request to any non-Federal 
        person or Federal power marketing administration that 
        would be subject to the proposed cooperative management 
        agreement.
          (4) Development of proposed agreement.--(A) The 
        requesting party shall develop and submit to the 
        Secretary a proposed cooperative management agreement.
          (B) The Secretary shall publish in the Federal 
        Register a notice of availability and a request for 
        public comment on any proposed cooperative management 
        agreement between the Secretary and any governmental 
        entity and shall hold a public hearing on such a 
        proposed cooperative management agreement in each 
        county or parish in which the proposed agreement would 
        be in effect.
          (C) Before entering into a cooperative management 
        agreement with another governmental entity or a non-
        Federal person for the management of federally owned 
        land, the Secretary shall consider and weigh carefully 
        all information received in response to the request for 
        comment published under subparagraph (B) and testimony 
        presented in each hearing held under subparagraph (B).
          (5) Approval of agreement.--(A) Not later than 120 
        days after the submission of a proposed cooperative 
        management agreement under paragraph (4), the Secretary 
        shall determine whether the proposed agreement is in 
        accordance with this subsection and will promote the 
        conservation of the species to which the proposed 
        agreement applies.
          (B) The Secretary shall approve and enter into a 
        proposed cooperative management agreement, if the 
        Secretary finds that--
                  (i) the requesting party has sufficient 
                authority under law to implement and carry out 
                the terms of the agreement;
                  (ii) the agreement defines an area that 
                serves as habitat for the species or group of 
                species to which the agreement applies;
                  (iii) the agreement adequately provides for 
                the administration and management of the 
                identified management area;
                  (iv) the agreement promotes the conservation 
                of the species to which the agreement applies 
                by committing Federal or non-Federal efforts to 
                the conservation;
                  (v) the term of the agreement is of 
                sufficient duration to accomplish the 
                provisions of the agreement; and
                  (vi) the agreement is adequately funded to 
                carry out the agreement.
          (C) No later than 30 days after entering into a 
        cooperative management agreement with a governmental 
        entity, the Secretary shall publish in the Federal 
        Register a notice of availability of the terms of such 
        agreement and the response of the Secretary to all 
        information received or presented with respect to the 
        agreement pursuant to paragraph (4)(B).
          (6) Environmental assessments.--Preparation, 
        approval, and entering into a cooperative management 
        agreement under this subsection shall not be subject to 
        section 102(2) of the National Environmental Policy Act 
        of 1969 (42 U.S.C. 4332(2)).
          (7) No surprises.--For any species or area that is 
        the subject of a cooperative management agreement under 
        this subsection, a party to the agreement shall not be 
        required--
                  (A) to make any additional payment for any 
                purpose, or to accept any additional 
                restriction on any parcel of land available for 
                development or land management under the 
                agreement, without consent of the party; or
                  (B) to undertake any other measure to 
                minimize or mitigate impacts on the species in 
                addition to measures required by the agreement 
                as established.
          (8) Effect of listing of species.--A cooperative 
        management agreement entered into under this subsection 
        shall remain in effect and shall not be required to be 
        amended if a species to which the agreement does not 
        apply is determined to be an endangered species or 
        threatened species under section 4.
          (9) Applicability of certain provisions.--Sections 5, 
        7, and 9 shall not apply to those activities of a party 
        to a cooperative management agreement which are 
        conducted in accordance with such agreement.
          (10) Violations of agreements.--(A) If the Secretary 
        determines that a party to a cooperative management 
        agreement is not administering or acting in accordance 
        with the agreement, the Secretary shall notify the 
        party.
          (B) If a party that is notified under subparagraph 
        (A) fails to take appropriate corrective action within 
        a period of time determined by the Secretary to be 
        reasonable (not to exceed 90 days after the date of the 
        notification)--
                  (i) the Secretary shall rescind the entire 
                cooperative management agreement or the 
                applicability of the agreement to the party 
                that is the subject of the notification; and
                  (ii) beginning on the date of the 
                rescission--
                          (I) the entire agreement shall not be 
                        effective, or the agreement shall not 
                        be effective with respect to the party, 
                        whichever is appropriate; and
                          (II) sections 5, 7, and 9 shall apply 
                        to activities of the party.
          (11) FACA.--Consultation with States pursuant to this 
        section shall not be subject to the Federal Advisory 
        Committee Act (5 U.S.C. App.).
  (c) State Authority To Protect Endangered and Threatened 
Species.--
          (1) Delegation of authority.--In furtherance of the 
        purposes of this Act, the Secretary may delegate to a 
        State which establishes and maintains an adequate 
        program for the conservation of endangered species and 
        threatened species the authority contained in this Act 
        with respect to species that are residents in the 
        State. Within 120 days after the Secretary receives a 
        certified copy of such a proposed State program, the 
        Secretary shall make a determination whether such 
        program will be adequate to provide protections to 
        endangered species and threatened species in such 
        State. In order for a State program to be determined to 
        be an adequate program for the conservation of 
        endangered species and threatened species, the 
        Secretary must find that under the State program--
                  (A)(i) authority resides in the State agency 
                to conserve resident species that are 
                determined by the State agency or the Secretary 
                to be endangered species or threatened species;
                  (ii) the State agency has established 
                acceptable conservation programs, consistent 
                with the purposes and policies of this Act, for 
                all resident species in the State which are 
                determined by the Secretary to be endangered 
                species or threatened species or for those 
                species or taxonomic groups of species which 
                the State proposes to cover under its program, 
                and has furnished a copy of such plan and 
                program together with all pertinent details, 
                information, requested to the Secretary;
                  (iii) the State agency is authorized to 
                conduct investigations to determine the status 
                and requirements for survival of resident 
                endangered species and threatened species;
                  (iv) an agency of the State is authorized to 
                establish programs, including the acquisition 
                of land or aquatic habitat or interests 
                therein, for the conservation of resident 
                endangered species or threatened species;
                  (v) provision is made for public 
                participation in designating resident species 
                as endangered species or threatened species; 
                and
                  (vi) the State agency has initiated or 
                encouraged voluntary or incentive based 
                programs to further the conservation objectives 
                for the species; or
                  (B)(i) the requirements set forth in clauses 
                (iii), (iv), and (v) of subparagraph (A) are 
                complied with, and
                  (ii) plans are included under which immediate 
                attention will be given to those resident 
                species which are determined by the Secretary 
                or the State agency to be endangered species or 
                threatened species and which the Secretary and 
                the State agency agree are most urgently in 
                need of conservation programs.
          (2) Prohibitions not affected.--A delegation to a 
        State whose program is determined adequate under 
        paragraph (1) shall not affect the applicability of 
        prohibitions set forth in or authorized pursuant to 
        section 4(d) or section 9(a)(1) or (2) with respect to 
        the taking of any resident endangered species or 
        threatened species in the State.
  (d) Allocation of Funds.--
          (1) Financial assistance.--(A) The Secretary may 
        provide financial assistance to any State, through its 
        respective State agency, which has entered into a 
        cooperative management agreement under subsection (b) 
        or received authority under a delegation pursuant to 
        subsection (c) of this section to assist in development 
        of programs for the conservation of endangered species 
        and threatened species or to assist in monitoring the 
        status of candidate species pursuant to subparagraph 
        (C) of section 4(b)(3) and recovered species pursuant 
        to section 4(f). The Secretary shall allocate each 
        annual appropriation made in accordance with subsection 
        (i) to such States based on consideration of--
                  (i) the international commitments of the 
                United States to protect endangered species or 
                threatened species;
                  (ii) the readiness of a State to proceed with 
                a conservation program consistent with the 
                objectives and purposes of this Act;
                  (iii) the number of endangered species and 
                threatened species within a State;
                  (iv) the potential for restoring endangered 
                species and threatened species within a State;
                  (v) the relative urgency to initiate a 
                program to restore and protect an endangered 
                species or threatened species in terms of 
                survival of the species;
                  (vi) the importance of monitoring the status 
                of candidate species within a State to prevent 
                a significant risk to the well-being of any 
                such species; and
                  (vii) the importance of monitoring the status 
                of recovered species within a State to assure 
                that such species do not return to the point at 
                which the measures provided pursuant to this 
                Act are again necessary.
          (B) So much of the annual appropriation made in 
        accordance with subsection (i) allocated for obligation 
        to any State for any fiscal year as remains unobligated 
        at the close thereof may be made available to that 
        State until the close of the succeeding fiscal year. 
        Any amount allocated to any State which is unobligated 
        at the end of the period during which it is available 
        for expenditure may be made available for expenditure 
        by the Secretary in conducting programs under this 
        section.
          (2) Contents of delegation agreement.--Such 
        delegation shall provide for--
                  (A) the actions to be taken by the Secretary 
                and the States;
                  (B) the benefits that are expected to be 
                derived in connection with the conservation of 
                endangered species or threatened species;
                  (C) the estimated cost of these actions; and
                  (D) the share of such costs to be borne by 
                the Federal Government and by the States; 
                except that--
                          (i) the Federal share of such program 
                        costs shall not exceed 75 percent of 
                        the estimated program cost stated in 
                        the agreement; and
                          (ii) the Federal share may be 
                        increased to 90 percent whenever two or 
                        more States having a common interest in 
                        one or more endangered species or 
                        threatened species, the conservation of 
                        which may be enhanced by cooperation of 
                        such States, enter jointly into an 
                        agreement with the Secretary.
        The Secretary may, in the Secretary's discretion, and 
        under such rules and regulations as he may prescribe, 
        advance funds to the State for financing the United 
        States pro rata share agreed upon in the cooperative 
        agreement. For the purposes of this section, the non-
        Federal share may, in the discretion of the Secretary, 
        be in the form of money or real property, the value of 
        which will be determined by the Secretary, whose 
        decision shall be final.
          (3) Compliance with procedures.--In implementing this 
        Act under authority delegated to a State by the 
        Secretary, the State shall comply with all 
        requirements, prohibitions, and procedures set forth by 
        this Act.
  (e) Review of State Programs.--Any action taken by the 
Secretary under this section shall be subject to his periodic 
review at no greater than intervals of 5 years.
  (f) Conflicts Between Federal and State Laws.--Any State law 
or regulation which applies with respect to the importation or 
exportation of, or interstate or foreign commerce in, 
endangered species or threatened species is void to the extent 
that it may effectively--
          (1) permit what is prohibited by this Act or by any 
        regulation which implements this Act, or
          (2) prohibit what is authorized pursuant to an 
        exemption or permit provided for in this Act or in any 
        regulation which implements this Act. This Act shall 
        not otherwise be construed to void any State law or 
        regulation which is intended to conserve migratory, 
        resident, or introduced fish or wildlife, or to permit 
        or prohibit sale of such fish or wildlife. Any State 
        law or regulation respecting the taking of an 
        endangered species or threatened species may be more 
        restrictive than the exemptions or permits provided for 
        in this Act or in any regulation which implements this 
        Act.
  (g) Transition.--(1)  * * *
  (2) The prohibitions set forth in or authorized pursuant to 
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with 
respect to the taking of any resident endangered species or 
threatened species (other than species listed in Appendix I to 
the Convention or otherwise specifically covered by any other 
treaty or Federal law) within any State--
          [(A) which is then a party to a cooperative agreement 
        with the Secretary pursuant to section 6(c) of this Act 
        (except to the extent that the taking of any such 
        species is contrary to the law of such State); or]
          (A) to which the Secretary has delegated authority 
        under subsection (c); or
          * * * * * * *
  (h) Rulemaking Authority and Procedures.--The Secretary is 
authorized to promulgate such regulations as may be appropriate 
to carry out the provisions of this subsection, subject to the 
following requirements:
          (1) The Secretary shall not propose a rule, under the 
        authority of this Act, that has application in a State, 
        until the Secretary and the State have consulted and 
        the State has been given a meaningful opportunity to 
        assist in the development of the rule, and shall seek 
        to integrate into the proposed rule the recommendations 
        of the State, including recommendations with regard to 
        field practices.
          (2) The Secretary shall establish procedures for 
        rulemaking that include the applicable State within 60 
        days after the effective date of the Endangered Species 
        Conservation and Management Act of 1995. If the rule 
        will affect more than 1 State, the rule shall provide a 
        means by which the States or their representatives may 
        participate in the rulemaking.
          (3) Where the term ``in cooperation with the States'' 
        is used in this Act, the requirements of this 
        subsection shall apply.
          * * * * * * *
  (j) Water Rights.--Nothing in this Act shall be construed to 
supersede, abrogate, or otherwise impair any right or authority 
of a State to allocate or administer quantities of water 
(including boundary waters). Nothing in this Act shall be 
implemented, enforced, or construed to allow any officer or 
agency of the United States to utilize directly or indirectly 
the authorities established under this Act to impose any 
requirement not imposed by the State which would supersede, 
abrogate, condition, restrict, or otherwise impair rights to 
the use of water resources allocated under State law, 
interstate water compact, or Supreme Court decree, or held by 
the United States for use by a State, its political 
subdivisions, or its citizens. The exercise of authority 
pursuant to or in furtherance of this Act shall not be 
construed to create a limitation on the exercise of rights to 
water or constitute a cause for nondelivery of water pursuant 
to contract or State law.
  (k) Habitat Conservation Grants.--(1) The Secretary may, from 
amounts in the account established by section 13 or from funds 
appropriated for such purpose, provide a grant to a non-Federal 
person (other than an officer, employee, or agent (acting in an 
official capacity) or a department or instrumentality of a 
State, municipality, or political subdivision thereof) for the 
purpose of conserving, preserving, or improving habitat for any 
species that is determined under section 4 to be an endangered 
species or a threatened species or for any conservation 
measures that enhances the survivability of such species, 
including predator control.
  (2) The Secretary may provide a grant under this subsection 
if the Secretary determines that--
          (A) the property for which the grant is provided 
        contains habitat that significantly contributes to the 
        protection of the population of the species;
          (B) the property has been managed for species 
        protection for a period of time that has been 
        sufficient to significantly contribute to the 
        protection of the population of the species; and
          (C) the management of the habitat advances the 
        interest of species protection.
  (3) A grant made under this subsection shall be transferable 
to subsequent owners of the property for which the grant is 
provided.
  (l) FACA.--Consultation with States regarding this section 
shall not be subject to the Federal Advisory Committee Act (5 
U.S.C. App.).

                        [interagency cooperation

  [Sec. 7. (a) Federal Agency Actions and Consultations.--(1) 
The Secretary shall review other programs administered by him 
and utilize such programs in furtherance of the purposes of 
this Act. All other Federal agencies shall, in consultation 
with and with the assistance of the Secretary, utilize their 
authorities in furtherance of the purposes of this Act by 
carrying out programs for the conservation of endangered 
species and threatened species listed pursuant to section 4 of 
this Act.
  [(2) Each Federal agency shall, in consultation with and with 
the assistance of the Secretary, insure that any action 
authorized, funded, or carried out by such agency (hereinafter 
in this section referred to as an ``agency action'') is not 
likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or 
adverse modification of habitat of such species which is 
determined by the Secretary, after consultation as appropriate 
with affected States, to be critical, unless such agency has 
been granted an exemption for such action by the Committee 
pursuant to subsection (h) of this section. In fulfilling the 
requirements of this paragraph each agency shall use the best 
scientific and commercial data available.
  [(3) Subject to such guidelines as the Secretary may 
establish, a Federal agency shall consult with the Secretary on 
any prospective agency action at the request of, and in 
cooperation with, the prospective permit or license applicant 
if the applicant has reason to believe that an endangered 
species or a threatened species may be present in the area 
affected by his project and that implementation of such action 
will likely affect such species.
  [(4) Each Federal agency shall confer with the Secretary on 
any agency action which is likely to jeopardize the continued 
existence of any species proposed to be listed under section 4 
or result in the destruction or adverse modification of 
critical habitat proposed to be designated for such species. 
This paragraph does not require a limitation on the commitment 
of resources as described in subsection (d).
  [(b) Opinion of Secretary.--(1)(A) Consultation under 
subsection (a)(2) with respect to any agency action shall be 
concluded within the 90-day period beginning on the date on 
which initiated or, subject to subparagraph (B), within such 
other period of time as is mutually agreeable to the Secretary 
and the Federal agency.
  [(B) In the case of an agency action involving a permit or 
license applicant, the Secretary and the Federal agency may not 
mutually agree to conclude consultation within a period 
exceeding 90 days unless the Secretary, before the close of the 
90th day referred to in subparagraph (A)--
          [(i) if the consultation period proposed to be agreed 
        to will end before the 150th day after the date on 
        which consultation was initiated, submits to the 
        applicant a written statement setting forth--
                  [(I) the reasons why a longer period is 
                required;
                  [(II) the information that is required to 
                complete the consultation; and
                  [(III) the estimated date on which 
                consultation will be completed; or
          [(ii) if the consultation period proposed to be 
        agreed to will end 150 or more days after the date on 
        which consultation was initiated, obtains the consent 
        of the applicant to such period.
The Secretary and the Federal agency may mutually agree to 
extend a consultation period established under the preceding 
sentence if the Secretary, before the close of such period, 
obtains the consent of the applicant to the extension.
  [(2) Consultation under subsection (a)(3) shall be concluded 
within such period as is agreeable to the Secretary, the 
Federal agency, and the applicant concerned.
  [(3)(A) Promptly after conclusion of consultation under 
paragraph (2) or (3) of subsection (a), the Secretary shall 
provide to the Federal agency and the applicant, if any, a 
written statement setting forth the Secretary's opinion, and a 
summary of the information on which the opinion is based, 
detailing how the agency action affects the species or its 
critical habitat. If jeopardy or adverse modification is found, 
the Secretary shall suggest those reasonable and prudent 
alternatives which he believes would not violate subsection 
(a)(2) and can be taken by the Federal agency or applicant in 
implementing the agency action.]

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(d) and (e), 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.
          (2) Programs administered by other agencies.--Except 
        as provided in section 5(d) and (e), each Federal 
        agency shall ensure that any action authorized, funded, 
        or carried out by such agency (hereinafter in this 
        section referred to as an `agency action') is not 
        likely to jeopardize the continued existence of any 
        endangered species or threatened species or destroy or 
        adversely modify any habitat that is designated by the 
        Secretary as critical habitat of the species in a 
        manner that is likely to jeopardize the continued 
        existence of the species. In the case of any agency 
        action that the agency has determined is subject to 
        this paragraph and that is likely to significantly and 
        adversely affect an endangered species or a threatened 
        species, the Federal agency shall fulfill the 
        requirements of this paragraph in consultation with and 
        with the assistance of the Secretary. As provided in 
        section 5(d)(2), each Federal agency may initiate 
        consultation with the Secretary to receive guidance 
        from the Secretary on the consistency of its action 
        with the conservation objective or conservation plan 
        for such species developed pursuant to section 5, with 
        an incidental take permit for such species issued 
        pursuant to section 10(a), or with a cooperative 
        management agreement concerning such species executed 
        pursuant to section 6(b). In fulfilling the 
        requirements of this paragraph each agency shall use 
        the best available scientific and commercial data, 
        shall consider expert opinion and any reasonable and 
        prudent alternatives developed under subsection 
        (b)(3)(A), and shall render the decision of the agency 
        in a manner consistent with the obligations and 
        responsibilities of the agency under each applicable 
        law and treaty.
          (3) Involvement of applicants for federal 
        approvals.--Subject to such guidelines as the Secretary 
        may establish, a Federal agency shall consult with the 
        Secretary on any prospective agency action at the 
        request of, with the involvement of, and in cooperation 
        with, the prospective permit or license applicant if 
        the applicant has reason to believe that an endangered 
        species or a threatened species may be present in the 
        area affected by his project, that the project is 
        inconsistent with the conservation objective or plan 
        for such species developed pursuant to section 5, an 
        incidental take permit for such species issued pursuant 
        to section 10(a), or a cooperative management agreement 
        for such species executed pursuant to section 6(b), and 
        that implementation of such action will likely affect 
        such species.
          (4) Conferring on species proposed for listing.--Each 
        Federal agency shall confer with the Secretary on any 
        agency action which is likely to jeopardize the 
        continued existence of any species proposed to be 
        listed under section 4 or to destroy or adversely 
        modify any habitat that is proposed to be designated by 
        the Secretary as critical habitat of such a species in 
        a manner that is likely to jeopardize the continued 
        existence of the species. This paragraph does not 
        require a limitation on the commitment of resources as 
        described in subsection (d).
          (5) Limitations on modifications to land 
        management.--Notwithstanding any other provision of 
        this Act, the authority in this Act shall not be 
        construed to authorize or form the basis for any 
        Federal agency to modify a land management plan, 
        policy, standard, or guideline or water allocation plan 
        unless a determination has been made under section 4 
        that a species is threatened or endangered. 
        Notwithstanding any other law or regulation, management 
        plans, practices, policies, projects, or guidelines, 
        including management plans which, as of October 1, 
        1995, are subject to modification pending completion of 
        a final environmental impact statement, shall not be 
        amended for the purpose of maintaining viable 
        populations of native and desired non-native species 
        unless it is determined under this Act that current 
        practices are likely to jeopardize the continued 
        existence of the species.
          (6) Demonstration by secretary required.--The 
        Secretary shall have the responsibility of 
        demonstrating, based on the best information available 
        at the time of the request for consultation, that--
                  (A) a threatened species or endangered 
                species or its respective critical habitat is 
                located in the geographic area that would be 
                affected by the proposed action; 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 or endangered 
        species based on the insufficiency of available data on 
        the impact of a proposed action on such species.
          (8) Actions exempt from consultation and 
        conferencing.--Consultation and conferencing under 
        paragraphs (2) and (4) shall not be required for any 
        agency action that--
                  (A) is consistent with the provisions of a 
                final conservation plan under section 5(c)(5) 
                or a conservation objective described in 
                section 5(b)(3);
                  (B) is consistent with a cooperative 
                management agreement or an incidental taking 
                permit;
                  (C) addresses a critical, imminent threat to 
                public health or safety or a catastrophic 
                natural event or compliance with Federal, 
                State, or local safety or public health 
                requirements;
                  (D) 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; or
                  (E) permits activities that occur on private 
                land.
          (9) 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 
                conservation plan under section 5(c)(5) or a 
                conservation objective described in section 
                5(b)(3);
                  (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.
          (10) 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 conservation 
        objective or the purposes of the conservation 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.
          (11) Modification of projects and facilities.--Any 
        consultation and conferencing required under paragraphs 
        (2) and (4) for an agency action that consists solely 
        of a modification of a Federal, State, local 
        government, or private project or facility shall be 
        limited to the consideration of the effects that result 
        from the modification that comprises the agency action.
  (b) Opinion of Secretary.--
          (1) Periods within which consultation must be 
        completed.--(A) Consultation under subsection (a)(2) 
        with respect to any agency action shall be concluded 
        within the 90-day period beginning on the date on which 
        initiated by the Federal agency. The period may be 
        extended by not more than 45 days by the Secretary or 
        head of the Federal agency by publication of notice in 
        the Federal Register that sets forth the reasons for 
        the extension. Consultation on an agency action 
        involving a permit or license applicant shall be 
        concluded not later than the earlier of--
                  (i) 1 year after the date of submission of 
                the application to the Federal agency; or
                  (ii) the end of the period established under 
                subparagraph (B).
          (B) Subject to subparagraph (A), in the case of an 
        agency action involving a permit or license applicant, 
        the Secretary and the Federal agency may not mutually 
        agree to conclude consultation within a period 
        exceeding 90 days unless the Secretary, before the 
        close of the 90th day referred to in subparagraph (A)--
                  (i) if the consultation period proposed to be 
                agreed to will end before the 150th day after 
                the date on which consultation was initiated, 
                submits to the applicant a written statement 
                setting forth--
                          (I) the reasons why a longer period 
                        is required,
                          (II) the information that is required 
                        to complete the consultation, and
                          (III) the estimated date on which 
                        consultation will be completed; or
                  (ii) if the consultation period proposed to 
                be agreed to will end on or after the 150th day 
                but before the 210th day after the date on 
                which consultation was initiated, obtains the 
                consent of the applicant to such period.
          (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.
          (D) A permit or license applicant shall be entitled 
        to participate fully in any consultation or 
        conferencing under this section with respect to any 
        agency action required for the granting of an 
        authorization or provision of funding to the applicant.
          (2) Procedure for applicant consultation.--
        Consultation under subsection (a)(3) shall be concluded 
        within such period as is agreeable to the Secretary, 
        the Federal agency, and the applicant concerned.
          (3) Written opinion of secretary.--(A)(i) Promptly 
        after conclusion of consultation under paragraph (2) or 
        (3) of subsection (a), the Secretary shall provide to 
        the Federal agency and the applicant, if any, a written 
        statement setting forth the Secretary's opinion, and a 
        summary of the information on which the opinion is 
        based, detailing whether the agency action is 
        consistent with the conservation objective or plan 
        developed pursuant to section 5, an incidental taking 
        permit issued pursuant to section 10(a), or a 
        cooperative management agreement executed pursuant to 
        section 6(b). If the Secretary determines that the 
        action is likely to jeopardize the continued existence 
        of the species as described in subsection (a), the 
        Secretary shall suggest reasonable and prudent 
        alternatives (considering any reasonable and prudent 
        alternatives undertaken by other Federal agencies) that 
        are consistent with subsection (a)(2) and that impose 
        the least social and economic costs. In the development 
        of a biological opinion, the Secretary shall solicit 
        and utilize information and advice from the Governor of 
        any State in which is located a species or land that is 
        the subject of the Federal action requiring 
        consultation.
          (ii) Unless required by law other than subsections 
        (a) through (d), the Secretary, in any opinion or 
        statement concerning an agency action made under this 
        subsection (including any reasonable and prudent 
        alternative suggested under clause (i) 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. 
        Nothing in this clause prevents the Secretary from 
        pursuing any appropriate remedy under section 11 for 
        any activity prohibited by section 4(d) or 9.
          (iii) The Secretary shall not require a reasonable 
        and prudent alternative that may or will result in a 
        significant adverse impact upon waterfowl populations, 
        waterfowl habitat management, or waterfowl hunting 
        opportunities in a significant waterfowl breeding, 
        staging, or wintering habitat area. In this clause, the 
        term ``significant adverse impact'' means any actions, 
        proposed or in effect, which individually or 
        cumulatively are likely to reduce the carrying capacity 
        of habitat for waterfowl by 10 percent or more of its 
        current capability, as determined on a local, regional, 
        statewide or national basis. In this clause, the term 
        `significant waterfowl breeding, staging, or wintering 
        habitat areas' means those private or public lands 
        managed primarily for, or providing, waterfowl 
        breeding, staging or wintering habitat including 
        seasonal/permanent marsh lands or land under rice 
        cultivation for three out of the past five years.
          (iv) Notwithstanding any other provision of law, if 
        the Secretary renders an opinion or suggests any 
        reasonable and prudent alternative which has general 
        application to a group of individuals conducting a 
        commercial operation, the Secretary may not promulgate 
        an emergency rule without providing at least 30 days 
        for public comment on the emergency rule.
          (v) No additional measures to minimize or mitigate 
        impacts on a species that is a subject of an opinion 
        issued under this paragraph shall be required of a 
        permit applicant or licensee that is in compliance with 
        the opinion and any agreement or permit issued to 
        implement the opinion.
  (B) Consultation under subsection (a)(3), and an opinion 
based by the Secretary incident to such consultation, regarding 
an agency action shall be treated respectively as a 
consultation under subsection (a)(2), and as an opinion issued 
after consultation under such subsection, regarding that action 
if the Secretary reviews the action before it is commenced by 
the Federal agency and finds, and notifies such agency, that no 
significant changes have been made with respect to the action 
and that no significant change has occurred regarding the 
information used during the initial consultation.
  (4) If after consultation under subsection (a)(2) of this 
section, the Secretary concludes that--
          (A) * * *
          * * * * * * *
          (C) if an endangered species or threatened species of 
        a marine mammal is involved, the taking is authorized 
        pursuant to section 101(a)(5) of the Marine Mammal 
        Protection Act of 1972.
the Secretary shall provide the Federal agency and the 
applicant concerned, if any, with a written statement that--
          (i) specifies the impact of such incidental taking on 
        the species,
          (ii) specifies those reasonable and prudent measures 
        that the Secretary considers necessary or appropriate 
        to minimize such impact, including incentives to 
        encourage the support of conservation programs approved 
        under section 10(k),
          * * * * * * *
  (5) The Secretary shall, once a Biological Opinion has been 
rendered and the applicant has agreed to the terms and 
conditions contained in the Biological Opinion, provide to the 
applicant a written approval which shall guarantee that, so 
long as the project at issue is pursued consistent with the 
Biological Opinion, the applicant shall not be subject to new 
or additional requirements for the specific protection of any 
species beyond the requirements set forth in the Biological 
Opinion. All public entities shall be bound by the Secretary's 
approval.
  (c) Biological Assessment.--[(1)] To facilitate compliance 
with the requirements of subsection (a)(2) each Federal agency 
shall, with respect to any agency action of such agency for 
which no contract for construction has been entered into and 
for which no construction has begun on the date of enactment of 
the Endangered Species Act Amendments of 1978, request of the 
Secretary information whether any species which is listed or 
proposed to be listed may be present in the area of such 
proposed action. If the Secretary advises, based on the best 
scientific and commercial data available, that such species may 
be present, such agency shall conduct a biological assessment 
for the purpose of identifying any endangered species or 
threatened species which is likely to be affected by such 
action. Such assessment shall be completed within 180 days 
after the date on which initiated (or within such other period 
as in mutually agreed to by the Secretary and such agency, 
except that if a permit or license applicant is involved, the 
180-day period may not be extended unless such agency provides 
the applicant, before the close of such period, with a written 
statement setting forth the estimated length of the proposed 
extension and the reasons therefor) and, before any contract 
for construction is entered into and before construction is 
begun with respect to such action. Such assessment may be 
undertaken as part of a Federal agency's compliance with the 
requirements of section 102 of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332).
  [(2) Any person who may wish to apply for an exemption under 
subsection (g) of this section for that action may conduct a 
biological assessment to identify any endangered species or 
threatened species which is likely to be affected by such 
action. Any such biological assessment must, however, be 
conducted in cooperation with the Secretary and under the 
supervision of the appropriate Federal agency.
  [(d) Limitation on Commitment of Resources.--After initiation 
of consultation required under subsection (a)(2), the Federal 
agency and the permit or license applicant shall not make any 
irreversible or irretrievable commitment of resources with 
respect to the agency action which has the effect of 
foreclosing the formulation or implementation of any reasonable 
and prudent alternative measures which would not violate 
subsection (a)(2).
  [(e)(1) Establishment of Committee.--There is established a 
committee to be known as the Endangered Species Committee 
(hereinafter in this section referred to as the ``Committee'').
  [(2) The Committee shall review any application submitted to 
it pursuant to this section and determine in accordance with 
subsection (h) of this section whether or not to grant an 
exemption from the requirements of subsection (a)(2) of this 
action for the action set forth in such application.
  [(3) The Committee shall be composed of seven members as 
follows:
          [(A) The Secretary of Agriculture.
          [(B) The Secretary of the Army.
          [(C) The Chairman of the Council of Economic 
        Advisors.
          [(D) The Administrator of the Environmental 
        Protection Agency. Agency.
          [(E) The Secretary of the Interior.
          [(F) The Administrator of the National Oceanic and 
        Atmospheric Administration.
          [(G) The President, after consideration of any 
        recommendations received pursuant to subsection 
        (g)(2)(B) shall appoint one individual from each 
        affected State, as determined by the Secretary, to be a 
        member of the Committee for the consideration of the 
        application for exemption for an agency action with 
        respect to which such recommendations are made, not 
        later than 30 days after an application is submitted 
        pursuant to this section.
  [(4)(A) Members of the Committee shall receive no additional 
pay on account of their service on the Committee.
  [(B) While away from their homes or regular places of 
business in the performance of services for the Committee, 
members of the Committee shall be allowed travel expenses, 
including per diem in lieu of subsistence, in the same manner 
as persons employed intermittently in the Government service 
are allowed expenses under section 5703 of title 5 of the 
United States Code.
  [(5)(A) Five members of the Committee or their 
representatives shall constitute a quorum for the transaction 
of any function of the Committee, except that, in no case shall 
any representative be considered in determining the existence 
of a quorum for the transaction of any function of the 
Committee if that function involves a vote by the Committee on 
any matter before the Committee.
  [(B) The Secretary of the Interior shall be the Chairman of 
the Committee.
  [(C) The Committee shall meet at the call of the Chairman or 
five of its members.
  (D) All meetings and records of the Committee shall be open 
to the public.
  [(6) Upon request of the Committee, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Committee to assist it 
in carrying out its duties under this section.
  [(7)(A) The Committee may for the purpose of carrying out its 
duties under this section hold such hearings, sit and act at 
such times and places, take such testimony, and receive such 
evidence, as the Committee deems advisable.
  [(B) When so authorized by the Committee, any member or agent 
of the Committee may take any action which the Committee is 
authorized to take by this paragraph.
  [(C) Subject to the Privacy Act, the Committee may secure 
directly from any Federal agency information necessary to 
enable it to carry out its duties under this section. Upon 
request of the Chairman of the Committee, the head of such 
Federal agency shall furnish such information to the Committee.
  [(D) The Committee may use the United States mails in the 
same manner and upon the same conditions as a Federal agency.
  [(E) The Administrator of General Services shall provide to 
the Committee on a reimbursable basis such administrative 
support services as the Committee may request.
  [(8) In carrying out its duties under this section, the 
Committee may promulgate and amend such rules, regulations, and 
procedures, and issue and amend such orders as it deems 
necessary.
  [(9) For the purpose of obtaining information necessary for 
the consideration of an application for an exemption under this 
section the Committee may issue subpoenas for the attendance 
and testimony of witnesses and the production of relevant 
papers, books, and documents.
  [(10) In no case shall any representative, including a 
representative of a member designated pursuant to paragraph 
(3)(G) of this subsection, be eligible to cast a vote on behalf 
of any member.
  [(f) Regulations.--Not later than 90 days after the date of 
enactment of the Endangered Species Act Amendments of 1978, the 
Secretary shall promulgate regulations which set forth the form 
and manner in which applications for exemption shall be 
submitted to the Secretary and the information to be contained 
in such applications. Such regulations shall require that 
information submitted in an application by the head of any 
Federal agency with respect to any agency action include but 
not be limited to--
          [(1) a description of the consultation process 
        carried out pursuant to subsection (a)(2) of this 
        section between the head of the Federal agency and the 
        Secretary; and
          [(2) a statement describing why such action cannot be 
        altered or modified to conform with the requirements of 
        subsection (a)(2) of this section.
  [(g) Application for Exemption and Report to the Committee.--
(1) A Federal agency, the Governor of the State in which an 
agency action will occur, if any, or a permit or license 
applicant may apply to the Secretary for an exemption for an 
agency action of such agency if, after consultation under 
subsection (a)(2), the Secretary's opinion under subsection (b) 
indicates that the agency action would violate subsection 
(a)(2). An application for an exemption shall be considered 
initially by the Secretary in the manner provided for in this 
subsection, and shall be considered by the Committee for a 
final determination under subsection (h) after a report is made 
pursuant to paragraph (5). The applicant for an exemption shall 
be referred to as the ``exemption applicant'' in this section.
  [(2)(A) An exemption applicant shall submit a written 
application to the Secretary, in a form prescribed under 
subsection (f), not later than 90 days after the completion of 
the consultation process; except that, in the case of any 
agency action involving a permit or license applicant, such 
application shall be submitted not later than 90 days after the 
date on which the Federal agency concerned takes final agency 
action with respect to the issuance of the permit or license. 
For purposes of the preceding sentence, the term ``final agency 
action'' means (i) a disposition by an agency with respect to 
the issuance of a permit or license that is subject to 
administrative review, whether or not such disposition is 
subject to judicial review; or (ii) if administrative review is 
sought with respect to such disposition, the decision resulting 
after such review. Such application shall set forth the reasons 
why the exemption applicant considers that the agency action 
meets the requirements for an exemption under this subsection.
  [(B) Upon receipt of an application for exemption for an 
agency action under paragraph (1), the Secretary shall promptly 
(i) notify the Governor of each affected State, if any, as 
determined by the Secretary, and request the Governors so 
notified to recommend individuals to be appointed to the 
Endangered Species Committee for consideration of such 
application; and (ii) publish notice of receipt of the 
application in the Federal Register, including a summary of the 
information contained in the application and a description of 
the agency action with respect to which the application for 
exemption has been filed.
  [(3) The Secretary shall within 20 days after the receipt of 
an application for exemption, or within such other period of 
time as is mutually agreeable to the exemption applicant and 
the Secretary--
          [(A) determine that the Federal agency concerned and 
        the exemption applicant have--
                  [(i) carried out the consultation 
                responsibilities described in subsection (a) in 
                good faith and made a reasonable and 
                responsible effort to develop and fairly 
                consider modifications or reasonable and 
                prudent alternatives to the proposed agency 
                action which would not violate subsection 
                (a)(2);
                  [(ii) conducted any biological assessment 
                required by subsection (c); and
                  [(iii) to the extent determinable within the 
                time provided herein, refrained from making any 
                irreversible or irretrievable commitment of 
                resources prohibited by subsection (d); or
          [(B) deny the application for exemption because the 
        Federal agency concerned or the exemption applicant 
        have not met the requirements set forth in subparagraph 
        (A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be 
considered final agency action for purposes of chapter 7 of 
title 5, United States Code.
  [(4) If the Secretary determines that the Federal agency 
concerned and the exemption applicant have met the requirements 
set forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in 
consultation with the Members of the Committee, hold a hearing 
on the application for exemption in accordance with sections 
554, 555, and 556 (other than subsection (b) (1) and (2) 
thereof) of title 5, United States Code, and prepare the report 
to be submitted pursuant to paragraph (5).
  [(5) Within 140 days after making the determinations under 
paragraph (3) or within such other period of time as in 
mutually agreeable to the exemption applicant and the 
Secretary, the Secretary shall submit to the Committee a report 
discussing--
          [(A) the availability and reasonable and prudent 
        alternatives to the agency action, and the nature and 
        extent of the benefits of the agency action and of 
        alternative courses of action consistent with 
        conserving the species of the critical habitat;
          [(B) a summary of the evidence concerning whether or 
        not the agency action is in the public interest and is 
        of national or regional significance;
          [(C) appropriate reasonable mitigation and 
        enhancement measures which should be considered by the 
        Committee; and
          [(D) whether the Federal agency concerned and the 
        exemption applicant refrained from making any 
        irreversible or irretrievable commitment of resources 
        prohibited by subsection (d).
  [(6) To the extent practicable within the time required for 
action under subsection (g) of this section, and except to the 
extent inconsistent with the requirements of this section, the 
consideration of any application for an exemption under this 
section and the conduct of any hearing under this subsection 
shall be in accordance with sections 554, 555, and 556 (other 
than subsection (b)(3) of section 556) of title 5, United 
States Code.
  [(7) Upon request of the Secretary, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Secretary to assist him 
in carrying out his duties under this section.
  [(8) All meetings and records resulting from activities 
pursuant to this subsection shall be open to the public.
  [(h) Exemption.--(1) The Committee shall make a final 
determination whether or not to grant an exemption within 30 
days after receiving the report of the Secretary pursuant to 
subsection (g)(5). The Committee shall grant an exemption from 
the requirements of subsection (a)(2) for an agency action if, 
by a vote of not less than five of its members voting in 
person--
          [(A) it determines on the record, based on the report 
        of the Secretary, the record of the hearing held under 
        subsection (g)(4), and on such other testimony or 
        evidence as it may receive, that--
                  [(i) there are no reasonable and prudent 
                alternatives to the agency action;
                  [(ii) the benefits of such action clearly 
                outweigh the benefits of alternative courses of 
                action consistent with conserving the species 
                or its critical habitat, and such action is in 
                the public interest;
                  [(iii) the action is of regional or national 
                significance; and
                  [(iv) neither the Federal agency concerned 
                nor the exemption applicant made any 
                irreversible or irretrievable commitment of 
                resources prohibited by subsection (d); and
          [(B) it establishes such reasonable mitigation and 
        enhancement measures, including, but not limited to, 
        live propagation, transplantation, and habitat 
        acquisition and improvement, as are necessary and 
        appropriate to minimize the adverse effects of the 
        agency action upon the endangered species, threatened 
        species, or critical habitat concerned.
  [Any final determination by Committee under this subsection 
shall be considered final agency action for purposes of chapter 
7 of title 5 of the United States Code.
  [(2)(A) Except as provided in subparagraph (B), an exemption 
for an agency action granted under paragraph (1) shall 
constitute a permanent exemption with respect to all endangered 
or threatened species for the purposes of completing such 
agency action--
          [(i) regardless whether the species was identified in 
        the biological assessment; and
          [(ii) only if a biological assessment has been 
        conducted under subsection (c) with respect to such 
        agency action.
  [(B) An exemption shall be permanent under subparagraph (A) 
unless--
          [(i) the Secretary finds, based on the best 
        scientific and commercial data available, that such 
        exemption would result in the extinction of a species 
        that was not the subject of consultation under 
        subsection (a)(2) or was not identified in any 
        biological assessment conducted under subsection (c), 
        and
          [(ii) the Committee determines within 60 days after 
        the date of the Secretary's finding that the exemption 
        should not be permanent.
  [If the Secretary makes a finding described in clause (i), 
the Committee shall meet with respect to the matter within 30 
days after the date of the finding.
  [(i) Review by Secretary of State.--Notwithstanding any other 
provision of this Act, the Committee shall be prohibited from 
considering for exemption any application made to it, if the 
Secretary of State, after a review of the proposed agency 
action and its potential implications, and after hearing, 
certifies, in writing, to the Committee within 60 days of any 
application made under this section that the granting of any 
such exemption and the carrying out of such action would be in 
violation of an international treaty obligation or other 
international obligation of the United States. The Secretary of 
State shall, at the time of such certification, publish a copy 
thereof in the Federal Register.
  [(j) Notwithstanding any other provision of this Act, the 
Committee shall grant an exemption for any agency action if the 
Secretary of Defense finds that such exemption is necessary for 
reasons of national security.
  [(k) Special Provisions.--An exemption decision by the 
Committee under this section shall not be a major Federal 
action for purposes of the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental 
impact statement which discusses the impacts upon endangered 
species or threatened species or their critical habitats shall 
have been previously prepared with respect to any agency action 
exempted by such order.
  [(l) Committee Orders.--(1) If the Committee determines under 
subsection (h) that an exemption should be granted with respect 
to any agency action, the Committee shall issue an order 
granting the exemption and specifying the mitigation and 
enhancement measures established pursuant to subsection (h) 
which shall be carried out and paid for by the exemption 
applicant in implementing the agency action. All necessary 
mitigation and enhancement measures shall be authorized prior 
to the implementing of the agency action and funded 
concurrently with all other project features.
  [(2) The applicant receiving such exemption shall include the 
costs of such mitigation and enhancement measures within the 
overall costs of continuing the proposed action. 
Notwithstanding the preceding sentence the costs of such 
measures shall not be treated as project costs for the purpose 
of computing benefit-cost or other ratios for the proposed 
action. Any applicant may request the Secretary to carry out 
such mitigation and enhancement measures. The costs incurred by 
the Secretary in carrying out any such measures shall be paid 
by the applicant receiving the exemption. No later than one 
year after the granting of an exemption, the exemption 
applicant shall submit to the Council on Environmental Quality 
a report describing its compliance with the mitigation and 
enhancement measures prescribed by this section. Such report 
shall be submitted annually until all such mitigation and 
enhancement measures have been completed. Notice of the public 
availability of such reports shall be published in the Federal 
Register by the Council on Environmental Quality.
  [(m) Notice.--The 60-day notice requirement of section 11(g) 
of this Act shall not apply with respect to review of any final 
determination of the Committee under subsection (h) of this 
section granting an exemption from the requirements of 
subsection (a)(2) of this section.
  [(n) Judicial Review.--Any person, as defined by section 
3(13) of this Act, may obtain judicial review, under chapter 7 
of title 5 of the United States Code, of any decision of the 
Endangered Species Committee under subsection (h) in the United 
States Court of Appeals for (1) any circuit wherein the agency 
action concerned will be, or is being, carried out, or (2) in 
any case in which the agency action will be, or is being, 
carried out outside of any circuit, the District of Columbia, 
by filing in such court within 90 days after the date of 
issuance of the decision, a written petition for review. A copy 
of such petition shall be transmitted by the clerk of the court 
to the Committee and the Committee shall file in the court the 
record in the proceeding, as provided in section 2112, of title 
28, United States Code. Attorneys designated by the Endangered 
Species Committee may appear for, and represent the Committee 
in any action for review under this subsection.
  [(o) Exemption as Providing Exception on Taking of Endangered 
Species.--Notwithstanding sections 4(d) and 9(a)(1)(B) and (C) 
of this Act, sections 101 and 102 of the Marine Mammal 
Protection Act of 1972, or any regulation promulgated to 
implement any such section--
          [(1) any action for which an exemption is granted 
        under subsection (h) of this section shall not be 
        considered to be a taking of any endangered species or 
        threatened species with respect to any activity which 
        is necessary to carry out such action; and
          [(2) any taking that is in compliance with the terms 
        and conditions specified in a written statement 
        provided under subsection (b)(4)(iv) of this section 
        shall not be considered to be a prohibited taking of 
        the species concerned.
  [(p) Exemptions in Presidentially Declared Disaster Areas.--
In any area which has been declared by the President to be a 
major disaster area under the Disaster Relief and Emergency 
Assistance Act, the President is authorized to make the 
determinations required by subsections (g) and (h) of this 
section for any project for the repair or replacement of a 
public facility substantially as it existed prior to the 
disaster under section 405 or 406 of the Disaster Relief and 
Emergency Assistance Act, and which the President determines 
(1) is necessary to prevent the recurrence of such a natural 
disaster and to reduce the potential loss of human life, and 
(2) to involve an emergency situation which does not allow the 
ordinary procedures of this section to be followed. 
Notwithstanding any other provision of this section, the 
Committee shall accept the determinations of the President 
under this subsection.]
  (d) Limitation on Commitment of Resources.--
          (1) In general.--Except as provided in paragraph (2), 
        after initiation of consultation required under 
        subsection (a)(2), the Federal agency and the permit or 
        license applicant shall not make any irreversible or 
        irretrievable commitment of resources with respect to 
        the agency action which has the effect of foreclosing 
        the formulation or implementation of any reasonable and 
        prudent alternative measures which would not violate 
        subsection (a)(2).
          (2) Relationship to land management planning 
        requirements.--If the listing of a species, or other 
        procedure or decision related to a species listed under 
        section 4(c)(1), requires consultation under subsection 
        (a)(2) on a land use plan or land or resource 
        management plan (or an amendment to or revision of the 
        plan) prepared under section 202 of the Federal Land 
        Policy and Management Act of 1976 (43 U.S.C. 1712) or 
        section 6 of the Forest and Rangeland Renewable 
        Resources Planning Act of 1974 (16 U.S.C. 1604), the 
        land management agency implementing the plan may 
        authorize, fund, or carry out an agency action that is 
        consistent with the plan prior to the completion of the 
        consultation, if, under the procedures established by 
        this section, the head of the land management agency 
        responsible for the action determines or has determined 
        that the action--
                  (A) is not likely to significantly and 
                adversely affect the species; or
                  (B) is likely to significantly and adversely 
                affect the species, and the Secretary issues an 
                opinion on the action that finds that the 
                action--
                          (i) is not likely to jeopardize the 
                        continued existence of the species; or
                          (ii) is likely to jeopardize the 
                        continued existence of the species, and 
                        the agency agrees to a reasonable and 
                        prudent alternative.
  (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 and to reduce the 
                potential loss of human life; and
                  (B) involves an emergency situation that does 
                not allow the procedures of this Act (other 
                than this subsection) to apply.

                       international cooperation

  Sec. 8. (a) * * *
          * * * * * * *
  (e) Encouragement of Foreign Programs.--Any action taken by 
the Secretary pursuant to this Act in regard to a foreign 
species which occurs in a country which is a party to the 
Convention--
          (1) shall be done in cooperation with the wildlife 
        conservation authorities of such country; and
          (2) shall not obstruct any wildlife conservation 
        program of such country unless the Secretary can show, 
        based on adequate findings supported by substantial 
        evidence, that the country's wildlife conservation 
        program for the species in question is not consistent 
        with the Convention.

                       convention implementation

  Sec. 8A. (a) * * *
          * * * * * * *
  (f) Nonduplication of Findings.--The Secretary, in making the 
findings required in paragraph 3(a) of Article III of the 
Convention, shall limit such findings to the purpose of the 
importation, and shall not duplicate the findings required to 
be made by the exporting nation except for good cause based on 
adequate findings supported by substantial evidence.
  (g) Relationship of Protective Regulations to the 
Convention.--In determining the provisions of protective 
regulations pursuant to section 4(d) of this Act when such 
regulations relate to a foreign species--
          (1) the Secretary may not prohibit any act that is 
        permissible under the Convention, notwithstanding 
        Article XIV of the Convention;
          (2) the Secretary shall, prior to publishing a 
        proposal for such protective regulations in the Federal 
        Register, transmit the full text and a complete 
        description of the proposed regulation directly to the 
        appropriate wildlife management authority of that 
        country, in the language of that country, with at least 
        180 days allowed for review and comment, the 180 days 
        shall be counted from the date of delivery of the 
        materials to the wildlife authorities of the country;
          (3) such transmission must be accompanied by--
                  (A) a plain-language explanation of the 
                reasons for and purpose of the proposed 
                regulation;
                  (B) an analysis of the anticipated beneficial 
                impact or detrimental impact of the regulation 
                on the economic, social, and cultural 
                utilization of the species, if any, and of the 
                beneficial or detrimental impact on the 
                resource management and conservation programs 
                of that country; and
                  (C) a summary of the literature reviewed and 
                experts consulted by the Secretary in regard to 
                the species involved, and a summary of the 
                Secretary's findings based on that review and 
                consultation;
          (4) the Secretary shall enter into discussions with 
        appropriate wildlife management officials of the 
        countries to which he has sent the transmission 
        referred to in the previous paragraph, and if those 
        officials feel that further studies of the species are 
        indicated the Secretary may assist in finding funds 
        from private sources for such studies and in carrying 
        out the studies; and
          (5) the Secretary must obtain the written concurrence 
        of all the nations contacted, and if such concurrence 
        is not obtained the Secretary may not issue the 
        proposed regulation except by an order submitted to and 
        approved by the President.
  (h) Issuance of Permits for Export.--
          (1) Compliance with state recommendation.--In any 
        instance in which a State has a program for management 
        of a native species which is the subject of a request 
        for an export permit under the Convention, the 
        Secretary shall act in accordance with the 
        recommendation of the State unless the Secretary makes 
        a finding and publishes a notice in the Federal 
        Register that scientific evidence justifies a 
        conclusion contrary to the advice of the State.
          (2) Appeal.--The State which is the subject to such a 
        finding, or any person in that State directly affected 
        because of inability to obtain a permit, may appeal the 
        finding to an Administrative Law Judge or a court. The 
        burden shall be on the Secretary to show that the 
        evidence supports a finding contrary to the 
        recommendation of the State.

                            prohibited acts

  Sec. 9. (a) General.--[(1) Except as provided in sections 
6(g)(2) and 10 of this Act, with respect to any endangered 
species of fish or wildlife listed pursuant to section 4 of 
this Act it is unlawful for any person subject to the 
jurisdiction of the United States to--] (1) Except as provided 
in paragraph (3), section 6(g)(2), subsections (d)(3) and (e) 
of section 5, section 7(a), and section 10, with respect to any 
endangered species of fish or wildlife listed pursuant to 
section 4 it is unlawful for any person subject to the 
jurisdiction of the United States to--
          (A) * * *
          * * * * * * *
  [(2) Except as provided in sections 6(g)(2) and 10 of this 
Act, with respect to any endangered species of plants listed 
pursuant to section 4 of this Act, it is unlawful for any 
person subject to the jurisdiction of the United States to--]
  (2) Except as provided in section 6(g)(2), subsections (d)(3) 
and (e) of section 5, and section 10, with respect to any 
endangered species of plants listed pursuant to section 4, it 
is unlawful for any person subject to the jurisdiction of the 
United States to--
          (A) * * *
          * * * * * * *
          (3) Permitted takings.--An activity of a non-Federal 
        person is not a taking of a species if the activity--
                  (A) is consistent with the provisions of a 
                final conservation plan or conservation 
                objective;
                  (B) complies with the terms and conditions of 
                an incidental take permit or a cooperative 
                management agreement;
                  (C) addresses a critical, imminent 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;
                  (D) is incidental to, and not the purpose of, 
                the carrying out of an otherwise lawful 
                activity that consists of--
                          (i) on-going maintenance, routine 
                        operation or use, and emergency repair 
                        of existing pipelines, fire breaks, 
                        transmission and distribution lines, 
                        groundwater recharge facilities and 
                        areas, water storage facilities, 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; or
                  (E) is incidental to, and not the purpose of, 
                the carrying out of an otherwise lawful 
                activity that occurs within an area of the 
                territorial sea or exclusive economic zone 
                established by Proclamation Numbered 5030, 
                dated March 10, 1983, that is not designated as 
                critical habitat under section 5(i), and the 
                affected species is not a species of fish.
          * * * * * * *
  (h) Importation and Exportation.--
          (1) Limitation on importation.--The prohibition on 
        importation in subsection (a) of this section shall not 
        apply to a specimen of a threatened species taken for 
        an inherently limited use in accordance with the laws 
        of a foreign nation which is a party to the Convention 
        and accompanied by an export permit issued by that 
        nation or an equivalent document. For the purpose of 
        this subsection, the term ``inherently limited use'' 
        means scientific collection, live export for captive 
        breeding, sport hunting, and falconry.
          (2) Regulations for shipping under convention.--(A) 
        The Secretary shall adopt regulations regarding the 
        finding required by the Convention that live specimens 
        exported from the United States will be so prepared as 
        to minimize the risk of injury, damage to health, or 
        cruel treatment. Such regulations shall provide clear, 
        consistent and reliable guidance to exporters.
          (B) In any instance in which the Secretary believes 
        that a shipment for export is not prepared in 
        accordance with the regulations, a detailed written 
        notice of noncompliance shall be issued to the 
        exporter. The notice shall contain recommendations as 
        to how future shipments should be modified in order to 
        come into compliance with the regulations. The notice 
        shall go into effect 30 days after receipt by the 
        shipper, subject to appeal to an Administrative Law 
        Judge or a court. The filing of an appeal shall toll 
        the effectiveness of the notice. The issue of 
        noncompliance may be appealed as well as the issue of 
        the appropriateness of the recommendation for 
        compliance.

                              [exceptions

  [Sec. 10. (a) Permits.--(1) The Secretary may permit, under 
such terms and conditions as he shall prescribe--
          [(A) any act otherwise prohibited by section 9 for 
        scientific purposes or to enhance the propagation or 
        survival of the affected species, including, but not 
        limited to, acts necessary for the establishment and 
        maintenance of experimental populations pursuant 
        subsection (j); or
          [(B) any taking otherwise prohibited by section 
        9(a)(1)(B) if such taking is incidental to, and not the 
        purpose of, the carrying out of an otherwise lawful 
        activity.
  [(2)(A) No permit may be issued by the Secretary authorizing 
any taking referred to in paragraph (1)(B) unless the applicant 
therefor submits to the Secretary a conservation plan that 
specifies--
          [(i) the impact which will likely result from such 
        taking;
          [(ii) what steps the applicant will take to minimize 
        and mitigate such impacts, and the funding that will be 
        available to implement such steps;
          [(iii) what alternative actions to such taking the 
        applicant considered and the reasons why such 
        alternatives are not being utilized; and
          [(iv) such other measures that the Secretary may 
        require as being necessary or appropriate for purposes 
        of the plan.
  [(B) If the Secretary finds, after opportunity for public 
comment, with respect to a permit application and the related 
conservation plan that--
          [(i) the taking will be incidental;
          [(ii) the applicant will, to the maximum extent 
        practicable, minimize and mitigate the impacts of such 
        taking;
          [(iii) the applicant will ensure that adequate 
        funding for the plan will be provided;
          [(iv) the taking will not appreciably reduce the 
        likelihood of the survival and recovery of the species 
        in the wild; and
          [(v) the measures, if any, required under 
        subparagraph (A)(iv) will be met;
and he has received such other assurances as he may require 
that the plan will be implemented, the Secretary shall issue 
the permit. The permit shall contain such terms and conditions 
as the Secretary deems necessary or appropriate to carry out 
the purposes of this paragraph, including, but not limited to, 
such reporting requirements as the Secretary deems necessary 
for determining whether such terms and conditions are being 
complied with.
  [(C) The Secretary shall revoke a permit issued under this 
paragraph if he finds that the permittee is not complying with 
the terms and conditions of the permit.]

SEC. 10. EXCEPTIONS.

  (a) Permits.--
          (1) Authority to issue permits.--The Secretary may 
        permit, under such terms and conditions as the 
        Secretary shall prescribe--
                  (A) any act otherwise prohibited by section 9 
                undertaken for scientific purposes or to 
                enhance the propagation or survival of the 
                affected species, including, but not limited 
                to--
                          (i) acts necessary for the 
                        establishment and maintenance of 
                        experimental populations pursuant to 
                        subsection (j);
                          (ii) the public display or exhibition 
                        of living wildlife in a manner designed 
                        to educate, or which otherwise 
                        contributes to the education of the 
                        public about the ecological role and 
                        conservation needs of the affected 
                        species;
                          (iii) in the case of foreign species, 
                        acts that are consistent with the 
                        Convention and with conservation 
                        strategies adopted by the foreign 
                        nations responsible for the 
                        conservation of the species; and
                          (iv) acts necessary for the research 
                        in and carrying out of captive 
                        propagation; or
                  (B) any taking otherwise prohibited by 
                section 9(a)(1)(B) if such taking is incidental 
                to, and not the purpose of, the carrying out of 
                an otherwise lawful activity.
          (2) Species conservation plans.--(A) Except as 
        provided in paragraph (3), 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 activities to be 
                permitted;
                  (ii) what steps the applicant can reasonably 
                and economically take consistent with the 
                purposes and objectives of the activity to 
                minimize 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 conservation 
                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 or appropriate to carry out 
        the purposes of this paragraph, including, but not 
        limited to, such reporting requirements as the 
        Secretary deems necessary for determining whether such 
        terms and conditions are being complied with.
          (C) The Secretary may not require the applicant, as a 
        condition of processing the application or issuing the 
        permit, to expand the application to include land, an 
        interest in land, 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.
          (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 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)).
          (E) 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.
          (F)(i) For such activities as the Secretary 
        determines will not appreciably reduce the chances of 
        survival of a species, the Secretary may issue an 
        interim permit to any applicant for a permit under this 
        section that provides evidence of appropriate interim 
        measures that--
                  (I) will minimize impacts of any incidental 
                taking that may be associated with the activity 
                proposed for permitting; and
                  (II) are to be performed while the underlying 
                permit application is being considered under 
                this section.
          (ii) An interim permit issued under clause (i)--
                  (I) shall specifically state the types of 
                activities that are authorized to be carried 
                out under the interim permit;
                  (II) shall not create any right to the 
                issuance of a permit under this section;
                  (III) shall expire on the date of the 
                granting or denial of the underlying permit 
                application; and
                  (IV) may be revoked by the Secretary upon 
                failure to comply with any term of the interim 
                permit.
          (G) The Secretary shall revoke a permit issued under 
        this paragraph if he finds that the permittee is not 
        complying with the terms and conditions of the permit.
          (3) Voluntary consultation.--(A) Subject to such 
        regulations as the Secretary may issue, any non-Federal 
        person may initiate consultation with the Secretary on 
        any prospective activity of the person--
                  (i) to determine if the activity is 
                consistent or inconsistent with a conservation 
                plan or conservation objective; or
                  (ii) if the person determines that the 
                activity is inconsistent, to determine whether 
                the activity is likely to jeopardize the 
                continued existence of an endangered species or 
                a threatened species, or to destroy or 
                adversely modify the designated critical 
                habitat of the species in a manner that is 
                likely to jeopardize the continued existence of 
                the species.
          (B) The voluntary consultation process for non-
        Federal persons authorized by subparagraph (A) shall be 
        conducted in accordance with the procedures and 
        requirements for consultation on agency actions set 
        forth in section 7, except that--
                  (i) the period for completion of the 
                consultation shall be 90 days from the date on 
                which the consultation is initiated, or not 
                later than such other date as is mutually 
                agreeable to the Secretary and the person 
                initiating the consultation;
                  (ii) the person initiating the consultation 
                shall not be required to prepare a biological 
                assessment or equivalent document;
                  (iii) neither the activity for which the 
                consultation process is sought nor the 
                consultation process itself shall be deemed a 
                Federal action for the purpose of compliance 
                with section 102(2) of the National 
                Environmental Policy Act of 1969 (42 U.S.C. 
                4332(2)) or an agency action for the purpose of 
                compliance with the consultation requirement of 
                section 7(a)(2);
                  (iv) the Secretary shall provide the person 
                initiating the consultation with a written 
                opinion only, unless such person requests a 
                permit referred to in paragraph (1)(B) and 
                meets the requirements of clause (v); and
                  (v) a permit described in clause (iv) shall 
                be issued if the Secretary makes a finding of--
                          (I) consistency pursuant to 
                        subparagraph (A)(i);
                          (II) no jeopardy pursuant to 
                        subparagraph (A)(ii); or
                          (III) jeopardy pursuant to 
                        subparagraph (A)(ii), but offers a 
                        reasonable and prudent alternative 
                        which the person initiating the 
                        consultation accepts.
          (C) Any person that is not an owner of property is 
        prohibited from participating in the consultation 
        process under this paragraph with respect to the 
        property without written permission from the owner of 
        the property.
          (4) General permits.--(A) After providing notice and 
        opportunity for public hearing, the Secretary may issue 
        a general permit under paragraph (1)(B) on a county, 
        parish, State, regional, or nationwide basis for any 
        category of activities that may affect a species 
        determined to be an endangered species or threatened 
        species if the Secretary determines that the activities 
        in the category are similar in nature, will cause only 
        minimal adverse effects on the species if performed 
        separately, and will have only minimal cumulative 
        adverse effects on the species generally. A general 
        permit issued under this paragraph shall specify the 
        requirements and standards that apply to an activity 
        authorized by the general permit.
          (B) A general permit issued under this paragraph 
        shall be effective for a period to be specified by the 
        Secretary, but not to exceed the 5-year period that 
        begins on the date of issuance of the permit.
          (C) The Secretary may revoke or modify a general 
        permit if, after providing notice and opportunity for 
        public hearing, the Secretary determines that the 
        activities authorized by the general permit have a 
        greater than minimal adverse effect on a species that 
        is included in a list published under section 4(c)(1) 
        or that the activities are more appropriately 
        authorized by individual permits issued under paragraph 
        (1) or (3).
          (5) Research on alternative methods and 
        technologies.--Priority for issuing permits under 
        paragraph (1)(A) shall be accorded to applications for 
        permits to conduct research, captive breeding, or 
        education on alternative methods and technologies, and 
        the comparative costs of the methods and technologies, 
        to reduce the incidental taking as described in 
        paragraph (1)(B) of an endangered species or a 
        threatened species for which the employment of existing 
        methods or technologies for avoidance of the incidental 
        taking entails significant costs for non-Federal 
        persons.
          (6) Educational or propagation permits.--(A) A permit 
        under paragraph (1)(A) (ii) or (iv) shall be issued 
        if--
                  (i)(I) the applicant holds a current and 
                valid license as an exhibitor under the Animal 
                Welfare Act (7 U.S.C. 2131 et seq.);
                  (II) in the case of a permit under paragraph 
                (1)(A)(ii), the applicant maintains a public 
                display or exhibition of living wildlife 
                described in that paragraph; and
                  (III) viewing of the public display or 
                exhibition is not limited or restricted other 
                than by charging an admission fee; or
                  (ii) in the case of a permit under paragraph 
                (1)(A)(iv), the applicant has demonstrated the 
                ability to use propagation techniques that 
                result in increases in the populations of 
                species held in captivity for eventual release 
                into the wild, maintenance of live specimens, 
                or falconry purposes.
          (B)(i) The Secretary shall issue an educational or 
        propagation permit as authorized in subparagraph (A) 
        within 30 days from the effective date of this 
        subparagraph to any qualified organization or qualified 
        person for educational or propagation purposes, who has 
        demonstrated the ability to propagate, handle, or 
        recover species for a minimum of 15 years or who had at 
        least 10 permits in the aggregate issued pursuant to 
        this Act or any of the laws listed in subparagraph (H).
          (ii) The Secretary shall issue a permit within 90 
        days of receipt of a completed application from any 
        qualified organization or person who currently does not 
        hold any permit but who has demonstrated the ability to 
        handle or recover species for a minimum of 15 years of 
        who has received at least 10 permits in the aggregate 
        and who has not violated any terms or conditions of any 
        permits previously issued pursuant to this Act or the 
        laws listed in subparagraph (H).
          (C) A permit referred to in paragraph (1)(A)(ii) 
        shall be for a term of not less than 6 years.
          (D) A permit referred to in paragraph (1)(A)(ii) 
        shall also authorize the permittee to import, export, 
        sell, purchase, or otherwise transfer possession of the 
        affected species.
          (E) The Secretary shall revoke a permit referred to 
        in paragraph (1)(A)(ii) if the Secretary determines 
        that the permittee--
                  (i) no longer meets the requirements of 
                subparagraph (A) and is not reasonably likely 
                to meet the requirements in the near future;
                  (ii) is not complying with the terms and 
                conditions of the permit; or
                  (iii) is engaging in an activity likely to 
                jeopardize the continued existence of the 
                species subject to the permit.
          (F) The Secretary may require an annual report on the 
        activities authorized by a general permit, but may not 
        require reports more frequently than annually.
          (G) A permit authorized in this paragraph shall be 
        the only permit required for the activities authorized 
        therein, and may cover activities for one or more 
        species or taxa simultaneously.
          (H) The authorizations for any activities permitted 
        under this paragraph or permitted by the Bald Eagle 
        Protection Act (16 U.S.C. 668-668d), the Fish and 
        Wildlife Conservation Act of 1980 (16 U.S.C. 2901-
        2911), the Lacey Act Amendments of 1981 (18 U.S.C. 42; 
        16 U.S.C. 3371-3378), the Marine Mammal Protection Act 
        of 1972 (16 U.S.C. 1361-1407), the Migratory Bird 
        Conservation Act (16 U.S.C. 715-715d), the Migratory 
        Bird Treaty Act (16 U.S.C. 703-712), or the Wild Bird 
        Conservation Act of 1992 (Public Law 102-440) shall be 
        consolidated into a general permit to cover all 
        authorized activities, notwithstanding any law or 
        regulation to the contrary.
          (7) Foreign species.--(A) In determining whether to 
        issue a permit under subsection (a)(1)(A)(iii), there 
        shall be a rebuttable presumption that the survival of 
        a species is enhanced by the ordinary benefit occurring 
        from the taking of a specimen for an inherently limited 
        use in accordance with the laws and wildlife management 
        policies of the nation in which it is found.
          (B) The Secretary may not refuse to issue a permit 
        for such specimens and may not limit the number of such 
        specimens which may be imported unless he makes and 
        publishes in the Federal Register a finding that there 
        is substantial evidence that the detriment resulting 
        from the taking of such specimens outweighs the benefit 
        derived, and subsequently promulgates regulations 
        containing the limitation.
          (C) The Secretary shall transmit the full text and a 
        complete description of the proposed regulation 
        referred to in the preceding paragraph directly to the 
        appropriate wildlife management authorities of the 
        nations from which the specimens are exported, in the 
        language of those countries, with at least 180 days 
        allowed for review and comment. The 180-day period 
        shall be counted from the date of the delivery of the 
        materials to the wildlife management authority of each 
        of the nations.
          (D) For the purpose of this paragraph, the term 
        ``inherently limited use'' means scientific collection, 
        live export for captive breeding, sport hunting, and 
        falconry.
          (8) Restriction on new or additional requirements.--
        The Secretary shall, as part of the conservation 
        planning process, guarantee that, so long as the 
        permittee is complying with the terms and conditions of 
        the permit issued under this section, the permittee 
        shall not be subject to new or additional requirements 
        for the specific protection of any species beyond the 
        requirements set forth in the conservation plan. All 
        public entities shall be bound by this guarantee.
          (9) Expedited permitting process for low-impact 
        activities.--(A) Not later than 180 days after the date 
        of the enactment of the Endangered Species Conservation 
        and Management Amendments of 1995, the Secretary shall 
        issue regulations which establish a simple, 
        standardized application form for a permit under 
        paragraph (1)(B) for a low-impact activity.
          (B) If a person submits an application for a permit 
        under paragraph (1)(B) in accordance with the form 
        established by the Secretary under subparagraph (A)--
                  (i) the person shall not be required to 
                submit any other information to obtain the 
                permit; and
                  (ii) the Secretary shall complete processing 
                of the application, and approve or deny the 
                permit, within 30 days after the date the 
                Secretary receives the completed application.
          (C) The regulations under this paragraph--
                  (i) shall describe classes of activities that 
                are low-impact activities for purposes of this 
                paragraph; and
                  (ii) shall treat as a low-impact activity any 
                activity which has no significant effect on the 
                survival of endangered species and threatened 
                species.
          (D) For purposes of this paragraph, the term ``low-
        impact activity'' means an activity in a class of 
        activities described in regulations under subparagraph 
        (C)(i).
          * * * * * * *
  (j) Experimental Populations.--(1) * * *
  (2)(A) The Secretary may authorize the release (and the 
related transportation) of any population (including eggs, 
propagules, or individuals) of an endangered species or a 
threatened species outside the current range of such species if 
the Secretary determines that such release will further the 
conservation of such species.
  [(B) Before authorizing the release of any population under 
subparagraph (A), the Secretary shall by regulation identify 
the population and determine, on the basis of the best 
available information, whether or not such population is 
essential to the continued existence of an endangered species 
or a threatened species.]
  (B) Before authorizing the release of any population under 
subparagraph (A), the Secretary shall by regulation--
          (i) identify the population and the precise 
        boundaries of the geographic area for the release and 
        determine, on the basis of the best available 
        information, whether the release is in the public 
        interest, whether or not such population is essential 
        to the continued existence of an endangered species or 
        a threatened species; and
          (ii) in the case of a release of a species of 
        predatory mammal in a unit of the National Park System 
        or the National Wildlife Refuge System--
                  (I) require that if the species enters 
                private property, measures shall be taken to 
                remove the species from the property and 
                protect the safety and welfare of the public 
                and domestic animals, including livestock; and
                  (II) provide funding for such measures, 
                including compensation for dimunition of 
                property values pursuant to section 19 of this 
                Act.
  (C) For the purposes of this Act, each member of an 
experimental population shall be treated as a threatened 
species; except that--
          (i) solely for purposes of section 7 (other than 
        subsection (a)(1) thereof), an experimental population 
        determined under subparagraph (B) to be not essential 
        to the continued existence of a species shall be 
        treated, except when it occurs in an area within the 
        National Wildlife Refuge System or the National Park 
        System, as a species proposed to be listed under 
        section 4; [and
          [(ii) critical habitat shall not be designated under 
        this Act for any experimental population determined 
        under subparagraph (B) to be not essential to the 
        continued existence of a species.]
          (ii) for the purposes of sections 4(d) and 
        9(a)(1)(B), any member of an experimental population 
        found outside the geographic area in which the 
        population is released shall not be treated as a 
        threatened species if the member poses a threat to the 
        welfare of the public; and
          (iii) critical habitat shall not be designated under 
        this Act or if designated prior to the Endangered 
        Species Conservation and Management Act of 1995, shall 
        be removed from any non-Federal land, for any 
        experimental population determined under subparagraph 
        (B) to be not essential to the continued existence of a 
        species.
  (D) The Secretary shall determine under subparagraph (B) that 
a population is not essential to the continued existence of an 
endangered species or threatened species, unless the Secretary 
determines on the basis of the best available scientific and 
commercial data that the loss of one or more of the members of 
the population will result in the extinction of the species.
          (3) Requirements for releases.--In authorizing the 
        release of a population under paragraph (2), the 
        Secretary shall require that--
                  (A) to the maximum extent practicable, the 
                release occurs only in a unit of the National 
                Park System or the National Wildlife Refuge 
                System;
                  (B) a release outside a unit occurs only in 
                an area that has been identified as a candidate 
                site for release of the population in a 
                conservation plan for the species;
                  (C) in the case of a release outside a unit, 
                measures to protect the safety and welfare of 
                the public and domestic animals and the funding 
                for the measures are identified in the 
                regulations authorizing the release and are 
                implemented;
                  (D) the regulations authorizing the release 
                identify precisely the geographic area for the 
                release;
                  (E) a release on non-Federal land occurs only 
                with the written consent of the owner of the 
                land;
                  (F) the regulations authorizing the release 
                include measurable reintroduction goals to 
                restore viable populations only within the 
                specific geographic area identified for release 
                in the regulations;
                  (G) the regulations authorizing the release 
                obligate the Secretary to remove members of the 
                population from non-Federal land at the written 
                request of the landowner and within a 
                reasonable period of time after receiving such 
                a request, not to exceed 90 days; and
                  (H) the regulations authorizing the release 
                of a population that is determined under this 
                paragraph to not be essential to the survival 
                of a species shall provide that, 
                notwithstanding any other provision of this 
                Act, a taking of a member of such population 
                shall not be treated as a taking if it is--
                          (i) not knowing,
                          (ii) not willful, or
                          (iii) incidental to, and not the 
                        purpose of, otherwise lawful activity.
          (4) Compliance with state law.--In authorizing any 
        release under paragraph (2), the Secretary shall ensure 
        that the release does not conflict with the laws of 
        affected States relating to the species to be released.
          (5) Determination regarding populations authorized 
        before effective date of endangered species 
        conservation and management act of 1995.--(A) For each 
        population of a species that the Secretary, before the 
        effective date of the Endangered Species Conservation 
        and Management Act of 1995, authorized the release of 
        in a geographical area separate from the other 
        populations of the species, the Secretary shall 
        determine by regulation whether or not the population 
        is essential to the continued existence of the species.
          (B) If the Secretary receives a written request for 
        the issuance of a regulation under subparagraph (A) for 
        a population for which the Secretary has not issued 
        such a regulation, the Secretary shall promptly issue 
        such a regulation by not later than 180 days after 
        receiving the request.
  [(3)] (6) The Secretary, with respect to population of 
endangered species or threatened species that the Secretary 
authorized, before the date of the enactment of this 
subsection, for release in geographical areas separate from the 
other populations of such species, shall determine by 
regulation which of such populations are an experimental 
population for the purposes of this subsection and whether or 
not each is essential to the continued existence of an 
endangered species or a threatened species.
  (k) Multiple Species Conservation Plans.--
          (1) Development.--The Secretary may assist a non-
        Federal person in the development of a plan, to be 
        known as a ``multiple species conservation plan'', for 
        the conservation of--
                  (A) any species with respect to which a 
                finding is made and a status review is 
                commenced under section 4(b)(3)(B); and
                  (B) any other species that--
                          (i) inhabit the area covered by the 
                        plan; and
                          (ii) are designated in the plan or 
                        are within a taxonomic group designated 
                        in the plan.
          (2) Issuance of permits.--A non-Federal person may 
        submit a species conservation plan prepared under this 
        subsection for the conservation of multiple species to 
        the Secretary for approval under subsection (a)(2). If 
        the Secretary approves the plan, the Secretary shall 
        issue an incidental take permit authorizing take of any 
        threatened species subject to the plan under section 
        4(d). The Secretary shall also recommend terms and 
        conditions to address species subject to the plan which 
        have not been determined to be endangered species or 
        threatened species.
          (3) Effect of listing of species.--A multiple species 
        conservation plan developed under this subsection and a 
        permit issued with respect to the plan shall remain in 
        effect and shall not be required to be amended if a 
        species to which the plan and permit apply is 
        determined to be an endangered species or a threatened 
        species under section 4, except that the Secretary's 
        recommendations under paragraph (2) shall become terms 
        and conditions of the permit. No additional 
        restrictions or prohibitions under this Act shall be 
        imposed upon the plan permittee for such species or 
        geographic area beyond those provided for in the 
        approved plan or the permit terms and conditions.
          (4) Consideration of state recommendations.--The 
        Secretary shall, in cooperation with the States, 
        develop a process whereby full consideration can be 
        given to State recommendations regarding standards and 
        guidelines for the development and approval of a broad 
        range of multiple species conservation plans. To the 
        maximum extent practicable and consistent with the 
        conservation of the affected species, such standards 
        and guidelines shall--
                  (A) develop clear criteria by which 
                conservation plans would be approved;
                  (B) encourage the development of conservation 
                plans which would reduce economic impacts while 
                providing conservation of affected species;
                  (C) include assurances that further 
                conservation measures would not be required of 
                a non-Federal person should any species 
                dependent upon that habitat type be 
                subsequently listed unless any additional costs 
                are assumed by the Secretary; and
                  (D) provide incentives to a non-Federal 
                person who voluntarily agrees to manage to 
                enhance habitat for species on their property 
                by excluding them from restrictions if they 
                later return their land to its previous 
                condition or use.
          (5) Technical assistance or guidance.--To the maximum 
        extent practicable, the Secretary and other Federal 
        agencies, in cooperation with the affected States, are 
        authorized and encouraged to provide technical 
        assistance or guidance to any non-Federal person who is 
        developing a multiple species conservation plan 
        pursuant to this subsection.
  (l) Wildlife Bred in Captivity.--For the purposes of this Act 
or any regulation adopted pursuant to this Act, the terms 
``bred in captivity'' or ``captive-bred'', with respect to 
wildlife, means wildlife, including eggs, born or otherwise 
produced in captivity from parents that mated or otherwise 
transferred gametes in captivity if reproduction is sexual, or 
from parents that were in captivity when development of the 
progeny began, if development is asexual. Such progeny shall be 
considered domestic fish or wildlife for all purposes and shall 
not come under the provisions and prohibitions of this Act and 
the laws listed in subsection (a)(6)(H) unless intentionally 
and permanently released to the wild. Any person holding any 
fish or wildlife or their progeny as described in this 
subsection must be able to demonstrate that such fish or 
wildlife do, in fact, qualify under the provision of this 
subsection, and shall maintain and submit to the Secretary, on 
request, such inventories, documentation, and records as the 
Secretary may by regulation require as being reasonable and 
appropriate to carry out the purposes of this subsection. Such 
requirements shall not unnecessarily duplicate the requirements 
of other rules and regulations promulgated by the Secretary.
  (m) Incentives.--(1) The Secretary shall exempt, under such 
terms and conditions as the Secretary may prescribe by 
regulation, any operator of a trawl vessel required to use a 
turtle excluder device under regulations promulgated under this 
Act from such requirement if such operator agrees to support a 
conservation program approved under paragraph (2) and such 
support is determined to be appropriate under paragraph (4).
  (2) No later than 180 days after the effective date of this 
subsection and each year thereafter, the Secretary shall--
          (A) review all those programs intended to conserve 
        the endangered species and threatened species of sea 
        turtles found in the Gulf of Mexico and along the 
        Atlantic seaboard, including those programs involving 
        protection of nesting beaches in other nations;
          (B) approve any such program determined by the 
        Secretary to be of significant benefit to the recovery 
        of the species of such sea turtles under this 
        subsection; and
          (C) publish notice of such determination in the 
        Federal Register.
  (3)(A) Any person or group of persons operating trawl vessels 
may submit in writing a request to the Secretary for an 
exemption under this subsection.
  (B) Not later than 60 days after receipt of such request the 
Secretary shall provide such person or group written notice of 
the issuance or denial of such request.
  (4) The Secretary shall determine that the support offered by 
an operator in a written request submitted under paragraph (3) 
is appropriate if the benefits provided by such support to the 
recovery of
such species exceed any harm to the recovery of such species 
incurred as a result of the operator not using turtle excluder 
devices under an exemption provided under this subsection.
  (5) The Secretary shall prescribe such regulations as the 
Secretary considers necessary and appropriate to carry out the 
purposes of this subsection.

                       penalties and enforcement

  Sec. 11. (a) Civil Penalties.--(1) Any person who [knowingly] 
with specific intent violates, and any person engaged in 
business as an importer or exporter of fish, wildlife, or 
plants who violates, any provision of this Act, or any 
provision of any permit or certificate issued hereunder, or of 
any regulation issued in order to implement subsection 
(a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or 
(D), (c), (d), (other than regulation relating to recordkeeping 
or filing of reports), (f), or (g) of section 9 of this Act, 
may be assessed a civil penalty by the Secretary of not more 
than $25,000 for each violation. Any person who [knowingly] 
with specific intent violates, and any person engaged in 
business as an importer or exporter of fish, wildlife, or 
plants who violates, any provision of any other regulation 
issued under this Act may be assessed a civil penalty by the 
Secretary of not more than $12,000 for each such violation. Any 
person who otherwise violates any provision of this Act, or any 
regulation, permit, or certificate issued hereunder, may be 
assessed a civil penalty by the Secretary of not more than $500 
for each such violation. No penalty may be assessed under this 
subsection unless such person is given notice and opportunity 
for a hearing with respect to such violation. Each violation 
shall be a separate offense. Any such civil penalty may be 
remitted or mitigated by the Secretary. Upon any failure to pay 
a penalty assessed under this subsection, the Secretary may 
request the Attorney General to institute a civil action in a 
district court of the United States for any district in which 
such person is found, resides, or transacts business to collect 
the penalty and such court shall have jurisdiction to hear and 
decide any such action. The court shall hear such action on the 
record made before the Secretary and shall sustain his action 
if it is supported by substantial evidence on the record 
considered as a whole.
  (b) Criminal Violations.--(1) Any person who [knowingly] with 
specific intent violates any provision of this Act, of any 
permit or certificate issued hereunder, or of any regulation 
issued in order to implement subsection (a)(1)(A), (B), (C), 
(D), (E), or (F); (a)(2)(A), (B), (C), or (D), (c), (d) (other 
than a regulation relating to recordkeeping, or filing of 
reports), (f), or (g) of section 9 of this Act shall, upon 
conviction, be fined not more than $50,000 or imprisoned for 
not more than one year, or both. Any person who [knowingly] 
with specific intent violates any provision of any other 
regulation issued under this Act shall, upon conviction, be 
fined not more than $25,000 or imprisoned for not more than six 
months, or both.
          * * * * * * *
  (d) Rewards and Certain Incidental Expenses.--The Secretary 
or the Secretary of the Treasury shall pay, from sums received 
as penalties, fines, or forfeitures of property for any 
violations of this chapter or any regulation issued hereunder 
(1) a reward to any person who furnishes information which 
leads to an arrest, a criminal conviction, civil penalty 
assessment, or forfeiture of property for any violation of this 
chapter or any regulation issued hereunder, and (2) the 
reasonable and necessary costs incurred by any person in 
providing temporary care for any endangered species or 
threatened species of fish, wildlife, or plant pending the 
disposition of any civil or criminal proceeding alleging a 
violation of this chapter with respect to that fish, wildlife, 
or plant. The amount of the reward, if any, is to be designated 
by the Secretary or the Secretary of the Treasury, as 
appropriate. Any officer or employee of the United States or 
any State or local government who furnishes information or 
renders service in the performance of his official duties is 
ineligible for payment under this subsection. Whenever the 
balance of sums received under this section and section 6(d) of 
the Act of November 16, 1981 (16 U.S.C. 3375(d)) as penalties 
or fines, or from forfeitures of property, exceed $500,000, the 
Secretary of the Treasury shall deposit an amount equal to such 
excess balance in the cooperative endangered species 
conservation fund established under section 6(i) of this Act.
  (e) Enforcement.--(1) * * *
          * * * * * * *
  (3) Any person authorized by the Secretary, the Secretary of 
the Treasury, or the Secretary of the Department in which the 
Coast Guard is operating, to enforce this Act may detain for 
inspection and inspect any package, crate, or other container, 
including its contents, and all accompanying documents, upon 
importation or exportation. Such persons may make arrests 
without a warrant for any violation of this Act if he has 
reasonable grounds to believe that the person to be arrested is 
committing the violation in his presence or view and may 
execute and serve any arrest warrant, search warrant, or other 
warrant or civil or criminal process issued by any officer or 
court of competent jurisdiction for enforcement of this Act. 
Such person so authorized may search and seize, with or without 
a warrant, as authorized by law. [Any fish, wildlife,] Any 
endangered species or threatened species of fish or wildlife, 
property, or item so seized shall be held by any person 
authorized by the Secretary, the Secretary of the Treasury, or 
the Secretary of the Department in which the Coast Guard is 
operating pending disposition of civil or criminal proceedings, 
or the institution of an action in rem for forfeiture of such 
fish, wildlife, property, or item pursuant to paragraph (4) of 
the subsection; except that the Secretary may, in lieu of 
holding such fish, wildlife, property, or item, permit the 
owner or consignee to post a bond or other surety satisfactory 
to the Secretary, but upon forfeiture of any such property to 
the United States, or the abandonment or waiver of any claim to 
any such property, it shall be disposed of (other than by sale 
to the general public) by the Secretary in such a manner, 
consistent with the purposes of this Act, as the Secretary 
shall by regulation prescribe.
  (4)(A) All endangered species or threatened species of fish 
or wildlife or plants taken, possessed, sold, purchased, 
offered for sale or purchase, transported, delivered, received, 
carried, shipped, exported, or imported contrary to the 
provisions of this Act, any regulation made pursuant thereto, 
or any permit or certificate issued hereunder shall be subject 
to forfeiture to the United States.
  (B) All guns, traps, nets, and other equipment, vessels, 
vehicles, aircraft, and other means of transportation used to 
aid the taking, possessing, selling, purchasing, offering for 
sale or purchase, transporting, delivering, receiving, 
carrying, shipping, exporting, or importing of any endangered 
species or threatened species of fish or wildlife or plants in 
violation of this Act, any regulation made pursuant thereto, or 
any permit or certificate issued thereunder shall be subject to 
forfeiture to the United States upon conviction of a criminal 
violation pursuant to section 11(b)(1) of this Act.
          * * * * * * *
          (7) Adoption of regulations.--No interpretation, 
        policy, guideline, finding, or other informal 
        determination may be relied upon by the Secretary in 
        the implementation and enforcement of this Act unless 
        such determination has been the subject of a proposed 
        rule, subject to review by the public and comment for a 
        period of no less than 60 days. Any proposed rule under 
        this subparagraph must include--
                  (A) a plain-language explanation of the 
                reasons for and purpose of the proposed rule;
                  (B) an analysis of the anticipated impact of 
                the proposed rule;
                  (C) an analysis showing that the restoration 
                benefit of the proposed rule outweighs any 
                negative conservation impact of that proposed 
                rule;
                  (D) an analysis showing that compliance with 
                the proposed rule is reasonably within the 
                means of the State or the range nation 
                concerned; and
                  (E) a summary of the literature reviewed and 
                experts consulted in regard to the species 
                involved, and a summary of the Secretary's 
                findings based on that review and consultation.
          (8) Basis for refusal of entry.--No refusal of entry, 
        seizure of evidence, or other enforcement action may 
        take place under this Act if the action is based solely 
        on a notification under the Convention or on a 
        resolution of the Conference of the Parties to the 
        Convention.
          (9) Detention for purpose of identification.--The 
        burden is on the Secretary to show that a specimen 
        belongs to a species which is determined to be an 
        endangered species or threatened species under this Act 
        or is included in an Appendix to the Convention. The 
        Secretary may not detain a specimen for longer than 30 
        days for the purpose of identification except where the 
        specimen has been substantially changed from its 
        natural appearance, in which case it may be retained 
        for an additional 30 days for identification. If the 
        specimen cannot be positively identified within that 
        time, then it shall be released.
  (f) Regulations.--The Secretary, the Secretary of the 
Treasury, and the Secretary of the Department in which the 
Coast Guard is operating, are authorized to promulgate such 
regulations as may be appropriate to enforce this Act, and 
charge reasonable fees for expenses to the Government connected 
with permits or certificates authorized by this Act including 
processing applications and reasonable inspections, and with 
the transfer, board, handling, or storage of endangered species 
or threatened species of fish or wildlife or plants and 
evidentiary items seized and forfeited under this Act. All such 
fees collected pursuant to this subsection shall be deposited 
in the Treasury to the credit of the appropriation which is 
current and chargeable for the cost of furnishing the services. 
Appropriated funds may be expended pending reimbursement from 
parties in interest.
  [(g) Citizen Suits.--(1) Except as provided in paragraph (2) 
of this subsection any person may commence a civil suit on his 
own behalf--
          [(A) to enjoin any person, including the United 
        States and any other governmental instrumentality or 
        agency (to the extent permitted by the eleventh 
        amendment to the Constitution), who is alleged to be in 
        violation of any provision of this Act or regulation 
        issued under the authority thereof; or
          [(B) to compel the Secretary to apply, pursuant to 
        section 6(g)(2)(B)(ii) of this Act, the prohibitions 
        set forth in or authorized pursuant to section 4(d) or 
        section 9(a)(1)(B) of this Act with respect to the 
        taking of any resident endangered species or threatened 
        species within any State; or
          [(C) against the Secretary where there is alleged a 
        failure of the Secretary to perform any act or duty 
        under section 4 which is not discretionary with the 
        Secretary.
  The district courts shall have jurisdiction, without regard 
to the amount in controversy or the citizenship of the parties, 
to enforce any such provision or regulation or to order the 
Secretary to perform such act or duty, as the case may be. In 
any civil suit commenced under subparagraph (B) the district 
court shall compel the Secretary to apply the prohibition 
sought if the court finds that the allegation that an emergency 
exists is supported by substantial evidence.
  [(2)(A) No action may be commenced under subparagraph (1)(A) 
of this section--
          [(i) prior to sixty days after written notice of the 
        violation has been given to the Secretary, and to any 
        alleged violator of any such provision or regulation;
          [(ii) if the Secretary has commenced action to impose 
        a penalty pursuant to subsection (a) of this section; 
        or
          [(iii) if the United States has commenced and is 
        diligently prosecuting a criminal action in a court of 
        the United States or a State to redress a violation of 
        any such provision or regulation.
  [(B) No action may be commenced under subparagraph (1)(B) of 
this section--
          [(i) prior to sixty days after written notice has 
        been given to the Secretary setting forth the reasons 
        why an emergency is thought to exist with respect to an 
        endangered species or a threatened species in the State 
        concerned; or
          [(ii) if the Secretary has commenced and is 
        diligently prosecuting action under section 
        6(g)(2)(B)(ii) of this Act to determine whether any 
        such emergency exists.
  [(C) No action may be commenced under subparagraph (1)(C) of 
this section prior to sixty days after written notice has been 
given to the Secretary; except that such action may be brought 
immediately after such notification in the case of an action 
under this section respecting an emergency posing a significant 
risk to the well-being of any species of fish or wildlife or 
plants.
  [(3)(A) Any suit under this subsection may be brought in the 
judicial district in which the violation occurs.
  [(B) In any such suit under this subsection in which the 
United States is not a party, the Attorney General, at the 
request of the Secretary, may intervene on behalf of the United 
States as a matter of right.
  [(4) The court, in issuing any final order in any suit 
brought pursuant to paragraph (1) of this subsection, may award 
costs of litigation (including reasonable attorney and expert 
witness fees) to any party, whenever the court determines such 
award is appropriate.
  [(5) The injunctive relief provided by this subsection shall 
not restrict any right which any person (or class of persons) 
may have under any statute or common law to seek enforcement of 
any standard or limitation or to seek any other relief 
(including relief against the Secretary or a State agency).]
  (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;
                  (B) to compel the Secretary to apply, or 
                modify the application of, the prohibitions set 
                forth in or authorized pursuant to section 
                9(a)(1)(B) or 4(d);
                  (C) to compel the Secretary to apply, or 
                modify the application of, the provisions of 
                section 10(a); or
                  (D) against the Secretary where there is 
                alleged a failure of the Secretary to perform 
                any act or duty under section 4(d) which is not 
                discretionary with the Secretary.
        The district courts shall have jurisdiction to enforce 
        any such provision or regulation, or to order the 
        Secretary to perform such act or duty, as the case may 
        be.
          (2) Prerequisite procedures.--(A) No action may be 
        commenced under paragraph (1)(A)--
                  (i) prior to 60 days after written notice of 
                the alleged violation has been given to the 
                Secretary, and to any agency or official of the 
                United States who is alleged to be in 
                violation, except that a State may commence an 
                action at any time;
                  (ii) if the Secretary has commenced action to 
                impose a penalty pursuant to subsection (a); or
                  (iii) if the United States has commenced and 
                is diligently prosecuting a criminal action in 
                a court of the United States or a State to 
                redress the alleged violation of any such 
                provision or regulation.
          (B) No action may be commenced under paragraph (1)(B) 
        prior to 60 days after written notice has been given to 
        the Secretary setting forth the reasons for applying, 
        or modifying the application of, the prohibitions with 
        respect to the taking of a threatened species.
          (C) No action may be commenced under paragraph (1)(C) 
        prior to 60 days after written notice has been given to 
        the Secretary, except that such action may be brought 
        immediately after such notification in the case of an 
        action under this subsection respecting an emergency 
        posing a significant risk to the well-being of any 
        species of fish or wildlife or plants.
          (3) Venue.--Any suit under this subsection may be 
        brought in the judicial district in which the violation 
        occurs.
          (4) Costs.--The court, in issuing any final order in 
        any suit brought pursuant to paragraph (1), may award 
        costs of litigation (excluding attorney and expert 
        witness fees) to any party, whenever the court 
        determines such award is appropriate.
          (5) Injunctive relief.--The injunctive relief 
        provided by this subsection shall not restrict any 
        right which any person (or class of persons) may have 
        under any statute or common law to seek enforcement of 
        any standard or limitation or to seek any other relief 
        (including relief against the Secretary or a State 
        agency).
          (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.
          * * * * * * *

                         [conforming amendments

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

                               [repealer

  [Sec. 14. The Endangered Species Conservation Act of 1969 
(sections 1 through 3 of the Act of October 15, 1966, and 
sections 1 through 6 of the Act of December 5, 1969; 16 U.S.C. 
668aa--668cc-6), is repealed.

                    [authorization of appropriations

  [Sec. 15. (a) In General.--Except as provided in subsection 
(b), (c), and (d), there are authorized to be appropriated--
          [(1) not to exceed $35,000,000 for fiscal year 1988, 
        $36,500,000 for fiscal year 1989, $38,000,000 for 
        fiscal year 1990, $39,500,000 for fiscal year 1991, and 
        $41,500,000 for fiscal year 1992 to enable the 
        Department of the Interior to carry out such functions 
        and responsibilities as it may have been given under 
        this Act;
          [(2) not to exceed $5,750,000 for fiscal year 1988, 
        $6,250,000 for each of fiscal years 1989 and 1990, and 
        $6,750,000 for each of fiscal years 1991 and 1992 to 
        enable the Department of Commerce to carry out such 
        functions and responsibilities as it may have been 
        given under this Act; and
          [(3) not to exceed $2,200,000 for fiscal year 1988, 
        $2,400,000 for each of fiscal years 1989 and 1990, and 
        $2,600,000 for each of fiscal years 1991 and 1992, to 
        enable the Department of Agriculture to carry out its 
        functions and responsibilities with respect to the 
        enforcement of this Act and the Convention which 
        pertain to the importation or exportation of plants.
  [(b) Exemptions From Act.--There are authorized to be 
appropriated to the Secretary to assist him and the Endangered 
Species Committee in carrying out their functions under section 
7 (e), (g), and (h) not to exceed $600,000 for each for fiscal 
year 1988, 1989, 1990, 1991, and 1992.
  [(c) Convention Implementation.--There are authorized to be 
appropriated to the Department of the Interior for purposes of 
carrying out section 8A(e) not to exceed $400,000 for each of 
fiscal years 1988, 1989, and 1990, and $500,000 for each of 
fiscal years 1991 and 1992, and such sums shall remain 
available until expended.

                            [effective date

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

SEC. 13. NATIONAL ENDOWMENT FOR FISH AND WILDLIFE TRUST FUND.

  (a) Establishment.--There is established in the general fund 
of the Treasury a separate account which shall be known as the 
``National Endowment for Fish and Wildlife Trust Fund'' (in 
this section referred to as the ``Fund'').
  (b) Contents.--The Fund shall consist of the following:
          (1) Amounts received as gifts, bequests, and devises 
        under subsection (d).
          (2) Other amounts appropriated to or otherwise 
        deposited in the Fund.
  (c) Use.--Amounts in the fund shall be available to the 
Secretary, subject to appropriations, for the following:
          (1) Payment of compensation under section 19.
          (2) Habitat conservation grants under section 6(k).
          (3) Payment of cost sharing under section 16.
          (4) Acquisition or leasing of lands, waters, or 
        interests therein under section 5A(b).
  (d) Gifts, Bequests, and Devises.--
          (1) In general.--The Secretary may accept, use, and 
        dispose of gifts, bequests, or devises of services or 
        property, both real and personal, for the purpose of 
        carrying out this Act.
          (2) Deposit into fund.--Gifts, bequests, or devises 
        of money, and proceeds from sales of other property 
        received as gifts, bequests, or devises, shall be 
        deposited in the Fund and shall be available for 
        disbursement upon order of the Secretary.

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 other 
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 
meeting at least 30 days prior to the hearing or meeting.
  (b) Hearings.--Public hearings held pursuant to this Act 
shall provide an opportunity for the public to make statements 
and receive information from the agency regarding the impact of 
the proposal that is the subject of the public hearing. To the 
maximum extent practicable, the Secretary shall ensure that 
members of the public are provided with the information sought 
at the public hearing.

SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

  (a) In General.--In addition to the amounts authorized to be 
appropriated under section 6(i) and subsections (b) through 
(e), 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 $110,000,000 for fiscal year 1996, $120,000,000 for 
        fiscal year 1997, $130,000,000 for fiscal year 1998, 
        $140,000,000 for fiscal year 1999, $150,000,000 for 
        fiscal year 2000, and $160,000,000 for fiscal year 
        2001;
          (2) to the Department of Commerce to carry out the 
        duties of the Secretary of Commerce under this Act 
        $15,000,000 for fiscal year 1996, $20,000,000 for 
        fiscal year 1997, $25,000,000 for fiscal year 1998, 
        $30,000,000 for fiscal year 1999, $35,000,000 for 
        fiscal year 2000, and $40,000,000 for fiscal year 2001; 
        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 1996 through 2001.
  (b) Cooperative Management Agreements.--There are authorized 
to be appropriated to the Department of the Interior to carry 
out section 16(b)(4), $20,000,000 for each of fiscal years 1996 
through 2001, to remain available until expended.
  (c) Convention Implementation.--There are authorized to be 
appropriated to the Department of the Interior to carry out 
section 8A(e) $1,000,000 for each of fiscal years 1996 through 
2001, to remain available until expended.
  (d) Non-Federal Conservation Planning.--There are authorized 
to be appropriated to the Department of the Interior to carry 
out section 16(b)(3) $20,000,000 for each of fiscal years 1996 
through 2001, to remain available until expended.
  (e) Habitat Conservation Grants.--There are authorized to be 
appropriated to the Department of the Interior to provide 
habitat conservation grants under section 6(k) $20,000,000 for 
each of fiscal years 1996 though 2001, to remain available 
until expended.

SEC. 16. FEDERAL COST-SHARING REQUIREMENTS FOR CONSERVATION 
                    OBLIGATIONS.

  (a) Direct Costs Defined.--In this section, the term ``direct 
costs'' means--
          (1) expenditures on labor, material, facilities, 
        utilities, equipment, supplies and other resources 
        which are necessary to undertake a specific 
        conservation measure;
          (2) increased purchase power costs and lost revenues 
        caused by changes in the operation of a hydropower 
        system from which the non-Federal person or Federal 
        power marketing administration markets power to meet a 
        specific conservation measure; and
          (3) other reimbursable costs specifically identified 
        by the Secretary as directly related to the performance 
        of a specific conservation measure.
  (b) Cost-Sharing.--
          (1) Conservation plans.--For any non-Federal person 
        or Federal power marketing administration, the 
        Secretary shall pay 50 percent of any direct costs that 
        result from the compliance by the person or 
        administration mandated by a conservation plan issued 
        under section 5 or any conservation measure that 
        provides protection to a listed species under a plan 
        developed under the Pacific Northwest Electric Power 
        Planning and Conservation Act (16 U.S.C. 839 et seq.) 
        including a plan that provides protection to a larger 
        population unit of the same listed species.
          (2) Consultation requirements.--For any non-Federal 
        person or Federal power marketing administration, the 
        Secretary shall pay 50 percent of direct costs that 
        result solely from requirements imposed by the 
        Secretary on the person or marketing administration 
        under section 7.
          (3) Incidental take permits.--For any non-Federal 
        person issued an incidental take permit under section 
        10, the Secretary shall pay to such person 50 percent 
        of the direct costs of preparing the application for 
        the permit and implementing the terms and conditions of 
        the permit.
          (4) Cooperative management agreements.--The Secretary 
        shall pay 50 percent of the direct costs of preparing 
        and implementing the terms and conditions of a 
        cooperative management agreement under section 6(b) 
        incurred by a party to the agreement and any costs 
        incurred by any other non-Federal person or Federal 
        power marketing administration subject to the terms of 
        such agreement.
  (c) Method of Cost-Sharing.--
          (1) In general.--Except as provided in paragraph (2), 
        the Secretary may make a contribution required under 
        subsection (b) by--
                  (A) providing a habitat reserve grant under 
                section 6(b)(14);
                  (B) acquiring, from or for the party to the 
                cost-share, land or an interest in land as 
                provided in section 5A; or
                  (C) providing appropriated funds.
          (2) Cost-share payment for federal power marketing 
        administrations and other state or local governmental 
        entities.--The Secretary shall make a contribution 
        under subsection (b) to a Federal power marketing 
        administration or any other State or local governmental 
        entity by providing appropriated funds directly to the 
        administration or governmental entity.
          (3) Appropriated funds.--To the maximum extent 
        practicable, any appropriated funds paid by the 
        Secretary under paragraphs (1) and (2) shall be paid 
        directly (in lieu of reimbursement) to the party, 
        person, or administration.
          (4) Loans.--The Secretary may not consider a loan to 
        the party to the cost-share as a contribution or 
        portion of a contribution under subsection (b).
          (5) Recovered costs.--The Secretary may not claim as 
        a portion of the Federal share under subsection (b) any 
        costs to the Federal Government that are recovered 
        through rates for the sale or transmission of power or 
        water.
          (6) Effect of federal nonpayment.--If the Secretary 
        fails to make the contribution required under 
        subsection (b), the application of the applicable 
        provision of the conservation plan, requirement under 
        section 7, term under the incidental take permit, or 
        provision of the cooperative management agreement shall 
        be suspended until such time as the full contribution 
        is made. If the suspended provision or requirement 
        includes a conservation easement or other instrument 
        restricting title to the property of the non-Federal 
        person, nonpayment of the full contribution shall 
        result in the nullification of the previously granted 
        restriction on title.
          (7) In-kind contributions.--A non-Federal person or 
        Federal power marketing administration may include in-
        kind contributions in calculating the appropriate share 
        of the costs of the person or administration under this 
        section.
          (8) Costs paid by the secretary.--Compensation from 
        the Federal Government under section 19 may not cover 
        costs incurred by a non-Federal person that were 
        otherwise paid by the Secretary under subsection (b).
  (d) Existing Cost-Sharing Agreements.--Any cost-sharing 
agreement with a non-Federal person provided in any recovery 
plan or other agreement in existence prior to the date of 
enactment of this subsection shall remain in effect unless the 
non-Federal person requests that the cost-sharing percentage be 
reconsidered.
  (e) Adjustments to Cost-Sharing Percentage.--At the request 
of the non-Federal person, the Secretary may adjust the 
percentage of the Federal contribution to a higher share.
          * * * * * * *

SEC. 19. RIGHT TO COMPENSATION.

  (a) Prohibition.--The Federal Government shall not take an 
agency action affecting privately owned property or 
nonfederally owned property under this Act which results in 
diminishment of value of any portion of that property by 20 
percent or more unless compensation is offered in accordance 
with this section.
  (b) Compensation for Use or Limitation on Use.--The agency or 
agencies that take an agency action that exceeds the amount 
provided in subsection (a) shall compensate the private 
property owner for the otherwise lawful use or limitation on 
the otherwise lawful use in the amount of the diminution in 
value of the portion of that property resulting from the use or 
limitation on use. If the diminution in value of a portion of 
that property is greater than 50 percent, at the option of the 
owner, the agency or agencies shall buy that portion of the 
property and shall pay fair market value based on the value of 
the property before the use or limitation on use was imposed. 
Compensation paid shall reflect the duration of the use or 
limitation on use necessary to achieve the purposes of this 
Act.
  (c) Request of Owner.--An owner seeking compensation under 
this section shall make a written request for compensation to 
the agency implementing the agency action. The request shall, 
at a minimum, identify the affected portion of the property, 
the nature of the use or limitation, and the amount of 
compensation claimed. No such request may be made later than 
one year after the owner receives actual notice that the use of 
property has been limited by an agency action.
  (d) Negotiations.--The agency may negotiate with that owner 
to reach agreement on the amount of the compensation and the 
terms of any agreement for payment. If such an agreement is 
reached, the agency shall within 90 days pay the owner the 
amount agreed upon. An agreement under this section may include 
a transfer of the title or an agreement to use the property for 
a limited period of time.
  (e) Choice of Remedies.--If, not later than 180 days after 
the written request is made, the parties have not reached an 
agreement on compensation, the owner may elect binding 
arbitration or seek compensation due under this section in a 
civil action.
  (f) Arbitration.--The procedures that govern the arbitration 
shall, as nearly as practicable, be those established under 
title 9, United States Code, for arbitration proceedings to 
which that title applies. An award made in such arbitration 
shall include a reasonable attorney's fee and other arbitration 
costs, including appraisal fees. The agency shall promptly pay 
any award made to the owner.
  (g) Civil Action.--An owner who prevails in a civil action 
against the agency pursuant to this section shall be entitled 
to, and the agency shall be liable for, the amount of 
compensation awarded plus reasonable attorney's fees and other 
litigation costs, including appraisal fees. The court shall 
award interest on the amount of any compensation from the time 
of the limitation.
  (h) Source of Payments.--Any payment made under this section 
to an owner, and any judgment obtained by an owner in a civil 
action under this section shall, notwithstanding any other 
provision of law, be made from the annual appropriation of the 
agency that took the agency action. If the agency action 
resulted from a requirement imposed by another agency, then the 
agency making the payment or satisfying the judgment may seek 
partial or complete reimbursement from the appropriated funds 
of the other agency. For this purpose the head of the agency 
concerned may transfer or reprogram any appropriated funds 
available to the agency. If insufficient funds exist for the 
payment or to satisfy the judgment, it shall be the duty of the 
head of the agency to seek the appropriation of such funds for 
the next fiscal year.
  (i) Availability of Appropriations.--Notwithstanding any 
other provision of law, any obligation of the United States to 
make any payment under this section shall be subject to the 
availability of appropriations.
  (j) Duty of Notice to Owners.--An agency may not take any 
action limiting the use of private property unless the agency 
has given appropriate notice to the owners of that property 
directly affected explaining their rights under this section 
and the procedures for obtaining any compensation that may be 
due to them under this section.
  (k) Rules of Construction.--The following rules of 
construction shall apply to this Act:
          (1) Other rights preserved.--Nothing in this Act 
        shall be construed to limit any right to compensation 
        that exists under the Constitution or under other laws.
          (2) Extent of federal authority.--Payment of 
        compensation under this section (other than when the 
        property is bought by the Federal Government at the 
        option of the owner) shall not confer any rights on the 
        Federal Government other than the use or limitation on 
        use resulting from the agency action for the duration 
        so that the agency action may achieve the species 
        conservation purposes of this Act.
  (l) Definitions.--For the purposes of this section:
          (1) Agency.--The term ``agency'' has the meaning 
        given that term in section 551 of title 5, United 
        States Code.
          (2) Agency action.--The term ``agency action''--
                  (A) subject to subparagraph (B), has the 
                meaning given that term in section 551 of title 
                5, United States Code, and
                  (B) includes--
                          (i) the loss of use of property to 
                        avoid prosecution under section 11;
                          (ii) a designation pursuant to 
                        section 9(i) of privately owned 
                        property as critical habitat;
                          (iii) the denial of a permit under 
                        section 10 that restricts the use of 
                        private property;
                          (iv) an agency action pursuant to a 
                        biological opinion under section 7 that 
                        would cause an agency to restrict the 
                        use of private property;
                          (v) an agreement under section 6 to 
                        set aside property for habitat under 
                        the terms of an easement or other 
                        contract;
                          (vi) a restriction imposed on private 
                        property as part of a conservation plan 
                        adopted by the Secretary under section 
                        5;
                          (vii) any other agency action that 
                        restricts a legal right to use that 
                        property, including, the right to alter 
                        habitat; and
                          (viii) the making of a grant of land 
                        or money, to a public authority or a 
                        private entity as a predicate to an 
                        agency action by the recipient that 
                        would constitute a limitation if done 
                        directly by the agency.
          (3) Fair market value.--The term ``fair market 
        value'' means the most probable price at which property 
        would change hands, in a competitive and open market 
        under all conditions requisite to fair sale, between a 
        willing buyer and willing seller, neither being under 
        any compulsion to buy or sell and both having 
        reasonable knowledge of relevant facts, prior to 
        occurrence of the agency action.
          (4) Law of the state.--The term ``law of the State'' 
        includes the law of a political subdivision of a State.
          (5) Limitation on use.--The term ``limitation on 
        use'' means only a limitation on a use which is 
        otherwise permissable under applicable State property 
        or nuisance laws.
          (6) Private property, privately owned property, non-
        federal property.--The term ``private property'', 
        ``privately owned property'', or ``non-Federal 
        property'' means property which is owned by a person 
        other than any Federal entity of government.
          (7) Property.--The term ``property'' means land, an 
        interest in land, the right to use or receive water, 
        and any personal property that is subject to use by the 
        Federal Government or to a restriction on use.

SEC. 20. RECOGNIZING NET BENEFITS TO AQUATIC SPECIES.

  (a) Encouraging Net Benefits.--In carrying out this Act, if 
the number of individual members of an endangered species or 
threatened species exiting an aquatic habitat area under the 
control, authority or ownership of a non-Federal person is 
equal to or greater than the number of individual members of 
the species entering such area, the Secretary shall not 
require, provide for, or recommend the imposition of any 
restriction or obligation on the activity of the non-Federal 
person in a manner which would require the non-Federal person 
to support the maintenance of any greater number of individual 
members of the species than that which enters such aquatic 
habitat area.
  (b) Consideration of Hatchery Populations.--In calculating 
the number of individual members of a species entering and 
exiting a specific aquatic habitat area pursuant to this 
section, the Secretary shall consider hatchery populations.
  (c) Limitations.--The Secretary shall not require, provide 
for, or recommend the imposition of any restriction or 
obligation on the activity of any non-Federal person in an 
aquatic habitat area to remedy adverse impacts on a species 
resulting from activities of individuals other than the non-
Federal person.
                              ----------                              


               SECTION 1010 OF THE ACT OF OCTOBER 7, 1988

AN ACT To authorize appropriations to carry out the Endangered Species 
 Act of 1973 during fiscal years 1988, 1989, 1990, 1991, and 1992, and 
                          for other purposes.

           TITLE I--ENDANGERED SPECIES ACT AMENDMENTS OF 1988

          * * * * * * *

SEC. 1010. EDUCATION, STUDY AND REPORT.

  (a) Education.--The Administrator of the Environmental 
Protection Agency in cooperation with the Secretary of 
Agriculture and the Secretary of the Interior, promptly upon 
enactment of this Act, shall conduct a program to inform and 
educate fully persons engaged in agricultural food and fiber 
commodity production of any proposed pesticide labeling program 
or requirements that may be imposed by the Administrator in 
compliance with the Endangered Species Act (16 U.S.C. 1531 et 
seq.). Nothing in this Act or the Endangered Species Act of 
1973 (16 U.S.C. 1531 et seq.) shall be construed as prohibiting 
certified applicators, as that term is defined in section 2(e) 
of the Federal Insecticide, Fungicide, and Rodenticide Act (7 
U.S.C. 136(e)), or persons working under their direct 
supervision, from applying a registered pesticide in or around 
a commercial facility located within the critical habitat of a 
listed or endangered species for the purpose of preventing, 
destroying, repelling, or mitigating any pest, including but 
not limited to rats, mice, ground squirrels, or other rodents 
that may pose a threat to public health or safety; nor shall 
anything in this Act or the Endangered Species Act of 1973 (16 
U.S.C. 1531 et seq.) be construed as requiring or authorizing 
the Administrator of the Environmental Protection Agency by 
means of pesticide labeling, regulation, or otherwise from 
prohibiting certified applicators, as that term is defined in 
section 2(e) of the Federal Insecticide, Fungicide, and 
Rodenticide Act (7 U.S.C. 136(e)), or persons working under 
their direct supervision, from engaging in the activities 
described in the foregoing clause. The term `commercial 
facility' as used in the preceding sentence means any structure 
or other facility that is intended for nonresidential use, 
including but not limited to food processing plants, food 
warehouses, grocery stores, feed lots, restaurants, and retail 
shopping malls. Neither this Act nor the Endangered Species Act 
of 1973 (15 U.S.C. 1531 et seq.) shall place any additional 
restrictions on the use of the United States Department of 
Agriculture registered toxicants. The Administrator also shall 
provide the public with notice of, and opportunity for comment 
on, the elements of any such program and requirements based on 
compliance with the Endangered Species Act, including (but not 
limited to) an identification of any pesticides affected by the 
program; an explanation of the restriction or prohibition on 
the user or applicator of any such pesticide; an identification 
of those geographic areas affected by any pesticide restriction 
or prohibition; an identification of the effects of any 
restricted or prohibited pesticide on endangered or threatened 
species; and an identification of the endangered or threatened 
species along with a general description of the geographic 
areas in which such species are located wherein the application 
of a pesticide will be restricted, prohibited, or its use 
otherwise limited, unless the Secretary of the Interior 
determines that the disclosure of such information may create a 
substantial risk of harm to such species or its habitat.
          * * * * * * *
                            DISSENTING VIEWS

    We remain strongly opposed to H.R. 2275 as reported by the 
Committee on Resources. At the minimum, the ambiguous and 
contradictory language of the legislation provides for such 
broad latitude in interpretation that many government actions 
under this legislation are likely to result in unreasonable 
delays and expensive taxpayer-funded lawsuits. The ambiguity of 
the language is evidenced by the wide range of legal opinions 
on the bill's various impacts on species. Even the bill's 
authors repeatedly noted during the markup session that the 
various concerns raised about the legislation were ``based on 
interpretation.'' At the maximum, this legislation serves to 
drastically weaken or repeal many of the ESA's most important 
provisions.
    In the process of gutting one of our nation's premiere 
environmental laws, the Committee has also provided a cascade 
of benefits for special interests who seek short-term profits 
at the expense of the well-being of future generations.

                    recommendations based on science

    Of paramount concern are the bill's changes to the 
definitions of the terms ``harm'' and ``species''. By limiting 
``harm'' to an action that ``proximately and foreseeably kills 
or physically injures an identifiable member of an endangered 
species,'' the legislation abolishes 90% of the ESA's authority 
to protect habitat. For example, this amendment would eliminate 
the ESA's ability to prevent commercial development of the 
entire winter feeding grounds of the highly endangered whooping 
crane while the birds were on their summer breeding grounds in 
Canada. Nothing in the ESA as amended by this legislation would 
prevent clear-cutting of old growth forests that are critical 
to the survival of the spotted owl and other species unless a 
spotted owl nest was located in a particular tree with eggs or 
fledglings present in the nest at the time of cutting. It would 
be difficult, if not impossible, to stop the bulldozing of 
salmon spawning streams during the parts of the year when the 
fish were at sea.
    By excluding distinct population segments from the 
definition of ``species'' unless conserving them is in the 
``national interest,'' as determined by an Act of Congress, the 
legislation politicizes scientific decisions and is likely to 
eliminate ESA protection for salmon and other species--species 
which are critical to biodiversity, important to the economy, 
and harbor medicinal potential. Under this provision, bald 
eagles in the lower 48 states could not have been listed while 
they remained plentiful in Alaska and Canada; salmon in 
Washington and California would not be provided ESA protection 
as long as Alaskan salmon are not endangered.
    Also affected by this provision would be a Florida 
population of a plant which develops chemical characteristics 
in responses to specific environmental conditions in Florida, 
but may not develop those chemicals in its Tennessee 
population. Under H.R. 2275, the Florida population cannot 
receive ESA protection without Congressional action, even 
though those chemical responses may be the basis for cures to 
cancer or AIDS, or the plant may play a critical role in its 
Florida ecosystem.
    These changes to existing law fly in the face of good 
science, and are opposed by the National Academy of Sciences, 
the Ecological Society of America, and numerous other 
scientific organizations. The Committee also received a letter 
opposing these provisions signed by more than 150 scientists 
from such pre-eminent institutions as Johns Hopkins University, 
Purdue University, the Harvard School of Public Health, Yale 
University, Brigham Young University, and others involved in 
research in cures and treatments for AIDS, cancer, and 
cardiovascular disease.
    The Committee unwisely chose to ignore these letters and 
similar testimony from the scientific community, throughout the 
hearing process. The Committee also rejected an amendment to 
the bill which would have delayed implementation until the 
National Academy of Sciences reviewed the legislation's effects 
on the availability of endangered and threatened species for 
biomedical research. We cannot in good conscience support a 
bill which contains these provisions.

                              compensation

    Section 101 provides an extraordinary new entitlement 
program for landowners whose property may be affected by 
endangered species protections. Like past ``takings'' 
provisions passed this year in this Committee and the whole 
House, this provision goes well beyond the guarantees of the 
Fifth Amendment to the U.S. Constitution, requiring payments 
for minimal restrictions and modifications on the use of 
property. While ignoring the benefits that inure to property 
owners from species protection, section 101 of H.R. 2275 would 
require agencies to set up new programs to administer payments 
from the Treasury to reimburse as little as a 20% reduction in 
the value of any portion of a tract of land--a loss as small as 
the lumber in one bald eagle nesting tree would require an 
administrative payment process.
    In addition, this language actually provides landowners 
with an incentive to plan property uses in a way that most 
interferes with species' needs, in order to collect money from 
the government when those plans fall through. Under existing 
law and the Fifth Amendment, landowners have an incentive to 
find economic uses of their property that do not harm 
threatened and endangered species. In part as a result of 
landowners' ability to plan around the needs of species, no 
``takings'' claim under the Endangered Species Act has ever 
succeeded in court. Under the plain language of section 101, a 
landowner would have an incentive to plan to cut down that bald 
eagle nesting tree, in order to force the taxpayers to pay him 
not to do it.
    Section 101 is far broader in scope than the ``takings'' 
language previously passed by the House Congress in H.R. 925 
and H.R. 9. It goes beyond reimbursing the lost value of land 
and water, and extends the payment requirement to 20% losses in 
value of all personal property as well. For example, an 
individual might claim a right to payment for loss of use of an 
off-road vehicle if federal land use is restricted to protect 
endangered desert tortoises. Or the government might have to 
pay for confiscation of illegally taken or imported endangered 
species skins. Even if endangered species parts are regarded as 
contraband, and thus not private property, the government still 
might have to pay for species parts dumped at the border to 
avoid Customs agents, since section 101 also extends the 
payment requirement to ``the loss of use of property to avoid 
prosecution under section 11.''
    We support relief for private property owners in the form 
of incentives, and believe that a thorough examination of tax-
related incentives could prove to be an effective, widely 
supported tool for assisting property owners in conserving 
endangered and threatened species. The legislation reported by 
the Committee achieves little more than the establishment of a 
massive new bureaucracy at taxpayer expense, and would enact a 
broad new interpretation of the Fifth Amendment to the 
Constitution far beyond that used by the courts of this nation.

                             Marine species

    Several sections of the bill weaken current ESA protections 
for marine species. Of particular concern is section 201, which 
redefines the critical concept of incidental take. Under this 
provision, an activity is not a ``taking'' of a listed species 
if the activity is ``incidental to, and not the purpose of, an 
otherwise lawful activity'' that occurs within the territorial 
sea or exclusive economic zone.
    Current law allows the Secretary to grant permits for 
incidental takes of listed species. Under the ESA's existing 
provisions, these permits are frequently granted to applicants 
conducting otherwise lawful activities, and may be conditioned 
in a manner that requires mitigation for incidental takes. 
However, the changes contained in this legislation provide an 
exemption from the ESA's ``take'' provisions for impacts from 
activities such as oil exploration, dredging, and commercial 
fishing. No mitigating measures would be required, and no 
liability would be tied to incidental takes of sea turtles, 
seabirds or endangered marine mammals that might occur 
following an oil spill (since the drilling operation itself is 
a lawful activity), or shrimp trawling (since the fishing 
itself is a lawful activity).
    The very nature of the debate in the Committee on the 
various interpretations of this provision highlights our 
concerns regarding the nature of the language throughout H.R. 
2275. This provision was defended during the markup session as 
insultation from civil or criminal liability for a shrimper if 
he or she incidentally catches a sea turtle while using a 
turtle excluder device during fishing operations. It was also 
argued that other provisions in the ESA would still require 
shrimpers to prevent incidental takes of sea turtles. It is our 
view, however, that if section 201 were enacted, there would be 
no prohibition against incidental takes of sea turtles--or 
other endangered marine species--in the course of fishing or 
otherwise lawful activities in waters not designated as 
critical habitats for those species. The Committee's 
interpretation is clearly at odds with the plain language of 
the bill

                  ability to conserve foreign species

    Section 207 of the bill eliminates the authority of the 
United States to impose limitations on access to the U.S. 
market if American consumers serve as an incentive to imperil 
foreign species. This section has added negative impact on 
wildlife when combined with section 701 of the bill, which 
automatically voids any State law or regulation prohibiting 
``what is authorized pursuant to an exemption or permit 
provided for in this Act''. We do not believe that the majority 
of the American people support an elimination of this nation's 
ability to play a responsible leadership role in controlling 
access to its own markets for threatened wildlife.
    Currently, Article XIV of the International Convention on 
Trade in Endangered Species (CITES), to which the U.S. is a 
party, recognizes the right of the U.S. or any other nation to 
adopt stricter domestic measures than are required by CITES. 
The Committee bill overturns Article XIV as it applies to the 
U.S. and abrogates our sovereign rights to restrict imports of 
threatened wildlife or wildlife products, if those products are 
caught or purchased in accordance with the other nation's 
wildlife laws. As a result of this change, elephant tusks and 
other sport hunting trophies could be imported from any African 
nation which is a party to CITES and which issues an export 
permit. This section of the bill will have the simple effect of 
allowing other nations to decide what is--and what is not--
contraband at U.S. borders.
    It is our view that this provision does not provide an 
incentive for other nations to preserve their wildlife, as was 
promoted by the bill's authors. We recognize that some nations 
have responsible wildlife conservation programs, and would 
support consulting with those nations on listing and import/
export decisions. However, we must oppose a wholesale change in 
the law requiring the Secretary to grant import privileges to 
nations which may not have adequate conservation programs. 
Under these circumstances, demands for sport hunting trophies 
and other market demands from wealthy American consumers could 
prove disastrous for a number of species native to developing 
nations.
    In addition, we wish to clarify a misconception which was 
used to promote this provision at the Committee markup session. 
An amendment was added which limited the lifting of the import 
bans to nations which are parties to CITES. This limitation 
will have no impact on demands for sport hunting trophies, 
since CITES applies to commercial trade in wildlife products.

             relationship to other laws protecting wildlife

    Title IX contains a new section added during the markup 
session which eliminates all prohibitions on taking wildlife 
not listed under the ESA if the purpose of the taking is to 
conserve a listed species. On its face, this section may appear 
to be smart management policy. However, an examination of the 
facts reveals that the situation is not as clear cut as the 
Committee would have it.
    Under this provision, the protection afforded California 
sea lions under the Marine Mammal Protection Act (MMPA) would 
be eliminated for the purpose of conserving salmon. No guidance 
is provided by this section on a process under which the 
prohibition on taking would be lifted, nor is a definition 
offered for the term ``for the purpose of conserving''. During 
the reauthorization of the MMPA in the 103rd Congress, a 
detailed, structured process was enacted into law which 
achieves the purpose of this section. That process was 
negotiated over a period of months with all the stakeholders 
involved--including the states of the Pacific Northwest--and 
resulting action to protect salmon is currently underway. The 
language of the legislation adopted by the Committee overthrows 
the negotiated language of the MMPA, and effectively, 
establishes an open season on California sea lions in 
Washington, Oregon, and California.
    The Committee also did not consider the impacts of this 
section on other wildlife protection laws which have extensive 
nationwide support. Protection afforded to golden eagles under 
the Bald and Golden Eagle Protection Act, and to other raptors 
or waterfowl under the Migratory Bird Treaty Act could be 
eliminated by this section for the purpose of conserving any 
listed species.

                                summary

    We have focused here on some of the most egregious 
provisions of the bill as reported by the Committee. However, 
we wish to be clear in our views that this legislation 
generally constitutes such a drastic weakening of the 
Endangered Species Act that it must be viewed as a repeal of 
the existing law.

                                   George Miller.
                                   Maurice Hinchey.
                                   Frank Pallone, Jr.
                                   Neil Abercrombie.
                                   Sam Farr.
                                   Gerry Studds.
                                   Sam Gejdenson.
                                   Bill Richardson.
                                   Tim Johnson.
                                   Dale E. Kildee.
                                   Pat Williams.
                                   Bruce F. Vento.
                                   Peter DeFazio.
                                   Nick Rahall.
               SUPPLEMENTAL VIEWS OF HON. HELEN CHENOWETH

    The Endangered Species Act (ESA) has long been in need of 
reform. The Act has merely lived on through yearly 
appropriations, and has not been reauthorized since it sunset 
in 1992. The Endangered Species Act has too large of an impact 
on humans and wildlife to go unauthorized year after year.
    I doubt that the original authors of the Endangered Species 
Act envisioned a law that protects snails the size of a #1 
buckshot, while having the effect of locking up public and 
private lands from any type of resource use. The federal 
government has interpreted the current ESA to mean much more 
than preservation of endangered species that are in the 
national interest to save. Whole towns have gone into an 
economic tailspin as a result of setting aside land for 
species, including many listed species which lack scientific 
evidence that they are endangered. This is a devastating trade-
off that must stop.
    As a member of the Resources Committee Endangered Species 
Act Task Force, I have spent time listening to people from all 
over the country who simply want to know that their private 
property rights will be upheld, in accordance with the 5th 
Amendment to the Constitution, ``. . . nor shall private 
property be taken for public use without just compensation.'' 
These are people from all walks of life who love the land and 
wildlife, and given incentives to participate in conservation, 
have much to contribute to management of wildlife. However, 
because of the punitive nature of the Act, landowners feel 
compelled to keep their land free of endangered species. 
Landowners who have tried to accommodate species on their land 
have found themselves crosswise with federal regulators, facing 
punishment and fines. Simply put, the Act's been bad for 
species and bad for humans.
    Throughout the process of hearings, discussions, and mark-
up of H.R. 2275, I've raised concerns that legislative language 
be strong and clear enough to ensure that federal agencies do 
not thwart the reforms intended in the bill. Government 
agencies are well-funded and well-staffed and have been able to 
outspend private individuals and small businesses who are not 
nearly as equipped to battle endangered species designations. 
The tug-of-war between people and their government does nothing 
to actively protect or recover species, and in fact, creates 
more adversity towards government and the Act itself.
    One of the more onerous aspects of the current Act and an 
example of how agency interpretation has run amok, is the 
manner in which an opinion issued by the Secretary under 
Section 7 has evolved into a document that has the effect of 
controlling millions of acres of land and millions of acre feet 
of water. Commonly referred to as the biological opinion, 
agencies have used a broad interpretation of an ``opinion'' to 
usurp state and federal laws, including the National 
Environmental Policy Act (NEPA). In Idaho, a biological opinion 
was issued by the National Marine Fisheries Service which 
required major changes to the operation of the hydropower, 
transportation, and irrigation systems on the Snake and 
Columbia Rivers, which cost taxpayers half a billion dollars 
annually. This opinion was called ``biologically sound and 
affordable'' yet there's no scientific data to support its 
recommendations.
    Another section of the current Act, section 10J, allows for 
reintroduction of species to help boost distinct populations. 
Unfortunately, the effect of this provision has been a policy 
to reintroduce predators into areas that have enormous effects 
on the culture and economies of many westerners. Despite over a 
decade of opposition to the reintroduction of the gray wolf by 
Idaho residents and the legislature, the Fish and Wildlife 
Service persisted and reintroduced wolves in 1995 and 1996. In 
doing so, they violated state law by placing reintroduced 
species in the state without the consent of the state, and 
violated the ESA by failing to consult properly with the state. 
Despite widespread problems with the reintroduction at a high 
cost to the taxpayer, the Fish and Wildlife Service, in 
conjunction with other agencies, intends to reintroduce the 
most violent predator of all to our state, the grizzly bear.
    It is for these reasons that I introduced an amendment, 
which was adopted, that would force the Secretary to comply 
with any laws passed by the legislature that oppose the release 
of reintroduced species. This amendment addresses the top-down 
mentality of the federal government that bureaucrats in 
Washington, D.C. know what's best for the citizens of each and 
every state. Most states have a long history of dealing with 
wildlife and are far better equipped to determine how it shall 
be managed within state boundaries. And most importantly, when 
the views of the state have been communicated through the 
legislature and through public comment, the federal government 
should listen and comply.
    Currently, the Act's interpretation is completely 
subjective on the part of the agencies, and as mentioned 
previously, they have used this leeway to their great 
advantage. As long as there is a regulatory structure in place, 
there are ways for a bureaucracy to grow out of control. It is 
my fervent hope that federal agency regulatory authority under 
H.R. 2275 will be kept in check.
    I applaud my colleagues, Chairman Young and Congressman 
Pombo, for putting together legislation that makes some very 
important revisions to the existing Endangered Species Act. 
This bill takes steps towards dismantling certain regulatory 
burdens that have been put upon both man, government and 
endangered species. It's clear to me however, that we will only 
succeed in protecting species and people's livelihoods when we 
move away from a regulatory structure and towards a non-
punitive incentive-based system. I am not alone in my support 
for such an approach; it has been supported by 
environmentalists, federal officials, private property 
advocates, and members of Congress. Only by this type of 
cooperation will we be able to look upon the ESA positively 
without the rancor that currently divides us. If we take away 
the fear associated with protecting species today, landowners 
will become willing partners in helping wildlife and 
communities.

                                                   Helen Chenoweth.

                                Appendix

                          House of Representatives,
                                  Committee on Agriculture,
                                  Washington, DC, January 23, 1996.
Hon. Don Young,
Chairman, Committee on Resources,
1324 Longworth HOB, Washington, DC.
    Dear Mr. Chairman: On behalf of the House Committee on 
Agriculture, I have reviewed H.R. 2275, the Endangered Species 
Conservation Act of 1995, as acted on by your Committee. As you 
are aware, the Committee on Agriculture received an additional 
referral of this legislation upon the introduction of H.R. 
2275. This referral was consistent with the memorandum of 
understanding regarding the jurisdictional claim of this 
Committee as contained in our correspondence dated September 6, 
1995.
    After reviewing the legislation as marked up by your 
Committee in its business meeting and examining the hearing 
record compiled by the Committee on Resources, I am convinced 
that your Committee has produced legislation that is in the 
best interests of agricultural producers, while maintaining and 
clarifying the principles contained in the Endangered Species 
Act. Therefore, the Committee on Agriculture does not intend to 
undertake further consideration of H.R. 2275. However, the 
Committee on Agriculture reserves the right to an appointment 
of conferees from this Committee should the bill go to a House-
Senate conference.
    Your Committee is to be commended for the excellent work 
performed in considering this legislation, and I look forward 
to working with you to pass this legislation out of the House 
of Representatives.
            Sincerely,
                                             Pat Roberts, Chairman.
                                ------                                

                          House of Representatives,
                                Committee on Way and Means,
                                 Washington, DC, September 5, 1996.
Hon. Don Young,
Chairman, Committee on Resources,
1324 Longworth House Office Building, Washington, DC.
    Dear Mr. Chairman: This is to confirm my understanding of 
our agreement concerning further consideration of H.R. 2275, 
the Endangered Species Conservation and Management Act of 1995, 
which was referred to the Committee on Resources.
    Section 207(c) of H.R. 2275, as reported by the Committee 
on Resources, contains a provision of jurisdictional interest 
to the Committee on Ways and Means. Specifically, section 
207(c) would add subsection (h) to section 9 of the Endangered 
Species Act of 1973. Subsection (h)(1) provides that the 
prohibition on importation contained in section 9 would not 
apply to a specimen of a threatened species taken for an 
inherently limited use in accordance with the laws of a foreign 
nation which is a party to the Convention on International 
Trade in Endangered Species of Wild Fauna and Flora and which 
is accompanied by an export permit.
    In order to expedite the consideration of this important 
legislation, I do not believe that a markup of H.R. 2275 by the 
Committee on Ways and Means will be necessary. However, this is 
being done only with the understanding that this does not in 
any way prejudice the Committee's jurisdictional prerogatives 
on this measure or any similar legislation, and it should not 
be considered as precedent for consideration of matters of 
jurisdictional interest to the Committee on Ways and Means in 
the future. I reserve the right to request that the Committee 
on Ways and Means be named as conferees on any provisions of 
jurisdictional interest should the Senate amend those portions 
of the bill during its consideration. I would very much 
appreciate your written assurances to this effect and would ask 
that a copy of our exchange of letters on this matter be placed 
in the Resources Committee's report on H.R. 2275.
    Thank you for your consideration on this matter.
            With best personal regards,
                                             Bill Archer, Chairman.
                                ------                                

                          House of Representatives,
                                    Committee on Resources,
                                 Washington, DC, September 6, 1996.
Hon. Bill Archer,
Chairman, Committee on Ways and Means,
1102 Longworth HOB, Washington, DC.
    Dear Mr. Chairman: Thank you for your letter regarding 
section 207(c) of H.R. 2275, the Endangered Species 
Conservation and Management Act of 1995. I concur that the 
Committee on Ways and Means has a jurisdictional interest in 
this provision and appreciate your willingness to forego a 
markup of the bill at this time.
    At this late date in the session, I do not anticipate any 
further action by the House of Representatives on H.R. 2275 
during the 104th Congress. However, if such a provision is 
included in any future legislation, I would support your 
request to be named to any conference committee convened on 
that legislation.
    It has been a pleasure working with you and your staff this 
Congress and I look forward to continuing our relationship in 
the 105th Congress.
            Sincerely,
                                               Don Young, Chairman.