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109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-237

======================================================================
 
         THREATENED AND ENDANGERED SPECIES RECOVERY ACT OF 2005

                                _______
                                

 September 27, 2005.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Pombo, from the Committee on Resources, submitted the following

                              R E P O R T

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                        [To accompany H.R. 3824]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 3824) to amend and reauthorize the Endangered Species Act 
of 1973 to provide greater results conserving and recovering 
listed species, and for other purposes, 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 all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``Threatened and 
Endangered Species Recovery Act of 2005''.
  (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Amendment references.
Sec. 3. Definitions.
Sec. 4. Determinations of endangered species and threatened species.
Sec. 5. Repeal of critical habitat requirements.
Sec. 6. Petitions and procedures for determinations and revisions.
Sec. 7. Reviews of listings and determinations.
Sec. 8. Secretarial guidelines; State comments.
Sec. 9. Recovery plans and land acquisitions.
Sec. 10. Cooperation with States and Indian tribes.
Sec. 11. Interagency cooperation and consultation.
Sec. 12. Exceptions to prohibitions.
Sec. 13. Private property conservation.
Sec. 14. Public accessibility and accountability.
Sec. 15. Annual cost analyses.
Sec. 16. Reimbursement for depredation of livestock by reintroduced 
species.
Sec. 17. Authorization of appropriations.
Sec. 18. Miscellaneous technical corrections.
Sec. 19. Clerical amendment to table of contents.
Sec. 20. Certain actions deemed in compliance.

SEC. 2. AMENDMENT REFERENCES.

  Except as otherwise expressly provided, whenever in this Act an 
amendment or repeal is expressed in terms of an amendment to, or repeal 
of, a section or other provision, the reference shall be considered to 
be made to such section or other provision of the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.).

SEC. 3. DEFINITIONS.

  (a) Best Available Scientific Data.--Section 3 (16 U.S.C. 1532) is 
amended by redesignating paragraphs (2) through (21) in order as 
paragraphs (3), (4), (5), (6), (7), (8), (9), (10), (11), (13), (14), 
(15), (16), (17), (18), (19), (20), (21), and (22), respectively, and 
by inserting before paragraph (3), as so redesignated, the following:
  ``(2)(A) The term `best available scientific data' means scientific 
data, regardless of source, that are available to the Secretary at the 
time of a decision or action for which such data are required by this 
Act and that the Secretary determines are the most accurate, reliable, 
and relevant for use in that decision or action.
  ``(B) Not later than one year after the date of the enactment of the 
Threatened and Endangered Species Recovery Act of 2005, the Secretary 
shall issue regulations that establish criteria that must be met to 
determine which data constitute the best available scientific data for 
purposes of subparagraph (A).
  ``(C) If the Secretary determines that data for a decision or action 
do not comply with the criteria established by the regulations issued 
under subparagraph (B), do not comply with guidance issued under 
section 515 of the Treasury and General Government Appropriations Act, 
2001 (Public Law 106-554; 114 Stat. 2763A-171) by the Director of the 
Office of Management and Budget and the Secretary, do not consist of 
any empirical data, or are found in sources that have not been subject 
to peer review in a generally acceptable manner--
          ``(i) the Secretary shall undertake the necessary measures to 
        assure compliance with such criteria or guidance; and
          ``(ii) the Secretary may--
                  ``(I) secure such empirical data;
                  ``(II) seek appropriate peer review; and
                  ``(III) reconsider the decision or action based on 
                any supplemental or different data provided or any peer 
                review conducted pursuant to this subparagraph.''.
  (b) Permit or License Applicant.--Section 3 (16 U.S.C. 1532) is 
further amended by amending paragraph (13), as so redesignated, to read 
as follows:
  ``(13) The term `permit or license applicant' means, when used with 
respect to an action of a Federal agency that is subject to section 
7(a) or (b), any person that has applied to such agency for a permit or 
license or for formal legal approval to perform an act.''.
  (c) Jeopardize the Continued Existence.--Section 3 (16 U.S.C. 1532) 
is further amended by inserting after paragraph (11) the following:
  ``(12) The term `jeopardize the continued existence' means, with 
respect to an agency action (as that term is defined in section 
7(a)(2)), that the action reasonably would be expected to significantly 
impede, directly or indirectly, the conservation in the long-term of 
the species in the wild.''.
  (d) Conforming Amendment.--Section 7(n) (16 U.S.C. 1536(n)) is 
amended by striking ``section 3(13)'' and inserting ``section 3(14)''.

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

  (a) Requirement to Make Determinations.--Section 4 (16 U.S.C. 1533) 
is amended by striking so much as precedes subsection (a)(3) and 
inserting the following:
      ``determination of endangered species and threatened species
  ``Sec. 4. (a) In General.--(1) 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 by human activities, 
        competition from other species, drought, fire, or other 
        catastrophic natural causes.
          ``(B) Overutilization for commercial, recreational, 
        scientific, or educational purposes.
          ``(C) Disease or predation.
          ``(D) The inadequacy of existing regulatory mechanisms, 
        including any efforts identified pursuant to subsection (b)(1).
          ``(E) Other natural or manmade factors affecting its 
        continued existence.
  ``(2) The Secretary shall use the authority provided by paragraph (1) 
to determine any distinct population of any species of vertebrate fish 
or wildlife to be an endangered species or a threatened species only 
sparingly.''.
  (b) Basis for Determination.--Section 4(b)(1)(A) (16 U.S.C. 
1533(b)(1)(A)) is amended--
          (1) by striking ``best scientific and commercial data 
        available to him'' and inserting ``best available scientific 
        data''; and
          (2) by inserting ``Federal agency, any'' after ``being made 
        by any''.
  (c) Lists.--Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to read 
as follows:
  ``(2)(A) The Secretary shall--
                  ``(i) conduct, at least once every 5 years, based on 
                the information collected for the biennial reports to 
                the Congress required by paragraph (3) of subsection 
                (f), a review of all species included in a list that is 
                published pursuant to paragraph (1) and that is in 
                effect at the time of such review; and
                  ``(ii) determine on the basis of such review and any 
                other information the Secretary considers relevant 
                whether any such species should--
                          ``(I) be removed from such list;
                          ``(II) be changed in status from an 
                        endangered species to a threatened species; or
                          ``(III) be changed in status from a 
                        threatened species to an endangered species.
          ``(B) Each determination under subparagraph (A)(ii) shall be 
        made in accordance with subsections (a) and (b).''.

SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS.

  (a) Repeal of Requirement.--Section 4(a) (16 U.S.C. 1533(a)) is 
amended by striking paragraph (3).
  (b) Conforming Amendments.--
          (1) Section 3 (16 U.S.C. 1532), as amended by section 3 of 
        this Act, is further amended by striking paragraph (6) and by 
        redesignating paragraphs (7) through (22) in order as 
        paragraphs (6) through (21).
          (2) Section 4(b) (16 U.S.C. 1533(b)), as otherwise amended by 
        this Act, is further amended by striking paragraph (2), and by 
        redesignating paragraphs (3) through (8) in order as paragraphs 
        (2) through (7), respectively.
          (3) Section 4(b) (16 U.S.C. 1533(b)) is further amended in 
        paragraph (2), as redesignated by paragraph (2) of this 
        subsection, by striking subparagraph (D).
          (4) Section 4(b) (16 U.S.C. 1533(b)) is further amended in 
        paragraph (4), as redesignated by paragraph (2) of this 
        subsection, by striking ``determination, designation, or 
        revision referred to in subsection (a)(1) or (3)'' and 
        inserting ``determination referred to in subsection (a)(1)''.
          (5) Section 4(b) (16 U.S.C. 1533(b)) is further amended in 
        paragraph (7), as redesignated by paragraph (2) of this 
        subsection, by striking ``; and if such regulation'' and all 
        that follows through the end of the sentence and inserting a 
        period.
          (6) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended--
                  (A) in the second sentence--
                          (i) by inserting ``and'' after ``if any''; 
                        and
                          (ii) by striking ``, and specify any'' and 
                        all that follows through the end of the 
                        sentence and inserting a period; and
                  (B) in the third sentence by striking ``, 
                designations,''.
          (7) Section 5 (16 U.S.C. 1534), as amended by section 9(a)(3) 
        of this Act, is further amended in subsection (j)(2) by 
        striking ``section 4(b)(7)'' and inserting ``section 4(b)(6)''.
          (8) Section 6(c) (16 U.S.C. 1535(c)), as amended by section 
        10(1) of this Act, is further amended in paragraph (3) by 
        striking ``section 4(b)(3)(B)(iii)'' each place it appears and 
        inserting ``section 4(b)(2)(B)(iii)''.
          (9) Section 7 (16 U.S.C. 1536) is amended--
                  (A) in subsection (a)(2) in the first sentence by 
                striking ``or result in the destruction or adverse 
                modification of any habitat of such species'' and all 
                that follows through the end of the sentence and 
                inserting a period;
                  (B) in subsection (a)(4) in the first sentence by 
                striking ``or result'' and all that follows through the 
                end of the sentence and inserting a period; and
                  (C) in subsection (b)(3)(A) by striking ``or its 
                critical habitat''.
          (10) Section 10(j)(2)(C)) (16 U.S.C. 1539(j)(2)(C)), as 
        amended by section 12(c) of this Act, is further amended--
                  (A) by striking ``that--'' and all that follows 
                through ``(i) solely'' and inserting ``that solely''; 
                and
                  (B) by striking ``; and'' and all that follows 
                through the end of the sentence and inserting a period.

SEC. 6. PETITIONS AND PROCEDURES FOR DETERMINATIONS AND REVISIONS.

  (a) Treatment of Petitions.--Section 4(b) (16 U.S.C. 1533(b)) is 
amended in paragraph (2), as redesignated by section 5(b)(2) of this 
Act, by adding at the end of subparagraph (A) the following: ``The 
Secretary shall not make a finding that the petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted unless the petitioner provides to 
the Secretary a copy of all information cited in the petition.''.
  (b) Implementing Regulations.--
          (1) Proposed regulations.--Section 4(b) (16 U.S.C. 1533(b)) 
        is amended--
                  (A) in paragraph (4)(A), as redesignated by section 
                5(b)(2) of this Act--
                          (i) in clause (i) by striking ``, and'' and 
                        inserting a semicolon;
                          (ii) in clause (ii) by striking ``to the 
                        State agency in'' and inserting ``to the 
                        Governor of, and the State agency in,'';
                          (iii) in clause (ii) by striking ``such 
                        agency'' and inserting ``such Governor or 
                        agency'';
                          (iv) in clause (ii) by inserting ``and'' 
                        after the semicolon at the end; and
                          (v) by adding at the end the following:
          ``(iii) maintain, and shall make available, a complete record 
        of all information concerning the determination or revision in 
        the possession of the Secretary, on a publicly accessible 
        website on the Internet, including an index to such 
        information.''; and
                  (B) by adding at the end the following:
          ``(8)(A) Information maintained and made available under 
        paragraph (5)(A)(iii) shall include any status review, all 
        information cited in such a status review, all information 
        referred to in the proposed regulation and the preamble to the 
        proposed regulation, and all information submitted to the 
        Secretary by third parties.
          ``(B) The Secretary shall withhold from public review under 
        paragraph (5)(A)(iii) any information that may be withheld 
        under 552 of title 5, United States Code.''.
          (2) Final regulations.--Paragraph (5) of section 4(b) (16 
        U.S.C. 1533(b)), as amended by section 5(b)(2) of this Act, is 
        further amended--
                  (A) in subparagraph (A) by striking clauses (i) and 
                (ii) and inserting the following:
          ``(i) a final regulation to implement such a determination of 
        whether a species is an endangered species or a threatened 
        species;
          ``(ii) notice that such one-year period is being extended 
        under subparagraph (B)(i); or
          ``(iii) notice that the proposed regulation is being 
        withdrawn under subparagraph (B)(ii), together with the finding 
        on which such withdrawal is based.'';
                  (B) in subparagraph (B)(i) by striking ``subparagraph 
                (A)(i)'' and inserting ``subparagraph (A)'';
                  (C) in subparagraph (B)(ii) by striking 
                ``subparagraph (A)(i)'' and inserting ``subparagraph 
                (A)''; and
                  (D) by striking subparagraph (C).
          (3) Emergency determinations.--Paragraph (6) of section 4(b) 
        (16 U.S.C. 1533(b)), as redesignated by section 5(b)(2) of this 
        Act, is further amended--
                  (A) in the matter preceding subparagraph (A), by 
                inserting ``with respect to a determination of a 
                species to be an endangered species or a threatened 
                species'' after ``any regulation''; and
                  (B) in subparagraph (B), by striking ``the State 
                agency in'' and inserting ``the Governor of, and State 
                agency in,''.

SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS.

  Section 4(c) (16 U.S.C. 1533(c)) is amended by inserting at the end 
the following:
  ``(3) Each determination under paragraph (2)(B) shall consider one of 
the following:
          ``(A) Except as provided in subparagraph (B) of this 
        paragraph, the criteria in the recovery plan for the species 
        required by section 5(c)(1)(A) or (B).
          ``(B) If the recovery plan is issued before the criteria 
        required under section 5(c)(1)(A) and (B) are established or if 
        no recovery plan exists for the species, the factors for 
        determination that a species is an endangered species or a 
        threatened species set forth in subsections (a)(1) and (b)(1).
          ``(C) A finding of fundamental error in the determination 
        that the species is an endangered species, a threatened 
        species, or extinct.
          ``(D) A determination that the species is no longer an 
        endangered species or threatened species or in danger of 
        extinction, based on an analysis of the factors that are the 
        basis for listing under section 4(a)(1).''.

SEC. 8. SECRETARIAL GUIDELINES; STATE COMMENTS.

  Section 4 (16 U.S.C. 1533) is amended--
          (1) by striking subsections (f) and (g) and redesignating 
        subsections (h) and (i) as subsections (f) and (g), 
        respectively;
          (2) in subsection (f), as redesignated by paragraph (1) of 
        this subsection--
                  (A) in the heading by striking ``Agency'' and 
                inserting ``Secretarial'';
                  (B) in the matter preceding paragraph (1), by 
                striking ``the purposes of this section are achieved'' 
                and inserting ``this section is implemented'';
                  (C) by redesignating paragraph (4) as paragraph (5);
                  (D) in paragraph (3) by striking ``and'' after the 
                semicolon at the end, and by inserting after paragraph 
                (3) the following:
          ``(4) the criteria for determining best available scientific 
        data pursuant to section 3(2); and''; and
                  (E) in paragraph (5), as redesignated by subparagraph 
                (C) of this paragraph, by striking ``subsection (f) of 
                this section'' and inserting ``section 5'';
          (3) in subsection (g), as redesignated by paragraph (1) of 
        this section--
                  (A) by inserting ``Comments.--'' before the first 
                sentence;
                  (B) by striking ``a State agency'' the first place it 
                appears and inserting ``a Governor, State agency, 
                county (or equivalent jurisdiction), or unit of local 
                government'';
                  (C) by striking ``a State agency'' the second place 
                it appears and inserting ``a Governor, State agency, 
                county (or equivalent jurisdiction), or unit of local 
                government'';
                  (D) by striking ``the State agency'' and inserting 
                ``the Governor, State agency, county (or equivalent 
                jurisdiction), or unit of local government, 
                respectively''; and
                  (E) by striking ``agency's''.

SEC. 9. RECOVERY PLANS AND LAND ACQUISITIONS.

  (a) In General.--Section 5 (16 U.S.C. 1534) is amended--
          (1) by redesignating subsections (a) and (b) as subsections 
        (k) and (l), respectively;
          (2) in subsection (l), as redesignated by paragraph (1) of 
        this section, by striking ``subsection (a) of this section'' 
        and inserting ``subsection (k)''; and
          (3) by striking so much as precedes subsection (k), as 
        redesignated by paragraph (1) of this section, and inserting 
        the following:
                 ``recovery plans and land acquisition
  ``Sec. 5. (a) Recovery Plans.--The Secretary shall, in accordance 
with this section, develop and implement a plan (in this subsection 
referred to as a `recovery plan') for the species determined under 
section 4(a)(1) to be an endangered species or a threatened species, 
unless the Secretary finds that such a plan will not promote the 
conservation and survival of the species.
  ``(b) Development of Recovery Plans.--(1) Subject to paragraphs (2) 
and (3), the Secretary, in developing recovery plans, shall, to the 
maximum extent practicable, give priority to those endangered species 
or threatened species, without regard to taxonomic classification, that 
are most likely to benefit from such plans, particularly those species 
that are, or may be, in conflict with construction or other development 
projects or other forms of economic activity.
  ``(2) In the case of any species determined to be an endangered 
species or threatened species after the date of the enactment of the 
Threatened and Endangered Species Recovery Act of 2005, the Secretary 
shall publish a final recovery plan for a species within 2 years after 
the date the species is listed under section 4(c).
  ``(3)(A) For those species that are listed under section 4(c) on the 
date of enactment of the Threatened and Endangered Species Recovery Act 
of 2005 and are described in subparagraph (B) of this paragraph, the 
Secretary, after providing for public notice and comment, shall--
          ``(i) not later than 1 year after such date, publish in the 
        Federal Register a priority ranking system for preparing or 
        revising such recovery plans that is consistent with paragraph 
        (1) and takes into consideration the scientifically based needs 
        of the species; and
          ``(ii) not later than 18 months after such date, publish in 
        the Federal Register a list of such species ranked in 
        accordance with the priority ranking system published under 
        clause (i) for which such recovery plans will be developed or 
        revised, and a tentative schedule for such development or 
        revision.
  ``(B) A species is described in this subparagraph if--
          ``(i) a recovery plan for the species is not published under 
        this Act before the date of enactment of the Threatened and 
        Endangered Species Recovery Act of 2005 and the Secretary finds 
        such a plan would promote the conservation and survival of the 
        species; or
          ``(ii) a recovery plan for the species is published under 
        this Act before such date of enactment and the Secretary finds 
        revision of such plan is warranted.
  ``(C)(i) The Secretary shall, to the maximum extent practicable, 
adhere to the list and tentative schedule published under subparagraph 
(A)(ii) in developing or revising recovery plans pursuant to this 
paragraph.
  ``(ii) The Secretary shall provide the reasons for any deviation from 
the list and tentative schedule published under subparagraph (A)(ii), 
in each report to the Congress under subsection (e).
  ``(4) The Secretary, using the priority ranking system required under 
paragraph (3), shall prepare or revise such plans within 10 years after 
the date of the enactment of the Threatened and Endangered Species 
Recovery Act of 2005.
  ``(c) Plan Contents.--(1)(A) Except as provided in subparagraph (E), 
a recovery plan shall be based on the best available scientific data 
and shall include the following:
          ``(i) Objective, measurable criteria that, when met, would 
        result in a determination, in accordance with this section, 
        that the species to which the recovery plan applies be removed 
        from the lists published under section 4(c) or be reclassified 
        from an endangered species to a threatened species.
          ``(ii) A description of such site-specific or other measures 
        that would achieve the criteria established under clause (i), 
        including such intermediate measures as are warranted to effect 
        progress toward achievement of the criteria.
          ``(iii) Estimates of the time required and the costs to carry 
        out those measures described under clause (ii), including, to 
        the extent practicable, estimated costs for any 
        recommendations, by the recovery team, or by the Secretary if 
        no recovery team is selected, that any of the areas identified 
        under clause (iv) be acquired on a willing seller basis.
          ``(iv) An identification of those specific areas that are of 
        special value to the conservation of the species.
  ``(B) Those members of any recovery team appointed pursuant to 
subsection (d) with relevant scientific expertise, or the Secretary if 
no recovery team is appointed, shall, based solely on the best 
available scientific data, establish the objective, measurable criteria 
required under subparagraph (A)(i).
  ``(C)(i) If the recovery team, or the Secretary if no recovery team 
is appointed, determines in the recovery plan that insufficient best 
available scientific data exist to determine criteria or measures under 
subparagraph (A) that could achieve a determination to remove the 
species from the lists published under section 4(c), the recovery plan 
shall contain interim criteria and measures that are likely to improve 
the status of the species.
  ``(ii) If a recovery plan does not contain the criteria and measures 
provided for by clause (i) of subparagraph (A), the recovery team for 
the plan, or by the Secretary if no recovery team is appointed, shall 
review the plan at intervals of no greater than 5 years and determine 
if the plan can be revised to contain the criteria and measures 
required under subparagraph (A).
  ``(iii) If the recovery team or the Secretary, respectively, 
determines under clause (ii) that a recovery plan can be revised to add 
the criteria and measures provided for under subparagraph (A), the 
recovery team or the Secretary, as applicable, shall revise the 
recovery plan to add such criteria and measures within 2 years after 
the date of the determination.
  ``(D) In specifying measures in a recovery plan under subparagraph 
(A), a recovery team or the Secretary, as applicable, shall--
          ``(i) whenever possible include alternative measures; and
          ``(ii) in developing such alternative measures, the Secretary 
        shall seek to identify, among such alternative measures of 
        comparable expected efficacy, the alternative measures that are 
        least costly.
  ``(E) Estimates of time and costs pursuant to subparagraph (A)(iii), 
and identification of the least costly alternatives pursuant to 
subparagraph (D)(ii), are not required to be based on the best 
available scientific data.
  ``(2) Any area that, immediately before the enactment of the 
Threatened and Endangered Species Recovery Act of 2005, is designated 
as critical habitat of an endangered species or threatened species 
shall be treated as an area described in subparagraph (A)(iv) until a 
recovery plan for the species is developed or the existing recovery 
plan for the species is revised pursuant to subsection (b)(3).
  ``(d) Recovery Teams.--(1) The Secretary shall promulgate regulations 
that provide for the establishment of recovery teams for development of 
recovery plans under this section.
  ``(2) Such regulations shall--
          ``(A) establish criteria and the process for selecting the 
        members of recovery teams, and the process for preparing 
        recovery plans, that ensure that each team--
                  ``(i) is of a size and composition to enable timely 
                completion of the recovery plan; and
                  ``(ii) includes sufficient representation from 
                constituencies with a demonstrated direct interest in 
                the species and its conservation or in the economic and 
                social impacts of its conservation to ensure that the 
                views of such constituencies will be considered in the 
                development of the plan;
          ``(B) include provisions regarding operating procedures of 
        and recordkeeping by recovery teams;
          ``(C) ensure that recovery plans are scientifically rigorous 
        and that the evaluation of costs required by paragraphs 
        (1)(A)(iii) and (1)(D) of subsection (c) are economically 
        rigorous; and
          ``(D) provide guidelines for circumstances in which the 
        Secretary may determine that appointment of a recovery team is 
        not necessary or advisable to develop a recovery plan for a 
        specific species, including procedures to solicit public 
        comment on any such determination.
  ``(3) The Federal Advisory Committee Act (5 App. U.S.C.) shall not 
apply to recovery teams appointed in accordance with regulations issued 
by the Secretary under this subsection.
  ``(e) Reports to Congress.--(1) The Secretary shall report every two 
years to the Committee on Resources of the House of Representatives and 
the Committee on Environment and Public Works of the Senate on the 
status of all domestic endangered species and threatened species and 
the status of efforts to develop and implement recovery plans for all 
domestic endangered species and threatened species.
  ``(2) In reporting on the status of such species since the time of 
its listing, the Secretary shall include--
          ``(A) an assessment of any significant change in the well-
        being of each such species, including--
                  ``(i) changes in population, range, or threats; and
                  ``(ii) the basis for that assessment; and
          ``(B) for each species, a measurement of the degree of 
        confidence in the reported status of such species, based upon a 
        quantifiable parameter developed for such purposes.
  ``(f) Public Notice and Comment.--The Secretary shall, prior to final 
approval of a new or revised recovery plan, provide public notice and 
an opportunity for public review and comment on such plan. The 
Secretary shall consider all information presented during the public 
comment period prior to approval of the plan.
  ``(g) State Comment.--The Secretary shall, prior to final approval of 
a new or revised recovery plan, provide a draft of such plan and an 
opportunity to comment on such draft to the Governor of, and State 
agency in, any State to which such draft would apply. The Secretary 
shall include in the final recovery plan the Secretary's response to 
the comments of the Governor and the State agency.
  ``(h) Consultation to Ensure Consistency With Development Plan.--(1) 
The Secretary shall, prior to final approval of a new or revised 
recovery plan, consult with any pertinent State, Indian tribe, or 
regional or local land use agency or its designee.
  ``(2) For purposes of this Act, the term `Indian tribe' means--
  ``(A) with respect to the 48 contiguous States, any federally 
recognized Indian tribe, organized band, pueblo, or community; and
  ``(B) with respect to Alaska, the Metlakatla Indian Community.
  ``(i) Use of Plans.--(1) Each Federal agency shall consider any 
relevant best available scientific data contained in a recovery plan in 
any analysis conducted under section 102 of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332).
  ``(2)(A)(i) The head of any Federal agency may enter into an 
agreement with the Secretary specifying the measures the agency will 
carry out to implement a recovery plan.
  ``(ii) Each such agreement shall be published in draft form with 
notice and an opportunity for public comment.
  ``(iii) Each such final agreement shall be published, with responses 
by the head of the Federal agency to any public comments submitted on 
the draft agreement.
  ``(B) Nothing in a recovery plan shall be construed to establish 
regulatory requirements.
  ``(j) Monitoring.--(1) The Secretary shall implement a system in 
cooperation with the States to monitor effectively for not less than 
five years the status of all species that have recovered to the point 
at which the measures provided pursuant to this Act are no longer 
necessary and that, in accordance with this section, have been removed 
from the lists published under section 4(c).
  ``(2) The Secretary shall make prompt use of the authority under 
section 4(b)(7) to prevent a significant risk to the well-being of any 
such recovered species.''.
  (b) Recovery Plans for Species Occupying More Than One State.--
Section 6 (16 U.S.C. 1535) is amended by adding at the end the 
following:
  ``(j) Recovery Plans for Species Occupying More Than One State.--Any 
recovery plan under section 5 for an endangered species or a threatened 
species that occupies more than one State shall identify criteria and 
actions pursuant to subsection (c)(1) of section 5 for each State that 
are necessary so that the State may pursue a determination that the 
portion of the species found in that State may be removed from lists 
published under section 4(c).''.
  (c) Threatened and Endangered Species Incentives Program.--
          (1) Agreements authorized.--Section 5 (16 U.S.C. 1534) is 
        further amended by adding at the end the following:
  ``(m) Threatened and Endangered Species Incentives Program.--(1) The 
Secretary may enter into species recovery agreements pursuant to 
paragraph (2) and species conservation contract agreements pursuant to 
paragraph (3) with persons, other than agencies or departments of the 
Federal Government or State governments, under which the Secretary is 
obligated, subject to the availability of appropriations, to make 
annual payments or provide other compensation to the persons to 
implement the agreements.
  ``(2)(A) The Secretary and persons who own or control the use of 
private land may enter into species recovery agreements with a term of 
not less than 5 years that meet the criteria set forth in subparagraph 
(B) and are in accordance with the priority established in subparagraph 
(C).
  ``(B) A species recovery agreement entered into under this paragraph 
by the Secretary with a person--
          ``(i) shall require that the person shall carry out, on the 
        land owned or controlled by the person, activities that--
                  ``(I) protect and restore habitat for covered species 
                that are species determined to be endangered species or 
                threatened species pursuant to section 4(a)(1);
                  ``(II) contribute to the conservation of one or more 
                covered species; and
                  ``(III) specify and implement a management plan for 
                the covered species;
          ``(ii) shall specify such a management plan that includes--
                  ``(I) identification of the covered species;
                  ``(II) a description of the land to which the 
                agreement applies; and
                  ``(III) a description of, and a schedule to carry 
                out, the activities under clause (i);
          ``(iii) shall provide sufficient documentation to establish 
        ownership or control by the person of the land to which the 
        agreement applies;
          ``(iv) shall include the amounts of the annual payments or 
        other compensation to be provided by the Secretary to the 
        person under the agreement, and the terms under which such 
        payments or compensation shall be provided; and
          ``(v) shall include--
                  ``(I) the duties of the person;
                  ``(II) the duties of the Secretary;
                  ``(III) the terms and conditions under which the 
                person and the Secretary mutually agree the agreement 
                may be modified or terminated; and
                  ``(IV) acts or omissions by the person or the 
                Secretary that shall be considered violations of the 
                agreement, and procedures under which notice of and an 
                opportunity to remedy any violation by the person or 
                the Secretary shall be given.
  ``(C) In entering into species recovery agreements under this 
paragraph, the Secretary shall accord priority to agreements that apply 
to any areas that are identified in recovery plans pursuant to 
subsection (c)(1)(A)(iv).
  ``(3)(A) The Secretary and persons who own private land may enter 
into species conservation contract agreements with terms of 30 years, 
20 years, or 10 years that meet the criteria set forth in subparagraph 
(B) and standards set forth in subparagraph (D) and are in accordance 
with the priorities established in subparagraph (C).
  ``(B) A species conservation contract agreement entered into under 
this paragraph by the Secretary with a person--
          ``(i) shall provide that the person shall, on the land owned 
        by the person--
                  ``(I) carry out conservation practices to meet one or 
                more of the goals set forth in clauses (i) through 
                (iii) of subparagraph (C) for one or more covered 
                species, that are species that are determined to be 
                endangered species or threatened species pursuant to 
                section 4(a)(1), species determined to be candidate 
                species pursuant to section 4(b)(3)(B)(iii), or species 
                subject to comparable designations under State law; and
                  ``(II) specify and implement a management plan for 
                the covered species;
          ``(ii) shall specify such a management plan that includes--
                  ``(I) identification of the covered species;
                  ``(II) a description in detail of the conservation 
                practices for the covered species that the person shall 
                undertake;
                  ``(III) a description of the land to which the 
                agreement applies; and
                  ``(IV) a schedule of approximate deadlines, whether 
                one-time or periodic, for undertaking the conservation 
                practices described pursuant to subclause (II);
                  ``(V) a description of existing or future economic 
                activities on the land to which the agreement applies 
                that are compatible with the conservation practices 
                described pursuant to subclause (II) and generally with 
                conservation of the covered species;
          ``(iii) shall specify the term of the agreement; and
          ``(iv) shall include--
                  ``(I) the duties of the person;
                  ``(II) the duties of the Secretary;
                  ``(III) the terms and conditions under which the 
                person and the Secretary mutually agree the agreement 
                may be modified or terminated;
                  ``(IV) acts or omissions by the person or the 
                Secretary that shall be considered violations of the 
                agreement, and procedures under which notice of and an 
                opportunity to remedy any violation by the person or 
                the Secretary shall be given; and
                  ``(V) terms and conditions for early termination of 
                the agreement by the person before the management plan 
                is fully implemented or termination of the agreement by 
                the Secretary in the case of a violation by the person 
                that is not remedied under subclause (IV), including 
                any requirement for the person to refund all or part of 
                any payments received under subparagraph (E) and any 
                interest thereon.
  ``(C) The Secretary shall establish priorities for the selection of 
species conservation contract agreements, or groups of such agreements 
for adjacent or proximate lands, to be entered into under this 
paragraph that address the following factors:
          ``(i) The potential of the land to which the agreement or 
        agreements apply to contribute significantly to the 
        conservation of an endangered species or threatened species or 
        a species with a comparable designation under State law.
          ``(ii) The potential of such land to contribute significantly 
        to the improvement of the status of a candidate species or a 
        species with a comparable designation under State law.
          ``(iii) The amount of acreage of such land.
          ``(iv) The number of covered species in the agreement or 
        agreements.
          ``(v) The degree of urgency for the covered species to 
        implement the conservation practices in the management plan or 
        plans under the agreement or agreements.
          ``(vi) Land in close proximity to military test and training 
        ranges, installations, and associated airspace that is affected 
        by a covered species.
  ``(D) The Secretary shall enter into a species conservation contract 
agreement submitted by a person, if the Secretary finds that the person 
owns such land or has sufficient control over the use of such land to 
ensure implementation of the management plan under the agreement.
  ``(E)(i) Upon entering into a species conservation contract agreement 
with the Secretary pursuant to this paragraph, a person shall receive 
the financial assistance provided for in this subparagraph.
  ``(ii) If the person is implementing fully the agreement, the person 
shall receive from the Secretary--
          ``(I) in the case of a 30-year agreement, an annual contract 
        payment in an amount equal to 100 percent of the person's 
        actual costs to implement the conservation practices described 
        in the management plan under the terms of the agreement;
          ``(II) in the case of a 20-year agreement, an annual contract 
        payment in an amount equal to 80 percent of the person's actual 
        costs to implement the conservation practices described in the 
        management plan under the terms of the agreement; and
          ``(III) in the case of a 10-year agreement, an annual 
        contract payment in an amount equal to 60 percent of the 
        person's actual costs to implement the conservation practices 
        described in the management plan under the terms of the 
        agreement.
  ``(iii)(I) If the person receiving contract payments pursuant to 
clause (ii) receives any other State or Federal funds to defray the 
cost of any conservation practice, the cost of such practice shall not 
be eligible for such contract payments.
  ``(II) Contributions of agencies or organizations to any conservation 
practice other than the funds described in subclause (I) shall not be 
considered as costs of the person for purposes of the contract payments 
pursuant to clause (iii).
  ``(4)(A) Upon request of a person seeking to enter into an agreement 
pursuant to this subsection, the Secretary may provide to such person 
technical assistance in the preparation, and management training for 
the implementation, of the management plan for the agreement.
  ``(B) Any State agency, local government, nonprofit organization, or 
federally recognized Indian tribe may provide assistance to a person in 
the preparation of a management plan, or participate in the 
implementation of a management plan, including identifying and making 
available certified fisheries or wildlife biologists with expertise in 
the conservation of species for purposes of the preparation or review 
and approval of management plans for species conservation contract 
agreements under paragraph (3)(D)(iii).
  ``(5) Upon any conveyance or other transfer of interest in land that 
is subject to an agreement under this subsection--
          ``(A) the agreement shall terminate if the agreement does not 
        continue in effect under subparagraph (B);
          ``(B) the agreement shall continue in effect with respect to 
        such land, with the same terms and conditions, if the person to 
        whom the land or interest is conveyed or otherwise transferred 
        notifies the Secretary of the person's election to continue the 
        agreement by no later than 30 days after the date of the 
        conveyance or other transfer and the person is determined by 
        the Secretary to qualify to enter into an agreement under this 
        subsection; or
          ``(C) the person to whom the land or interest is conveyed or 
        otherwise transferred may seek a new agreement under this 
        subsection.
  ``(6) An agreement under this subsection may be renewed with the 
mutual consent of the Secretary and the person who entered into the 
agreement or to whom the agreement has been transferred under paragraph 
(5).
  ``(7) The Secretary shall make annual payments under this subsection 
as soon as possible after December 31 of each calendar year.
  ``(8) An agreement under this subsection that applies to an 
endangered species or threatened species shall, for the purpose of 
section 10(a)(4), be deemed to be a permit to enhance the propagation 
or survival of such species under section 10(a)(1), and a person in 
full compliance with the agreement shall be afforded the protection of 
section 10(a)(4).
  ``(9) The Secretary, or any other Federal official, may not require a 
person to enter into an agreement under this subsection as a term or 
condition of any right, privilege, or benefit, or of any action or 
refraining from any action, under this Act.''.
          (2) Subsection (e)(2) of section 7 (16 U.S.C. 1536) (as 
        redesignated by section 11(d)(2) of this Act) is amended by 
        inserting ``or in an agreement under section 5(m)'' after 
        ``section''.
  (d) Conforming Amendments.--
          (1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by 
        striking ``section 4(g)'' and inserting ``section 5(j)''.
          (2) The Marine Mammal Protection Act of 1972 is amended--
                  (A) in section 104(c)(4)(A)(ii) (16 U.S.C. 
                1374(c)(4)(A)(ii)) by striking ``section 4(f)'' and 
                inserting ``section 5''; and
                  (B) in section 115(b)(2) (16 U.S.C. 1383b(b)(2)) by 
                striking ``section 4(f) of the Endangered Species Act 
                of 1973 (16 U.S.C. 1533(f))'' and inserting ``section 5 
                of the Endangered Species Act of 1973''.

SEC. 10. COOPERATION WITH STATES AND INDIAN TRIBES.

  Section 6 (16 U.S.C. 1535) is further amended--
          (1) in subsection (c), by adding at the end the following:
  ``(3)(A) Any cooperative agreement entered into by the Secretary 
under this subsection may also provide for development of a program for 
conservation of species determined to be candidate species pursuant to 
section 4(b)(3)(B)(iii) or any other species that the State and the 
Secretary agree is at risk of being determined to be an endangered 
species or threatened species under section 4(a)(1) in that State. Upon 
completion of consultation on the agreement pursuant to subsection 
(e)(2), any incidental take statement issued on the agreement shall 
apply to any such species, and to the State and any landowners enrolled 
in any program under the agreement, without further consultation 
(except any additional consultation pursuant to subsection (e)(2)) if 
the species is subsequently determined to be an endangered species or a 
threatened species and the agreement remains an adequate and active 
program for the conservation of endangered species and threatened 
species.
  ``(B) Any cooperative agreement entered into by the Secretary under 
this subsection may also provide for monitoring or assistance in 
monitoring the status of candidate species pursuant to section 
4(b)(3)(C)(iii) or recovered species pursuant to section 5(j).
  ``(C) The Secretary shall periodically review each cooperative 
agreement under this subsection and seek to make changes the Secretary 
considers necessary for the conservation of endangered species and 
threatened species to which the agreement applies.
  ``(4) Any cooperative agreement entered into by the Secretary under 
this subsection that provides for the enrollment of private lands or 
water rights in any program established by the agreement shall ensure 
that the decision to enroll is voluntary for each owner of such lands 
or water rights.
  ``(5)(A) The Secretary may enter into a cooperative agreement under 
this subsection with an Indian tribe in substantially the same manner 
in which the Secretary may enter into a cooperative agreement with a 
State.
  ``(B) For the purposes of this paragraph, the term `Indian tribe' 
means--
          ``(i) with respect to the 48 contiguous States, any federally 
        recognized Indian tribe, organized band, pueblo, or community; 
        and
          ``(ii) with respect to Alaska, the Metlakatla Indian 
        Community.'';
          (2) in subsection (d)(1)--
                  (A) by striking ``pursuant to subsection (c) of this 
                section'';
                  (B) by striking ``or to assist'' and all that follows 
                through ``section 5(j)'' and inserting ``pursuant to 
                subsection (c)(1) and (2) or to address candidate 
                species or other species at risk and recovered species 
                pursuant to subsection (c)(3)''; and
                  (C) in subparagraph (F), by striking ``monitoring the 
                status of candidate species'' and inserting 
                ``developing a conservation program for, or monitoring 
                the status of, candidate species or other species 
                determined to be at risk pursuant to subsection 
                (c)(3)''; and
          (3) in subsection (e)--
                  (A) by inserting ``(1)'' before the first sentence;
                  (B) in paragraph (1), as designated by subparagraph 
                (A) of this paragraph, by striking ``at no greater than 
                annual intervals'' and inserting ``every 3 years''; and
                  (C) by adding at the end the following:
  ``(2) Any cooperative agreement entered into by the Secretary under 
subsection (c) shall be subject to section 7(a)(2) through (d) and 
regulations implementing such provisions only before--
          ``(A) the Secretary enters into the agreement; and
          ``(B) the Secretary approves any renewal of, or amendment to, 
        the agreement that--
                  ``(i) addresses species that are determined to be 
                endangered species or threatened species, are not 
                addressed in the agreement, and may be affected by the 
                agreement; or
                  ``(ii) new information about any species addressed in 
                the agreement that the Secretary determines--
                          ``(I) constitutes the best available 
                        scientific data; and
                          ``(II) indicates that the agreement may have 
                        adverse effects on the species that had not 
                        been considered previously when the agreement 
                        was entered into or during any revision thereof 
                        or amendment thereto.
  ``(3) The Secretary may suspend any cooperative agreement established 
pursuant to subsection (c), after consultation with the Governor of the 
affected State, if the Secretary finds during the periodic review 
required by paragraph (1) of this subsection that the agreement no 
longer constitutes an adequate and active program for the conservation 
of endangered species and threatened species.
  ``(4) The Secretary may terminate any cooperative agreement entered 
into by the Secretary under subsection (c), after consultation with the 
Governor of the affected State, if--
          ``(A) as result of the procedures of section 7(a)(2) through 
        (d) undertaken pursuant to paragraph (2) of this subsection, 
        the Secretary determines that continued implementation of the 
        cooperative agreement is likely to jeopardize the continued 
        existence of endangered species or threatened species, and the 
        cooperative agreement is not amended or revised to incorporate 
        a reasonable and prudent alternative offered by the Secretary 
        pursuant to section 7(b)(3); or
          ``(B) the cooperative agreement has been suspended under 
        paragraph (3) of this subsection and has not been amended or 
        revised and found by the Secretary to constitute an adequate 
        and active program for the conservation of endangered species 
        and threatened species within 180 days after the date of the 
        suspension.''.

SEC. 11. INTERAGENCY COOPERATION AND CONSULTATION.

  (a) Consultation Requirement.--Section 7(a) (16 U.S.C. 1536(a)) is 
amended--
          (1) in paragraph (1) in the second sentence, by striking 
        ``endangered species'' and all that follows through the end of 
        the sentence and inserting ``species determined to be 
        endangered species and threatened species under section 4.'';
          (2) in paragraph (2)--
                  (A) in the first sentence by striking ``action'' the 
                first place it appears and all that follows through 
                ``is not'' and inserting ``agency action authorized, 
                funded, or carried out by such agency is not'';
                  (B) in the first sentence by striking ``, unless'' 
                and all that follows through the end of the sentence 
                and inserting a period;
                  (C) in the second sentence, by striking ``best 
                scientific and commercial data available'' and 
                inserting ``best available scientific data''; and
                  (D) by inserting ``(A)'' before the first sentence, 
                and by adding at the end the following:
  ``(B) The Secretary may identify specific agency actions or 
categories of agency actions that may be determined to meet the 
standards of this paragraph by alternative procedures to the procedures 
set forth in this subsection and subsections (b) through (d), except 
that subsections (b)(4) and (e) may apply only to an action that the 
Secretary finds, or concurs, does meet such standards, and the 
Secretary shall suggest, or concur in any suggested, reasonable and 
prudent alternatives described in subsection (b)(3) for any action 
determined not to meet such standards. Any such agency action or 
category of agency actions shall be identified, and any such 
alternative procedures shall be established, by regulation promulgated 
prior or subsequent to the date of the enactment of this Act.'';
          (3) in paragraph (4)--
                  (A) by striking ``listed under section 4'' and 
                inserting ``an endangered species or a threatened 
                species''; and
                  (B) by inserting ``, under section 4'' after ``such 
                species''; and
          (4) by adding at the end the following:
  ``(5) Any Federal agency or the Secretary, in conducting any analysis 
pursuant to paragraph (2), shall consider only the effects of any 
agency action that are distinct from a baseline of all effects upon the 
relevant species that have occurred or are occurring prior to the 
action.''.
  (b) Opinion of Secretary.--Section 7(b) (16 U.S.C. 1536(b)) is 
amended--
          (1) in paragraph (1)(B)(i) by inserting ``permit or license'' 
        before ``applicant'';
          (2) in paragraph (2) by inserting ``permit or license'' 
        before ``applicant'';
          (3) in paragraph (3)(A)--
                  (A) in the first sentence--
                          (i) by striking ``Promptly after'' and 
                        inserting ``Before'';
                          (ii) by inserting ``permit or license'' 
                        before ``applicant''; and
                          (iii) by inserting ``proposed'' before 
                        ``written statement''; and
                  (B) by striking all after the first sentence and 
                inserting the following: ``The Secretary shall consider 
                any comment from the Federal agency and the permit or 
                license applicant, if any, prior to issuance of the 
                final written statement of the Secretary's opinion. The 
                Secretary shall issue the final written statement of 
                the Secretary's opinion by providing the written 
                statement to the Federal agency and the permit or 
                license applicant, if any, and publishing notice of the 
                written statement in the Federal Register. If jeopardy 
                is found, the Secretary shall suggest in the final 
                written statement those reasonable and prudent 
                alternatives, if any, that the Secretary believes would 
                not violate subsection (a)(2) and can be taken by the 
                Federal agency or applicant in implementing the agency 
                action. The Secretary shall cooperate with the Federal 
                agency and any permit or license applicant in the 
                preparation of any suggested reasonable and prudent 
                alternatives.'';
          (4) in paragraph (4)--
                  (A) by redesignating subparagraphs (A), (B), and (C) 
                as clauses (i), (ii), and (iii), respectively;
                  (B) by inserting ``(A)'' after ``(4)'';
                  (C) by striking ``the Secretary shall provide'' and 
                all that follows through ``with a written statement 
                that--'' and inserting the following: ``the Secretary 
                shall include in the written statement under paragraph 
                (3), a statement described in subparagraph (B) of this 
                paragraph.
  ``(B) A statement described in this subparagraph--''; and
          (5) by adding at the end the following:
  ``(5)(A) Any terms and conditions set forth pursuant to paragraph 
(4)(B)(iv) shall be roughly proportional to the impact of the 
incidental taking identified pursuant to paragraph (4) in the written 
statement prepared under paragraph (3).
  ``(B) If various terms and conditions are available to comply with 
paragraph (4)(B)(iv), the terms and conditions set forth pursuant to 
that paragraph--
          ``(i) must be capable of successful implementation; and
          ``(ii) must be consistent with the objectives of the Federal 
        agency and the permit or license applicant, if any, to the 
        greatest extent possible.''.
  (c) Biological Assessments.--Section 7(c) (16 U.S.C. 1536(c)) is 
amended--
          (1) by striking ``(1)'';
          (2) by striking paragraph (2);
          (3) in the first sentence, by striking ``which is listed'' 
        and all that follows through the end of the sentence and 
        inserting ``that is determined to be an endangered species or a 
        threatened species, or for which such a determination is 
        proposed pursuant to section 4, may be present in the area of 
        such proposed action.''; and
          (4) in the second sentence, by striking ``best scientific and 
        commercial data available'' and inserting ``best available 
        scientific data''.
  (d) Elimination of Endangered Species Committee Process.--Section 7 
(16 U.S.C. 1536) is amended--
          (1) by repealing subsections (e), (f), (g), (h), (i), (j), 
        (k), (l), (m), and (n);
          (2) by redesignating subsections (o) and (p) as subsections 
        (e) and (f), respectively;
          (3) in subsection (e), as redesignated by paragraph (2) of 
        this subsection--
                  (A) in the heading, by striking ``Exemption as 
                Providing''; and
                  (B) by striking ``such section'' and all that follows 
                through ``(2)'' and inserting ``such section,''; and
          (4) in subsection (f), as redesignated by paragraph (2) of 
        this subsection--
                  (A) in the first sentence, by striking ``is 
                authorized'' and all that follows through ``of this 
                section'' and inserting ``may exempt an agency action 
                from compliance with the requirements of subsections 
                (a) through (d) of this section before the initiation 
                of such agency action,''; and
                  (B) by striking the second sentence.

SEC. 12. EXCEPTIONS TO PROHIBITIONS.

  (a) Incidental Take Permits.--Section 10(a)(2) (16 U.S.C. 1539(a)(2)) 
is amended--
          (1) in subparagraph (A) by striking ``and'' after the 
        semicolon at the end of clause (iii), by redesignating clause 
        (iv) as clause (vii), and by inserting after clause (iii) the 
        following:
          ``(iv) objective, measurable biological goals to be achieved 
        for species covered by the plan and specific measures for 
        achieving such goals consistent with the requirements of 
        subparagraph (B);
          ``(v) measures the applicant will take to monitor impacts of 
        the plan on covered species and the effectiveness of the plan's 
        measures in achieving the plan's biological goals;
          ``(vi) adaptive management provisions necessary to respond to 
        all reasonably foreseeable changes in circumstances that could 
        appreciably reduce the likelihood of the survival and recovery 
        of any species covered by the plan; and'';
          (2) in subparagraph (B) by striking ``and'' after the 
        semicolon at the end of clause (iv), by redesignating clause 
        (v) as clause (vi), and by inserting after clause (iv) the 
        following:
          ``(v) the term of the permit is reasonable, taking into 
        consideration--
                  ``(I) the period in which the applicant can be 
                expected to diligently complete the principal actions 
                covered by the plan;
                  ``(II) the extent to which the plan will enhance the 
                conservation of covered species;
                  ``(III) the adequacy of information underlying the 
                plan;
                  ``(IV) the length of time necessary to implement and 
                achieve the benefits of the plan; and
                  ``(V) the scope of the plan's adaptive management 
                strategy; and''; and
          (3) by striking subparagraph (C) and inserting the following:
  ``(3) Any terms and conditions offered by the Secretary pursuant to 
paragraph (2)(B) to reduce or offset the impacts of incidental taking 
shall be roughly proportional to the impact of the incidental taking 
specified in the conservation plan pursuant to in paragraph (2)(A)(i). 
This paragraph shall not be construed to limit the authority of the 
Secretary to require greater than acre-for-acre mitigation where 
necessary to address the extent of such impacts. In any case in which 
various terms and conditions are available, the terms and conditions 
shall be capable of successful implementation and shall be consistent 
with the objective of the applicant to the greatest extent possible.
  ``(4)(A) If the holder of a permit issued under this subsection for 
other than scientific purposes is in compliance with the terms and 
conditions of the permit, and any conservation plan or agreement 
incorporated by reference therein, the Secretary may not require the 
holder, without the consent of the holder, to adopt any new 
minimization, mitigation, or other measure with respect to any species 
adequately covered by the permit during the term of the permit, except 
as provided in subparagraphs (B) and (C) to meet circumstances that 
have changed subsequent to the issuance of the permit.
  ``(B) For any circumstance identified in the permit or incorporated 
document that has changed, the Secretary may, in the absence of consent 
of the permit holder, require only such additional minimization, 
mitigation, or other measures as are already provided in the permit or 
incorporated document for such changed circumstance.
  ``(C) For any changed circumstance not identified in the permit or 
incorporated document, the Secretary may, in the absence of consent of 
the permit holder, require only such additional minimization, 
mitigation, or other measures to address such changed circumstance that 
do not involve the commitment of any additional land, water, or 
financial compensation not otherwise committed, or the imposition of 
additional restrictions on the use of any land, water or other natural 
resources otherwise available for development or use, under the 
original terms and conditions of the permit or incorporated document.
  ``(D) The Secretary shall have the burden of proof in demonstrating 
and documenting, with the best available scientific data, the 
occurrence of any changed circumstances for purposes of this paragraph.
  ``(E) All permits issued under this subsection on or after the date 
of the enactment of the Threatened and Endangered Species Recovery Act 
of 2005, other than permits for scientific purposes, shall contain the 
assurances contained in subparagraphs (B) through (D) of this paragraph 
and paragraph (5)(A) and (B). Permits issued under this subsection on 
or after March 25, 1998, and before the date of the enactment of the 
Threatened and Endangered Species Recovery Act of 2005, other than 
permits for scientific purposes, shall be governed by the applicable 
sections of parts 17.22(b), (c), and (d), and 17.32(b), (c), and (d) of 
title 50, Code of Federal Regulations, as the same exist on the date of 
the enactment of the Threatened and Endangered Species Act of 2005.
  ``(5)(A) The Secretary shall revoke a permit issued under paragraph 
(2) if the Secretary finds that the permittee is not complying with the 
terms and conditions of the permit.
  ``(B) Any permit subject to paragraph (4)(A) may be revoked due to 
changed circumstances only if--
          ``(i) the Secretary determines that continuation of the 
        activities to which the permit applies would be inconsistent 
        with the criteria in paragraph (2)(B)(iv);
          ``(ii) the Secretary provides 60 days notice of revocation to 
        the permittee; and
          ``(iii) the Secretary is unable to, and the permittee chooses 
        not to, remedy the condition causing such inconsistency.''.
  (b) Extension of Period for Public Review and Comment on 
Applications.--Section 10(c) (16 U.S.C. 1539(c)) is amended in the 
second sentence by striking ``thirty'' each place it appears and 
inserting ``45''.
  (c) Experimental Populations.--Section 10(j) (16 U.S.C. 1539(j)) is 
amended--
          (1) in paragraph (1), by striking ``For purposes'' and all 
        that follows through the end of the paragraph and inserting the 
        following: ``For purposes of this subsection, the term 
        `experimental population' means any population (including any 
        offspring arising therefrom) authorized by the Secretary for 
        release under paragraph (2), but only when such population is 
        in the area designated for it by the Secretary, and such area 
        is, at the time of release, wholly separate geographically from 
        areas occupied by nonexperimental populations of the same 
        species. For purposes of this subsection, the term `areas 
        occupied by nonexperimental populations' means areas 
        characterized by the sustained and predictable presence of more 
        than negligible numbers of successfully reproducing individuals 
        over a period of many years.'';
          (2) in paragraph (2)(B), by striking ``information'' and 
        inserting ``scientific data''; and
          (3) in paragraph (2)(C)(i), by striking ``listed'' and 
        inserting ``determined to be an endangered species or a 
        threatened species''.
  (d) Written Determination of Compliance.--Section 10 (16 U.S.C. 1539) 
is amended by adding at the end the following:
  ``(k) Written Determination of Compliance.--(1) A property owner (in 
this subsection referred to as a `requester') may request the Secretary 
to make a written determination that a proposed use of the owner's 
property that is lawful under State and local law will comply with 
section 9(a), by submitting a written description of the proposed 
action to the Secretary by certified mail.
  ``(2) A written description of a proposed use is deemed to be 
sufficient for consideration by the Secretary under paragraph (1) if 
the description includes--
          ``(A) the nature, the specific location, the lawfulness under 
        State and local law, and the anticipated schedule and duration 
        of the proposed use, and a demonstration that the property 
        owner has the means to undertake the proposed use; and
          ``(B) any anticipated adverse impact to a species that is 
        included on a list published under 4(c)(1) that the requestor 
        reasonably expects to occur as a result of the proposed use.
  ``(3) The Secretary may request and the requestor may supply any 
other information that either believes will assist the Secretary to 
make a determination under paragraph (1).
  ``(4) If the Secretary does not make a determination pursuant to a 
request under this subsection because of the omission from the request 
of any information described in paragraph (2), the requestor may submit 
a subsequent request under this subsection for the same proposed use.
  ``(5)(A) Subject to subparagraph (B), the Secretary shall provide to 
the requestor a written determination of whether the proposed use, as 
proposed by the requestor, will comply with section 9(a), by not later 
than expiration of the 180-day period beginning on the date of the 
submission of the request.
  ``(B) The Secretary may request, and the requestor may grant, a 
written extension of the period under subparagraph (A).
  ``(6) If the Secretary fails to provide a written determination 
before the expiration of the period under paragraph (5)(A) (or any 
extension thereof under paragraph (5)(B)), the Secretary is deemed to 
have determined that the proposed use complies with section 9(a).
  ``(7) This subsection shall not apply with respect to agency actions 
that are subject to consultation under section 7.
  ``(8) Any use or action taken by the property owner in reasonable 
reliance on a written determination of compliance under paragraph (5) 
or on the application of paragraph (6) shall not be treated as a 
violation of section 9(a).
  ``(9) Any determination of compliance under this subsection shall 
remain effective--
          ``(A) in the case of a written determination provided under 
        paragraph (5)(A), for the 10-year period beginning on the date 
        the written determination is provided; or
          ``(B) in the case of a determination that under paragraph (6) 
        the Secretary is deemed to have made, the 5-year period 
        beginning on the first date the Secretary is deemed to have 
        made the determination.
  ``(10) The Secretary may withdraw a determination of compliance under 
this section only if the Secretary determines that, because of 
unforeseen changed circumstances, the continuation of the use to which 
the determination applies would preclude conservation measures 
essential to the survival of any endangered species or threatened 
species. Such a withdrawal shall take effect 10 days after the date the 
Secretary provides notice of the withdrawal to the requester.
  ``(11) The Secretary may extend the period that applies under 
paragraph (5) by up to 180 days if seasonal considerations make a 
determination impossible within the period that would otherwise 
apply.''.
  (e) National Security Exemption.--Section 10 (16 U.S.C. 1539) is 
further amended by adding at the end the following:
  ``(l) National Security.--The President, after consultation with the 
appropriate Federal agency, may exempt any act or omission from the 
provisions of this Act if such exemption is necessary for national 
security.''.
  (f) Disaster Declaration and Protection.--Section 10 (16 U.S.C. 1539) 
is further amended by adding at the end the following:
  ``(m) Disaster Declaration and Protection.--(1) The President may 
suspend the application of any provision of this Act in any area for 
which a major disaster is declared under the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
  ``(2) The Secretary shall, within one year after the date of the 
enactment of the Threatened and Endangered Species Recovery Act of 
2005, promulgate regulations regarding application of this Act in the 
event of an emergency (including circumstances other than a major 
disaster referred to in paragraph (1)) involving a threat to human 
health or safety or to property, including regulations--
          ``(A) determining what constitutes an emergency for purposes 
        of this paragraph; and
          ``(B) to address immediate threats through expedited 
        consideration under or waiver of any provision of this Act.''.

SEC. 13. PRIVATE PROPERTY CONSERVATION.

  Section 13 (consisting of amendments to other laws, which have 
executed) is amended to read as follows:
                    ``private property conservation
  ``Sec. 13. (a) In General.--The Secretary may provide conservation 
grants (in this section referred to as `grants') to promote the 
voluntary conservation of endangered species and threatened species by 
owners of private property and shall provide financial conservation aid 
(in this section referred to as `aid') to alleviate the burden of 
conservation measures imposed upon private property owners by this Act. 
The Secretary may provide technical assistance when requested to 
enhance the conservation effects of grants or aid.
  ``(b) Awarding of Grants and Aid.--Grants to promote conservation of 
endangered species and threatened species on private property--
          ``(1) may not be used to fund litigation, general education, 
        general outreach, lobbying, or solicitation;
          ``(2) may not be used to acquire leases or easements of more 
        than 50 years duration or fee title to private property;
          ``(3) must be designed to directly contribute to the 
        conservation of an endangered species or threatened species by 
        increasing the species' numbers or distribution; and
          ``(4) must be supported by any private property owners on 
        whose property any grant funded activities are carried out.
  ``(c) Priority.--Priority shall be accorded among grant requests in 
the following order:
          ``(1) Grants that promote conservation of endangered species 
        or threatened species on private property while making 
        economically beneficial and productive use of the private 
        property on which the conservation activities are conducted.
          ``(2) Grants that develop, promote, or use techniques to 
        increase the distribution or population of an endangered 
        species or threatened species on private property.
          ``(3) Other grants that promote voluntary conservation of 
        endangered species or threatened species on private property.
  ``(d) Eligibility for Aid.--(1) The Secretary shall award aid to 
private property owners who--
          ``(A) received a written determination under section 10(k) 
        finding that the proposed use of private property would not 
        comply with section 9(a); or
          ``(B) receive notice under section 10(k)(10) that a written 
        determination has been withdrawn.
  ``(2) Aid shall be in an amount no less than the fair market value of 
the use that was proposed by the property owner if--
          ``(A) the owner has foregone the proposed use;
          ``(B) the owner has requested financial aid--
                  ``(i) within 180 days of the Secretary's issuance of 
                a written determination that the proposed use would not 
                comply with section 9(a); or
                  ``(ii) within 180 days after the property owner is 
                notified of a withdrawal under section 10(k)(10); and
          ``(C) the foregone use would be lawful under State and local 
        law and the property owner has demonstrated that the property 
        owner has the means to undertake the proposed use.
  ``(e) Distribution of Grants and Aid.--(1) The Secretary shall pay 
eligible aid--
          ``(A) within 180 days after receipt of a request for aid 
        unless there are unresolved questions regarding the 
        documentation of the foregone proposed use or unresolved 
        questions regarding the fair market value; or
          ``(B) at the resolution of any questions concerning the 
        documentation of the foregone use established under subsection 
        (f) or the fair market value established under subsection (g).
  ``(2) All grants provided under this section shall be paid on the 
last day of the fiscal year. Aid shall be paid based on the date of the 
initial request.
  ``(f) Documentation of the Foregone Use.--Within 30 days of the 
request for aid, the Secretary shall enter into negotiations with the 
property owner regarding the documentation of the foregone proposed use 
through such mechanisms such as contract terms, lease terms, deed 
restrictions, easement terms, or transfer of title. If the Secretary 
and the property owner are unable to reach an agreement, then, within 
60 days of the request for aid, the Secretary shall determine how the 
property owner's foregone use shall be documented with the least impact 
on the ownership interests of the property owner necessary to document 
the foregone use.
  ``(g) Fair Market Value.--For purposes of this section, the fair 
market value of the foregone use of the affected portion of the private 
property, including business losses, is what a willing buyer would pay 
to a willing seller in an open market. Fair market value shall take 
into account the likelihood that the foregone use would be approved 
under State and local law. The fair market value shall be determined 
within 180 days of the documentation of the foregone use. The fair 
market value shall be determined jointly by 2 licensed independent 
appraisers, one selected by the Secretary and one selected by the 
property owner. If the 2 appraisers fail to agree on fair market value, 
the Secretary and the property owner shall jointly select a third 
licensed appraiser whose appraisal within an additional 90 days shall 
be binding on the Secretary and the private property owner. Within one 
year after the date of enactment of the Threatened and Endangered 
Species Recovery Act of 2005, the Secretary shall promulgate 
regulations regarding selection of the jointly selected appraisers 
under this subsection.
  ``(h) Limitation on Aid Availability.--Any person receiving aid under 
this section may not receive additional aid under this section for the 
same foregone use of the same property and for the same period of time.
  ``(i) Annual Reporting.--The Secretary shall by January 15 of each 
year provide a report of all aid and grants awarded under this section 
to the Committee on Resources of the House of Representatives and the 
Environment and Public Works Committee of the Senate and make such 
report electronically available to the general public on the website 
required under section 14.''.

SEC. 14. PUBLIC ACCESSIBILITY AND ACCOUNTABILITY.

  Section 14 (relating to repeals of other laws, which have executed) 
is amended to read as follows:
               ``public accessibility and accountability
  ``Sec. 14. The Secretary shall make available on a publicly 
accessible website on the Internet--
          ``(1) each list published under section 4(c)(1);
          ``(2) all final and proposed regulations and determinations 
        under section 4;
          ``(3) the results of all 5-year reviews conducted under 
        section 4(c)(2)(A);
          ``(4) all draft and final recovery plans issued under section 
        5(a), and all final recovery plans issued and in effect under 
        section 4(f)(1) of this Act as in effect immediately before the 
        enactment of the Threatened and Endangered Species Recovery Act 
        of 2005;
          ``(5) all reports required under sections 5(e) and 16, and 
        all reports required under sections 4(f)(3) and 18 of this Act 
        as in effect immediately before the enactment of the Threatened 
        and Endangered Species Recovery Act of 2005; and
          ``(6) data contained in the reports referred to in paragraph 
        (5) of this section, and that were produced after the date of 
        enactment of the Threatened and Endangered Species Recovery Act 
        of 2005, in the form of databases that may be searched by the 
        variables included in the reports.''.

SEC. 15. ANNUAL COST ANALYSES.

  (a) Annual Cost Analyses.--Section 18 (16 U.S.C. 1544) is amended to 
read as follows:
   ``annual cost analysis by united states fish and wildlife service
  ``Sec. 18. (a) In General.--On or before January 15 of each year, the 
Secretary shall submit to the Congress an annual report covering the 
preceding fiscal year that contains an accounting of all reasonably 
identifiable expenditures made primarily for the conservation of 
species included on lists published and in effect under section 4(c).
  ``(b) Specification of Expenditures.--Each report under this section 
shall specify--
          ``(1) expenditures of Federal funds on a species-by-species 
        basis, and expenditures of Federal funds that are not 
        attributable to a specific species;
          ``(2) expenditures by States for the fiscal year covered by 
        the report on a species-by-species basis, and expenditures by 
        States that are not attributable to a specific species; and
          ``(3) based on data submitted pursuant to subsection (c), 
        expenditures voluntarily reported by local governmental 
        entities on a species-by-species basis, and such expenditures 
        that are not attributable to a specific species.
  ``(c) Encouragement of Voluntary Submission of Data by Local 
Governments.--The Secretary shall provide a means by which local 
governmental entities may--
          ``(1) voluntarily submit electronic data regarding their 
        expenditures for conservation of species listed under section 
        4(c); and
          ``(2) attest to the accuracy of such data.''.
  (b) Eligibility of States for Financial Assistance.--Section 6(d) (16 
U.S.C. 1535(d)) is amended by adding at the end the following:
  ``(3) A State shall not be eligible for financial assistance under 
this section for a fiscal year unless the State has provided to the 
Secretary for the preceding fiscal year information regarding the 
expenditures referred to in section 16(b)(2).''.

SEC. 16. REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED 
                    SPECIES.

  The Endangered Species Act of 1973 is further amended--
          (1) by striking sections 15 and 16;
          (2) by redesignating sections 17 and 18 as sections 15 and 
        16, respectively; and
          (3) by adding after section 16, as so redesignated, the 
        following:
  ``reimbursement for depredation of livestock by reintroduced species
  ``Sec. 17. (a) In General.--The Secretary of the Interior, acting 
through the Director of the United States Fish and Wildlife Service, 
may reimburse the owner of livestock for any loss of livestock 
resulting from depredation by any population of a species if the 
population is listed under section 4(c) and includes or derives from 
members of the species that were reintroduced into the wild.
  ``(b) Eligibility for and Amount.--Eligibility for, and the amount 
of, reimbursement under this section shall not be conditioned on the 
presentation of the body of any animal for which reimbursement is 
sought.
  ``(c) Limitation on Requirement to Present Body.--The Secretary may 
not require the owner of livestock to present the body of individual 
livestock as a condition of payment of reimbursement under this 
section.
  ``(d) Use of Donations.--The Secretary may accept and use donations 
of funds to pay reimbursement under this section.
  ``(e) Availability of Appropriations.--The requirement to pay 
reimbursement under this section is subject to the availability of 
funds for such payments.''.

SEC. 17. AUTHORIZATION OF APPROPRIATIONS.

  (a) Authorization.--The Endangered Species Act of 1973 is further 
amended by adding at the end the following:
                   ``authorization of appropriations
  ``Sec. 18. (a) In General.--There are authorized to be appropriated 
to carry out this Act, other than section 8A(e)--
          ``(1) to the Secretary of the Interior to carry out functions 
        and responsibilities of the Department of the Interior under 
        this Act, such sums as are necessary for fiscal years 2006 
        through 2010; and
          ``(2) to the Secretary of Agriculture to carry out functions 
        and responsibilities of the Department of the Interior with 
        respect to the enforcement of this Act and the convention which 
        pertain the importation of plants, such sums as are necessary 
        for fiscal year 2006 through 2010.
  ``(b) Convention Implementation.--There is authorized to be 
appropriated to the Secretary of the Interior to carry out section 
8A(e) such sums as are necessary for fiscal years 2006 through 2010.''.
  (b) Conforming Amendment.--Section 8(a) (16 U.S.C. 1537(a)) is 
amended by striking ``section 15'' and inserting ``section 18''.

SEC. 18. MISCELLANEOUS TECHNICAL CORRECTIONS.

  (a) International Cooperation.--Section 8 (16 U.S.C. 1537) is 
amended--
          (1) in subsection (a) in the first sentence by striking ``any 
        endangered species or threatened species listed'' and inserting 
        ``any species determined to be an endangered species or a 
        threatened species''; and
          (2) in subsection (b) in paragraph (1), by striking 
        ``endangered species and threatened species listed'' and 
        inserting ``species determined to be endangered species and 
        threatened species''.
  (b) Management Authority and Scientific Authority.--Section 8A (16 
U.S.C. 1537a)) is amended--
          (1) in subsection (a), by striking ``of the Interior 
        (hereinafter in this section referred to as the `Secretary')'';
          (2) in subsection (d), by striking ``Merchant Marine and 
        Fisheries'' and inserting ``Resources''; and
          (3) in subsection (e)--
                  (A) in paragraph (1), by striking ``of the Interior 
                (hereinafter in this subsection referred to as the 
                `Secretary')''; and
                  (B) by striking paragraph (3) and redesignating 
                paragraph (4) as paragraph (3).
  (c) Prohibited Acts.--Section 9 (16 U.S.C. 1538) is amended--
          (1) in subsection (a)--
                  (A) in paragraph (1), in the matter preceding 
                subparagraph (A), by striking ``of this Act, with 
                respect to any endangered species of fish or wildlife 
                listed pursuant to section 4 of this Act'' and 
                inserting ``, with respect to any species of fish or 
                wildlife determined to be an endangered species under 
                section 4'';
                  (B) in paragraph (1)(G), by striking ``threatened 
                species of fish or wildlife listed pursuant to section 
                4 of this Act'' and inserting ``species of fish or 
                wildlife determined to be a threatened species under 
                section 4'';
                  (C) in paragraph (2), in the matter preceding 
                subparagraph (A) by striking ``of this Act, with 
                respect to any endangered species of plants listed 
                pursuant to section 4 of this Act'' and inserting ``, 
                with respect to any species of plants determined to be 
                an endangered species under section 4''; and
                  (D) in paragraph (2)(E), by striking ``listed 
                pursuant to section 4 of this Act'' and inserting 
                ``determined to be a threatened species under section 
                4'';
          (2) in subsection (b)--
                  (A) by striking ``(1)'' before ``Species'' and 
                inserting ``(1)'' before the first sentence;
                  (B) in paragraph (1), in the first sentence, by 
                striking ``adding such'' and all that follows through 
                ``: Provided, That'' and inserting ``determining such 
                fish or wildlife species to be an endangered species or 
                a threatened species under section 4, if''; and
                  (C) in paragraph (1), in the second sentence, by 
                striking ``adding such'' and all that follows through 
                ``this Act'' and inserting ``determining such fish or 
                wildlife species to be an endangered species or a 
                threatened species under section 4'';
          (3) in subsection (c)(2)(A), by striking ``an endangered 
        species listed'' and inserting ``a species determined to be an 
        endangered species'';
          (4) in subsection (d)(1)(A), by striking clause (i) and 
        inserting the following: ``(i) are not determined to be 
        endangered species or threatened species under section 4, 
        and'';
          (5) in subsection (e), by striking clause (1) and inserting 
        the following: ``(1) are not determined to be endangered 
        species or threatened species under section 4, and''; and
          (6) in subsection (f)--
                  (A) in paragraph (1), in the first sentence, by 
                striking clause (A) and inserting the following: ``(A) 
                are not determined to be endangered species or 
                threatened species under section 4, and''; and
                  (B) by striking ``Secretary of the Interior'' each 
                place it appears and inserting ``Secretary''.
  (d) Hardship Exemptions.--Section 10(b) (16 U.S.C. 1539(b)) is 
amended--
          (1) in paragraph (1)--
                  (A) by striking ``an endangered species'' and all 
                that follows through ``section 4 of this Act'' and 
                inserting ``an endangered species or a threatened 
                species and the subsequent determination that the 
                species is an endangered species or a threatened 
                species under section 4'';
                  (B) by striking ``section 9(a) of this Act'' and 
                inserting ``section 9(a)''; and
                  (C) by striking ``fish or wildlife listed by the 
                Secretary as endangered'' and inserting ``fish or 
                wildlife determined to be an endangered species or 
                threatened species by the Secretary''; and
          (2) in paragraph (2)--
                  (A) by inserting ``or a threatened species'' after 
                ``endangered species'' each place it appears; and
                  (B) in subparagraph (B), by striking ``listed 
                species'' and inserting ``endangered species or 
                threatened species''.
  (e) Permit and Exemption Policy.--Section 10(d) (16 U.S.C. 1539(d)) 
is amended--
          (1) by inserting ``or threatened species'' after ``endangered 
        species''; and
          (2) by striking ``of this Act''.
  (f) Pre-Act Parts and Scrimshaw.--Section 10(f) (16 U.S.C. 1539(f)) 
is amended--
          (1) by inserting after ``(f)'' the following: ``Pre-Act Parts 
        and Scrimshaw.--''; and
          (2) in paragraph (2), by striking ``of this Act'' each place 
        it appears.
  (g) Burden of Proof in Seeking Exemption or Permit.--Section 10(g) 
(16 U.S.C. 1539(g)) is amended by inserting after ``(g)'' the 
following: ``Burden of Proof in Seeking Exemption or Permit.--''.
  (h) Antique Articles.--Section 10(h)(1)(B) (16 U.S.C. 1539(h)(1)(B)) 
is amended by striking ``endangered species or threatened species 
listed'' and inserting ``species determined to be an endangered species 
or a threatened species''.
  (i) Penalties and Enforcement.--Section 11 (16 U.S.C. 1540) is 
amended in subsection (e)(3), in the second sentence, by striking 
``Such persons'' and inserting ``Such a person''.
  (j) Substitution of Gender-Neutral References.--
          (1) ``secretary'' for ``he''.--The following provisions are 
        amended by striking ``he'' each place it appears and inserting 
        ``the Secretary'':
                  (A) Paragraph (4)(C) of section 4(b), as redesignated 
                by section 5(b)(2) of this Act.
                  (B) Paragraph (5)(B)(ii) of section 4(b), as 
                redesignated by section 5(b)(2) of this Act.
                  (C) Section 4(b)(7) (16 U.S.C. 1533(b)(7)), in the 
                matter following subparagraph (B).
                  (D) Section 6 (16 U.S.C. 1535).
                  (E) Section 8(d) (16 U.S.C. 1537(d)).
                  (F) Section 9(f) (16 U.S.C. 1538(f)).
                  (G) Section 10(a) (16 U.S.C. 1539(a)).
                  (H) Section 10(b)(3) (16 U.S.C. 1539(b)(3)).
                  (I) Section 10(d) (16 U.S.C. 1539(d)).
                  (J) Section 10(e)(4) (16 U.S.C. 1539(e)(4)).
                  (K) Section 10(f)(4), (5), and (8)(B) (16 U.S.C. 
                1599(f)(4), (5), (8)(B)).
                  (L) Section 11(e)(5) (16 U.S.C. 1540(e)(5)).
          (2) ``president'' for ``he''.--Section 8(a) (16 U.S.C. 
        1537(a)) is amended in the second sentence by striking ``he'' 
        and inserting ``the President''.
          (3) ``secretary of the interior'' for ``he''.--Section 
        8(b)(3) (16 U.S.C. 1537(b)(3)) is amended by striking ``he'' 
        and inserting ``the Secretary of the Interior''.
          (4) ``person'' for ``he''.--The following provisions are 
        amended by striking ``he'' each place it appears and inserting 
        ``the person'':
                  (A) Section 10(f)(3) (16 U.S.C. 1539(f)(3)).
                  (B) Section 11(e)(3) (16 U.S.C. 1540(e)(3)).
          (5) ``defendant'' for ``he''.--The following provisions are 
        amended by striking ``he'' each place it appears and inserting 
        ``the defendant''.
                  (A) Section 11(a)(3) (16 U.S.C. 1540(a)(3)).
                  (B) Section 11(b)(3) (16 U.S.C. 1540(b)(3)).
          (6) References to ``him''.--
                  (A) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended 
                by striking ``him or the Secretary of Commerce'' each 
                place it appears and inserting ``the Secretary''.
                  (B) Paragraph (6) of section 4(b) (16 U.S.C. 
                1533(b)), as redesignated by section 5(b)(2) of this 
                Act, is further amended in the matter following 
                subparagraph (B) by striking ``him'' and inserting 
                ``the Secretary''.
                  (C) Section 5(k)(2), as redesignated by section 
                9(a)(1) of this Act, is amended by striking ``him'' and 
                inserting ``the Secretary''.
                  (D) Section 7(a)(1) (16 U.S.C. 1536(a)(1)) is amended 
                in the first sentence by striking ``him'' and inserting 
                ``the Secretary''.
                  (E) Section 8A(c)(2) (16 U.S.C. 1537a(c)(2)) is 
                amended by striking ``him'' and inserting ``the 
                Secretary''.
                  (F) Section 9(d)(2)(A) (16 U.S.C. 1538(d)(2)(A)) is 
                amended by striking ``him'' each place it appears and 
                inserting ``such person''.
                  (G) Section 10(b)(1) (16 U.S.C. 1539(b)(1)) is 
                amended by striking ``him'' and inserting ``the 
                Secretary''.
          (7) References to ``himself or herself''.--Section 11 (16 
        U.S.C. 1540) is amended in subsections (a)(3) and (b)(3) by 
        striking ``himself or herself'' each place it appears and 
        inserting ``the defendant''.
          (8) References to ``his''.--
                  (A) Section 4(g)(1), as redesignated by section 8(1) 
                of this Act, is amended by striking ``his'' and 
                inserting ``the''.
                  (B) Section 6 (16 U.S.C. 1535) is amended--
                          (i) in subsection (d)(2) in the matter 
                        following clause (ii) by striking ``his'' and 
                        inserting ``the Secretary's''; and
                          (ii) in subsection (e)(1), as designated by 
                        section 10(3)(A) of this Act, by striking ``his 
                        periodic review'' and inserting ``periodic 
                        review by the Secretary''.
                  (C) Section 7(a)(3) (16 U.S.C. 1536(a)(3)) is amended 
                by striking ``his'' and inserting ``the applicant's''.
                  (D) Section 8(c)(1) (16 U.S.C. 1537(c)(1)) is amended 
                by striking ``his'' and inserting ``the Secretary's''.
                  (E) Section 9 (16 U.S.C. 1538) is amended in 
                subsection (d)(2)(B) and subsection (f) by striking 
                ``his'' each place it appears and inserting ``such 
                person's''.
                  (F) Section 10(b)(3) (16 U.S.C. 1539(b)(3)) is 
                amended by striking ``his'' and inserting ``the 
                Secretary's''.
                  (G) Section 10(d) (16 U.S.C. 1539(d)) is amended by 
                striking ``his'' and inserting ``the''.
                  (H) Section 11 (16 U.S.C. 1540) is amended--
                          (i) in subsection (a)(1) by striking ``his'' 
                        and inserting ``the Secretary's'';
                          (ii) in subsections (a)(3) and (b)(3) by 
                        striking ``his or her'' each place it appears 
                        and inserting ``the defendant's'';
                          (iii) in subsection (d) by striking ``his'' 
                        and inserting ``the officer's or employee's'';
                          (iv) in subsection (e)(3) in the second 
                        sentence by striking ``his'' and inserting 
                        ``the person's''; and
                          (v) in subsection (g)(1) by striking ``his'' 
                        and inserting ``the person's''.

SEC. 19. CLERICAL AMENDMENT TO TABLE OF CONTENTS.

  The table of contents in the first section is amended--
          (1) by striking the item relating to section 5 and inserting 
        the following:

``Sec. 5. Recovery plans and land acquisition.''
          (2) by striking the items relating to sections 13 through 17 
        and inserting the following:

``Sec. 13. Private property conservation.
``Sec. 14. Public accessibility and accountability.
``Sec. 15. Marine Mammal Protection Act of 1972.
``Sec. 16. Annual cost analysis by United States Fish and Wildlife 
Service.
``Sec. 17. Reimbursement for depredation of livestock by reintroduced 
species.
``Sec. 18. Authorization of appropriations.''.

SEC. 20. CERTAIN ACTIONS DEEMED IN COMPLIANCE.

  (a) Actions Deemed in Compliance.--During the period beginning on the 
date of the enactment of this Act and ending on the date described in 
subsection (b), any action that is taken by a Federal agency, State 
agency, or other person and that complies with the Federal Insecticide, 
Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.) is deemed to 
comply with sections 7(a)(2) and 9(a)(1)(B) of the Endangered Species 
Act of 1973 (16 U.S.C. 1536(a)(2), 1538(a)(1)(B)) (as amended by this 
Act) and regulations issued under section 4(d) of such Act (16 U.S.C. 
1533(d)).
  (b) Termination Date.--The date referred to in subsection (a) is the 
earlier of--
          (1) the date that is 5 years after the date of the enactment 
        of this Act; and
          (2) the date of the completion of any procedure required 
        under subpart D of part 402 of title 50, Code of Federal 
        Regulations, with respect to the action referred to in 
        subsection (a).
  (c) Limitation on Application.--This section shall not affect any 
procedure pursuant to part 402 of title 50, Code of Federal 
Regulations, that is required by any court order issued before the date 
of the enactment of this Act.

                          Purpose of the Bill

    The purpose of H.R. 3824 is to amend and reauthorize the 
Endangered Species Act of 1973 to provide greater results 
conserving and recovering listed species, and for other 
purposes.

                  Background and Need for Legislation

    Prior to 1966, authority for wildlife protection rested 
primarily with the States, except where the wildlife was highly 
migratory or where wildlife was taken in violation of State or 
federal law or was transported across State boundaries. In 
response to a concern that various species had become or were 
in danger of becoming extinct, the federal government began to 
enact legislation protecting endangered and threatened fish, 
wildlife and plants. Congress' efforts culminated in 1973 with 
the passage of the Endangered Species Act of 1973 (ESA, Public 
Law 93-205, 16 U.S.C. 1531 et seq.) which has become our 
Nation's strictest and most stringent environmental law. In 
conjunction with the Convention on International Trade in 
Endangered Species of Wild Flora and Fauna, the ESA embodies a 
rigid and comprehensive approach to species protection in the 
United States and throughout the world.
    The ESA was passed by Congress with the intent to protect 
and preserve species that have been identified as threatened or 
endangered. Over the past 32 years more than 1800 species have 
been listed for protection. Under the ESA, the Secretary of the 
Department of the Interior, though the U.S. Fish and Wildlife 
Service, has responsibility for plants, wildlife and inland 
fishes. The Secretary of Commerce through the National Marine 
Fisheries Service, is responsible for implementing the ESA with 
respect to ocean-going fish and marine animals. In addition, 
the Department of Agriculture's Animal and Plant Health 
Inspection Service (APHIS) oversees the import and export of 
endangered species from foreign countries through the Nation's 
ports.
    Once a species is listed as endangered or threatened, ESA 
section 4 requires the relevant Secretary to declare ``critical 
habitat'' for an endangered species which limits uses of the 
declared lands or waters. Different protection standards can be 
issued for threatened species. Section 6 of the ESA authorizes 
the Secretary to enter into cooperative or management 
agreements with States for conservation of listed species. 
Under ESA section 7, federal agencies whose actions (including 
actions authorized, funded or directly carried out by the 
agency) are ``likely to jeopardize the continued existence'' of 
an endangered or threatened species must consult with the 
Secretary. After the consultation, the Secretary is to issue a 
written ``jeopardy opinion'' detailing how the proposed agency 
action affects the species or its critical habitat, and the 
Secretary may suggest reasonable alternatives to the proposed 
action which will not jeopardize the species or its habitat. 
The Secretary may also conclude that the agency action does not 
violate the ESA or results only in `` incidental take'' of the 
species. Section 9 of the ESA prohibits various actions 
regarding the species, including the ``take'' of a species, 
which includes harassment, harm, pursuit, capture or killing. 
Section 7 also establishes the Endangered Species Committee to 
resolve conflicts in the administration of and grant exemptions 
from ESA. Under ESA section 10, the Secretary may permit any 
act that would otherwise violate ESA section 9 for scientific 
purposes or if the ``taking'' of the species is incidental to 
and not the purpose of an otherwise lawful activity.
    The ESA has been marked by conflict, litigation and 
cumbersome processes and failed to produce the goal all 
Americans share, recovering and endangered species. According 
to the U.S. Fish and Wildlife Service, only 10 (or less than 
1%) of the roughly 1300 domestic species listed as endangered 
or threatened have been recovered in the ESA's 34-year history. 
What is the status of the remaining listed species? According 
to the Fish and Wildlife Service data: 39 percent of the ESA's 
listed species are classified as being in ``unknown'' status, 
which could include extinction; 21 percent are classified as 
``declining;'' 3 percent are classified as ``believed to be 
extinct,'' though they remain on the list; 30 percent are 
classified as ``stable,'' though for many species in this 
category, this classification is a result of corrections to 
original data error, rather than actual accomplishments of the 
ESA; and only 6 percent are classified by the Fish and Wildlife 
Service as ``improving.'' Moreover, according to official Fish 
and Wildlife Service data, 77 percent of all the listed species 
have only achieved somewhere between zero and one quarter of 
their recovery goals.\1\ These are not the statistics of a 
successful law after more than three decades of implementation.
---------------------------------------------------------------------------
    \1\ In fairness, this number includes the species in the 
``unknown'' category because of the inability to gauge their status.
---------------------------------------------------------------------------
    H.R. 3824, the Threatened and Endangered Species Recovery 
Act of 2005 (TESRA), will place a new emphasis on conservation 
and recovery, eliminates the dysfunctional critical habitat 
provisions that the last two Administrations have recognized as 
ineffective for conservation, removes the conservation burden 
that has been unfairly imposed on private property owners and 
reestablishes a meaningful distinction between endangered and 
threatened species. It also provides for more transparency in 
the ESA program, accountability, and stronger scientific 
safeguards, improves numerous aspects of the consultation 
program and provides incentives and larger roles for States, 
local governments and Indian tribes.
    Among TESRA's provisions are those aimed at fostering 
recovery of endangered species, drawing not only on those who 
have knowledge and skills essential to guide effective 
conservation efforts but also those who have property or 
livelihoods affected by species--where any successful program 
must be made to work--to foster collaborative rather than 
confrontational recovery programs.
    TESRA provides new tools like Threatened and Endangered 
Species Incentives Program to enlist private property owners as 
allies in species conservation. The bill provides landowners 
who participate in Habitat Conservation Plans assurances 
against surprises. TESRA requires the Secretary of the Interior 
to provide a clear answer for landowners whether a proposed 
property use would violate the ESA. In those cases where there 
is a conflict, TESRA provides for conservation aid that reduces 
the burden of regulation on property owners when use of their 
private property has been restricted for conservation, thus 
ensuring that individual property owners are not forced to 
shoulder the financial burden of conserving endangered and 
threatened species for all Americans.
    Section 4(d) of the ESA authorizes the Secretaries of the 
Interior and Commerce ``by regulation'' to apply to ``any 
threatened species'' any of the prohibitions (most notably the 
``take'' prohibition) that section 9 of the ESA establishes for 
endangered species. The fundamental purpose of this provision 
is to allow each Secretary to tailor prohibitions for any less 
imperiled threatened species that the ESA automatically applies 
to all of the more imperiled endangered species. While the 
Secretary of Commerce has interpreted this language to mean 
that he or she is to issue individual rules tailoring whatever 
prohibitions are needed to each specific threatened species, 
the Secretary of the Interior has issued a blanket rule that 
applies all of the ESA section 9 prohibitions automatically to 
virtually all of the threatened species whenever they have been 
or will be listed.
    Section 8 of TESRA, as introduced, would have directed the 
Secretaries to take the approach followed by the Secretary of 
Commerce. The provision would have required that the underlying 
intent of ESA section 4(d)--to require the tailoring of, and 
application to, threatened species on a species-specific basis 
any of the general statutory prohibitions for endangered 
species--be accomplished by the elimination of the Secretary of 
the Interior's blanket applicability approach and the 
application of any ESA section 9 prohibitions to any threatened 
species by the issuance of individual rules for particular 
threatened species (or groups of threatened species whose 
specific threats or biological conditions are sufficiently 
similar towarrant application of identical prohibitions). An 
amendment striking TESRA section 8 was adopted when members of the 
Committee pointed out that the problem that section addressed was 
created by a single U.S. Fish and Wildlife Service rule which could be 
remedied by rulemaking without statutory change. The amendment striking 
section 8 was agreed to on that basis. The Committee expects and 
directs the Secretary of the Interior to conduct promptly a rulemaking 
to reconsider and eliminate or restructure the U.S. Fish and Wildlife 
Service rule--50 CFR 17.31(a)--in light of this report and legislative 
history.

                            Committee Action

    Committee on Resources Chairman Richard Pombo (R-CA) 
introduced H.R. 3824 on September 19, 2005, along with 
Congressman Dennis Cardoza (D-CA), Congressman Joe Baca (D-CA), 
Congressman Marion Berry (D-AR), Congressman Henry E. Brown, 
Jr. (R-SC), Congressman Jim Costa (D-CA), Congresswoman Barbara 
Cubin (R-WY), Congressman Jim Gibbons (R-NV), Congressman Sam 
Graves (R-MO), Congresswoman Cathy McMorris (R-WA), Congressman 
George Radanovich (R-CA), Congressman Mike Ross (D-AR), 
Congressman Bennie G. Thompson (D-MS), Congressman Greg Walden 
(R-OR), Congressman Chris Cannon (R-UT), Delegate Madeleine 
Bordallo (D-GU), Congressman Ken Calvert (R-CA), Congresswoman 
Thelma Drake (R-VA), Congressman Rick Renzi (R-AZ), Congressman 
Don Young (R-AK), Congressman Louie Gohmert (R-TX), Congressman 
Henry Bonilla (R-TX), Congressman Tom G. Tancredo (R-CO), 
Congressman Dan Boren (D-OK), Congressman K. Michael Conaway 
(R-TX), Congressman Randy Neugebauer (R-TX), Congressman Daniel 
E. Lungren (R-CA), Congresswoman Marsha Blackburn (R-TN), 
Congressman C.L. ``Butch'' Otter (R-ID), Congressman Mac 
Thornberry (R-TX), Congressman John T. Doolittle (R-CA), 
Congressman Collin C. Peterson (D-MN), Congressman John B. 
Shadegg (R-AZ), Congressman Dennis R. Rehberg (R-MT), 
Congressman Geoff Davis (R-KY), Congressman Ron Lewis (R-KY), 
Congressman John J. Duncan, Jr. (R-TN), Congressman John 
Sullivan (R-OK), Congressman Michael K. Simpson (R-ID), 
Congressman Randy ``Duke'' Cunningham (R-CA), Congressman 
Duncan Hunter (R-CA), Congressman Devin Nunes (R-CA), 
Congressman William M. Thomas (R-CA), Congressman Steve King 
(R-IA), Congressman Darrell E. Issa (R-CA), Congressman Bobby 
Jindal (R-LA), Congressman John E. Peterson (R-PA), Congressman 
Sanford D. Bishop, Jr. (D-GA), Resident Commissioner Luis G. 
Fortuno (R-PR), Congressman J.D. Hayworth (R-AZ), Congressman 
Stevan Pearce (R-NM), Congresswoman Marilyn N. Musgrave (R-CO), 
Congressman Jeff Flake (R-AZ), Congressman Howard P. ``Buck'' 
McKeon (R-CA), Delegate Eni F. H. Faleomavaega (D-AS), 
Congressman Charlie Melancon (D-LA), Congressman Mark E. Souder 
(R-IN), Congressman Jack Kingston (R-GA), Congresswoman Jo Ann 
Emerson (R-MO), Congressman Dave Weldon (R-FL), Congressman 
Kevin Brady (R-TX), Congressman Frank D. Lucas (R-OK), 
Congresswoman Virginia Foxx (R-NC), Congressman John Kline (R-
MN), Congressman David Scott (D-GA), Congressman Dana 
Rohrabacher (R-CA), Congressman Bill Shuster (R-PA), 
Congressman Gary Miller (R-CA), Congressman Michael T. McCaul 
(R-TX), Congressman Wally Herger (R-CA), Congressman Mark R. 
Kennedy (R-MN), Congressman Charlie Norwood (R-GA), Congressman 
William L. Jenkins (R-TN), Congressman Don Sherwood (R-PA), 
Congressman Trent Franks (R-AZ), Congressman John Boozman (R-
AZ), Congressman Tom Cole (R-OK), Congressman Charles W. 
``Chip'' Pickering (R-MS), Congressman Joe Barton (R-TX), 
Congressman Solomon P. Ortiz (D-TX), Congressman Spencer Bachus 
(R-AL), Congressman Chet Edwards (D-TX), Congressman Artur 
Davis (D-AL), Congressman Jim Ryun (R-KS), Congressman Richard 
H. Baker (R-LA), Mike Rogers (R-AL), Terry Everett (R-AL), 
Congressman Jo Bonner (R-AL), Congressman Phil Gingrey (R-GA), 
Congressman Robert B. Aderholt (R-AL), Congressman Lamar Smith 
(R-TX), Congressman Mike McIntyre (D-NC), Congressman Robert E. 
``Bud'' Cramer (D-AL), Congressman Ruben Hinojosa (D-TX), 
Congressman Tom Osborne (R-NE), Congresswoman Ginny Brown-Waite 
(R-FL), Congresswoman Eddie Bernice Johnson (D-TX), and 
Congresswoman Sheila Jackson-Lee (D-TX) (as of the preparation 
of this report).
    The bill was referred to the Committee on Resources. On 
September 21, 2005, the Committee held a hearing on the bill. 
On September 22, 2005, the Committee met to mark up the bill. 
The following amendments were offered:
    Resources Committee Chairman Richard Pombo (R-CA) offered 
an en bloc set of technical amendments to sections 10 and 13 of 
the bill. They were adopted by voice vote.
    Congressman Tom Udall (D-NM) offered an amendment to strike 
the definition of ``best available scientific data'' from 
section 3 of the ESA. The amendment failed by voice vote.
    Congressman Greg Walden (R-OR) offered and withdrew an 
amendment regarding the application of ``jeopardize the 
continued existence.''
    Congresswoman Stephanie Herseth (D-SD) offered and withdrew 
an amendment regarding peer review.
    Congressman Peter DeFazio (D-OR) offered an amendment to 
strike the determination of distinct population of vertebrate 
fish or wildlife only sparingly. The amendment failed by voice 
vote.
    Congressman Jay Inslee (D-WA) offered an amendment to deem 
a species as endangered or threatened if the Secretary of the 
Interior fails to make a determination within 180 days of the 
species being proposed. The amendment failed by voice vote.
    Congressman John E. Peterson (R-PA) offered and withdrew an 
amendment which required the Secretary of the Interior to 
prepare an analysis of the economic impact, the impact on 
national security and other relevant impact of a determination 
that a species is endangered or threatened.
    Congressman Jim Saxton (R-NJ) offered an amendment to 
strike section 5 of the bill (Repeal of Critical Habitat 
Requirements). The amendment failed by voice vote.
    Congressman Jim Saxton offered and withdrew an amendment to 
strike the repeal of the critical habitat requirements under 
section 4 of the ESA and insert instead provisions on 
protection of critical habitat and survival habitat.
    Congressman Mark Udall (D-CO) offered an amendment to 
strike section 8 (Protective Regulations). The amendment was 
adopted by voice vote.
    Congressman Jim Costa (D-CA) offered an amendment to 
section 9 of the bill to include counties along with Governors 
and State agencies in commenting on regulations issued by the 
Secretary of the Interior under section 4 of the ESA. Chairman 
Pombo offered an amendment to the Costa amendment to include 
units of local government. The Pombo amendment to the Costa 
amendment was adopted by unanimous consent. The Costa 
amendment, as amended, was adopted by voice vote.
    Congressman Jim Saxton offered an amendment to strike the 
recovery plan process in section 10 of the bill and replace it 
with a different process. Chairman Richard Pombo offered an 
amendment to the Saxton amendment to strike all the text but 
the requirement that recovery plans be prepared or revised 
within 10 years of the date of enactment of TESRA. The Pombo 
amendment to the Saxton amendment was agreed to by unanimous 
consent. The Saxton amendment, as amended, by adopted by voice 
vote.
    Congressman Edward Markey (D-MA) offered an amendment to 
strike the language in section 10 of the bill regarding the 
regulatory nature of recovery plans. The amendment failed by 
voice vote.
    Congressman Greg Walden offered and withdrew an amendment 
to allow themodification of specific measures in an agreement 
between the Secretary of the Interior and a federal agency after 
considering the direct, indirect and cumulative costs and benefits 
resulting from the implementation of a recovery plan.
    Congressman Jim Costa offered an amendment to section 10 of 
the bill to require the Secretary of the Interior to consult 
with any pertinent State, regional or local land use agency 
before approving a new or revised recovery plan. Chairman Pombo 
offered an amendment to also include the designee of a local 
land use agency. This amendment was adopted by unanimous 
consent. Congressman Rick Renzi (R-AZ) offered an amendment to 
the Costa amendment to include Indian tribes and to provide a 
definition of Indian tribes. This amendment was adopted by 
unanimous consent. The Costa amendment, as amended, was adopted 
by voice vote.
    Congressman Rick Renzi offered an amendment to allow the 
Secretary of the Interior to enter into cooperative agreements 
with Indian tribes under section 11 of the bill. The amendment 
was adopted by voice vote.
    Congressman Raul Grijalva (D-AZ) offered an amendment to 
strike alternative procedures for the federal agency 
consultation requirement under section 7(a)(2) of the ESA. The 
amendment failed by a roll call vote of 12 to 21, as follows:


    Congressman Ken Calvert (R-CA) offered and withdrew an 
amendment which exempted from the ESA section 7(a) requirements 
certain agency action that may affect a species for which a 
permit has been issued under section 10 of the ESA if the 
action implements or is consistent with any conservation plan 
or agreement incorporated by reference in the permit.
    Congressman Dennis Cardoza (D-CA) offered an amendment to 
change from 90 to 180 days the length of time the Secretary of 
the Interior has to respond to a request for a written 
determination of compliance with section 9(a) of the ESA. The 
amendment also provided a sunset for the written determination 
and allowed the Secretary to withdraw the determination under 
certain circumstances. The amendment was adopted by voice vote.
    Chairman Pombo offered an amendment to clarify that the 
request for a written determination of compliance must apply to 
a proposed use which is lawful under State and local law. The 
amendment also required the requestor to send the request by 
certified mail, that the request must describe the lawfulness 
of the proposed action under State and local law, as well as 
demonstrate that the property owner has the means to undertake 
the use, and the request must describe the anticipated adverse 
impact to a species. The amendment also allows the Secretary of 
the Interior to request more information regarding the 
determination and allows the requestor to supply such 
additional information. The amendment was adopted by voice 
vote.
    Congressman Jim Gibbons (R-NV) offered an amendment to 
allow the President, after consulting with the appropriate 
federal agency, to exempt any act or omission from the 
provisions of the ESA if the exemption is necessary for 
national security. The amendment was adopted by voice vote.
    Congressman Jeff Flake (R-AZ) offered and withdrew an 
amendment regarding an exemption from liability for take of 
listed aquatic species.
    Congressman Bobby Jindal (R-LA) offered an amendment to 
authorize the President to suspend the application of the ESA 
in a declared disaster area and directed the Secretary of the 
Interior to issue regulations regarding the application of the 
ESA in the event of an emergency involving a threat to human 
health or safety or to property. The amendment was adopted by 
voice vote.
    Congressman Neil Abercrombie (D-HI) offered an amendment 
providing a definition of ``experimental population.'' The 
amendment was adopted by voice vote.
    Chairman Richard Pombo offered an amendment to section 14 
of the bill to clarify the provisions regarding the 
distribution of aid, including the legality of the foregone use 
which would be subject to aid, the timing of the aid, the 
documentation and calculation of fair market value of the 
foregone use, and the availability of aid. The amendment was 
adopted by voice vote.
    Congressman Jay Inslee offered an amendment to require that 
before any aid can be granted under section 14 of the bill, the 
property owner would also have to demonstrate that the 
application of ESA section 9(a) to prohibit the foregone use 
constitutes a taking of privately owned land for which the 
payment of compensation is required by the 5th Amendment of the 
U.S. Constitution. The amendment failed on a roll call vote of 
10 to 27, as follows:


    Congressman Stevan Pearce (R-NM) offered an amendment 
regarding the reimbursement for depredation of livestock by 
reintroduced species. The amendment was adopted by voice vote.
    Congressman Greg Walden offered an amendment which deemed 
certain actions in compliance with other laws to also be in 
compliance with section 7(a)(2) and section 9(a)(1)(B) of the 
ESA for a period of time. The amendment was adopted by a roll 
call vote of 26 to 11, as follows:


    No additional amendments were offered and H.R. 3824, as 
amended, was ordered favorably reported to the House of 
Representatives by a roll call vote of 26 to 12, as follows:


                      Section-by-Section Analysis


Section 1. Short title; Table of contents

    Section 1 provides a short title for the bill--``The 
Threatened and Endangered Species Recovery Act of 2005''--and a 
table of contents.

Section 2. Amendment references

    Section 2 clarifies that, unless otherwise noted, all 
amendments are to the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.).

Section 3. Definitions

    TESRA section 3 establishes a new definition for the ESA 
and directs the Secretaries of the Interior and Commerce to 
provide guidance and direction on the development and use of 
scientific data. The fundamental goal of adding this definition 
is to ensure that sound and defensible science is used in all 
relevant decisions including: a proposed listing or delisting 
of an endangered or threatened species; a proposal to 
reclassify a species from threatened to endangered or vice 
versa; the development of a recovery plan for an endangered or 
threatened species; and a biological opinion on a federal 
agency action.
    Each agency follows a regulatory process to list species as 
threatened or endangered and to conserve or recover a species. 
Currently, the ESA requires ``the best scientific and 
commercial data available'' for listings and other actions. 
However, this term is not defined, and there are no objective 
standards to ensure a uniformly high quality of scientific 
data. Further, many question the cost, magnitude and validity 
of the ESA's requirements and implementation since the ESA has 
produced very limited recovery results. This has led to 
concerns about the adequacy of science supporting 
implementation of actions under the ESA. To address these 
issues, this definition is established and the Secretaries are 
to set standards for the ``best available scientific data'' 
that are used to take actions under the ESA.
    TESRA section 3 also provides a new definition of ``permit 
or license applicant'' to replace the old definition that was 
tied to the now-repealed Endangered Species Committee exemption 
process. A permit or license applicant under ESA section 7 is a 
person who has applied to a federal agency for a permit or 
license or for another type of formal legal approval to perform 
an act, such as a bidder on a federal contract.
    TESRA section 3 also defines the term ``jeopardize the 
continued existence'' of an endangered species or threatened 
species. The term is used in ESA section 7, under which federal 
agencies must insure their actions are not likely to jeopardize 
the continued existence of an endangered or threatened species. 
Under this definition, the agency action must reasonably be 
expected to significantly impede, directly or indirectly, the 
conservation of the species in the long-term. This definition 
strengthens the current jeopardy standard by adding to the 
jeopardy analysis consideration of ``conservation,'' defined in 
the ESA as the use of all methods and procedures to restore a 
species to the point where the protections of the ESA are no 
longer necessary. A significant impediment to conservation is 
one that, by itself, makes the future use of such methods and 
procedures unlikely to be successful, thus jeopardizing the 
continued existence of the species and risking its extinction. 
Before an impediment can be considered ``significant,'' there 
must be sufficient scientific basis in existence at the time of 
the consultation, such as a recovery plan if one has been 
prepared under TESRA, to conclude that the conservation is 
possible. As provided by the definitions of ``endangered 
species'' and ``threatened species'' in the current ESA, a 
significant impediment must be likely to frustrate, directly or 
indirectly, conservation throughout all or a significant 
portion of the species' range, not just in one region or 
locality, although for some species an action occurring only in 
one such area could indirectly have significant effects in a 
broader area. In addition to being significant, the harmful 
effects of the agency action must persist over the long term, 
which may vary from species to species. A short-term impediment 
to conservation, no matter how significant, that has no lasting 
long-term effects would not support a jeopardy finding under 
the definition. To find jeopardy, it would be necessary to 
demonstrate that the effects would be likely to create a 
significant long-term threat to the ability to successfully 
conserve the species. Finally, this definition would consider 
only the conservation of the species in the wild, not taking 
into account, for example, captive-breeding programs or the 
maintenance of members of the endangered species or threatened 
species in zoos, aquaria, or other refuges.
    This term, as it appears in section 7 of the current ESA, 
is not defined, and has been implemented by the Secretary 
through regulatory provisions. The term is also accompanied by 
a second standard in section 7 of the current ESA for 
evaluating federal actions destruction or adverse modification 
of critical habitat. Although the greatest threat to endangered 
and threatened species is habitat loss, and protection of 
habitat is a key concern of the ESA, the legal concept of 
critical habitat in the ESA has proven to be poorly understood, 
controversial and difficult to implement, with both the Clinton 
and Bush Administrations speaking out forcefully as to its cost 
in time and money and relative ineffectiveness as a 
conservation tool. Litigation over the concept's meaning and 
application in ESA section 7 has also increased dramatically, 
shifting valuable conservation resources away from on-the-
ground restoration to often ineffective process costs. 
Reflecting these realities, the concept of critical habitat and 
the second standard in ESA section 7 that incorporates it have 
been dropped. To assure that ESA section 7 continues to give 
broad protection for species and habitats, the new jeopardy 
definition has been added so that, when a future agency action 
is evaluated for risk of jeopardizing the continued existence 
of a species, consideration is given to preserving the 
potential for species' conservation and not just the effect on 
the species' survival. Habitat will continue to be a central 
focus of the analysis under ESA section 7 since ultimate 
conservation of so many endangered and threatened species is 
habitat-dependent. Moreover, the amendments contained in TESRA 
to strengthen the recovery planning process increase the focus 
on habitat, since recovery plans will be required to include 
the identification of habitat that is of special value to the 
conservation of the species. This will able the recovery plan 
to serve a role formerly played by critical habitat to inform 
the public of the importance of key habitat areas. 
Additionally, recovery teams can develop plans that incentivize 
conservation on privately owned lands that have been subject to 
sound land management practices that have benefitted species 
but were never acknowledged under the current regulatory-based 
critical habitat system. Recovery plans can be given the force 
and effect of law if adopted through other existing 
authorities, and federal agencies may enter into implementation 
agreements with the Secretary to enforce recovery plan 
provisions. In any event the recovery plan should inform all 
discretionary decision-making under the ESA even where the 
obligations of the affected agencies or parties differ from the 
standards of a recovery plan. The Secretary's regulations will 
have to be updated to implement the new jeopardy definition in 
the wide range of circumstances that exist among endangered and 
threatened species.

Section 4. Determinations of endangered species and threatened species

    TESRA section 4 provides that the ``Secretary shall use the 
authority * * * to determine any distinct population of any 
species of vertebrate fish or wildlife to be an endangered 
species or a threatened species only sparingly.'' The Senate 
Report on the 1979 ESA Amendments recognized the ``great 
potential for abuse'' in providing an ability to extend the 
ESA's protections to a ``distinct population,'' and directed 
that this authority be used only ``sparingly.'' S. Rep. No. 96-
151 at 7 (1979). TESRA elevates that legislative intent to a 
statutory directive.
    The Committee has done so because, despite the intent in 
the U.S. Fish and Wildlife Service's 1996 DPS Policy to 
designate distinct populations only ``sparingly'' (61 Fed. 
Reg.4722-25 (Feb. 7, 1996)), in practice the ``Services have concluded 
that potential populations qualify as a distinct population over 80 
percent of the time.'' Geoffroy and Doyle, Listing Distinct Population 
Segments of Endangered Species: Has It Gone Too Far?, Natural Resources 
& Env't 82, 84 (ABA Fall 2001). The Secretaries need clear direction 
and authority to limit the number of ``distinct populations'' that are 
found and listed. The historic overuse of that authority is diverting 
limited resources from more important ESA goals, is trivializing the 
ESA by protecting less-significant units, and is needlessly increasing 
the conflicts between the ESA and desired human land uses.
    Section 4 of TESRA provides that in evaluating the adequacy 
of existing regulatory mechanisms in making a decision whether 
to list a species as threatened or endangered, the Secretary 
shall consider ongoing conservation efforts described in ESA 
subsection 4, and provides that such efforts include those by 
federal agencies as well as States, local governments and 
foreign nations. The amendment made by this subsection 
clarifies that the ESA subsection 4(b)(1) factors should be 
considered as part of the ESA subsection 4(a)(1) analysis 
rather than separately after consideration of the ESA section 
4(a)(1) factors.

Section 5. Repeal of critical habitat requirements

    This section repeals the critical habitat provision 
contained in the current ESA. TESRA eliminates critical habitat 
because, according to successive Democratic and Republican 
administrations, the provisions cause nothing but litigation 
and waste resources. The official position of the U.S. Fish and 
Wildlife Service is:
    ``In 30 years of implementing the ESA, the Service has 
found that the designation of statutory critical habitat 
provides little additional protection to most listed species, 
while consuming significant amounts of conservation resources. 
The Service's present system for designating critical habitat 
is driven by litigation rather than biology, limits our ability 
to fully evaluate the science involved, consumes enormous 
agency resources, and imposes huge social and economic costs. 
The consequences of the critical habitat litigation activity is 
that limited listing funds are used to defend active lawsuits 
and to comply with the growing number of adverse court orders. 
As a result, the Service's own proposals to undertake 
conservation actions based on biological priorities are 
significantly delayed.''
    In TESRA, habitat of special value to the conservation of a 
species is identified and included in recovery plans and given 
priority in recovery contracts. Any proposal that would 
initiate a review of an action's effect on habitat will be 
reviewed under TESRA's recovery habitat, as required under the 
ESA section 7 consultation process. This process is described 
in greater detail under section 9 of the bill.

Section 6. Petitions and procedures for determinations and revisions

    The Secretary's determination that a petition to list a 
species as endangered or threatened may be warranted can only 
be made if the petitioner has provided the Secretary with all 
information cited in the petition. TESRA section 6 also 
modifies the notice provisions to provide that the Governor, as 
well as the appropriate State agency, receives notice of a 
proposed listing determination or revision.
    This section further provides that: (1) a complete record 
of all information concerning the proposed listing 
determination or revision must be made available on a publicly 
available website; (2) the posted information must include any 
status review and information, information referred to in the 
proposed regulation, and all information submitted by third 
parties; and (3) the Secretary must withhold any document 
consistent with the requirements of section 552 of the 
Administrative Procedure Act.
    The section also provides that any withdrawal of a proposed 
listing determination or revision must be accompanied by 
written findings explaining such withdrawal, and clarifies that 
the emergency provisions set forth in ESA section 4 only apply 
to listing determinations and requires that the Governor as 
well as any affected State agencies be given notice. The posted 
information must include any status review and information, 
information referred to in the proposed regulation, and all 
information submitted by third parties. The Secretary must 
withhold any document consistent with the requirements of 
section 552 of the Administrative Procedure Act.

Section 7. Reviews of listings and determinations

    This section provides that status reviews that propose a 
change in the species status must have taken into consideration 
either: (1) the objective, measurable criteria identified in 
the recovery plan which, if met, would result in a downlisting 
or delisting decision; (2) for species with no recovery plan or 
established downlisting or delisting criteria, the listing 
determination factors under ESA section 4(a); (3) a finding of 
a fundamental error in the initial determination; or (4) a 
determination that the species is no longer an endangered or 
threatened species or in danger of extinction based on an 
analysis of the listing factors under ESA section 4(a).

Section 8. Secretarial guidelines; State comments

    The ESA has had a more far reaching impact than anticipated 
when signed into law in 1973. It has become clear that the 
impacts and benefits are not just at a State level, but 
actually have trickled down to the local government level. In 
response to growing concerns by county, local and other 
equivalent governments on the need for greater opportunity to 
comment on the actions of the federal government as it manages 
threatened and endangered species, the Committee has extended 
the authority to these groups. The Committee has done this in 
TESRA by adding Governors, counties or units of local 
governments to the provisions of section 4 of the ESA.

Section 9. Recovery plans and land acquisitions

    Subsections (a) and (b) of section 9 of TESRA expand upon 
and strengthen the ESA's provisions concerning recovery plans. 
In keeping with the more detailed coverage of the recovery 
planning process, section 10 of TESRA moves the recovery plan 
provisions from section 4 of the ESA, which focuses on listing 
and delisting of endangered species and threatened species, to 
a more prominent position at the beginning of ESA section 5. In 
effect, existing ESA section 4(f) would become ESA subsections 
5(a) through (j).
    Among the most significant changes that section 9 of TESRA 
would make to the current ESA recovery planning provisions are 
the following:
    Section 9 would require that, for any species determined to 
be endangered species or threatened species after TESRA's 
enactment, the recovery plan must be prepared within two years 
after the final determination rule.
    Section 9 would require that recovery plans be based on 
``best available scientific data.'' The current ESA requires 
use of such data in listing species and in consultations on 
federal agency actions, but omits the requirement for recovery 
plans. Given the greater attention paid to recovery plans in 
TESRA, such plans should also be governed by the same data 
standard as applies to species' listings and agency action 
consultations.
    Section 9 also specifies in more detail requirements for 
the contents of recovery plans. The plans must contain 
objective measurable criteria that, when met, would allow 
adetermination to delist the covered endangered species or threatened 
species or to downlist an endangered species to a threatened species. 
Measurable criteria are important because they set the goals for all 
other plan elements. Moreover, if and when such criteria are met, they 
should automatically trigger a downlisting or delisting rulemaking. 
Currently it is difficult to determine in many recovery plans what 
constitutes conditions that would warrant delisting or downlisting, or, 
when the plans do contain measurable criteria and they are met or 
exceeded, the Secretaries fail to take any delisting or downlisting 
action.
    The plans must also contain a description of site-specific 
or other measures that would achieve the criteria, including 
intermediate measures. Again, it is difficult to locate any 
discussion of practical measures in many existing recovery 
plans. Perhaps because they are often prepared by recovery 
teams dominated by academics, many of those plans emphasize 
research, some to the exclusion of any practical measures.
    TESRA would also require that recovery plans contain 
estimates of the time and cost of the plans' recommended 
measures. Too many current plans do not provide realistic 
assessments of the time needed to undertake specific measures; 
some fail even to suggest when such measures should be 
initiated, thus encouraging either a rush to do everything at 
once or delay everything to the later years of the plans' 
terms. Many existing recovery plans also provide ample evidence 
that those who prepared them gave insufficient thought to the 
cost of proposed measures. The new requirements for time and 
cost estimates should remedy these problems and make recovery 
plans far more useful and realistic documents.
    Finally, the recovery plans should identify areas of 
special value for conservation. This requirement for plan 
contents ensures that attention will continue to be paid to the 
covered species' habitat needs, even with the deletion of the 
current ESA's critical habitat provisions. These lands are not 
to be identified for the regulatory purposes that accompanied 
critical habitat. Rather their identification should inform, 
but not dictate, other decisions under the ESA. It is also 
hoped that these lands are given the highest priority in the 
implementation of any landowner incentive programs, including 
those authorized under the ESA currently, those authorized in 
this bill, and any that may be authorized in the future. The 
lands to be identified in any recovery plan should be those 
that are required to meet the delisting or downlisting 
criteria, and secure the delisting or downlisting 
determination, contained in the same plan.
    Section 9 also has additional provisions refining these 
required plan contents. For example, it allows the 
establishment of ``interim criteria'' intended to improve the 
status of the covered species where insufficient best 
scientific data exist to permit a determination of the criteria 
necessary for delisting or downlisting. TESRA requires reviews 
at least every five years of plans containing interim criteria 
to ascertain whether full delisting or downlisting criteria can 
be established. Prompt revision of any plan is required if the 
data are found to be available. For species that occupy more 
than one State, the recovery plans are to contain criteria 
that, when met, would allow delisting or downlisting of the 
portion of the species in each of the States. Related to the 
cost concerns, the bill requires the recovery plans to include, 
whenever possible, alternative measures and the identification 
of the least costly measure among alternative measures of 
comparable efficacy. The plan is also to contain the estimate 
of the cost of acquisition on a willing seller basis of any of 
the identified special value lands. As a transition matter, any 
critical habitat designated prior to the bill's enactment would 
be treated as special value land until the relevant recovery 
plans are drafted or revised.
    Another significant change would be the detail TESRA 
section 9 would add to the recovery team concept. It requires 
the promulgation of regulations to contain criteria for 
establishing recovery teams to prepare recovery plans that are 
diverse (including representatives of constituencies that would 
be affected favorably by the plans' goals of, and contents to 
effect delisting or downlisting, and constituencies that could 
be economically or socially impacted by implementation of those 
goals and contents) and can achieve timely completion of the 
plans. Broadening the teams' membership will ensure those most 
directly affected by the plans have a voice in their 
preparation. They may also supply new insights, particularly 
concerning land and water management constraints and 
opportunities. These additional insights will be particularly 
valuable in devising the recommended measures. Although TESRA 
provides that only scientific members of the recovery teams are 
to establish the delisting or downlisting criteria, any of the 
broader constituencies can select scientists as their 
representatives who would participate in the criteria-setting 
process. The recovery team regulations also are required to 
ensure that the plans are scientifically rigorous and, where 
costs analyses are required, economically rigorous. Finally, 
those regulations are to provide guidelines as to when the 
appointment of recovery teams is unnecessary.
    TESRA section 9 also adds language that will make the 
Secretaries' biennial report to Congress more informative and a 
better gauge of performance under the ESA. Moreover, new 
provisions attempt to make the planning process be more 
transparent and open by providing for review and comment by the 
affected States, Indian tribes, regional or local land use 
agencies, and the public.
    The new recovery plan provisions in section 9(a) of TESRA 
also makes explicit what is implicit in the current ESA section 
4(f) recovery plan language--the intended effect of the 
recovery plan. The paragraph is also fully consistent with 
long-held federal judicial precedent interpreting that intended 
effect. Consistent with Fund for Animals v. Rice, 85 F.3d 534, 
547 (11th Cir. 1996),2 TESRA states that the 
recovery plan does not impose any regulatory requirements on 
federal agencies and nonfederal persons. As stated elsewhere in 
this report, recovery plans are intended to inform, but not 
dictate, relevant decision making under the ESA. That recovery 
plans do not have the force and effect of law not only is the 
law, given the absence of any direction to the contrary in the 
current recovery plan language in current section 4 of the ESA 
and the consistent interpretations by all Administrations and 
by the courts, but also is a matter of practical necessity. As 
a practical matter, the recovery plan cannot have such force 
and effect because it is prepared on the basis of statutory 
standards (both those in the current ESA section 4 and in the 
new section 5 language of TESRA) that are more stringent than 
the statutory standards for most other decisions under the ESA, 
e.g., consultation on federal agency actions under ESA section 
7 and approval of incidental take permits and safe harbor 
agreements under ESA section 10.
---------------------------------------------------------------------------
    \2\ ``[T]he practical effect of the Plaintiffs' position would be 
to elevate the * * * Recovery Plan into a document with the force of 
law. We cannot take such an approach. Section [4(f)] makes it plain 
that recovery plans are for guidance only.''
---------------------------------------------------------------------------
    The Committee did adopt an amendment that eliminated a 
phrase which stated recovery plans can have no ``effect other 
than as non-binding guidance.'' In point of fact, they can have 
binding effect if a federal agency decides to adopt all or part 
of any specific plans (and the adoption of those provisions 
does not have the effect of exceeding the limits of authority 
provided by the ESA to impose the restrictions that may be 
contained in those provisions, particularly on non-federal 
entities or landowners) or if the nonfederal entities or 
landowners voluntarily choose to adopt such provisions in 
cooperative agreements, habitat conservation plans, safe harbor 
agreements, etc. After such adoption, the conservation plan 
provisions would then become binding either under the ESA or 
under contract law.
    TESRA section 9 also explicitly allows a federal agency to 
agree to undertake particular identified measures in any 
specific recovery plan through an agreement with the Secretary 
of the Interior 
and/or the Secretary of Commerce. Each agreement is to be 
focused on particular measures in a specific recovery plan. 
This provision requires that any recovery plan-
specificagreement be made subject to public review and comment, and 
that the Federal agency responds to the public comment. Moreover, the 
Committee does not intend that any agreement waive, alter, or encumber 
any public participation, administrative appeal, or due process 
requirements contained in the laws and implementing regulations that 
authorize and govern agency activities covered by the agreement.
    Finally, TESRA section 9 provides for the development of 
priorities and a schedule for development of recovery plans for 
species listed prior to the bill's enactment that do not yet 
have such plans.
    The two landowner incentives programs included in the 
section 9 of TESRA are intended to provide alternative 
mechanisms to those contained in current programs for 
landowners to secure immunity from liability under the ESA 
while providing additional habitat and protection for 
endangered and threatened species on nonfederal lands. 
Currently there are several incentive programs (e.g. the 
habitat conservation planning and incidental take permitting 
process under ESA section 10) that are explicitly authorized, 
and several more incentive programs (e.g. safe harbor 
agreements and candidate conservation agreements) that are not 
authorized by the ESA. There are also landowner incentive 
programs under other statutes, e.g. the Forest Legacy Program. 
The programs established in this bill are not intended to be 
additive. They, instead, are expected to provide a wider array 
of alternatives for landowners who would otherwise have made 
use of the existing programs. The new programs simply provide 
standards and procedures that landowners already inclined to 
enter a landowner incentive program may find better tailored to 
their needs.

Section 10. Cooperation with States and Indian tribes

    These provisions strengthening ESA section 6 State 
cooperative agreements are responsive to the repeated requests 
of the States, particularly the Western Governors' Association, 
to be accorded the opportunity to participate more actively and 
fully in species conservation efforts. The States' 
participation is critical because they know their residents' 
needs better (and the residents know the States better) than 
the Secretaries of the Interior and Commerce, and, 
consequently, the States are likely to be far more effective in 
enlisting landowners in the cause of species' conservation.
    A number of States, with active encouragement of the 
Secretary of the Interior, are seeking to make greater use of 
the cooperative agreement provisions of ESA section 6. In the 
past many States chose to prepare and submit bare-bones 
cooperative agreements applicable to all listed species within 
their borders. The principal purpose of such agreements was to 
secure Federal funding. Recently several States have prepared 
or are in the process of preparing cooperative agreements for 
particular species that are far more detailed, containing very 
specific land and water management guidance and requirements to 
protect those species. Often these species-specific agreements 
provide for the voluntary enrollment of landowners, who are 
then bound to the agreements' terms by contract. The advantage 
to enrollment is that the landowners secure the protection of 
the incidental take statement that the Secretaries may issue 
after consulting under ESA section 7 on approval of the 
relevant agreement. The broader agreements come under the 
provision of ESA section 6 concerning agreements ``to conserve 
resident species * * * determined by the State agency or the 
Secretary to be endangered or threatened.'' The species-
specific agreements come under the provision of ESA section 6 
concerning agreements that contain ``plans'' which address 
resident endangered or threatened species'' which the Secretary 
or the State agency agree are most urgently in need of 
conservation programs. These agreements not only secure the 
enlistment of States and landowners in the efforts to conserve 
listed species, but also reduce the strain on the species 
conservation resources available to the Secretaries and Federal 
land management agencies.
    Section 10 of TESRA strengthens and broadens the ESA's 
section 6 conservation agreement authority in several ways. 
First, it encourages agreements to address candidate species by 
providing that the incidental take statement will cover those 
species if and when they are listed. Second, it amends the 
Federal funding provision to authorize the Secretary to provide 
financial assistance for agreements that establish conservation 
programs for the protection of, and are not just limited to 
monitoring, candidate species, as well as other species at risk 
and species that are determined by the Secretary to be 
recovered species and no longer subject to the constraints of 
the ESA.
    Third, TESRA section 10 eliminates a significant barrier to 
the completion and implementation of these agreements. ESA 
section 6 currently requires that these agreements be reviewed 
annually. As each annual review could be considered a Federal 
agency action, the agreements, the States, and the Secretaries 
could become mired in an increasingly larger number of annual 
consultations, particularly if section 10's intended effect of 
stimulating the States to produce multiple cooperative 
agreements is effective. TESRA section 10 addresses this 
problem by changing the annual reviews to triennial reviews, 
and specifying the circumstances in which additional 
consultations must occur on agreements after the initial 
consultations on the agreements' approvals. Those circumstances 
are, in brief, whenever the Secretaries determine, during the 
reviews or on obtaining new information, that the agreements 
may be having any ``adverse effects'' on the covered species 
that had not been considered previously or whenever either 
Secretary approves the renewal or amendment of an agreement 
that covers or affects newly listed species.
    Fourth, TESRA section 10 contains a provision that 
clarifies that any cooperative agreements that call for the 
enrollment of lands or water rights in the agreements' 
conservation programs may not require enrollment and must 
ensure that any enrollment is voluntary.
    Fifth, TESRA section 10 adds provisions to ESA section 6 
that specify procedures for suspension and termination of 
cooperative agreements, including procedures for curing 
deficiencies. The current ESA section 6 is silent as to how the 
Secretaries may address cooperative agreements that no longer 
meet the requirements of ESA section 6 or are found in 
consultations to likely jeopardize the covered species' 
existence.
    Finally, the Committee adopted an amendment to accord to 
Indian tribes the same authority to enter into cooperative 
agreements that ESA section 6 now provides to the States. 
Indian tribes with the capacity and desire to prepare species 
conservation programs should be encouraged to do so. This 
amendment would provide such encouragement.

Section 11. Interagency cooperation and consultation

    This section of TESRA adds to the current ESA section 7 
language which authorizes the Secretary to adopt by regulations 
alternative procedures to those described in other provisions 
of ESA section 7 to implement ESA section 7's jeopardy standard 
for Federal agency actions. The paragraph has a number of 
safeguards to ensure that the regulations cannot alter the 
jeopardy standard, and that they will require virtually 
equivalent procedures to those in the current ESA provisions 
for agency actions which are likely to adversely affect listed 
species.
    In effect, the Secretaries have already exercised this 
authority in the regulations they adopted in 1986 (50 CFR Part 
402). Under those regulations, over the last two decades 
countless Federal agency actions have been allowed to proceed 
without any ``consultations'' by the Federal action agencies 
with the Secretaries, and without the preparation of any 
biological ``opinion[s]'' by the Secretaries on those actions, 
using the procedures in the regulations for ``informal 
consultation.'' Yet, since 1979, ESA section 7(a)(2) has 
referred to ``consultation'' on ``any [agency] action,'' ESA 
section 7(b)(1) has set deadlines for concluding 
``consultation'' on``any agency action,'' and ESA section 
7(b)(3) has required the preparation by the ``Secretary'' of a written 
biological ``opinion'' ``after conclusion of consultation under'' ESA 
section 7(a)(2), which is not prepared in an informal consultation.
    The 1986 rules have allowed such informal consultation with 
the Secretaries for all agency actions that the Federal action 
agencies (e.g., Corps of Engineers, Bureau of Land Management, 
Bureau of Reclamation, and Department of Transportation) 
determine are not likely to adversely affect listed species, 
with only a brief written concurrence from the Secretary rather 
than a biological opinion. Moreover, those same regulations 
have excused any communication by an action agency with the 
Secretary for ``no effect'' agency actions. The 1986 
regulations also authorize the further adoption of additional 
regulations that establish other alternative ``consultation'' 
procedures for categories of Federal agency actions (50 CFR 
402.04), which the Secretary has done twice.
    The new language added to section 7 puts into the ESA both 
authority to adopt alternative ``consultation'' procedures 
which the Secretary exercised in promulgating in the 1986 
regulations for informal consultation, and authority to devise 
additional alternative ``consultation'' procedures tailored to 
particular agencies or agency actions as exercised twice 
previously. This new language would constrain these alternative 
procedures authorities in several ways. First, it does not 
alter the ESA section 7 substantive jeopardy standard for 
agency actions. Second, it allows the adoption of alternative 
``consultation'' procedures only by notice-and-comment 
rulemaking, and only by the Secretaries who have the duty to 
protect listed species, not the Federal agencies proposing the 
agency actions. Third, it maintains all the key requirements of 
the current ESA section 7 statutory procedural steps for agency 
actions that may adversely affect listed species.
    Under the current statutory procedures, the only way that a 
Federal action agency (and any applicant for a Federal permit, 
license, funding, etc.) can obtain immunity from adverse 
effects to a listed species caused by an agency action is to 
obtain an incidental take statement from the Secretary under 
ESA section 7(b), after consultation with the Secretary under 
ESA section 7(a) and preparation by the Secretary of a 
biological opinion under ESA section 7(b). Under the new 
paragraph, if any agency action has the likelihood of adversely 
affecting a species, the agency (and the applicant) will still 
have to seek consultation with the Secretary, and the 
Secretary's preparation or concurrence in a biological opinion, 
to obtain the protection of the issuance of an incidental take 
statement. Also, under current ESA law, if the agency action's 
adverse effects are significant enough to fail to meet the ESA 
section 7(a) jeopardy standard, the Federal action agency (and 
applicant) for all intents and purposes only can proceed, and 
only can secure an incidental take statement, if it engages in 
consultation with and obtains a biological opinion from the 
Secretary, and agrees to undertake a ``reasonable and prudent 
alternative'' to the action suggested by the Secretary under 
ESA section 7(b). Under this new language, the same steps--
consultation, biological opinion, Secretarial suggestion of or 
concurrence in a reasonable and prudent alternative--would have 
to occur and could not be avoided by any alternative procedure 
established under the new language.
    Section 11 of TESRA adds a new provision to ESA section 
7(a) providing that any analysis under ESA section 7(a) shall 
consider only the effects of the proposed agency action under 
review that are distinct from the baseline of effects on the 
relevant species that have occurred or are continuing to occur 
as a result of past human activities or natural events. The ESA 
section 7(a) analysis is to determine the incremental effects 
of a proposed Federal agency action. Federal actions such as 
the ongoing operation of existing facilities cannot be expected 
to compensate for past activities or events in many cases 
occurring long before the ESA was originally enacted. Thus, 
this section provides that a jeopardy finding under ESA section 
7(a) as amended would have to be based only on the incremental 
effects of the proposed action and not on pre-existing 
conditions.
    TESRA would establish a requirement in new ESA section 7(b) 
that any terms and conditions in the Secretary's written 
statement following consultation must be ``roughly 
proportional'' to the extent that the land use activity results 
in incidental take of a species. Similarly, under new ESA 
section 10(a)(3), terms and conditions in a ESA section 10 
incidental take permit and habitat conservation plan must be 
``roughly proportional'' to developmental impacts on listed 
wildlife. This ``roughly proportional'' language clarifies the 
intent of the two provisions to provide for mitigation of 
project or development impacts. Indeed, the ``roughly 
proportional'' language is modeled after similar language 
contained in the rigorous State of California Endangered 
Species Act (Cal. Fish & Game Code 2052.1, 1081(b)).
    The ``rough proportionality'' language is also intended to 
codify the principle from Dolan v. City of Tigard, 512 U.S. 
374, 391 (1994), in which the Supreme Court recently recognized 
that ``the government may not require a person to give up a 
constitutional right--here the right to receive just 
compensation when property is taken for a public use--in 
exchange for a discretionary benefit conferred by the 
government where the benefit has little or no relationship to 
the property.'' Lingle v. Chevron, U.S.A., 125 S.Ct. 2074, 2087 
(2005) (citing Dolan, 512 U.S. at 385).
    Dolan stands for the proposition that government can only 
demand conditions on land use activity that are tailored to 
address the particular impacts that will accrue from the 
project under review. As the Court stated, ``no precise 
mathematical calculation is required, but the [government] must 
make some sort of individualized determination that the 
required dedication is related both in nature and extent to the 
impact of the proposed development.'' Id. at 391. Under Dolan, 
it is the government's burden to prove ``rough 
proportionality'' between species impacts and the proposed 
development. Accordingly, for purposes of TESRA, the Secretary 
must quantify his or her findings for ESA sections 7 and 10 
terms and conditions as much as possible. The Secretary cannot 
rely on conclusory statements regarding hypothetical impacts of 
a project as justification to impose excessive conditions on 
private land use activities to address the incidental take of 
species. In short, the government must develop a sufficient 
administrative record to justify terms and conditions under the 
``rough proportionality'' standard.

Section 12. Exceptions to prohibitions

    In adding paragraph (4)(E) to ESA section 10(a), it is the 
intent of the Committee to confirm the validity of the ``No 
Surprises'' and Permit Revocation regulations that have 
governed ESA section 10(a) permits for the last seven years, 
and to require the inclusion of ``No Surprises'' and Permit 
Revocation assurances in future permits. To this end, new ESA 
section 10(a)(4)(A) through (E) enacts ``No Surprises'' and 
Permit Revocation assurances and requires that these assurances 
be included in all future ESA section 10(a) permits, except 
permits issued for scientific purposes. For ESA section 10(a) 
permits issued before the date of enactment, new ESA section 
10(a)(4)(E) makes clear that the existing ``No Surprises'' and 
Permit Revocation regulations, codified in 50 CFR Parts 17.22 
and 17.32, constitute the governing law pursuant to which 
existing permits will be implemented and enforced.
    Under TESRA, the habitat conservation plan content (HCP) 
requirements--the biological goals, monitoring, and adaptive 
management provisions--are NOT new, but are taken from an 
existing policy implemented in 2000. All three elements of HCPs 
were established in 65 Fed. Reg. 35242-35257 (June 1, 2000) 
(``Notice of Availability of a Final Addendum to the Handbook 
for Habitat Conservation Planning and Incidental Take 
Permitting''). These new statutory requirements are not 
intended to go beyond the existing notice provisions and 
therefore are not more stringent.
    TESRA also amends the ESA section 10(j) provisions to 
advance recovery while respecting property rights and other 
local concerns. Such solutions have been worked out underthe 
existing law, which allows rules for introduced species to be tailored 
to local conditions, and the committee intends to facilitate more such 
solutions. The Committee finds that application of section 10(j) of the 
ESA can provide clear benefits to endangered species as demonstrated by 
the California condor recovery in northern Arizona and southern Utah 
where recovery actions have involved and are supported by States, 
Tribes, local communities, and private landowners. The Committee 
desires to clarify and improve this provision.
    Application of section 10(j) of the ESA requires the 
Secretary to make two determinations before establishing an 
experimental population. Those are: (1) that doing so will 
``further the conservation'' of the species; and (2) that there 
are no naturally occurring populations of the same species in 
the area where the experimental population is to be 
established. A point of confusion has been the meaning of 
``population'' when considering appropriateness for 
establishment an experimental population. The Committee 
believes that periodic sightings and even occasional breeding 
are insufficient to be considered a natural population, and 
that such sightings are no bar to the establishment of an 
experimental population.
    Consequently, TESRA revises ESA subsection 10(j)(1) to 
clarify this point of confusion and potential controversy by 
describing the term ``areas occupied by nonexperimental 
populations'' as ``areas characterized by the sustained and 
predictable presence of more than negligible numbers of 
successfully reproducing individuals over a period of many 
years.'' Endangered and threatened species conservation will 
benefit as this clarification will firmly establish those 
circumstances where the section 10(j) provision may be used and 
reduce the potential for conflict which has often resulted in 
litigation.
    TESRA also provides for a written determination of 
compliance provision that would become subsection 10(k) in the 
ESA. This provision affords a property owner the means of 
receiving a final agency determination whether a proposed 
property use would be in violation of the ESA section 9(a) 
prohibitions. The most important of these prohibitions is that 
against the ``take'' of a species. As defined in the ESA, 
``take'' includes the elements ``harm, harass, pursue, hunt, 
shoot, wound, kill, trap, capture or collect'' with regard to 
an endangered species or, by prohibitions promulgated in 
regulations, of a threatened species. While most of the actions 
that constitute a take require a direct relation between the 
person committing the take and the species the elements 
``harm'' and ``harass'' may provide for a proximate 
relationship. Babbitt v. Sweet Home Chapter of Communities for 
a Great Oregon, 515 U.S. 687, 713-714, 115 S.Ct. 2407,2420-2421 
(1995). Consequently, a use that a reasonable person might 
conclude as not violating this prohibition may do so.
    TESRA's provision that provides for a written determination 
affords landowners certainty regarding a proposed use of their 
property and, in the case the Secretary determines that the use 
would not comply with the current ESA's prohibitions against 
take of a listed species, it provides for a written 
determination that may serve as the basis for a request for 
conservation aid to offset the burden of conservation measures 
imposed upon the property owner.
    The newly created section 10(k) provides that a property 
owner who desires a determination by the Secretary whether a 
proposed use would violate the ESA's section 9(a) prohibitions 
may request, by certified mail, such a determination provided 
that the property owner describe: (1) the nature, location, 
anticipated schedule and duration of the proposed action; (2) 
lawfulness under State and local law; (3) the property owner's 
means to carry out the proposed use; and (4) anticipated 
adverse impacts to a listed species is expected to occur. Under 
section 10(k)(3) the Secretary may request and the property may 
provide any other information either believes will aid the 
Secretary in making a determination. Section 10(k)(4) provides 
that the Secretary may make no determination if the property 
owner requesting the determination failed to include 
information required under section 10(k)(2) and allows, in such 
a circumstance, that the property owner may resubmit the 
request.
    Provided with the information under section 10(k)(2), the 
Secretary must, pursuant to section 10(k)(5), provide a written 
determination within 180 days unless a written extension is 
granted by the requesting party. The Secretary may extend the 
deadline by 180 days if the Secretary determines that he or she 
cannot make a determination because of seasonal considerations 
which would include such considerations as migration patterns 
and dormancy. If the Secretary fails to issue a determination 
within the required window, pursuant to section 10(k)(6), the 
proposed use is deemed to be in compliance with ESA section 
9(a).
    Subsection 10(k)(8) provides that uses of the property or 
other actions taken in reasonable reliance upon a written 
determination which finds the use would not violate ESA section 
9(a) prohibitions or that are deemed to comply with section 
9(a) based upon the Secretary's failure to respond are not 
subject to liability for violations of ESA section 9. 
Subsection 10(k)(9) limits the time period a landowner can rely 
on the Secretary's determination or failure to respond to ten 
and five years respectively. The Committee intends that 
reasonable reliance tests allows for variation of the proposed 
use when it is undertaken by the property owner so long as the 
nature of the use is essentially of the same scope, scale and 
area as the proposed use.
    Under subsection 10(k)(10) the Secretary may withdraw a 
determination of compliance if, as a result of unforeseen 
circumstances, the continuation of the use would preclude 
conservation measures essential to the survival of an 
endangered or threatened species. This provision accounts for 
the possibility a species was newly discovered to be in the 
area affected by the use or a species that would be affected by 
the use is added to the endangered species list. Such 
withdrawals become effective ten days after a property owner 
has been notified of the withdrawal and make the property owner 
eligible for aid equivalent to the fair market value of the 
foregone use.
    Pursuant to section 10(k)(7), property use that is subject 
to consultation under ESA section 7 consultation cannot be the 
subject of a request for a written determination of compliance 
as the ESA provides an assessment of the effect of an agency 
action on listed species under ESA section 7's consultation 
provisions.
    TESRA provides reasonable requirements to prevent abuse of 
this determination authority. For example, a property owner 
requesting a determination must include basic information about 
the proposed use such as the use's consistency with State and 
local law, the property owner's means to undertake the proposed 
use and any reasonably anticipated adverse impacts to a species 
included on the lists published under the current ESA section 
4(c). Given that this section is provided in large part to 
reduce conservation burdens imposed on private property owners, 
the Committee does not intend for these requirements to impose 
yet another burden on private property owners. Accordingly, 
TESRA neither imposes any requirement on nor provides any 
authority for the Secretary to require a property owner to 
obtain and provide completed State and local permits or 
approval from any other governmental agency to be eligible for 
a written determination. Similarly, TESRA imposes no 
requirement on the property owner nor provides the Secretary 
with authority to require that detailed or extensive financial, 
design or other such information be provided by a property 
owner to demonstrate the means to undertake the proposed use. 
Likewise, in assessing ``anticipated adverse impacts'' TESRA 
does not require nor provides the Secretary with authority to 
require the property owner to provide detailed studies, 
analyses or surveys. Rather, the intent of these provisions is 
to require a good faith effort on behalf of the property owner 
to provide the Secretary with relevant information to make a 
determination.
    Finally, because this provision is intended to assist 
property owners who, in many instances, may not even know of 
the existence of an endangered or threatened species in the 
vicinity or that their particular activity (e.g., farming, 
forestry, home building) may impact anendangered or threatened 
species, the failure of any property owner to request a written 
determination under this subsection should not count against the owner 
in any legal proceeding or permit process.

Section 13. Private property conservation

    Section 13 of TESRA would replace section 13 of the ESA 
which consists of amendments to other laws that have been 
executed. Section 13 provides two additional mechanisms to the 
ESA, conservation grants and conservation aid. This section 
affirms that the Committee places the conservation of 
endangered and threatened species among the highest of 
priorities and that TESRA evidences the Committee's recognition 
that the burden of carrying the costs of a conservation program 
that is intended to benefit all should not be borne by the few. 
The conservation aid provisions are at the heart of 
improvements the Committee considers essential to modernize and 
update the ESA. It is designed to compensate private property 
owners who have been denied use of their property as evidenced 
by a written determination that the owner's proposed use of the 
property would violate the ESA prohibitions at section 9(a) (or 
a withdrawal of a written determination of compliance). 
Providing such a mechanism not only reflects the societal 
commitment to conservation of endangered and threatened species 
but also reduces the unintended and counterproductive 
consequence of devaluing private property through regulations. 
Without such a provision, the actual effects of a law designed 
to conserve endangered and threatened species can be the 
destruction of habitat or the species itself compelled by the 
potential threat to the value of private property.
    Under new ESA section 13, the Secretary may issue 
conservation grants to promote conservation of endangered 
species and threatened species on private property. This 
authority is intended to complement other tools at the 
Secretary's disposal under the ESA and that would be provided 
by TESRA. Subsection (b) provides basic restrictions on grants 
prohibiting their use to fund litigation, general education, 
general outreach, lobbying or solicitation. It also prohibits 
use of grants for land acquisition or leases or easements of 
more than 50 years and requires that any grant activities 
carried out on private property are supported by the property 
owner. Subsection (c) establishes a priority ranking to guide 
the Secretary's decision to award grants, giving top priority 
to grants that promote conservation of endangered species or 
threatened species on private property while making 
economically beneficial and productive use of the property. The 
Committee's intent is for grants provided under this section of 
TESRA to be directed to producing tangible and direct 
conservation benefits for endangered and threatened species but 
to also allow the Secretary room for ingenuity and creativity 
in forming partnerships with private landowners and others.
    Subsection (d) establishes the eligibility requirements for 
conservation aid that the Secretary provides under TESRA. To be 
eligible, property owners who received a written determination 
indicating the proposed use would violate ESA section 9(a) or 
had written determination of compliance withdrawn under section 
10(k) must request aid with 180 days. Additionally, the 
property owner must have foregone the proposed use or, in the 
case of a withdrawn written determination, terminate activities 
that would fall under the withdrawn compliance determination 
when such withdrawal became effective. Further, the proposed 
use, as in the case of request for a written determination, 
must be one the property owner has the means to carry out and 
the use must be one that would be lawful under State and local 
law. These later requirements reiterate requirements that 
property owners need to meet to receive a written determination 
under section 10(k), and the Committee's intent is identical to 
their applicability under that provision.
    Subsection (f) establishes the means of documenting the 
foregone use, or, alternatively, the mechanism by which the 
Secretary shall acquire an interest in the property. The 
provision provides that the Secretary shall enter into 
negotiations with the property owner regarding the possible 
means of documenting the use which may include contracts, 
leases, easements or acquisition or transfer of title. If the 
agreement is not reached within 60 days of the request for aid, 
then the Secretary must select the means by which foregone use 
will be documented, selecting the means ``with the least impact 
of the ownership interests of the property owner necessary to 
document the use.'' The Committee clearly intends and 
interprets this provision as forbidding the Secretary, after 
failing to reach agreement with the property owner on a means 
of documentation from determining that title transfer will be 
used as the means of documenting the foregone use. Transfer of 
title is excluded as a means of documenting the foregone use as 
it would have the greatest impact on the ownership interests of 
the property owner. While the Committee is unaware of instances 
in which the application of section 9(a) prohibitions has 
resulted in removal of all uses of a property, the option of 
transfer of title is provided during the initial 30 day 
negotiation period. In conjunction with the baseline that the 
aid provided by the Secretary be ``not less than the fair 
market value'' of the foregone use, this provision allows, with 
the property owner's agreement, acquisition of a larger 
interest in the property than would otherwise occur with aid 
equivalent to the fair market value of the use of the affected 
portion of the property which has been foregone.
    Subsection (g) establishes that fair market value of the 
foregone use means what a willing buyer would pay to a willing 
seller in the open market for the affected property interest, 
here the foregone use that is documented under paragraph (f). 
See e.g. U.S. v. Miller, 317 U.S. 369, 374 (1943) (``market 
value is what a willing buyer would pay in cash to a willing 
seller.'') Fair market value should take into account 
reasonably potential uses of the affected property, taking into 
account the likelihood and difficulty of obtaining permits for 
any particular use. Thus, section 13 further states that ``Fair 
market value shall take into account the likelihood that the 
foregone use would be approved under State and local law.'' 
Fair market value should also not be affected by the influence 
of the ESA itself. The Supreme Court has held that under the 
``scope of the project rule,'' determinations of fair market 
value usually do not take into account impacts on value caused 
by the government action that gives rise to the government's 
liability in the first place. See e.g. Almota Farmers Elevator 
& Warehouse Co. v. U. S., 409 U.S. 470, 478 (1973) (``It 
[government] may not take advantage of any depreciation in the 
property taken that is attributable to the project itself.''). 
Thus, the Committee does not intend that a reduced ability to 
use the property because of the direct or indirect influence of 
the ESA should affect the determination of fair market value.
    To establish fair market value, after the means of 
documentation of the foregone use has been determined, the 
Secretary and the property owner are to jointly select two 
licensed independent appraisers. If these appraisers are unable 
to reach resolution as to a fair market value of the foregone 
use within 180 days, a third appraiser is jointly selected by 
the property owner and the Secretary, who establishes the fair 
market value within an additional 90 days. This is binding on 
the Secretary and the property owner.
    Subsection (e) establishes a schedule by which the 
Secretary is to provide aid and grants provided under this 
section. The Secretary is to provide aid within 180 days of the 
request for aid if there are not unresolved issues regarding 
the fair market value or at the resolution of any issues 
regarding fair market value which shall be accomplished in no 
more than 360 days from the date of the request. Aid is paid in 
order of the date of request. Grants are to be paid on the last 
day of the fiscal year.
    Subsection (h) provides a provision to guard against abuse 
of the section by prohibiting a person from receiving aid for 
the same forgone use, on the same property for the same period 
of time, more than once.
    Under subsection (i) annual reports are to be submitted on 
January 15 to the Committee on Resources of the House of 
Representatives and the Environment and Public Works Committee 
of the Senate for all aid and grants paid by the Secretary 
during the previous year.

Section 14. Public accessibility and accountability

    TESRA's section 14 add a new requirement to the ESA that 
the Secretary maintain a publicly accessible website that 
includes: (1) endangered and threatened species lists; (2) all 
final and proposed endangered and threatened species 
regulations issued under ESA section 4; (3) draft and final 
recovery plans; (4) the results of five year status reviews; 
and (5) all reports and supporting data to Congress required 
under what would be ESA section 5 and the annual cost analyses 
under ESA section 18. Much of this information is provided now 
by the U.S. Fish and Wildlife Service on its Threatened and 
Endangered Species Database System. This provision codifies 
this as a requirement for the Secretary and specifies the 
information to be contained. Given the increased emphasis 
within TESRA on recovery plans and the important role of the 
five-year review provision requiring these materials to be 
easily accessible to the public, this provision is viewed as 
essential by the Committee. In providing these requirements 
within TESRA the Committee's intent is not merely that these 
documents be eventually made available on the website, but that 
preparation of these documents should be done with the intent 
that they become immediately available in electronic format as 
soon as they are complete and finalized. Further, the Committee 
expects that the requirements of this section and TESRA's 
amendments to ESA section 4(b) requiring the Secretary to make 
``available a complete record of all information concerning the 
determination or revision'' would be addressed in an integrated 
manner with this section's requirements.
    TESRA section 14 provides a new requirement to include on 
the publicly accessible website a database that may be searched 
by the variables contained within the reports to Congress on 
the status of domestic endangered and threatened species and 
efforts to develop and implement recovery plans for these 
species which are required by TESRA's amendment to section 5 of 
the ESA and the annual cost analyses prepared under TESRA's 
section 16. Both of these reports are, with similar parameters, 
required under current law and that information would be 
required to be included in the database as well. This provision 
would merge the largest available data sources on the 
conservation effects of and costs of implementing the ESA into 
one location, providing the public with a greater understanding 
of this conservation program.

Section 15. Annual cost analyses

    TESRA section 15 modifies the reporting under the current 
ESA section 18 in several ways to provide consistent and more 
comprehensive reporting of costs associated with implementing 
the ESA. The existing law requires the reporting of 
expenditures that are primarily for the conservation of an 
endangered or threatened species on a species by species basis. 
In practice, many costs related to endangered and threatened 
species cannot be easily segregated on a species by species 
basis as conservation measures may benefit more than one 
species. Under this section, federal and State costs that are 
not attributable to a specific species are to be reported. 
Although not currently required by law, such reporting has been 
implemented in recent years as ``other ESA'' expenditures. 
Codifying this practice as a requirement will ensure that more 
comprehensive cost data is provided and that reporting is 
systematic from year to year.
    The Committee intends for this report to provide as 
comprehensive a picture of ESA expenditures as possible so that 
the societal commitment to endangered and threatened species 
conservation can be more accurately tracked. Consistent with 
this, the Committee expects the reporting by federal agencies, 
such as the Forest Service and the Bureau of Land Management, 
to include foregone revenue as the Bonneville Power 
Administration has been consistently reporting.
    TESRA also provides for a requirement to establish a 
prerequisite for eligibility for financial assistance under ESA 
section 6. Under this provision a State must report its 
expenditures on endangered and threatened species, including 
those expenditures that are not attributable to a specific 
species for the previous year, to be eligible for section 6 
funding in the following year. The intent of this provision is, 
again, to provide as comprehensive a picture of ESA 
expenditures as possible. The Committee interprets this 
provision as requiring not only the reporting of costs borne by 
State fish and wildlife agencies or departments of natural 
resources but also those costs borne by other State agencies 
such as transportation departments.
    TESRA also requires the Secretary to provide a means where 
units of local government may, voluntarily, report and certify 
the accuracy of costs attributable to the conservation of 
endangered and threatened species. This provision as well 
reflects the Committee's intent to provide as comprehensive a 
picture of ESA costs as possible and the Committee's 
recognition that many of the costs associated with the ESA are 
borne by local government. The Committee expects that in 
providing the means to electronically report and certify the 
accuracy of these expenditures, the Secretary is to make the 
system user friendly so that local governments are not 
discouraged by an additional burden.

Section 16. Reimbursement for depredation of livestock by reintroduced 
        species

    This section authorizes the Secretary, through the Director 
of the U.S. Fish and Wildlife Service, to reimburse the owner 
of livestock for any loss of such livestock resulting from 
depredation by any population of a species listed under the ESA 
and includes or derives from members of the species that were 
reintroduced into the wild. Eligibility under this section is 
not conditioned on the presentation of the body of any animal 
for which reimbursement is sought. The Secretary is authorized 
to accept and use donations of funds to pay reimbursement under 
this section.

Section 17. Authorization of appropriations

    This section authorizes such sums as are necessary for 
Fiscal Year 2006 to 2010 for the Secretary of the Interior. It 
also authorizes sums as necessary for Fiscal Year 2006 and 2010 
for the Secretary of Agriculture to carry out functions and 
responsibility of the Department of the Interior with respect 
to the enforcement of the ESA and the convention which pertains 
to the importation of plants.

Section 18. Miscellaneous technical corrections

    This section makes miscellaneous corrections to other 
portions of the ESA to correct cross references and to conform 
the text with the amendments made by earlier portions of the 
bill, as well as to provide gender neutral references within 
the text of the ESA.

Section 19. Clerical amendment to table of contents

    This section makes a technical change to conform the table 
of contents of the ESA to changes made in earlier portions of 
this bill.

Section 20. Certain actions deemed in compliance

    Section 20 of TESRA addresses a significant action taken by 
the Secretaries and the Environmental Protection Agency to 
remedy the alleged failure of the government (and, as 
aconsequence, manufacturers, and farmers, utilities, mosquito control 
districts, and other applicators of pesticides) for over three decades 
to comply with ESA section 7(a)(2) in the registration and use of 
pesticides under the Federal Insecticide, Fungicide and Rodenticide Act 
(FIFRA, 7 U.S.C. 136-136y). ESA section 7(a)(2) requires federal 
agencies to consider, and consult with the Secretaries on the effects 
of federal agency actions on endangered or threatened species. On 
August 5, 2004 (69 Fed. Reg. 47732-47762), following coordination with 
the Environmental Protection Agency and the U.S. Department of 
Agriculture, the Secretaries published a joint rule (50 CFR Part 402, 
Subpart D) establishing procedures to ensure ESA section 7(a)(2) 
compliance for regulatory actions under FIFRA.
    Critics have alleged that the FIFRA pesticide registration 
program has never complied with the requirements of the ESA, 
and that no Administration since the ESA's enactment in 1973 
has developed a program to ensure compliance. Congress 
addressed this problem as early as 1988 when it enacted section 
1010 in the 1988 ESA Amendments Act, which directed all 
involved federal agencies to design a FIFRA/ESA compliance 
program to ``minimize the impacts to persons engaged in 
agricultural food and fiber commodity production.'' Public Law 
100-478, section 1010(b), 102 Stat. 2313-14 (1988), 7 U.S.C. 
136a note. The alleged continued absence of a comprehensive ESA 
compliance program for FIFRA actions has prompted significant 
litigation over the last three years. On January 30, 2004, the 
Secretaries proposed a rule that would establish the 
comprehensive ESA compliance program for FIFRA actions. In a 
bipartisan letter sent to the Secretary of the Interior on June 
25, 2004, 92 members of the House of Representatives praised 
the decision to establish a compliance program and urged prompt 
publication of a final rule, which occurred less than a month 
and a half later.
    The August 5, 2004, rule which established specific 
procedures to ensure that FIFRA actions comply with the ESA 
section 7 consultation requirements was promulgated under the 
authority of the Secretaries' 1986 general consultation 
regulations. The 1986 regulations authorized the development of 
alternative rules focused on certain federal agency actions 
that may benefit from ESA implementation procedures 
specifically tailored to those actions. The new 2004 rule 
constitutes such a focused regulation for ESA compliance on 
FIFRA actions, consistent with the 1988 ESA Amendments Act. 
However, the procedures mandated in the ESA compliance program 
established by the new rule will take some time to complete for 
all registered pesticide products (675 primary products) and 
all listed species.
    Section 20 of TESRA was adopted by the Committee to give 
the affected agencies breathing room to properly implement the 
new rule. It states that, for a specific period of time, 
satisfaction of FIFRA's rigorous requirements for collection 
and submission of scientific data and scientific review of 
ecological risks (including effects on wildlife and ESA listed 
species) will constitute, for registration and use of any 
particular pesticide, compliance with the ESA's consultation 
and ``take'' avoidance requirements. So as to ensure 
expeditious proceedings under the new rule's ESA compliance 
program, the amendment is effective only for a period of five 
years or until the pesticide undergoes those proceedings, 
whichever is earlier. Moreover, TESRA's section 20 states that 
it may not affect any court order or settlement. The Committee 
expects that all of the currently filed litigation should be 
settled or concluded before enactment of TESRA; indeed, half of 
the cases filed to date have already been settled or concluded 
(and orders issued). This section 20 will ensure that use of 
pesticides critical for control of pests, disease vectors, and 
destructive invasive plants and animals, and for protection of 
food and fiber production, will not be terminated or 
compromised, and that manufacturers, and farmers, utilities, 
mosquito control districts, and other users will not be at risk 
of violating one environmental law (ESA) while complying with 
another (FIFRA) during implementation of the 2004 rule adopted 
to remedy the alleged three-decade-long non-compliance by 
federal agencies.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) 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 this bill. However, clause 3(d)(3)(B) 
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 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, credit 
authority, or an increase or decrease in revenues or tax 
expenditures. According to the Congressional Budget Office, 
enactment of this bill could total less than $10 million over 
the 2006-2010 time period in direct spending.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend and reauthorize the 
Endangered Species Act of 1973 to provide greater results 
conserving and recovering listed species, and for other 
purposes.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII 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 this bill from the Director of the Congressional Budget 
Office:

H.R. 3824--Threatened and Endangered Species Recovery Act of 2005

    Summary: H.R. 3824 would amend the Endangered Species Act 
(ESA) and authorize appropriations to the Department of the 
Interior (DOI) and the Department of Agriculture of whatever 
amounts are necessary to carry out the act through 2010. The 
bill also would create new financial assistance programs and 
provide statutory authority for certain other grants and 
cooperative agreements administered by DOI. The legislation 
also would increase direct spending by requiring the Secretary 
of the Interior to pay aid to private landowners who are 
prohibited from using their property under certain 
circumstances.
    CBO estimates that the U.S. Fish and Wildlife Service 
(USFWS) and the Animal and Plant Health Inspection Service 
(APHIS) would spend a total of about $2.7 billion over the 
2006-2010 period to carry out and enforce the ESA as amended by 
this legislation, assuming appropriation of the necessary 
amounts. (That total includes spending from funds already 
appropriated for 2006 and prior years.)
    The cost of providing payment of aid to certain land owners 
is uncertain and would depend on how the legislation would be 
interpreted by the Administration, private property owners, and 
the courts. While CBO cannot predict the impact of the aid 
requirement on the total costs of carrying out the ESA over 
time, we estimate that federal payments over the 2006-2010 
period would likely total less than $10 million because of 
likely delays in resolving conflicting interpretations of the 
law, implementing the necessary administrative mechanisms, and 
processing requests. The costs of those payments the program 
has been fully implemented could be much more significant-
despite the likely small size of individual payments--because 
the volume of requests could be very large at first. After 
2010, we expect that such payments would probably average less 
than $20 million a year--though annual amounts would likely 
vary significantly from year to year.
    H.R. 3824 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA), 
and would impose no significant additional costs on state, 
local, or tribal governments. Some provisions in this bill 
would give state or local governments a greater role in 
carrying out the Endangered Species Act. Any costs they might 
incur in response would be incurred voluntarily.
    Estimated Cost to the Federal Government: The estimated 
discretionary budgetary effects of implementing H.R. 3824 are 
summarized in the following table. The costs of this 
legislation fall within budget function 300 (natural resources 
and environment).

------------------------------------------------------------------------
                                By fiscal year, in millions of dollars--
                               -----------------------------------------
                                 2005   2006   2007   2008   2009   2010
------------------------------------------------------------------------
                    SPENDING SUBJECT TO APPROPRIATION


ESA Spending Under Current
 Law:
    Budget Authority 1, 2.....    358    379      0      0      0      0
    Estimated Outlays.........    340    350    200    100      0      0
Proposed Changes:
    Estimated Authorization         0    118    614    630    649    668
     Level....................
    Estimated Outlays.........      0     91    354    453    528    600
ESA Spending Under H.R. 3765:
    Specified Authorization       358    497    614    630    649    668
     Level \1\................
    Estimated Authorization       340    441    554    553    528    600
     Level....................



                       CHANGES IN DIRECT SPENDING


Estimated Budget Authority....      0      0      0      0      1      5
Estimated Outlays.............      0      0      0      0      1     5
------------------------------------------------------------------------
\1\ The 2005 and 2006 levels are the amounts appropriated for USFWS and
  APHIS activities authorized by this bill.
\2\ Excludes grants to states from the Cooperative Endangered Species
  Fund because the authority to provide such assistance does not expire
  under existing law.

    Amounts in the table include only the costs of ESA 
activities carried out by the USFWS and APHIS. H.R. 3824 would 
not authorize appropriations for ESA programs carried out by 
the National Oceanic and Atmospheric Administration, which is 
responsible for protecting threatened or endangered marine 
species. Also, the activities of other DOI agencies such asthe 
Bureau of Land Management and the Bureau of Reclamation (both of which 
incur significant costs to protect endangered and threatened species on 
lands under their jurisdiction) and the costs of other federal agencies 
who must comply with the ESA are not included in this estimate.
    Basis of estimate: For purposes of this estimate, CBO has 
assumed that H.R. 3824 will be enacted during fiscal year 2006 
and that the entire amounts estimated to be necessary to carry 
out the bill will be appropriated for each of fiscal years 2006 
through 2010. This estimate is based on information provided by 
the Office of Management and Budget, the Department of the 
Interior, nonprofit organizations, and various state agencies. 
Outlays for administrative activities have been estimated on 
the basis of historical spending patterns for ongoing ESA 
programs. Spending rates for new assistance programs under the 
bill reflect expected delays because of the time that would be 
required to promulgate new regulations and develop 
administrative procedures.

Spending subject to appropriation

    The Congress appropriated $358 million for 2005 and $379 
million for 2006 to carry out ESA activities. CBO estimates 
that, under H.R. 3824, discretionary funding could rise to more 
than $600 million a year.
    Administrative Costs. Although authorizations for funding 
under the ESA expired in 1992, Congress has continued to 
provide funds each year for programs carried out under the act. 
For fiscal year 2005, the Congress provided $234 million for 
traditional ESA activities and programs carried out by the 
USFWS.
    CBO estimates that the USFWS would need additional funding 
of $118 million in fiscal year 2006 and a total of $2.6 billion 
over the 2006-2010 period to carry out its responsibilities as 
the primary agency charged with implementing the ESA (as 
amended by H.R. 3824). In total, this estimated funding level 
is more than double the agency's ESA operating budget in recent 
years. The higher estimated authorization levels reflect the 
costs of developing and administering new financial assistance 
programs, modifying USFWS regulatory procedures to incorporate 
amendments made by the bill, and meeting new planning 
deadlines. We estimate that funding for APHIS, which helps to 
enforce the act, would continue at its existing level of 
roughly $7 million a year.
    The estimated authorization levels for the USFWS include:
           About $240 million a year to carry out 
        traditional FWS regulatory programs to identify, 
        evaluate, and protect threatened or endangered species, 
        develop and implement habitat conservation plans and 
        species recovery plans, and consult with other federal 
        agencies that carry out, authorize, or fund projects 
        that may affect protected species;
           $6 million annually for the implementation 
        of the Convention on International Trade in Endangered 
        Species (CITES);
           About $115 million a year to implement 
        changes to existing ESA programs required by the bill, 
        including costs to incorporate new definitions to be 
        used in USFWS regulatory procedures, expedite the 
        development of recovery plans to reflect new deadlines, 
        and establish new financial assistance programs 
        mandated by sections 9 and 13 of the bill;
           $2 million in each of fiscal years 2006 and 
        2007 to create and maintain an online database of ESA 
        information as required by section 14;
           Between $5 million and $10 million annually 
        to process requests made by property owners under 
        sections 12 and 13 of the bill. Under section 12, 
        persons whose land may be home to a protected species 
        could request the Secretary of the Interior to provide 
        a written determination that a proposed use of that 
        property would comply with the ESA. The Secretary would 
        have 180 days to make a determination unless an 
        extension is negotiated; failure to do so would be 
        deemed to be an approval of the proposed use. Section 
        13 would allow property owners to apply for aid to 
        compensate them for the loss of property value if they 
        receive a written determination from the Secretary that 
        a proposed land use would not comply with the ESA; and
           $1 million a year to compensate landowners 
        for livestock killed by protected species that have 
        been reintroduced to the wild as part of a recovery 
        plan.
    Discretionary Grants, Cooperative Agreements, and Other 
Assistance. H.R. 3824 would authorize the USFWS to provide 
nonfederal entities with several forms of financial assistance, 
subject to the availability of appropriated funds. The 
assistance programs authorized by the bill would provide annual 
payments to states, local governments, nonprofit organizations, 
and private landowners who assume conservation and planning 
responsibilities under the ESA. The bill also would expand the 
purposes for which state grants from the Cooperative Endangered 
Species Fund (CESF) may be used.
    CBO estimates that the USFWS would need $240 million 
annually to fully fund and administer the grant programs and 
cooperative agreements envisioned by the bill, or about $140 
million more than the amounts appropriated for similar programs 
for fiscal year 2006.

Direct spending

    Section 13 of the bill would provide an administrative 
procedure for providing payment of aid to landowners whose use 
of their property has been restricted by ESA regulatory 
decisions. CBO expects that enacting this provision would 
result in new direct spending, but the level of such spending 
is uncertain. This provision would direct the Secretary of the 
Interior to make a one-time payment to any landowner who 
requests aid within 180 days of receiving a written 
determination under section 12 of the bill that a proposed use 
of the landowner's property would not comply with the ESA (or 
that a prior, favorable determination has been withdrawn). The 
amount of any payment would be equal to the fair market value 
of the forgone use of the affected portion of the property, as 
determined by an independent appraisal and taking into account 
whether or not the proposed use would have been allowed under 
state and local law. The Secretary would be required to pay the 
landowner within 180 days of receiving the request or within 
180 days of resolving any valuation disputes or other 
conflicts. Such mandatory payments would increase direct 
spending costs.
    CBO estimates that such costs would likely be small over 
the next five years--probably less than $10 million.
    This provision would make it much easier (and cheaper) for 
private landowners to seek and obtain compensation from the 
federal government by allowing them to request such aid 
directly from the Secretary rather than filing a lawsuit 
against the United States (as they must under current law).
    In addition to providing an alternative to litigation, the 
bill would change current law in two important ways that could 
affect how property owners seek, and how the government pays, 
compensation. First, the bill would delineate specific 
standards, definitions, and valuation procedures to be used in 
determining when and what the government is obligated to pay 
when its actions under the ESA prohibit the use of private 
property. Second, the procedure created by section 12 of the 
bill (to allow property owners to obtain written determinations 
permitting or rejecting a proposed use of their property) would 
provide these owners with a definitive agency action that would 
constitute the basis of a claim for compensation if they still 
choose to sue.
    Compensation Under Current Law. Under existing law, persons 
who wish to seek compensation for property that they believe 
has been adversely affected by a government action (including 
administration of the ESA) usually must do so through 
litigation--generally in the United States Court of Claims.
    The process is time-consuming and expensive. In order for a 
property owner to sue for compensation, he or she must first 
overcome the costly administrative hurdle of seeking and being 
denied an incidental take statement or obtaining some other 
regulatory determination from the government. Property owners 
who pursue such claims can wait years before their cases are 
heard. Decisions unfavorable to the government have been rare 
in the past because of the high loss thresholds and other 
valuation hurdles that the landowner must overcome before the 
courts will award compensation, and the government often 
appeals such awards. Because the costs of obtaining the 
necessary permit denial and associated legal costs are greater 
than most property owners can afford, relatively few 
compensation claims are brought against the United States 
(although there has been a steady increase in the past decade). 
Those cases that are brought typically involve relatively large 
claims ($100,000 to more than $100 million) and are usually 
brought by corporations or other large property owners. Such 
claims can require more than a decade to resolve. Smaller 
claims are rarely pursued because small landowners are unable 
to obtain the necessary permit denials or other agency 
decisions, cannot afford to sue the government, or would not 
expect to receive enough compensation to justify the 
substantial expense of attorneys and scientific experts.
    Compensation Under H.R. 3824. The creation of an 
administrative forum would make it much easier for private 
property owners to seek reimbursement when they are prohibited 
from using their property as a result of ESA regulations. 
Although the number of administrative claims could be quite 
large at first, CBO expects that relatively few or no payments 
would be made over the next several years because of the time 
required to implement the necessary procedures and make other 
case-by-case determinations. For example, no request could be 
processed under section 13 until the landowner receives a 
written determination against his or her proposed use under 
section 12, and CBO expects that it would take the USFWS one or 
two years to establish the administrative mechanisms needed to 
implement section 12 and begin processing the first requests 
for written determinations. Only then would landowners who 
receive notice that their proposed use is prohibited be able to 
request aid under section 13. Such landowners would likely face 
similar delays at this stage of the process, especially in the 
early years of the program, while the agency determines the 
property interest affected by its earlier decision and the fair 
market value of that interest.
    Once the aid program has been fully implemented, total 
payments to landowners would almost certainly be greater than 
the costs of compensating individuals who bring suit under 
existing law (particularly since there are so few such claims 
at present). CBO expects thatmost aid payments eventually made 
by the government would be relatively small (often as little as a few 
thousand dollars) because the vast majority of aid requests would 
likely involve small parcels of land or some minor fraction (``affected 
portion'') of larger tracts. However, the agency may face a large 
volume of requests, at least initially, because the availability of an 
administrative process would make it economically feasible for small 
landowners who often cannot afford to sue the government under existing 
legal avenues to seek compensation.
    We expect that it would be difficult for landowners to 
receive aid for larger claims above $1 million under the 
section 13 process because most larger land-use projects would 
be ineligible to receive written determinations under section 
12.
    After 2010, CBO estimates that payments would average less 
than $20 million a year. Such payments could vary significantly 
from year to year.
    CBO expects that civil litigation would increase as a 
result of H.R. 3824, at least in the short run, because many 
requests for aid would likely involve conflicting 
interpretations of the statute that could require the courts to 
resolve. Moreover, we expect that smaller landowners who choose 
to sue the government rather than apply for aid under section 
13 would find it easier to do so because they would be able to 
use the written determination prohibiting their proposed use as 
a basis for their claims. CBO cannot predict the outcomes of 
any lawsuits that might be brought as a result. Even if the 
government would ultimately lose more lawsuits as a result of 
the legislation, additional compensation costs would probably 
be minimal in the 2006-2010 period because claims would take 
several years to resolve. We expect that the effect on the 
number of larger claims would be less significant for the same 
reasons that we expect larger requests for aid to be 
unsuccessful.
    Intergovernmental and private-sector impact: H.R. 3824 
contains no intergovernmental or private-sector mandates as 
defined in UMRA, and would impose no significant additional 
costs on State, local, or tribal governments. Some provisions 
in this bill would give state and local governments a greater 
role in carrying out the ESA. Any costs they might incur in 
response would be incurred voluntarily.
    Estimate prepared by: Federal Costs: Deborah Reis. Impact 
on State, Local, and Tribal Governments: Marjorie Miller. 
Impact on the Private Sector: Selena Caldera.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, 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. 5. Land acquisition.]
Sec. 5. Recovery plans and land acquisition.
     * * * * * * *
[Sec. 13. Conforming amendments.
[Sec. 14. Repealer.
[Sec. 15. Authorization of appropriations.
[Sec. 16. Effective date.
[Sec. 17. Marine Mammal Protection Act of 1972.]
Sec. 13. Private property conservation.
Sec. 14. Public accessibility and accountability.
Sec. 15. Marine Mammal Protection Act of 1972.
Sec. 16. Annual cost analysis by United States Fish and Wildlife 
          Service.
Sec. 17. Reimbursement for depredation of livestock by reintroduced 
          species.
Sec. 18. Authorization of appropriations.

           *       *       *       *       *       *       *


                              DEFINITIONS

  Sec. 3. For the purposes of this Act--
  (1) * * *
  (2)(A) The term ``best available scientific data'' means 
scientific data, regardless of source, that are available to 
the Secretary at the time of a decision or action for which 
such data are required by this Act and that the Secretary 
determines are the most accurate, reliable, and relevant for 
use in that decision or action.
  (B) Not later than one year after the date of the enactment 
of the Threatened and Endangered Species Recovery Act of 2005, 
the Secretary shall issue regulations that establish criteria 
that must be met to determine which data constitute the best 
available scientific data for purposes of subparagraph (A).
  (C) If the Secretary determines that data for a decision or 
action do not comply with the criteria established by the 
regulations issued under subparagraph (B), do not comply with 
guidance issued under section 515 of the Treasury and General 
Government Appropriations Act, 2001 (Public Law 106-554; 114 
Stat. 2763A-171) by the Director of the Office of Management 
and Budget and the Secretary, do not consist of any empirical 
data, or are found in sources that have not been subject to 
peer review in a generally acceptable manner--
          (i) the Secretary shall undertake the necessary 
        measures to assure compliance with such criteria or 
        guidance; and
          (ii) the Secretary may--
                  (I) secure such empirical data;
                  (II) seek appropriate peer review; and
                  (III) reconsider the decision or action based 
                on any supplemental or different data provided 
                or any peer review conducted pursuant to this 
                subparagraph.
  [(2)] (3) The term ``commercial activity'' means all 
activities of industry and trade, including, but not limited 
to, the buying or selling of commodities and activities 
conducted for the purpose of facilitating such buying and 
selling: Provided, however, That it does not include 
exhibitions of commodities by museums or similar cultural or 
historical organizations.
  [(3)] (4) The terms ``conserve,'' ``conserving,'' and 
``conservation'' mean to use and the use of all methods and 
procedures which are necessary to bring any endangered species 
or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all 
activities associated with scientific resources management such 
as research, census, law enforcement, habitat acquisition and 
maintenance, propagation, live trapping, and transplantation, 
and, in the extraordinary case where population pressures 
within a given ecosystem cannot be otherwise relieved, may 
include regulated taking.
  [(4)] (5) The term ``Convention'' means the Convention on 
International Trade in Endangered Species of Wild Fauna and 
Flora, signed on March 3, 1973, and the appendices thereto.
  [(5)(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.]

           *       *       *       *       *       *       *

  (11) The term ``jeopardize the continued existence'' means, 
with respect to an agency action (as that term is defined in 
section 7(a)(2)), that the action reasonably would be expected 
to significantly impede, directly or indirectly, the 
conservation in the long-term of the species in the wild.
  [(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.]
  (12) The term ``permit or license applicant'' means, when 
used with respect to an action of a Federal agency that is 
subject to section 7(a) or (b), any person that has applied to 
such agency for a permit or license or for formal legal 
approval to perform an act.

           *       *       *       *       *       *       *


      [DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

  [Sec. 4. (a) General.--(1) The Secretary shall by regulation 
promulgated in accordance with subsection (b) determine whether 
any species is an endangered species or a threatened species 
because of any of the following factors:
          [(A) the present or threatened destruction, 
        modification, or curtailment of its habitat or range;
          [(B) overutilization for commercial, recreational, 
        scientific, or educational purposes;
          [(C) disease or predation;
          [(D) the inadequacy of existing regulatory 
        mechanisms; or
          [(E) other natural or manmade factors affecting its 
        continued existence.
  [(2) With respect to any species over which program 
responsibilities have been vested in the Secretary of Commerce 
pursuant to Reorganization Plan Numbered 4 of 1970--
          [(A) in any case in which the Secretary of Commerce 
        determines that such species should--
                  [(i) be listed as an endangered species or a 
                threatened species, or
                  [(ii) be changed in status from a threatened 
                species to an endangered species, he shall so 
                inform the Secretary of the Interior, who shall 
                list such species in accordance with this 
                section;
          [(B) in any case in which the Secretary of Commerce 
        determines that such species should--
                  [(i) be removed from any list published 
                pursuant to subsection (c) of this section, or
                  [(ii) be changed in status from an endangered 
                species to a threatened species, he shall 
                recommend such action to the Secretary of the 
                Interior, and the Secretary of the Interior, if 
                he concurs in the recommendation, shall 
                implement such action; and
          [(C) the Secretary of the Interior may not list or 
        remove from any list any such species, and may not 
        change the status of any such species which are listed, 
        without a prior favorable determination made pursuant 
        to this section by the Secretary of Commerce.
  [(3)(A) The Secretary, by regulation promulgated in 
accordance with subsection (b) and to the maximum extent 
prudent and determinable--
          [(i) shall, concurrently with making a determination 
        under paragraph (1) that a species is an endangered 
        species or a threatened species, designate any habitat 
        of such species which is then considered to be critical 
        habitat; and
          [(ii) may, from time-to-time thereafter as 
        appropriate, revise such designation.
  [(B)(i) The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by 
the Department of Defense, or designated for its use, that are 
subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides 
a benefit to the species for which critical habitat is proposed 
for designation.
  [(ii) Nothing in this paragraph affects the requirement to 
consult under section 7(a)(2) with respect to an agency action 
(as that term is defined in that section).
  [(iii) Nothing in this paragraph affects the obligation of 
the Department of Defense to comply with section 9, including 
the prohibition preventing extinction and taking of endangered 
species and threatened species.]

       DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

  Sec. 4. (a) In 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 by 
        human activities, competition from other species, 
        drought, fire, or other catastrophic natural causes.
          (B) Overutilization for commercial, recreational, 
        scientific, or educational purposes.
          (C) Disease or predation.
          (D) The inadequacy of existing regulatory mechanisms, 
        including any efforts identified pursuant to subsection 
        (b)(1).
          (E) Other natural or manmade factors affecting its 
        continued existence.
  (2) The Secretary shall use the authority provided by 
paragraph (1) to determine any distinct population of any 
species of vertebrate fish or wildlife to be an endangered 
species or a threatened species only sparingly.
  (b) Basis for 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] best available scientific data after conducting a review 
of the status of the species and after taking into account 
those efforts, if any, being made by any Federal agency, 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.
  [(2) The Secretary shall designate critical habitat, and make 
revisions thereto, under subsection (a)(3) on the basis of the 
best scientific data available and after taking into 
consideration the economic impact, the impact on national 
security, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude 
any area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he 
determines, based on the best scientific and commercial data 
available, that the failure to designate such area as critical 
habitat will result in the extinction of the species 
concerned.]
  [(3)] (2)(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. The Secretary shall not make a finding 
that the petition presents substantial scientific or commercial 
information indicating that the petitioned action may be 
warranted unless the petitioner provides to the Secretary a 
copy of all information cited in the petition.
          * * * * * * *
  [(D)(i) To the maximum extent practicable, within 90 days 
after receiving the petition of an interested person under 
section 553(e) of title 5, United States Code, to revise a 
critical habitat designation, the Secretary shall make a 
finding as to whether the petition presents substantial 
scientific information indicating that the revision may be 
warranted. The Secretary shall promptly publish such finding in 
the Federal Register.
  [(ii) Within 12 months after receiving a petition that is 
found under clause (i) to present substantial information 
indicating that the requested revision may be warranted, the 
Secretary shall determine how he intends to proceed with the 
requested revision, and shall promptly publish notice of such 
intention in the Federal Register.]
  [(4)] (3) 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)] (4) With respect to any regulation proposed by the 
Secretary to implement a [determination, designation, or 
revision referred to in subsection (a)(1) or (3)] determination 
referred to in subsection (a)(1), 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] to the 
                Governor of, and 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] such Governor or agency, and each such 
                jurisdiction, thereon; and
                  (iii) maintain, and shall make available, a 
                complete record of all information concerning 
                the determination or revision in the possession 
                of the Secretary, on a publicly accessible 
                website on the Internet, including an index to 
                such information.
          (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] the 
        Secretary deems appropriate;
          * * * * * * *
  [(6)] (5)(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.]
          (i) a final regulation to implement such a 
        determination of whether a species is an endangered 
        species or a threatened species;
          (ii) notice that such one-year period is being 
        extended under subparagraph (B)(i); or
          (iii) notice that the proposed regulation is being 
        withdrawn under subparagraph (B)(ii), together with the 
        finding on which such withdrawal is based.
  (B)(i) If the Secretary finds with respect to a proposed 
regulation referred to in [subparagraph (A)(i)] subparagraph 
(A) 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)] subparagraph (A) 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] the Secretary determines that 
sufficient new information is available to warrant such 
proposal.

           *       *       *       *       *       *       *

  [(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)] (6) Neither paragraph (4), (5), or (6) of this 
subsection nor section 553 of title 5, United States Code, 
shall apply to any regulation with respect to a determination 
of a species to be an endangered species or a threatened 
species issued by the Secretary in regard to any emergency 
posing a significant risk to the well-being of any species of 
fish and wildlife or plants, but only if--
          (A) at the time of publication of the regulation in 
        the Federal Register the Secretary publishes therein 
        detailed reasons why such regulation is necessary; and
          (B) in the case such regulation applies to resident 
        species of fish or wildlife, or plants, the Secretary 
        gives actual notice of such regulation to [the State 
        agency in] the Governor of, and 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] the 
Secretary, that substantial evidence does not exist to warrant 
such regulation, [he] the Secretary shall withdraw it.
  [(8)] (7) The publication in the Federal Register of any 
proposed or final regulation which is necessary or appropriate 
to carry out the purposes of this Act shall include a summary 
by the Secretary of the data on which such regulation is based 
and shall show the relationship of such data to such 
regulation[; and if such regulation designates or revises 
critical habitat, such summary shall, to the maximum extent 
practicable, also include a brief description and evaluation of 
those activities (whether public or private) which, in the 
opinion of the Secretary, if undertaken may adversely modify 
such habitat, or may be affected by such designation.].
  (8)(A) Information maintained and made available under 
paragraph (5)(A)(iii) shall include any status review, all 
information cited in such a status review, all information 
referred to in the proposed regulation and the preamble to the 
proposed regulation, and all information submitted to the 
Secretary by third parties.
          (B) The Secretary shall withhold from public review 
        under paragraph (5)(A)(iii) any information that may be 
        withheld under 552 of title 5, United States Code.
  (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] the Secretary to be 
endangered species and a list of all species determined by [him 
or the Secretary of Commerce] the Secretary to be threatened 
species. Each list shall refer to the species contained therein 
by scientific and common name or names, if any and, 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).]
  (2)(A) The Secretary shall--
                  (i) conduct, at least once every 5 years, 
                based on the information collected for the 
                biennial reports to the Congress required by 
                paragraph (3) of subsection (f), a review of 
                all species included in a list that is 
                published pursuant to paragraph (1) and that is 
                in effect at the time of such review; and
                  (ii) determine on the basis of such review 
                and any other information the Secretary 
                considers relevant whether any such species 
                should--
                          (I) be removed from such list;
                          (II) be changed in status from an 
                        endangered species to a threatened 
                        species; or
                          (III) be changed in status from a 
                        threatened species to an endangered 
                        species.
          (B) Each determination under subparagraph (A)(ii) 
        shall be made in accordance with subsections (a) and 
        (b).
  (3) Each determination under paragraph (2)(B) shall consider 
one of the following:
          (A) Except as provided in subparagraph (B) of this 
        paragraph, the criteria in the recovery plan for the 
        species required by section 5(c)(1)(A) or (B).
          (B) If the recovery plan is issued before the 
        criteria required under section 5(c)(1)(A) and (B) are 
        established or if no recovery plan exists for the 
        species, the factors for determination that a species 
        is an endangered species or a threatened species set 
        forth in subsections (a)(1) and (b)(1).
          (C) A finding of fundamental error in the 
        determination that the species is an endangered 
        species, a threatened species, or extinct.
          (D) A determination that the species is no longer an 
        endangered species or threatened species or in danger 
        of extinction, based on an analysis of the factors that 
        are the basis for listing under section 4(a)(1).
  (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.
  [(f)(1) Recovery Plans.--The Secretary shall develop and 
implement plans (hereinafter in this subsection referred to as 
``recovery plans'') for the conservation and survival of 
endangered species and threatened species listed pursuant to 
this section, unless he finds that such a plan will not promote 
the conservation of the species. The Secretary, in developing 
and implementing recovery plans, shall, to the maximum extent 
practicable--
          [(A) give priority to those endangered species or 
        threatened species, without regard to taxonomic 
        classification, that are most likely to benefit from 
        such plans, particularly those species that are, or may 
        be, in conflict with construction or other development 
        projects or other forms of economic activity;
          [(B) incorporate in each plan--
                  [(i) a description of such site-specific 
                management actions as may be necessary to 
                achieve the plan's goal for the conservation 
                and survival of the species;
                  [(ii) objective, measurable criteria which, 
                when met, would result in a determination, in 
                accordance with the provisions of this section, 
                that the species be removed from the list; and
                  [(iii) estimates of the time required and the 
                cost to carry out those measures needed to 
                achieve the plan's goal and to achieve 
                intermediate steps toward that goal.
  [(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) 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) Agency] (f) Secretarial Guidelines.--The Secretary shall 
establish, and publish in the Federal Register, agency 
guidelines to insure that [the purposes of this section are 
achieved] this section is implemented efficiently and 
effectively. Such guidelines shall include, but are not limited 
to--
          (1) procedures for recording the receipt and the 
        disposition of petitions submitted under subsection 
        (b)(3) of this section;
          (2) criteria for making the findings required under 
        such subsection with respect to petitions;
          (3) a ranking system to assist in the identification 
        of species that should receive priority review under 
        subsection (a)(1) of the section; [and]
          (4) the criteria for determining best available 
        scientific data pursuant to section 3(2); and
          [(4)] (5) a system for developing and implementing, 
        on a priority basis, recovery plans under [subsection 
        (f) of this section] section 5.
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)] (g) Comments.--If, in the case of any regulation 
proposed by the Secretary under the authority of this section, 
[a State agency] a Governor, State agency, county (or 
equivalent jurisdiction), or unit of local government 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] a Governor, State agency, county 
(or equivalent jurisdiction), or unit of local government under 
subsection (b)(3), the Secretary shall submit to [the State 
agency] the Governor, State agency, county (or equivalent 
jurisdiction), or unit of local government, respectively a 
written justification for [his] the failure to adopt 
regulations consistent with the [agency's] comments or 
petition.

                           [LAND ACQUISITION

  [Sec. 5.]

                  RECOVERY PLANS AND LAND ACQUISITION

  Sec. 5. (a) Recovery Plans.--The Secretary shall, in 
accordance with this section, develop and implement a plan (in 
this subsection referred to as a ``recovery plan'') for the 
species determined under section 4(a)(1) to be an endangered 
species or a threatened species, unless the Secretary finds 
that such a plan will not promote the conservation and survival 
of the species.
  (b) Development of Recovery Plans.--(1) Subject to paragraphs 
(2) and (3), the Secretary, in developing recovery plans, 
shall, to the maximum extent practicable, give priority to 
those endangered species or threatened species, without regard 
to taxonomic classification, that are most likely to benefit 
from such plans, particularly those species that are, or may 
be, in conflict with construction or other development projects 
or other forms of economic activity.
  (2) In the case of any species determined to be an endangered 
species or threatened species after the date of the enactment 
of the Threatened and Endangered Species Recovery Act of 2005, 
the Secretary shall publish a final recovery plan for a species 
within 2 years after the date the species is listed under 
section 4(c).
  (3)(A) For those species that are listed under section 4(c) 
on the date of enactment of the Threatened and Endangered 
Species Recovery Act of 2005 and are described in subparagraph 
(B) of this paragraph, the Secretary, after providing for 
public notice and comment, shall--
          (i) not later than 1 year after such date, publish in 
        the Federal Register a priority ranking system for 
        preparing or revising such recovery plans that is 
        consistent with paragraph (1) and takes into 
        consideration the scientifically based needs of the 
        species; and
          (ii) not later than 18 months after such date, 
        publish in the Federal Register a list of such species 
        ranked in accordance with the priority ranking system 
        published under clause (i) for which such recovery 
        plans will be developed or revised, and a tentative 
        schedule for such development or revision.
  (B) A species is described in this subparagraph if--
          (i) a recovery plan for the species is not published 
        under this Act before the date of enactment of the 
        Threatened and Endangered Species Recovery Act of 2005 
        and the Secretary finds such a plan would promote the 
        conservation and survival of the species; or
          (ii) a recovery plan for the species is published 
        under this Act before such date of enactment and the 
        Secretary finds revision of such plan is warranted.
  (C)(i) The Secretary shall, to the maximum extent 
practicable, adhere to the list and tentative schedule 
published under subparagraph (A)(ii) in developing or revising 
recovery plans pursuant to this paragraph.
  (ii) The Secretary shall provide the reasons for any 
deviation from the list and tentative schedule published under 
subparagraph (A)(ii), in each report to the Congress under 
subsection (e).
  (4) The Secretary, using the priority ranking system required 
under paragraph (3), shall prepare or revise such plans within 
10 years after the date of the enactment of the Threatened and 
Endangered Species Recovery Act of 2005.
  (c) Plan Contents.--(1)(A) Except as provided in subparagraph 
(E), a recovery plan shall be based on the best available 
scientific data and shall include the following:
          (i) Objective, measurable criteria that, when met, 
        would result in a determination, in accordance with 
        this section, that the species to which the recovery 
        plan applies be removed from the lists published under 
        section 4(c) or be reclassified from an endangered 
        species to a threatened species.
          (ii) A description of such site-specific or other 
        measures that would achieve the criteria established 
        under clause (i), including such intermediate measures 
        as are warranted to effect progress toward achievement 
        of the criteria.
          (iii) Estimates of the time required and the costs to 
        carry out those measures described under clause (ii), 
        including, to the extent practicable, estimated costs 
        for any recommendations, by the recovery team, or by 
        the Secretary if no recovery team is selected, that any 
        of the areas identified under clause (iv) be acquired 
        on a willing seller basis.
          (iv) An identification of those specific areas that 
        are of special value to the conservation of the 
        species.
  (B) Those members of any recovery team appointed pursuant to 
subsection (d) with relevant scientific expertise, or the 
Secretary if no recovery team is appointed, shall, based solely 
on the best available scientific data, establish the objective, 
measurable criteria required under subparagraph (A)(i).
  (C)(i) If the recovery team, or the Secretary if no recovery 
team is appointed, determines in the recovery plan that 
insufficient best available scientific data exist to determine 
criteria or measures under subparagraph (A) that could achieve 
a determination to remove the species from the lists published 
under section 4(c), the recovery plan shall contain interim 
criteria and measures that are likely to improve the status of 
the species.
  (ii) If a recovery plan does not contain the criteria and 
measures provided for by clause (i) of subparagraph (A), the 
recovery team for the plan, or by the Secretary if no recovery 
team is appointed, shall review the plan at intervals of no 
greater than 5 years and determine if the plan can be revised 
to contain the criteria and measures required under 
subparagraph (A).
  (iii) If the recovery team or the Secretary, respectively, 
determines under clause (ii) that a recovery plan can be 
revised to add the criteria and measures provided for under 
subparagraph (A), the recovery team or the Secretary, as 
applicable, shall revise the recovery plan to add such criteria 
and measures within 2 years after the date of the 
determination.
  (D) In specifying measures in a recovery plan under 
subparagraph (A), a recovery team or the Secretary, as 
applicable, shall--
          (i) whenever possible include alternative measures; 
        and
          (ii) in developing such alternative measures, the 
        Secretary shall seek to identify, among such 
        alternative measures of comparable expected efficacy, 
        the alternative measures that are least costly.
  (E) Estimates of time and costs pursuant to subparagraph 
(A)(iii), and identification of the least costly alternatives 
pursuant to subparagraph (D)(ii), are not required to be based 
on the best available scientific data.
  (2) Any area that, immediately before the enactment of the 
Threatened and Endangered Species Recovery Act of 2005, is 
designated as critical habitat of an endangered species or 
threatened species shall be treated as an area described in 
subparagraph (A)(iv) until a recovery plan for the species is 
developed or the existing recovery plan for the species is 
revised pursuant to subsection (b)(3).
  (d) Recovery Teams.--(1) The Secretary shall promulgate 
regulations that provide for the establishment of recovery 
teams for development of recovery plans under this section.
  (2) Such regulations shall--
          (A) establish criteria and the process for selecting 
        the members of recovery teams, and the process for 
        preparing recovery plans, that ensure that each team--
                  (i) is of a size and composition to enable 
                timely completion of the recovery plan; and
                  (ii) includes sufficient representation from 
                constituencies with a demonstrated direct 
                interest in the species and its conservation or 
                in the economic and social impacts of its 
                conservation to ensure that the views of such 
                constituencies will be considered in the 
                development of the plan;
          (B) include provisions regarding operating procedures 
        of and recordkeeping by recovery teams;
          (C) ensure that recovery plans are scientifically 
        rigorous and that the evaluation of costs required by 
        paragraphs (1)(A)(iii) and (1)(D) of subsection (c) are 
        economically rigorous; and
          (D) provide guidelines for circumstances in which the 
        Secretary may determine that appointment of a recovery 
        team is not necessary or advisable to develop a 
        recovery plan for a specific species, including 
        procedures to solicit public comment on any such 
        determination.
  (3) The Federal Advisory Committee Act (5 App. U.S.C.) shall 
not apply to recovery teams appointed in accordance with 
regulations issued by the Secretary under this subsection.
  (e) Reports to Congress.--(1) The Secretary shall report 
every two years to the Committee on Resources of the House of 
Representatives and the Committee on Environment and Public 
Works of the Senate on the status of all domestic endangered 
species and threatened species and the status of efforts to 
develop and implement recovery plans for all domestic 
endangered species and threatened species.
  (2) In reporting on the status of such species since the time 
of its listing, the Secretary shall include--
          (A) an assessment of any significant change in the 
        well-being of each such species, including--
                  (i) changes in population, range, or threats; 
                and
                  (ii) the basis for that assessment; and
          (B) for each species, a measurement of the degree of 
        confidence in the reported status of such species, 
        based upon a quantifiable parameter developed for such 
        purposes.
  (f) Public Notice and Comment.--The Secretary shall, prior to 
final approval of a new or revised recovery plan, provide 
public notice and an opportunity for public review and comment 
on such plan. The Secretary shall consider all information 
presented during the public comment period prior to approval of 
the plan.
  (g) State Comment.--The Secretary shall, prior to final 
approval of a new or revised recovery plan, provide a draft of 
such plan and an opportunity to comment on such draft to the 
Governor of, and State agency in, any State to which such draft 
would apply. The Secretary shall include in the final recovery 
plan the Secretary's response to the comments of the Governor 
and the State agency.
  (h) Consultation to Ensure Consistency With Development 
Plan.--(1) The Secretary shall, prior to final approval of a 
new or revised recovery plan, consult with any pertinent State, 
Indian tribe, or regional or local land use agency or its 
designee.
  (2) For purposes of this Act, the term ``Indian tribe'' 
means--
  (A) with respect to the 48 contiguous States, any federally 
recognized Indian tribe, organized band, pueblo, or community; 
and
  (B) with respect to Alaska, the Metlakatla Indian Community.
  (i) Use of Plans.--(1) Each Federal agency shall consider any 
relevant best available scientific data contained in a recovery 
plan in any analysis conducted under section 102 of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4332).
  (2)(A)(i) The head of any Federal agency may enter into an 
agreement with the Secretary specifying the measures the agency 
will carry out to implement a recovery plan.
  (ii) Each such agreement shall be published in draft form 
with notice and an opportunity for public comment.
  (iii) Each such final agreement shall be published, with 
responses by the head of the Federal agency to any public 
comments submitted on the draft agreement.
  (B) Nothing in a recovery plan shall be construed to 
establish regulatory requirements.
  (j) Monitoring.--(1) The Secretary shall implement a system 
in cooperation with the States to monitor effectively for not 
less than five years the status of all species that have 
recovered to the point at which the measures provided pursuant 
to this Act are no longer necessary and that, in accordance 
with this section, have been removed from the lists published 
under section 4(c).
  (2) The Secretary shall make prompt use of the authority 
under section 4(b)(6) to prevent a significant risk to the 
well-being of any such recovered species.
  [(a)] (k) 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] the Secretary.
  [(b)] (l) 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] 
subsection (k).
  (m) Threatened and Endangered Species Incentives Program.--
(1) The Secretary may enter into species recovery agreements 
pursuant to paragraph (2) and species conservation contract 
agreements pursuant to paragraph (3) with persons, other than 
agencies or departments of the Federal Government or State 
governments, under which the Secretary is obligated, subject to 
the availability of appropriations, to make annual payments or 
provide other compensation to the persons to implement the 
agreements.
  (2)(A) The Secretary and persons who own or control the use 
of private land may enter into species recovery agreements with 
a term of not less than 5 years that meet the criteria set 
forth in subparagraph (B) and are in accordance with the 
priority established in subparagraph (C).
  (B) A species recovery agreement entered into under this 
paragraph by the Secretary with a person--
          (i) shall require that the person shall carry out, on 
        the land owned or controlled by the person, activities 
        that--
                  (I) protect and restore habitat for covered 
                species that are species determined to be 
                endangered species or threatened species 
                pursuant to section 4(a)(1);
                  (II) contribute to the conservation of one or 
                more covered species; and
                  (III) specify and implement a management plan 
                for the covered species;
          (ii) shall specify such a management plan that 
        includes--
                  (I) identification of the covered species;
                  (II) a description of the land to which the 
                agreement applies; and
                  (III) a description of, and a schedule to 
                carry out, the activities under clause (i);
          (iii) shall provide sufficient documentation to 
        establish ownership or control by the person of the 
        land to which the agreement applies;
          (iv) shall include the amounts of the annual payments 
        or other compensation to be provided by the Secretary 
        to the person under the agreement, and the terms under 
        which such payments or compensation shall be provided; 
        and
          (v) shall include--
                  (I) the duties of the person;
                  (II) the duties of the Secretary;
                  (III) the terms and conditions under which 
                the person and the Secretary mutually agree the 
                agreement may be modified or terminated; and
                  (IV) acts or omissions by the person or the 
                Secretary that shall be considered violations 
                of the agreement, and procedures under which 
                notice of and an opportunity to remedy any 
                violation by the person or the Secretary shall 
                be given.
  (C) In entering into species recovery agreements under this 
paragraph, the Secretary shall accord priority to agreements 
that apply to any areas that are identified in recovery plans 
pursuant to subsection (c)(1)(A)(iv).
  (3)(A) The Secretary and persons who own private land may 
enter into species conservation contract agreements with terms 
of 30 years, 20 years, or 10 years that meet the criteria set 
forth in subparagraph (B) and standards set forth in 
subparagraph (D) and are in accordance with the priorities 
established in subparagraph (C).
  (B) A species conservation contract agreement entered into 
under this paragraph by the Secretary with a person--
          (i) shall provide that the person shall, on the land 
        owned by the person--
                  (I) carry out conservation practices to meet 
                one or more of the goals set forth in clauses 
                (i) through (iii) of subparagraph (C) for one 
                or more covered species, that are species that 
                are determined to be endangered species or 
                threatened species pursuant to section 4(a)(1), 
                species determined to be candidate species 
                pursuant to section 4(b)(3)(B)(iii), or species 
                subject to comparable designations under State 
                law; and
                  (II) specify and implement a management plan 
                for the covered species;
          (ii) shall specify such a management plan that 
        includes--
                  (I) identification of the covered species;
                  (II) a description in detail of the 
                conservation practices for the covered species 
                that the person shall undertake;
                  (III) a description of the land to which the 
                agreement applies; and
                  (IV) a schedule of approximate deadlines, 
                whether one-time or periodic, for undertaking 
                the conservation practices described pursuant 
                to subclause (II);
                  (V) a description of existing or future 
                economic activities on the land to which the 
                agreement applies that are compatible with the 
                conservation practices described pursuant to 
                subclause (II) and generally with conservation 
                of the covered species;
          (iii) shall specify the term of the agreement; and
          (iv) shall include--
                  (I) the duties of the person;
                  (II) the duties of the Secretary;
                  (III) the terms and conditions under which 
                the person and the Secretary mutually agree the 
                agreement may be modified or terminated;
                  (IV) acts or omissions by the person or the 
                Secretary that shall be considered violations 
                of the agreement, and procedures under which 
                notice of and an opportunity to remedy any 
                violation by the person or the Secretary shall 
                be given; and
                  (V) terms and conditions for early 
                termination of the agreement by the person 
                before the management plan is fully implemented 
                or termination of the agreement by the 
                Secretary in the case of a violation by the 
                person that is not remedied under subclause 
                (IV), including any requirement for the person 
                to refund all or part of any payments received 
                under subparagraph (E) and any interest 
                thereon.
  (C) The Secretary shall establish priorities for the 
selection of species conservation contract agreements, or 
groups of such agreements for adjacent or proximate lands, to 
be entered into under this paragraph that address the following 
factors:
          (i) The potential of the land to which the agreement 
        or agreements apply to contribute significantly to the 
        conservation of an endangered species or threatened 
        species or a species with a comparable designation 
        under State law.
          (ii) The potential of such land to contribute 
        significantly to the improvement of the status of a 
        candidate species or a species with a comparable 
        designation under State law.
          (iii) The amount of acreage of such land.
          (iv) The number of covered species in the agreement 
        or agreements.
          (v) The degree of urgency for the covered species to 
        implement the conservation practices in the management 
        plan or plans under the agreement or agreements.
          (vi) Land in close proximity to military test and 
        training ranges, installations, and associated airspace 
        that is affected by a covered species.
  (D) The Secretary shall enter into a species conservation 
contract agreement submitted by a person, if the Secretary 
finds that the person owns such land or has sufficient control 
over the use of such land to ensure implementation of the 
management plan under the agreement.
  (E)(i) Upon entering into a species conservation contract 
agreement with the Secretary pursuant to this paragraph, a 
person shall receive the financial assistance provided for in 
this subparagraph.
  (ii) If the person is implementing fully the agreement, the 
person shall receive from the Secretary--
          (I) in the case of a 30-year agreement, an annual 
        contract payment in an amount equal to 100 percent of 
        the person's actual costs to implement the conservation 
        practices described in the management plan under the 
        terms of the agreement;
          (II) in the case of a 20-year agreement, an annual 
        contract payment in an amount equal to 80 percent of 
        the person's actual costs to implement the conservation 
        practices described in the management plan under the 
        terms of the agreement; and
          (III) in the case of a 10-year agreement, an annual 
        contract payment in an amount equal to 60 percent of 
        the person's actual costs to implement the conservation 
        practices described in the management plan under the 
        terms of the agreement.
  (iii)(I) If the person receiving contract payments pursuant 
to clause (ii) receives any other State or Federal funds to 
defray the cost of any conservation practice, the cost of such 
practice shall not be eligible for such contract payments.
  (II) Contributions of agencies or organizations to any 
conservation practice other than the funds described in 
subclause (I) shall not be considered as costs of the person 
for purposes of the contract payments pursuant to clause (iii).
  (4)(A) Upon request of a person seeking to enter into an 
agreement pursuant to this subsection, the Secretary may 
provide to such person technical assistance in the preparation, 
and management training for the implementation, of the 
management plan for the agreement.
  (B) Any State agency, local government, nonprofit 
organization, or federally recognized Indian tribe may provide 
assistance to a person in the preparation of a management plan, 
or participate in the implementation of a management plan, 
including identifying and making available certified fisheries 
or wildlife biologists with expertise in the conservation of 
species for purposes of the preparation or review and approval 
of management plans for species conservation contract 
agreements under paragraph (3)(D)(iii).
  (5) Upon any conveyance or other transfer of interest in land 
that is subject to an agreement under this subsection--
          (A) the agreement shall terminate if the agreement 
        does not continue in effect under subparagraph (B);
          (B) the agreement shall continue in effect with 
        respect to such land, with the same terms and 
        conditions, if the person to whom the land or interest 
        is conveyed or otherwise transferred notifies the 
        Secretary of the person's election to continue the 
        agreement by no later than 30 days after the date of 
        the conveyance or other transfer and the person is 
        determined by the Secretary to qualify to enter into an 
        agreement under this subsection; or
          (C) the person to whom the land or interest is 
        conveyed or otherwise transferred may seek a new 
        agreement under this subsection.
  (6) An agreement under this subsection may be renewed with 
the mutual consent of the Secretary and the person who entered 
into the agreement or to whom the agreement has been 
transferred under paragraph (5).
  (7) The Secretary shall make annual payments under this 
subsection as soon as possible after December 31 of each 
calendar year.
  (8) An agreement under this subsection that applies to an 
endangered species or threatened species shall, for the purpose 
of section 10(a)(4), be deemed to be a permit to enhance the 
propagation or survival of such species under section 10(a)(1), 
and a person in full compliance with the agreement shall be 
afforded the protection of section 10(a)(4).
  (9) The Secretary, or any other Federal official, may not 
require a person to enter into an agreement under this 
subsection as a term or condition of any right, privilege, or 
benefit, or of any action or refraining from any action, under 
this Act.

                      COOPERATION WITH THE STATES

  Sec. 6. (a) * * *

           *       *       *       *       *       *       *

  (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] the Secretary shall make a determination 
whether such program is in accordance with this Act. Unless 
[he] the Secretary determines, pursuant to this paragraph, that 
the State program is not in accordance with this Act, [he] the 
Secretary 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) * * *

           *       *       *       *       *       *       *

  (2) In furtherance of the purposes of this Act, the Secretary 
is authorized to enter into a cooperative agreement in 
accordance with this section with any State which establishes 
and maintains an adequate and active program for the 
conservation of endangered species and threatened species of 
plants. Within one hundred and twenty days after the Secretary 
receives a certified copy of such a proposed State program, 
[he] the Secretary shall make a determination whether such 
program is in accordance with this Act. Unless [he] the 
Secretary determines, pursuant to this paragraph, that the 
State program is not in accordance with this Act, [he] the 
Secretary shall enter into a cooperative agreement with the 
State for the purpose of assisting in implementation of the 
State program. In order for a State program to be deemed an 
adequate and active program for the conservation of endangered 
species of plants and threatened species of plants, the 
Secretary must find, and annually thereafter reconfirm such 
findings, that under the State program--
          (A) * * *

           *       *       *       *       *       *       *

  (3)(A) Any cooperative agreement entered into by the 
Secretary under this subsection may also provide for 
development of a program for conservation of species determined 
to be candidate species pursuant to section 4(b)(2)(B)(iii) or 
any other species that the State and the Secretary agree is at 
risk of being determined to be an endangered species or 
threatened species under section 4(a)(1) in that State. Upon 
completion of consultation on the agreement pursuant to 
subsection (e)(2), any incidental take statement issued on the 
agreement shall apply to any such species, and to the State and 
any landowners enrolled in any program under the agreement, 
without further consultation (except any additional 
consultation pursuant to subsection (e)(2)) if the species is 
subsequently determined to be an endangered species or a 
threatened species and the agreement remains an adequate and 
active program for the conservation of endangered species and 
threatened species.
  (B) Any cooperative agreement entered into by the Secretary 
under this subsection may also provide for monitoring or 
assistance in monitoring the status of candidate species 
pursuant to section 4(b)(3)(C)(iii) or recovered species 
pursuant to section 5(j).
  (C) The Secretary shall periodically review each cooperative 
agreement under this subsection and seek to make changes the 
Secretary considers necessary for the conservation of 
endangered species and threatened species to which the 
agreement applies.
  (4) Any cooperative agreement entered into by the Secretary 
under this subsection that provides for the enrollment of 
private lands or water rights in any program established by the 
agreement shall ensure that the decision to enroll is voluntary 
for each owner of such lands or water rights.
  (5)(A) The Secretary may enter into a cooperative agreement 
under this subsection with an Indian tribe in substantially the 
same manner in which the Secretary may enter into a cooperative 
agreement with a State.
  (B) For the purposes of this paragraph, the term ``Indian 
tribe'' means--
          (i) with respect to the 48 contiguous States, any 
        federally recognized Indian tribe, organized band, 
        pueblo, or community; and
          (ii) with respect to Alaska, the Metlakatla Indian 
        Community.
  (d) Allocation of Funds.--(1) The Secretary is authorized to 
provide financial assistance to any State, through its 
respective State agency, which has entered into a cooperative 
agreement [pursuant to subsection (c) of this section] to 
assist in development of programs for the conservation of 
endangered and threatened species or to assist in monitoring 
the status of candidate species pursuant to subparagraph (C) of 
section 4(b)(3) and recovered species pursuant to [section 
4(g)] section 5(j). The Secretary shall allocate each annual 
appropriation made in accordance with the provisions of 
subsection (i) of this section to such States based on 
consideration of--
          (A) * * *

           *       *       *       *       *       *       *

          (F) the importance of [monitoring the status of 
        candidate species] developing a conservation program 
        for, or monitoring the status of, candidate species or 
        other species determined to be at risk pursuant to 
        subsection (c)(3) within a State to prevent a 
        significant risk to the well being of any such species; 
        and

           *       *       *       *       *       *       *

  (2) Such cooperative agreements shall provide for (A) the 
actions to be taken by the Secretary and the States; (B) the 
benefits that are expected to be derived in connection with the 
conservation of endangered or threatened species; (C) the 
estimated cost of these actions; and (D) the share of such 
costs to be bore by the Federal Government and by the States; 
except that--
          (i) * * *
The Secretary may, in [his] the Secretary's discretion, and 
under such rules and regulations as [he] the Secretary 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) A State shall not be eligible for financial assistance 
under this section for a fiscal year unless the State has 
provided to the Secretary for the preceding fiscal year 
information regarding the expenditures referred to in section 
16(b)(2).
  (e) Review of State Programs.--(1) Any action taken by the 
Secretary under this section shall be subject to [his periodic 
review at no greater than annual intervals] periodic review by 
the Secretary every 3 years.
  (2) Any cooperative agreement entered into by the Secretary 
under subsection (c) shall be subject to section 7(a)(2) 
through (d) and regulations implementing such provisions only 
before--
          (A) the Secretary enters into the agreement; and
          (B) the Secretary approves any renewal of, or 
        amendment to, the agreement that--
                  (i) addresses species that are determined to 
                be endangered species or threatened species, 
                are not addressed in the agreement, and may be 
                affected by the agreement; or
                  (ii) new information about any species 
                addressed in the agreement that the Secretary 
                determines--
                          (I) constitutes the best available 
                        scientific data; and
                          (II) indicates that the agreement may 
                        have adverse effects on the species 
                        that had not been considered previously 
                        when the agreement was entered into or 
                        during any revision thereof or 
                        amendment thereto.
  (3) The Secretary may suspend any cooperative agreement 
established pursuant to subsection (c), after consultation with 
the Governor of the affected State, if the Secretary finds 
during the periodic review required by paragraph (1) of this 
subsection that the agreement no longer constitutes an adequate 
and active program for the conservation of endangered species 
and threatened species.
  (4) The Secretary may terminate any cooperative agreement 
entered into by the Secretary under subsection (c), after 
consultation with the Governor of the affected State, if--
          (A) as result of the procedures of section 7(a)(2) 
        through (d) undertaken pursuant to paragraph (2) of 
        this subsection, the Secretary determines that 
        continued implementation of the cooperative agreement 
        is likely to jeopardize the continued existence of 
        endangered species or threatened species, and the 
        cooperative agreement is not amended or revised to 
        incorporate a reasonable and prudent alternative 
        offered by the Secretary pursuant to section 7(b)(3); 
        or
          (B) the cooperative agreement has been suspended 
        under paragraph (3) of this subsection and has not been 
        amended or revised and found by the Secretary to 
        constitute an adequate and active program for the 
        conservation of endangered species and threatened 
        species within 180 days after the date of the 
        suspension.

           *       *       *       *       *       *       *

  (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) * * *
          (B) except for any time within the establishment 
        period when--
                  (i) * * *
                  (ii) the Secretary applies such prohibition 
                after [he] the Secretary 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.

           *       *       *       *       *       *       *

  (j) Recovery Plans for Species Occupying More Than One 
State.--Any recovery plan under section 5 for an endangered 
species or a threatened species that occupies more than one 
State shall identify criteria and actions pursuant to 
subsection (c)(1) of section 5 for each State that are 
necessary so that the State may pursue a determination that the 
portion of the species found in that State may be removed from 
lists published under section 4(c).

           *       *       *       *       *       *       *


                        INTERAGENCY COOPERATION

  Sec. 7. (a) Federal Agency Actions and Consultations.--(1) 
The Secretary shall review other programs administered by [him] 
the Secretary 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.] species determined to be endangered 
species and threatened species under section 4.
  (2)(A) 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] 
agency action authorized, funded, or carried out by such agency 
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] best 
available scientific data.
  (B) The Secretary may identify specific agency actions or 
categories of agency actions that may be determined to meet the 
standards of this paragraph by alternative procedures to the 
procedures set forth in this subsection and subsections (b) 
through (d), except that subsections (b)(4) and (e) may apply 
only to an action that the Secretary finds, or concurs, does 
meet such standards, and the Secretary shall suggest, or concur 
in any suggested, reasonable and prudent alternatives described 
in subsection (b)(3) for any action determined not to meet such 
standards. Any such agency action or category of agency actions 
shall be identified, and any such alternative procedures shall 
be established, by regulation promulgated prior or subsequent 
to the date of the enactment of this Act.
  (3) 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] the applicant's 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], 
under section 4 an endangered species or a threatened species. 
This paragraph does not require a limitation on the commitment 
of resources as described in subsection (d).
  (5) Any Federal agency or the Secretary, in conducting any 
analysis pursuant to paragraph (2), shall consider only the 
effects of any agency action that are distinct from a baseline 
of all effects upon the relevant species that have occurred or 
are occurring prior to the action.
  (b) Opinion of Secretary.--(1)(A) * * *
  (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 permit 
        or license applicant a written statement setting 
        forth--
                  (I) * * *

           *       *       *       *       *       *       *

  (2) Consultation under subsection (a)(3) shall be concluded 
within such period as is agreeable to the Secretary, the 
Federal agency, and the permit or license applicant concerned.
  (3)(A) [Promptly after] Before conclusion of consultation 
under paragraph (2) or (3) of subsection (a), the Secretary 
shall provide to the Federal agency and the permit or license 
applicant, if any, a proposed 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.] 
The Secretary shall consider any comment from the Federal 
agency and the permit or license applicant, if any, prior to 
issuance of the final written statement of the Secretary's 
opinion. The Secretary shall issue the final written statement 
of the Secretary's opinion by providing the written statement 
to the Federal agency and the permit or license applicant, if 
any, and publishing notice of the written statement in the 
Federal Register. If jeopardy is found, the Secretary shall 
suggest in the final written statement those reasonable and 
prudent alternatives, if any, that the Secretary believes would 
not violate subsection (a)(2) and can be taken by the Federal 
agency or applicant in implementing the agency action. The 
Secretary shall cooperate with the Federal agency and any 
permit or license applicant in the preparation of any suggested 
reasonable and prudent alternatives.

           *       *       *       *       *       *       *

  (4)(A) If after consultation under subsection (a)(2) of this 
section, the Secretary concludes that--
          [(A)] (i) the agency action will not violate such 
        subsection, or offers reasonable and prudent 
        alternatives which the Secretary believes would not 
        violate such subsection;
          [(B)] (ii) the taking of an endangered species or a 
        threatened species incidental to the agency action will 
        not violate such subsection; and
          [(C)] (iii) 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--] 
the Secretary shall include in the written statement under 
paragraph (3), a statement described in subparagraph (B) of 
this paragraph.
  (B) A statement described in this subparagraph--
          (i) * * *

           *       *       *       *       *       *       *

  (5)(A) Any terms and conditions set forth pursuant to 
paragraph (4)(B)(iv) shall be roughly proportional to the 
impact of the incidental taking identified pursuant to 
paragraph (4) in the written statement prepared under paragraph 
(3).
  (B) If various terms and conditions are available to comply 
with paragraph (4)(B)(iv), the terms and conditions set forth 
pursuant to that paragraph--
          (i) must be capable of successful implementation; and
          (ii) must be consistent with the objectives of the 
        Federal agency and the permit or license applicant, if 
        any, to the greatest extent possible.
  (c) Biological 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.] that is determined to be an endangered 
species or a threatened species, or for which such a 
determination is proposed pursuant to section 4, may be present 
in the area of such proposed action. If the Secretary advises, 
based on the [best scientific and commercial data available] 
best available scientific data, 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.]

           *       *       *       *       *       *       *

  [(e)(1) Establishment of Committee.--There is established a 
committee to be known as the Endangered Species Committee 
(hereinafter in this section referred to as the ``Committee'').
  [(2) The Committee shall review any application submitted to 
it pursuant to this section and determine in accordance with 
subsection (h) of this section whether or not to grant an 
exemption from the requirements of subsection (a)(2) of this 
action for the action set forth in such application.
  [(3) The Committee shall be composed of seven members as 
follows:
          [(A) The Secretary of Agriculture.
          [(B) The Secretary of the Army.
          [(C) The Chairman of the Council of Economic 
        Advisors.
          [(D) The Administrator of the Environmental 
        Protection Agency. Agency.
          [(E) The Secretary of the Interior.
          [(F) The Administrator of the National Oceanic and 
        Atmospheric Administration.
          [(G) The President, after consideration of any 
        recommendations received pursuant to subsection 
        (g)(2)(B) shall appoint one individual from each 
        affected State, as determined by the Secretary, to be a 
        member of the Committee for the consideration of the 
        application for exemption for an agency action with 
        respect to which such recommendations are made, not 
        later than 30 days after an application is submitted 
        pursuant to this section.
  [(4)(A) Members of the Committee shall receive no additional 
pay on account of their service on the Committee.
  [(B) While away from their homes or regular places of 
business in the performance of services for the Committee, 
members of the Committee shall be allowed travel expenses, 
including per diem in lieu of subsistence, in the same manner 
as persons employed intermittently in the Government service 
are allowed expenses under section 5703 of title 5 of the 
United States Code
  [(5)(A) Five members of the Committee or their 
representatives shall constitute a quorum for the transaction 
of any function of the Committee, except that, in no case shall 
any representative be considered in determining the existence 
of a quorum for the transaction of any function of the 
Committee if that function involves a vote by the Committee on 
any matter before the Committee.
  [(B) The Secretary of the Interior shall be the Chairman of 
the Committee.
  [(C) The Committee shall meet at the call of the Chairman or 
five of its members.
  [(D) All meetings and records of the Committee shall be open 
to the public.
  [(6) Upon request of the Committee, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Committee to assist it 
in carrying out its duties under this section.
  [(7)(A) The Committee may for the purpose of carrying out its 
duties under this section hold such hearings, sit and act at 
such times and places, take such testimony, and receive such 
evidence, as the Committee deems advisable.
  [(B) When so authorized by the Committee, any member or agent 
of the Committee may take any action which the Committee is 
authorized to take by this paragraph.
  [(C) Subject to the Privacy Act, the Committee may secure 
directly from any Federal agency information necessary to 
enable it to carry out its duties under this section. Upon 
request of the Chairman of the Committee, the head of such 
Federal agency shall furnish such information to the Committee.
  [(D) The Committee may use the United States mails in the 
same manner and upon the same conditions as a Federal agency.
  [(E) The Administrator of General Services shall provide to 
the Committee on a reimbursable basis such administrative 
support services as the Committee may request.
  [(8) In carrying out its duties under this section, the 
Committee may promulgate and amend such rules, regulations, and 
procedures, and issue and amend such orders as it deems 
necessary.
  [(9) For the purpose of obtaining information necessary for 
the consideration of an application for an exemption under this 
section the Committee may issue subpoenas for the attendance 
and testimony of witnesses and the production of relevant 
papers, books, and documents.
  [(10) In no case shall any representative, including a 
representative of a member designated pursuant to paragraph 
(3)(G) of this subsection, be eligible to cast a vote on behalf 
of any member.
  [(f) Regulations.--Not later than 90 days after the date of 
enactment of the Endangered Species Act Amendments of 1978, the 
Secretary shall promulgate regulations which set forth the form 
and manner in which applications for exemption shall be 
submitted to the Secretary and the information to be contained 
in such applications. Such regulations shall require that 
information submitted in an application by the head of any 
Federal agency with respect to any agency action include but 
not be limited to--
          [(1) a description of the consultation process 
        carried out pursuant to subsection (a)(2) of this 
        section between the head of the Federal agency and the 
        Secretary; and
          [(2) a statement describing why such action cannot be 
        altered or modified to conform with the requirements of 
        subsection (a)(2) of this section.
  [(g) Application for Exemption and Report to the Committee.--
(1) A Federal agency, the Governor of the State in which an 
agency action will occur, if any, or a permit or license 
applicant may apply to the Secretary for an exemption for an 
agency action of such agency if, after consultation under 
subsection (a)(2), the Secretary's opinion under subsection (b) 
indicates that the agency action would violate subsection 
(a)(2). An application for an exemption shall be considered 
initially by the Secretary in the manner provided for in this 
subsection, and shall be considered by the Committee for a 
final determination under subsection (h) after a report is made 
pursuant to paragraph (5). The applicant for an exemption shall 
be referred to as the ``exemption applicant'' in this section.
  [(2)(A) An exemption applicant shall submit a written 
application to the Secretary, in a form prescribed under 
subsection (f), not later than 90 days after the completion of 
the consultation process; except that, in the case of any 
agency action involving a permit or license applicant, such 
application shall be submitted not later than 90 days after the 
date on which the Federal agency concerned takes final agency 
action with respect to the issuance of the permit or license. 
For purposes of the preceding sentence, the term ``final agency 
action'' means (i) a disposition by an agency with respect to 
the issuance of a permit or license that is subject to 
administrative review, whether or not such disposition is 
subject to judicial review; or (ii) if administrative review is 
sought with respect to such disposition, the decision resulting 
after such review. Such application shall set forth the reasons 
why the exemption applicant considers that the agency action 
meets the requirements for an exemption under this subsection.
  [(B) Upon receipt of an application for exemption for an 
agency action under paragraph (1), the Secretary shall promptly 
(i) notify the Governor of each affected State, if any, as 
determined by the Secretary, and request the Governors so 
notified to recommend individuals to be appointed to the 
Endangered Species Committee for consideration of such 
application; and (ii) publish notice of receipt of the 
application in the Federal Register, including a summary of the 
information contained in the application and a description of 
the agency action with respect to which the application for 
exemption has been filed.
  [(3) The Secretary shall within 20 days after the receipt of 
an application for exemption, or within such other period of 
time as is mutually agreeable to the exemption applicant and 
the Secretary--
          [(A) determine that the Federal agency concerned and 
        the exemption applicant have--
                  [(i) carried out the consultation 
                responsibilities described in subsection (a) in 
                good faith and made a reasonable and 
                responsible effort to develop and fairly 
                consider modifications or reasonable and 
                prudent alternatives to the proposed agency 
                action which would not violate subsection 
                (a)(2);
                  [(ii) conducted any biological assessment 
                required by subsection (c); and
                  [(iii) to the extent determinable within the 
                time provided herein, refrained from making any 
                irreversible or irretrievable commitment of 
                resources prohibited by subsection (d); or
          [(B) deny the application for exemption because the 
        Federal agency concerned or the exemption applicant 
        have not met the requirements set forth in subparagraph 
        (A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be 
considered final agency action for purposes of chapter 7 of 
title 5, United States Code.
  [(4) If the Secretary determines that the Federal agency 
concerned and the exemption applicant have met the requirements 
set forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in 
consultation with the Members of the Committee, hold a hearing 
on the application for exemption in accordance with sections 
554, 555, and 556 (other than subsection (b) (1) and (2) 
thereof) of title 5, United States Code, and prepare the report 
to be submitted pursuant to paragraph (5).
  [(5) Within 140 days after making the determinations under 
paragraph (3) or within such other period of time as is 
mutually agreeable to the exemption applicant and the 
Secretary, the Secretary shall submit to the Committee a report 
discussing--
          [(A) the availability and reasonable and prudent 
        alternatives to the agency action, and the nature and 
        extent of the benefits of the agency action and of 
        alternative courses of action consistent with 
        conserving the species or the critical habitat;
          [(B) a summary of the evidence concerning whether or 
        not the agency action is in the public interest and is 
        of national or regional significance;
          [(C) appropriate reasonable mitigation and 
        enhancement measures which should be considered by the 
        Committee; and
          [(D) whether the Federal agency concerned and the 
        exemption applicant refrained from making any 
        irreversible or irretrievable commitment of resources 
        prohibited by subsection (d).
  [(6) To the extent practicable within the time required for 
action under subsection (g) of this section, and except to the 
extent inconsistent with the requirements of this section, the 
consideration of any application for an exemption under this 
section and the conduct of any hearing under this subsection 
shall be in accordance with sections 554, 555, and 556 (other 
than subsection (b)(3) of section 556) of title 5, United 
States Code.
  [(7) Upon request of the Secretary, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Secretary to assist him 
in carrying out his duties under this section.
  [(8) All meetings and records resulting from activities 
pursuant to this subsection shall be open to the public.
  [(h) Exemption.--(1) The Committee shall make a final 
determination whether or not to grant an exemption within 30 
days after receiving the report of the Secretary pursuant to 
subsection (g)(5). The Committee shall grant an exemption from 
the requirements of subsection (a)(2) for an agency action if, 
by a vote of not less than five of its members voting in 
person--
          [(A) it determines on the record, based on the report 
        of the Secretary, the record of the hearing held under 
        subsection (g)(4), and on such other testimony or 
        evidence as it may receive, that--
                  [(i) there are no reasonable and prudent 
                alternatives to the agency action;
                  [(ii) the benefits of such action clearly 
                outweigh the benefits of alternative courses of 
                action consistent with conserving the species 
                or its critical habitat, and such action is in 
                the public interest;
                  [(iii) the action is of regional or national 
                significance; and
                  [(iv) neither the Federal agency concerned 
                nor the exemption applicant made any 
                irreversible or irretrievable commitment of 
                resources prohibited by subsection (d); and
          [(B) it establishes such reasonable mitigation and 
        enhancement measures, including, but not limited to, 
        live propagation, transplantation, and habitat 
        acquisition and improvement, as are necessary and 
        appropriate to minimize the adverse effects of the 
        agency action upon the endangered species, threatened 
        species, or critical habitat concerned.
Any final determination by Committee under this subsection 
shall be considered final agency action for purposes of chapter 
7 of title 5 of the United States Code.
  [(2)(A) Except as provided in subparagraph (B), an exemption 
for an agency action granted under paragraph (1) shall 
constitute a permanent exemption with respect to all endangered 
or threatened species for the purposes of completing such 
agency action--
          [(i) regardless whether the species was identified in 
        the biological assessment; and
          [(ii) only if a biological assessment has been 
        conducted under subsection (c) with respect to such 
        agency action.
  [(B) An exemption shall be permanent under subparagraph (A) 
unless--
          [(i) the Secretary finds, based on the best 
        scientific and commercial data available, that such 
        exemption would result in the extinction of a species 
        that was not the subject of consultation under 
        subsection (a)(2) or was not identified in any 
        biological assessment conducted under subsection (c), 
        and
          [(ii) the Committee determines within 60 days after 
        the date of the Secretary's finding that the exemption 
        should not be permanent.
If the Secretary makes a finding described in clause (i), the 
Committee shall meet with respect to the matter within 30 days 
after the date of the finding.
  [(i) Review by Secretary of State.--Notwithstanding any other 
provision of this Act, the Committee shall be prohibited from 
considering for exemption any application made to it, if the 
Secretary of State, after a review of the proposed agency 
action and its potential implications, and after hearing, 
certifies, in writing, to the Committee within 60 days of any 
application made under this section that the granting of any 
such exemption and the carrying out of such action would be in 
violation of an international treaty obligation or other 
international obligation of the United States. The Secretary of 
State shall, at the time of such certification, publish a copy 
thereof in the Federal Register.
  [(j) Notwithstanding any other provision of this Act, the 
Committee shall grant an exemption for any agency action if the 
Secretary of Defense finds that such exemption is necessary for 
reasons of national security.
  [(k) Special Provisions.--An exemption decision by the 
Committee under this section shall not be a major Federal 
action for purposes of the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental 
impact statement which discusses the impacts upon endangered 
species or threatened species or their critical habitats shall 
have been previously prepared with respect to any agency action 
exempted by such order.
  [(l) Committee Orders.--(1) If the Committee determines under 
subsection (h) that an exemption should be granted with respect 
to any agency action, the Committee shall issue an order 
granting the exemption and specifying the mitigation and 
enhancement measures established pursuant to subsection (h) 
which shall be carried out and paid for by the exemption 
applicant in implementing the agency action. All necessary 
mitigation and enhancement measures shall be authorized prior 
to the implementing of the agency action and funded 
concurrently with all other project features.
  [(2) The applicant receiving such exemption shall include the 
costs of such mitigation and enhancement measures within the 
overall costs of continuing the proposed action. 
Notwithstanding the preceding sentence the costs of such 
measures shall not be treated as project costs for the purpose 
of computing benefit-cost or other ratios for the proposed 
action. Any applicant may request the Secretary to carry out 
such mitigation and enhancement measures. The costs incurred by 
the Secretary in carrying out any such measures shall be paid 
by the applicant receiving the exemption. No later than one 
year after the granting of an exemption, the exemption 
applicant shall submit to the Council on Environmental Quality 
a report describing its compliance with the mitigation and 
enhancement measures prescribed by this section. Such report 
shall be submitted annually until all such mitigation and 
enhancement measures have been completed. Notice of the public 
availability of such reports shall be published in the Federal 
Register by the Council on Environmental Quality.
  [(m) Notice.--The 60-day notice requirement of section 11(g) 
of this Act shall not apply with respect to review of any final 
determination of the Committee under subsection (h) of this 
section granting an exemption from the requirements of 
subsection (a)(2) of this section.
  [(n) Judicial Review.--Any person, as defined by section 
3(13) of this Act, may obtain judicial review, under chapter 7 
of title 5 of the United States Code, of any decision of the 
Endangered Species Committee under subsection (h) in the United 
States Court of Appeals for (1) any circuit wherein the agency 
action concerned will be, or is being, carried out, or (2) in 
any case in which the agency action will be, or is being, 
carried out outside of any circuit, the District of Columbia, 
by filing in such court within 90 days after the date of 
issuance of the decision, a written petition for review. A copy 
of such petition shall be transmitted by the clerk of the court 
to the Committee and the Committee shall file in the court the 
record in the proceeding, as provided in section 2112, of title 
28, United States Code. Attorneys designated by the Endangered 
Species Committee may appear for, and represent the Committee 
in any action for review under this subsection.]
  [(o)] (e) [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)] such section or in an agreement under section 
        5(m), 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)] (f) 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] may exempt an agency action from compliance with the 
requirements of subsections (a) through (d) of this section 
before the initiation of such agency action, 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.]

                       INTERNATIONAL COOPERATION

  Sec. 8. (a) Financial Assistance.--As a demonstration of the 
commitment of the United States to the worldwide protection of 
endangered species and threatened species, the President may, 
subject to the provisions of section 1415 of the Supplemental 
Appropriation Act, 1953 (31 U.S.C. 724), use foreign currencies 
accruing to the United States Government under the Agricultural 
Trade Development and Assistance Act of 1954 or any other law 
to provide to any foreign county (with its consent) assistance 
in the development and management of programs in that country 
which the Secretary determines to be necessary or useful for 
the conservation of [any endangered species or threatened 
species listed] any species determined to be an endangered 
species or a threatened species by the Secretary pursuant to 
section 4 of this Act. The President shall provide assistance 
(which includes, but is not limited to, the acquisition, by 
lease or otherwise, of lands, waters, or interests therein) to 
foreign countries under this section under such terms and 
conditions as [he] the President deems appropriate. Whenever 
foreign currencies are available for the provision of 
assistance under this section, such currencies shall be used in 
preference to funds appropriated under the authority of 
[section 15] section 18 of this Act.
  (b) Encouragement of Foreign Programs.--In order to carry out 
further the provisions of this Act, the Secretary, through the 
Secretary of State shall encourage--
          (1) foreign countries to provide for the conservation 
        of fish or wildlife and plants including [endangered 
        species and threatened species listed] species 
        determined to be endangered species and threatened 
        species pursuant to section 4 of this Act;

           *       *       *       *       *       *       *

          (3) foreign persons who directly or indirectly take 
        fish or wildlife or plants in foreign countries or on 
        the high seas for importation into the United States 
        for commercial or other purposes to develop and carry 
        out with such assistance as [he] the Secretary of the 
        Interior may provide, conservation practices designed 
        to enhance such fish or wildlife or plants and their 
        habitat.
  (c) Personnel.--After consultation with the Secretary of 
State, the Secretary may--
          (1) assign or otherwise make available any officer or 
        employee of [his] the Secretary's department for the 
        purpose of cooperating with foreign countries and 
        international organizations in developing personnel 
        resources and programs which promote the conservation 
        of fish or wildlife or plants, and

           *       *       *       *       *       *       *

  (d) Investigations.--After consultation with the Secretary of 
State and the Secretary of the Treasury, as appropriate, the 
Secretary may conduct or cause to be conducted such law 
enforcement investigations and research abroad as [he] the 
Secretary deems necessary to carry out the purposes of this 
Act.

                       CONVENTION IMPLEMENTATION

  Sec. 8A. (a) Management Authority and Scientific Authority.--
The Secretary [of the Interior (hereinafter in this section 
referred to as the ``Secretary'')] is designated as the 
Management Authority and the Scientific Authority for purposes 
of the Convention and the respective functions of each such 
Authority shall be carried out through the United States Fish 
and Wildlife Service.

           *       *       *       *       *       *       *

  (c) Scientific Authority Functions.--(1) * * *
  (2) The Secretary shall base the determinations and advice 
given by [him] the Secretary under Article IV of 
the Convention with respect to wildlife upon the best available 
biological information derived from professionally accepted 
wildlife management practices; but is not required to make, or 
require any State to make, estimates of population size in 
making such determinations or giving such advice.
  (d) Reservations by the United States Under Convention.--If 
the United States votes against including any species in 
Appendix I or II of the Convention and does not enter a 
reservation pursuant to paragraph (3) of Article XV of the 
Convention with respect to that species, the Secretary of 
State, before the 90th day after the last day on which such a 
reservation could be entered, shall submit to the Committee on 
[Merchant Marine and Fisheries] Resources of the House of 
Representatives, and to the Committee on the Environment and 
Public Works of the Senate, a written report setting forth the 
reasons why such a reservation was not entered.
  (e) Wildlife Preservation in Western Hemisphere.--(1) The 
Secretary [of the Interior (hereinafter in this subsection 
referred to as the ``Secretary'')], in cooperation with the 
Secretary of State, shall act on behalf of, and represent, the 
United States in all regards as required by the Convention on 
Nature Protection and Wildlife Preservation in the Western 
Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this 
subsection referred to as the ``Western Convention''). In the 
discharge of these responsibilities, the Secretary and the 
Secretary of State shall consult with the Secretary of 
Agriculture, the Secretary of Commerce, and the heads of other 
agencies with respect to matters relating to or affecting their 
areas of responsibility.

           *       *       *       *       *       *       *

  [(3) No later than September 30, 1985, the Secretary and the 
Secretary of State shall submit a report to Congress describing 
those steps taken in accordance with the requirements of this 
subsection and identifying the principal remaining actions yet 
necessary for comprehensive and effective implementation of the 
Western Convention.]
  [(4)] (3) The provisions of this subsection shall not be 
construed as affecting the authority, jurisdiction, or 
responsibility of the several States to manage, control, or 
regulate resident fish or wildlife under State law or 
regulations.

                            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], with respect to any species of fish or wildlife 
determined to be an endangered species under section 4 it is 
unlawful for any person subject to the jurisdiction of the 
United States to--
          (A) * * *

           *       *       *       *       *       *       *

          (G) violate any regulation pertaining to such species 
        or to any [threatened species of fish or wildlife 
        listed pursuant to section 4 of this Act] species of 
        fish or wildlife determined to be a threatened species 
        under section 4 and promulgated by the Secretary 
        pursuant to authority provided by this Act.
  (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], with respect to any species 
of plants determined to be an endangered species under section 
4, it is unlawful for any person subject to the jurisdiction of 
the United States to--
          (A) * * *

           *       *       *       *       *       *       *

          (E) violate any regulation pertaining to such species 
        or to any threatened species of plants [listed pursuant 
        to section 4 of this Act] determined to be a threatened 
        species under section 4 and promulgated by the 
        Secretary pursuant to authority provided by this Act.
  (b)[(1)] Species Held in Captivity or Controlled 
Environment.--(1) The provisions of subsections (a)(1)(A) and 
(a)(1)(G) of this section shall not apply to any fish or 
wildlife which was held in captivity or in a controlled 
environment on (A) December 28, 1973, or (B) the date of the 
publication in the Federal Register of a final regulation 
[adding such fish or wildlife species to any list published 
pursuant to subsection (c) of section 4 of this Act: Provided, 
That] determining such fish or wildlife species to be an 
endangered species or a threatened species under section 4, if 
such holding and any subsequent holding or use of the fish or 
wildlife was not in the course of a commercial activity. With 
respect to any act prohibited by subsections (a)(1)(A) and 
(a)(1)(G) of this section which occurs after a period of 180 
days from (i) December 28, 1973, or (ii) the date of 
publication in the Federal Register of a final regulation 
[adding such fish or wildlife species to any list published 
pursuant to subsection (c) of section 4 of this Act] 
determining such fish or wildlife species to be an endangered 
species or a threatened species under section 4, there shall be 
a rebuttable presumption that the fish or wildlife involved in 
such act is not entitled to the exemption contained in this 
subsection.

           *       *       *       *       *       *       *

  (c) Violation of Convention.--(1) * * *
  (2) Any importation into the United States of fish or 
wildlife shall, if--
          (A) such fish or wildlife is not [an endangered 
        species listed] a species determined to be an 
        endangered species pursuant to section 4 of this Act 
        but is listed in Appendix II of the Convention;

           *       *       *       *       *       *       *

  (d) Imports and Exports.--
          (1) In general.--It is unlawful for any person, 
        without first having obtained permission from the 
        Secretary, to engage in business--
                  (A) as an importer or exporter of fish or 
                wildlife (other than shellfish and fishery 
                products which [(i) are not listed pursuant to 
                section 4 of this Act as endangered species or 
                threatened species, and] (i) are not determined 
                to be endangered species or threatened species 
                under section 4, and (ii) are imported for 
                purposes of human or animal consumption or 
                taken in waters under the jurisdiction of the 
                United States or on the high seas for 
                recreational purposes) or plants; or

           *       *       *       *       *       *       *

          (2) Requirements.--Any person required to obtain 
        permission under paragraph (1) of this subsection 
        shall--
                  (A) keep such records as will fully and 
                correctly disclose each importation or 
                exportation of fish, wildlife, plants, or 
                African elephant ivory made by [him] such 
                person and the subsequent disposition, made by 
                [him] such person with respect to such fish, 
                wildlife, plants, or ivory;
                  (B) at all reasonable times upon notice by a 
                duly authorized representative of the 
                Secretary, afford such representative access to 
                [his] such person's place of business, an 
                opportunity to examine [his] such person's 
                inventory of imported fish, wildlife, plants, 
                or African elephant ivory and the records 
                required to be kept under subparagraph (A) of 
                this paragraph, and to copy such records; and

           *       *       *       *       *       *       *

  (e) Reports.--It is unlawful for any person importing or 
exporting fish or wildlife (other than shellfish and fishery 
products which [(1) are not listed pursuant to section 4 of 
this Act as endangered or threatened species, and] (1) are not 
determined to be endangered species or threatened species under 
section 4, and (2) are imported for purposes of human or animal 
consumption or taken in waters under the jurisdiction of the 
United States or on the high seas for recreational purposes) or 
plants to fail to file any declaration or report as the 
Secretary deems necessary to facilitate enforcement of this Act 
or to meet the obligations of the Convention.
  (f) Designation of Ports.--(1) It is unlawful for any person 
subject to the jurisdiction of the United States to import into 
or export from the United States any fish or wildlife (other 
than shellfish and fishery products which [(A) are not listed 
pursuant to section 4 of this Act as endangered species or 
threatened species, and] (A) are not determined to be 
endangered species or threatened species under section 4, and 
(B) are imported for purposes of human or animal consumption or 
taken in waters under the jurisdiction of the United States or 
on the high seas for recreational purposes) or plants, except 
at a port or ports designated by the Secretary [of the 
Interior]. For the purposes of facilitating enforcement of this 
Act and reducing the costs thereof, the Secretary [of the 
Interior], with approval of the Secretary of the Treasury and 
after notice and opportunity for public hearing, may, by 
regulation, designate ports and change such designations. The 
Secretary [of the Interior], under such terms and conditions as 
[he] the Secretary may prescribe, may permit the importation or 
exportation at nondesignated ports in the interest of the 
health or safety of the fish or wildlife or plants, or for 
other reasons if, in [his] such person's discretion, [he] the 
Secretary deems it appropriate and consistent with the purpose 
of this subsection.

           *       *       *       *       *       *       *


                               EXCEPTIONS

  Sec. 10. (a) Permits.--(1) The Secretary may permit, under 
such terms and conditions as [he] the Secretary shall 
prescribe--
          (A)  * * *

           *       *       *       *       *       *       *

  (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)  * * *

           *       *       *       *       *       *       *

          (iii) what alternative actions to such taking the 
        applicant considered and the reasons why such 
        alternatives are not being utilized; [and]
          (iv) objective, measurable biological goals to be 
        achieved for species covered by the plan and specific 
        measures for achieving such goals consistent with the 
        requirements of subparagraph (B);
          (v) measures the applicant will take to monitor 
        impacts of the plan on covered species and the 
        effectiveness of the plan's measures in achieving the 
        plan's biological goals;
          (vi) adaptive management provisions necessary to 
        respond to all reasonably foreseeable changes in 
        circumstances that could appreciably reduce the 
        likelihood of the survival and recovery of any species 
        covered by the plan; and
          [(iv)] (vii) 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)  * * *

           *       *       *       *       *       *       *

          (iv) the taking will not appreciably reduce the 
        likelihood of the survival and recovery of the species 
        in the wild; [and]
          (v) the term of the permit is reasonable, taking into 
        consideration--
                  (I) the period in which the applicant can be 
                expected to diligently complete the principal 
                actions covered by the plan;
                  (II) the extent to which the plan will 
                enhance the conservation of covered species;
                  (III) the adequacy of information underlying 
                the plan;
                  (IV) the length of time necessary to 
                implement and achieve the benefits of the plan; 
                and
                  (V) the scope of the plan's adaptive 
                management strategy; and
          [(v)] (vi) the measures, if any, required under 
        subparagraph (A)(iv) will be met;
and [he] the Secretary has received such other assurances as 
[he] the Secretary 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.]
  (3) Any terms and conditions offered by the Secretary 
pursuant to paragraph (2)(B) to reduce or offset the impacts of 
incidental taking shall be roughly proportional to the impact 
of the incidental taking specified in the conservation plan 
pursuant to in paragraph (2)(A)(i). This paragraph shall not be 
construed to limit the authority of the Secretary to require 
greater than acre-for-acre mitigation where necessary to 
address the extent of such impacts. In any case in which 
various terms and conditions are available, the terms and 
conditions shall be capable of successful implementation and 
shall be consistent with the objective of the applicant to the 
greatest extent possible.
  (4)(A) If the holder of a permit issued under this subsection 
for other than scientific purposes is in compliance with the 
terms and conditions of the permit, and any conservation plan 
or agreement incorporated by reference therein, the Secretary 
may not require the holder, without the consent of the holder, 
to adopt any new minimization, mitigation, or other measure 
with respect to any species adequately covered by the permit 
during the term of the permit, except as provided in 
subparagraphs (B) and (C) to meet circumstances that have 
changed subsequent to the issuance of the permit.
  (B) For any circumstance identified in the permit or 
incorporated document that has changed, the Secretary may, in 
the absence of consent of the permit holder, require only such 
additional minimization, mitigation, or other measures as are 
already provided in the permit or incorporated document for 
such changed circumstance.
  (C) For any changed circumstance not identified in the permit 
or incorporated document, the Secretary may, in the absence of 
consent of the permit holder, require only such additional 
minimization, mitigation, or other measures to address such 
changed circumstance that do not involve the commitment of any 
additional land, water, or financial compensation not otherwise 
committed, or the imposition of additional restrictions on the 
use of any land, water or other natural resources otherwise 
available for development or use, under the original terms and 
conditions of the permit or incorporated document.
  (D) The Secretary shall have the burden of proof in 
demonstrating and documenting, with the best available 
scientific data, the occurrence of any changed circumstances 
for purposes of this paragraph.
  (E) All permits issued under this subsection on or after the 
date of the enactment of the Threatened and Endangered Species 
Recovery Act of 2005, other than permits for scientific 
purposes, shall contain the assurances contained in 
subparagraphs (B) through (D) of this paragraph and paragraph 
(5)(A) and (B). Permits issued under this subsection on or 
after March 25, 1998, and before the date of the enactment of 
the Threatened and Endangered Species Recovery Act of 2005, 
other than permits for scientific purposes, shall be governed 
by the applicable sections of parts 17.22(b), (c), and (d), and 
17.32(b), (c), and (d) of title 50, Code of Federal 
Regulations, as the same exist on the date of the enactment of 
the Threatened and Endangered Species Act of 2005.
  (5)(A) The Secretary shall revoke a permit issued under 
paragraph (2) if the Secretary finds that the permittee is not 
complying with the terms and conditions of the permit.
  (B) Any permit subject to paragraph (4)(A) may be revoked due 
to changed circumstances only if--
          (i) the Secretary determines that continuation of the 
        activities to which the permit applies would be 
        inconsistent with the criteria in paragraph (2)(B)(iv);
          (ii) the Secretary provides 60 days notice of 
        revocation to the permittee; and
          (iii) the Secretary is unable to, and the permittee 
        chooses not to, remedy the condition causing such 
        inconsistency.
  (b) Hardship Exemptions.--(1) If any person enters into a 
contract with respect to a species of fish or wildlife or plant 
before the date of the publication in the Federal Register of 
notice of consideration of that species as [an endangered 
species and the subsequent listing of that species as an 
endangered species pursuant to section 4 of this Act] an 
endangered species or a threatened species and the subsequent 
determination that the species is an endangered species or a 
threatened species under section 4 will cause undue hardship to 
such person under the contract, the Secretary, in order to 
minimize such hardship, may exempt such person from the 
application of [section 9(a) of this Act] section 9(a) to the 
extent the Secretary deems appropriate if such person applies 
to [him] the Secretary for such exemption and includes with 
such application such information as the Secretary may require 
to prove such hardship; except that (A) no such exemption shall 
be for a duration of more than one year from the date of 
publication in the Federal Register of notice of consideration 
of the species concerned, or shall apply to a quantity of fish 
or wildlife or plants in excess of that specified by the 
Secretary; (B) the one-year period for those species of [fish 
or wildlife listed by the Secretary as endangered] fish or 
wildlife determined to be an endangered species or threatened 
species by the Secretary prior to the effective date of this 
Act shall expire in accordance with the terms of section 3 of 
the Act of December 5, 1969 (83 Stat. 275); and (C) no such 
exemption may be granted for the importation or exportation of 
a specimen listed in Appendix I of the Convention which is to 
be used in a commercial activity.
  (2) As used in this subsection, the term ``undue economic 
hardship'' shall include, but not be limited to:
          (A) substantial economic loss resulting from 
        inability caused by this Act to perform contracts with 
        respect to species of fish and wildlife entered into 
        prior to the date of publication in the Federal 
        Register of a notice of consideration of such species 
        as an endangered species or a threatened species;
          (B) substantial economic loss to persons who, for the 
        year prior to the notice of consideration of such 
        species as an endangered species or a threatened 
        species, derived a substantial portion of their income 
        from the lawful taking of any [listed species] 
        endangered species or threatened species, which taking 
        would be made unlawful under this Act; or

           *       *       *       *       *       *       *

  (3) The Secretary may make further requirements for a showing 
of undue economic hardship as [he] the Secretary deems fit. 
Exceptions granted under this section may be limited by the 
Secretary in [his] the Secretary's discretion as to time, area, 
or other factor of applicability.
  (c) Notice and Review.--The Secretary shall publish notice in 
the Federal Register of each application for an exemption or 
permit which is made under this section. Each notice shall 
invite the submission from interested parties, within [thirty] 
45 days after the date of the notice, of written data, views, 
or arguments with respect to the application; except that such 
[thirty] 45-day period may be waived by the Secretary in an 
emergency situation where the health or life of an endangered 
animal is threatened and no reasonable alternative is available 
to the applicant, but notice of any such waiver shall be 
published by the Secretary in the Federal Register within ten 
days following the issuance of the exemption or permit. 
Information received by the Secretary as part of any 
application shall be available to the public as a matter of 
public record at every stage of the proceeding.
  (d) Permit and Exemption Policy.--The Secretary may grant 
exceptions under subsections (a)(1)(A) and (b) of this section 
only if [he] the Secretary finds and publishes [his] the 
finding in the Federal Register that (1) such exceptions were 
applied for in good faith, (2) if granted and exercised will 
not operate to the disadvantage of such endangered species or 
threatened species, and (3) will be consistent with the 
purposes and policy set forth in section 2 [of this Act].
  (e) Alaska Natives.--(1)  * * *

           *       *       *       *       *       *       *

  (4) Notwithstanding the provisions of paragraph (l) of this 
subsection, whenever the Secretary determines that any species 
of fish or wildlife which is subject to taking under the 
provisions of this subsection is an endangered species or 
threatened species, and that such taking materially and 
negatively affects the threatened or endangered species, [he] 
the Secretary may prescribe regulations upon the taking of such 
species by any such Indian, Aleut, Eskimo, or non-native 
Alaskan resident of an Alaskan native village. Such regulations 
may be established with reference to species, geographical 
description of the area included, the season for taking, or any 
other factors related to the reason for establishing such 
regulations and consistent with the policy of this Act. Such 
regulations shall be prescribed after a notice and hearings in 
the affected judicial districts of Alaska and as otherwise 
required by section 103 of the Marine Mammal Protection Act of 
1972, and shall be removed as soon as the Secretary determines 
that the need for their impositions has disappeared.
  (f) Pre-Act Parts and Scrimshaw._(1) As used in this 
subsection--
          (A)  * * *

           *       *       *       *       *       *       *

  (2) The Secretary, pursuant to the provisions of this 
subsection, may exempt, if such exemption is not in violation 
of the Convention, any pre-Act endangered species part from one 
or more of the following prohibitions.
          (A) The prohibition on exportation from the United 
        States set forth in section 9(a)(1)(A) [of this Act].
          (B) Any prohibition set forth in section 9(a)(1) (E) 
        or (F) [of this Act].
  (3) Any person seeking an exemption described in paragraph 
(2) of this subsection shall make application therefor to the 
Secretary in such form and manner as [he] the person shall 
prescribe, but no such application may be considered by the 
Secretary unless the application--
          (A)  * * *

           *       *       *       *       *       *       *

  (4) If the Secretary approves any application for exemption 
made under this subsection, [he] the Secretary shall issue to 
the applicant a certificate of exemption which shall specify--
          (A)  * * *

           *       *       *       *       *       *       *

  (g) Burden of Proof in Seeking Exemption or Permit._In 
connection with any action alleging a violation of section 9, 
any person claiming the benefit of any exemption or permit 
under this Act shall have the burden of proving that the 
exemption or permit is applicable, has been granted, and was 
valid and in force at the time of the alleged violation.
  (h) Certain Antique Articles.--(1) Sections 4(d), 9(a), and 
9(c) do not apply to any article which--
          (A)  * * *
          (B) is composed in whole or in part of any 
        [endangered species or threatened species listed] 
        species determined to be an endangered species or a 
        threatened species under section 4;

           *       *       *       *       *       *       *

  (j) Experimental Populations.--(1) [For purposes of this 
subsection, the term ``experimental population'' means any 
population (including any offspring arising solely therefrom) 
authorized by the Secretary for release under paragraph (2), 
but only when, and at such times as, the population is wholly 
separate geographically from nonexperimental populations of the 
same species.] For purposes of this subsection, the term 
``experimental population'' means any population (including any 
offspring arising therefrom) authorized by the Secretary for 
release under paragraph (2), but only when such population is 
in the area designated for it by the Secretary, and such area 
is, at the time of release, wholly separate geographically from 
areas occupied by nonexperimental populations of the same 
species. For purposes of this subsection, the term ``areas 
occupied by nonexperimental populations'' means areas 
characterized by the sustained and predictable presence of more 
than negligible numbers of successfully reproducing individuals 
over a period of many years.
  (2)(A)  * * *
  (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] scientific data, whether or not such 
population is essential to the continued existence of an 
endangered species or a threatened species.
  (C) For the purposes of this Act, each member of an 
experimental population shall be treated as a threatened 
species; except [that--
          [(i) solely] that 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] determined 
        to be an endangered species or a threatened species 
        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.].

           *       *       *       *       *       *       *

  (k) Written Determination of Compliance.--(1) A property 
owner (in this subsection referred to as a ``requester'') may 
request the Secretary to make a written determination that a 
proposed use of the owner's property that is lawful under State 
and local law will comply with section 9(a), by submitting a 
written description of the proposed action to the Secretary by 
certified mail.
  (2) A written description of a proposed use is deemed to be 
sufficient for consideration by the Secretary under paragraph 
(1) if the description includes--
          (A) the nature, the specific location, the lawfulness 
        under State and local law, and the anticipated schedule 
        and duration of the proposed use, and a demonstration 
        that the property owner has the means to undertake the 
        proposed use; and
          (B) any anticipated adverse impact to a species that 
        is included on a list published under 4(c)(1) that the 
        requestor reasonably expects to occur as a result of 
        the proposed use.
  (3) The Secretary may request and the requestor may supply 
any other information that either believes will assist the 
Secretary to make a determination under paragraph (1).
  (4) If the Secretary does not make a determination pursuant 
to a request under this subsection because of the omission from 
the request of any information described in paragraph (2), the 
requestor may submit a subsequent request under this subsection 
for the same proposed use.
  (5)(A) Subject to subparagraph (B), the Secretary shall 
provide to the requestor a written determination of whether the 
proposed use, as proposed by the requestor, will comply with 
section 9(a), by not later than expiration of the 180-day 
period beginning on the date of the submission of the request.
  (B) The Secretary may request, and the requestor may grant, a 
written extension of the period under subparagraph (A).
  (6) If the Secretary fails to provide a written determination 
before the expiration of the period under paragraph (5)(A) (or 
any extension thereof under paragraph (5)(B)), the Secretary is 
deemed to have determined that the proposed use complies with 
section 9(a).
  (7) This subsection shall not apply with respect to agency 
actions that are subject to consultation under section 7.
  (8) Any use or action taken by the property owner in 
reasonable reliance on a written determination of compliance 
under paragraph (5) or on the application of paragraph (6) 
shall not be treated as a violation of section 9(a).
  (9) Any determination of compliance under this subsection 
shall remain effective--
          (A) in the case of a written determination provided 
        under paragraph (5)(A), for the 10-year period 
        beginning on the date the written determination is 
        provided; or
          (B) in the case of a determination that under 
        paragraph (6) the Secretary is deemed to have made, the 
        5-year period beginning on the first date the Secretary 
        is deemed to have made the determination.
  (10) The Secretary may withdraw a determination of compliance 
under this section only if the Secretary determines that, 
because of unforeseen changed circumstances, the continuation 
of the use to which the determination applies would preclude 
conservation measures essential to the survival of any 
endangered species or threatened species. Such a withdrawal 
shall take effect 10 days after the date the Secretary provides 
notice of the withdrawal to the requester.
  (11) The Secretary may extend the period that applies under 
paragraph (5) by up to 180 days if seasonal considerations make 
a determination impossible within the period that would 
otherwise apply.
  (l) National Security.--The President, after consultation 
with the appropriate Federal agency, may exempt any act or 
omission from the provisions of this Act if such exemption is 
necessary for national security.
  (m) Disaster Declaration and Protection.--(1) The President 
may suspend the application of any provision of this Act in any 
area for which a major disaster is declared under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5121 et seq.).
  (2) The Secretary shall, within one year after the date of 
the enactment of the Threatened and Endangered Species Recovery 
Act of 2005, promulgate regulations regarding application of 
this Act in the event of an emergency (including circumstances 
other than a major disaster referred to in paragraph (1)) 
involving a threat to human health or safety or to property, 
including regulations--
          (A) determining what constitutes an emergency for 
        purposes of this paragraph; and
          (B) to address immediate threats through expedited 
        consideration under or waiver of any provision of this 
        Act.

                       PENALTIES AND ENFORCEMENT

  Sec. 11. (a) Civil Penalties.--(1) Any person who knowingly 
violates, and any person engaged in business as an importer or 
exporter of fish, wildlife, or plants who violates, any 
provision of this Act, or any provision of any permit or 
certificate issued hereunder, or of any regulation issued in 
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or 
(F), (a)(2(A), (B), (C), or (D), (c), (d), (other than 
regulation relating to recordkeeping or filing of reports), 
(f), or (g) of section 9 of this Act, may be assessed a civil 
penalty by the Secretary of not more than $25,000 for each 
violation. Any person who knowingly violates, and any person 
engaged in business as an importer or exporter of fish, 
wildlife, or plants who violates, any provision of any other 
regulation issued under this Act may be assessed a civil 
penalty by the Secretary of not more than $12,000 for each such 
violation. Any person who otherwise violates any provision of 
this Act, or any regulation, permit, or certificate issued 
hereunder, may be assessed a civil penalty by the Secretary of 
not more than $500 for each such violation. No penalty may be 
assessed under this subsection unless such person is given 
notice and opportunity for a hearing with respect to such 
violation. Each violation shall be a separate offense. Any such 
civil penalty may be remitted or mitigated by the Secretary. 
Upon any failure to pay a penalty assessed under this 
subsection, the Secretary may request the Attorney General to 
institute a civil action in a district court of the United 
States for any district in which such person is found, resides, 
or transacts business to collect the penalty and such court 
shall have jurisdiction to hear and decide any such action. The 
court shall hear such action on the record made before the 
Secretary and shall sustain [his] the Secretary's action if it 
is supported by substantial evidence on the record considered 
as a whole.

           *       *       *       *       *       *       *

  (3) Notwithstanding any other provision of this Act, no civil 
penalty shall be imposed if it can be shown by a preponderance 
of the evidence that the defendant committed an act based on a 
good faith belief that [he] the defendant was acting to protect 
[himself or herself] the defendant, a member of [his or her] 
the defendant's family, or any other individual from bodily 
harm, from any endangered or threatened species.
  (b) Criminal Violations.--(1)  * * *

           *       *       *       *       *       *       *

  (3) Notwithstanding any other provision of this Act, it shall 
be a defense to prosecution under this subsection if the 
defendant committed the offense based on a good faith belief 
that [he] the defendant was acting to protect [himself or 
herself] the defendant, a member of [his or her] the 
defendant's family, or any other individual, from bodily harm 
from any endangered or threatened species.

           *       *       *       *       *       *       *

  (d) Rewards and Certain Incidental Expenses.--The Secretary 
or the Secretary of the Treasury shall pay, from sums received 
as penalties, fines, or forfeitures of property for any 
violations of this chapter or any regulation issued hereunder 
(1) a reward to any person who furnishes information which 
leads to an arrest, a criminal conviction, civil penalty 
assessment, or forfeiture of property for any violation of this 
chapter or any regulation issued hereunder, and (2) the 
reasonable and necessary costs incurred by any person in 
providing temporary care for any fish, wildlife, or plant 
pending the disposition of any civil or criminal proceeding 
alleging a violation of this chapter with respect to that fish, 
wildlife, or plant. The amount of the reward, if any, is to be 
designated by the Secretary or the Secretary of the Treasury, 
as appropriate. Any officer or employee of the United States or 
any State or local government who furnishes information or 
renders service in the performance of [his] the officer's or 
employee's 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] Such a person may 
make arrests without a warrant for any violation of this Act if 
[he] the person has reasonable grounds to believe that the 
person to be arrested is committing the violation in [his] the 
person's presence or view and may execute and serve any arrest 
warrant, search warrant, or other warrant or civil or criminal 
process issued by any officer or court of competent 
jurisdiction for enforcement of this Act. Such person so 
authorized may search and seize, with or without a warrant, as 
authorized by law. Any fish, wildlife, property, or item so 
seized shall be held by any person authorized by the Secretary, 
the Secretary of the Treasury, or the Secretary of the 
Department in which the Coast Guard is operating pending 
disposition of civil or criminal proceedings, or the 
institution of an action in rem for forfeiture of such fish, 
wildlife, property, or item pursuant to paragraph (4) of the 
subsection; except that the Secretary may, in lieu of holding 
such fish, wildlife, property, or item, permit the owner or 
consignee to post a bond or other surety satisfactory to the 
Secretary, but upon forfeiture of any such property to the 
United States, or the abandonment or waiver of any claim to any 
such property, it shall be disposed of (other than by sale to 
the general public) by the Secretary in such a manner, 
consistent with the purposes of this Act, as the Secretary 
shall by regulation prescribe.

           *       *       *       *       *       *       *

  (5) All provisions of law relating to the seizure, 
forfeiture, and condemnation of a vessel for violation of the 
customs laws, the disposition of such vessel or the proceeds 
from the sale thereof, and the remission or mitigation of such 
forfeiture, shall apply to the seizures and forfeitures 
incurred, or alleged to have been incurred, under the 
provisions of this Act, insofar as such provisions of law are 
applicable and not inconsistent with the provisions of this 
Act; except that all powers, rights, and duties conferred or 
imposed by the customs laws upon any officer or employee of the 
Treasury Department shall, for the purposes of this Act, be 
exercised or performed by the Secretary or by such persons as 
[he] the Secretary may designate.

           *       *       *       *       *       *       *

  (g) Citizen Suits.--(1) Except as provided in paragraph (2) 
of this subsection any person may commence a civil suit on 
[his] the person's own behalf--
          (A)  * * *

           *       *       *       *       *       *       *


                         [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 ofJune 15, 1935 (49 Stat. 383, 16 U.S.C. 715s(a)), are each 
amended bystriking 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:
          ``Thretened Species.--For any national area which may 
        be authorized for the preservation of species of fish 
        or wildlife that are threatened with extinction.''
and inserting in lieu thereof the following:
          [``Endangered Species and Threatened Species.--For 
        lands, waters, or interests therein, the acquisition of 
        which is authorized under section 5(a) of the 
        Endangered Species Act of 1973, needed for the purpose 
        of conserving endangered or threatened species of fish 
        or wildlife or plants.''
  [(d) The first sentence of section 2 of the Act of September 
28, 1962, as amended (76 Stat. 653, 16 U.S.C. 460k-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 such revisions 
        of theEndangered Species List, authorized by the 
        Endangered Species Conservation Act of 1969,'' in 
        section 202(a)(6) thereof and inserting in lieu thereof 
        the following: ``such revisions of the endangered 
        species list and threatened species list published 
        pursuant to section 4(c)(1) of the Endangered Species 
        Act of 1973''.
  [(f) Section 2(l) of the Federal Environmental Pesticide 
Control Act of 1972 (Public Law 92-516) is amended by striking 
out the words ``by the Secretary of the Interior under Public 
Law 91-135'' and inserting in lieu thereof the words ``or 
threatened by the Secretary pursuant to the Endangered Species 
Act of 1973''.

                               [REPEALER

  [Sec. 14. The Endangered Species Conservation Act of 1969 
(sections 1 through 3 of the Act of October 16, 1966, and 
sections 1 through 6 of the Act of December 5,1969; 16 U.S.C. 
668aa-666cc-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 
sections 7 (e), (g), and (h) not to exceed $600,000 for each of 
fiscal years 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.]

                     PRIVATE PROPERTY CONSERVATION

  Sec. 13. (a) In General.--The Secretary may provide 
conservation grants (in this section referred to as ``grants'') 
to promote the voluntary conservation of endangered species and 
threatened species by owners of private property and shall 
provide financial conservation aid (in this section referred to 
as ``aid'') to alleviate the burden of conservation measures 
imposed upon private property owners by this Act. The Secretary 
may provide technical assistance when requested to enhance the 
conservation effects of grants or aid.
  (b) Awarding of Grants and Aid.--Grants to promote 
conservation of endangered species and threatened species on 
private property--
          (1) may not be used to fund litigation, general 
        education, general outreach, lobbying, or solicitation;
          (2) may not be used to acquire leases or easements of 
        more than 50 years duration or fee title to private 
        property;
          (3) must be designed to directly contribute to the 
        conservation of an endangered species or threatened 
        species by increasing the species' numbers or 
        distribution; and
          (4) must be supported by any private property owners 
        on whose property any grant funded activities are 
        carried out.
  (c) Priority.--Priority shall be accorded among grant 
requests in the following order:
          (1) Grants that promote conservation of endangered 
        species or threatened species on private property while 
        making economically beneficial and productive use of 
        the private property on which the conservation 
        activities are conducted.
          (2) Grants that develop, promote, or use techniques 
        to increase the distribution or population of an 
        endangered species or threatened species on private 
        property.
          (3) Other grants that promote voluntary conservation 
        of endangered species or threatened species on private 
        property.
  (d) Eligibility for Aid.--(1) The Secretary shall award aid 
to private property owners who--
          (A) received a written determination under section 
        10(k) finding that the proposed use of private property 
        would not comply with section 9(a); or
          (B) receive notice under section 10(k)(10) that a 
        written determination has been withdrawn.
  (2) Aid shall be in an amount no less than the fair market 
value of the use that was proposed by the property owner if--
          (A) the owner has foregone the proposed use;
          (B) the owner has requested financial aid--
                  (i) within 180 days of the Secretary's 
                issuance of a written determination that the 
                proposed use would not comply with section 
                9(a); or
                  (ii) within 180 days after the property owner 
                is notified of a withdrawal under section 
                10(k)(10); and
          (C) the foregone use would be lawful under State and 
        local law and the property owner has demonstrated that 
        the property owner has the means to undertake the 
        proposed use.
  (e) Distribution of Grants and Aid.--(1) The Secretary shall 
pay eligible aid--
          (A) within 180 days after receipt of a request for 
        aid unless there are unresolved questions regarding the 
        documentation of the foregone proposed use or 
        unresolved questions regarding the fair market value; 
        or
          (B) at the resolution of any questions concerning the 
        documentation of the foregone use established under 
        subsection (f) or the fair market value established 
        under subsection (g).
  (2) All grants provided under this section shall be paid on 
the last day of the fiscal year. Aid shall be paid based on the 
date of the initial request.
  (f) Documentation of the Foregone Use.--Within 30 days of the 
request for aid, the Secretary shall enter into negotiations 
with the property owner regarding the documentation of the 
foregone proposed use through such mechanisms such as contract 
terms, lease terms, deed restrictions, easement terms, or 
transfer of title. If the Secretary and the property owner are 
unable to reach an agreement, then, within 60 days of the 
request for aid, the Secretary shall determine how the property 
owner's foregone use shall be documented with the least impact 
on the ownership interests of the property owner necessary to 
document the foregone use.
  (g) Fair Market Value.--For purposes of this section, the 
fair market value of the foregone use of the affected portion 
of the private property, including business losses, is what a 
willing buyer would pay to a willing seller in an open market. 
Fair market value shall take into account the likelihood that 
the foregone use would be approved under State and local law. 
The fair market value shall be determined within 180 days of 
the documentation of the foregone use. The fair market value 
shall be determined jointly by 2 licensed independent 
appraisers, one selected by the Secretary and one selected by 
the property owner. If the 2 appraisers fail to agree on fair 
market value, the Secretary and the property owner shall 
jointly select a third licensed appraiser whose appraisal 
within an additional 90 days shall be binding on the Secretary 
and the private property owner. Within one year after the date 
of enactment of the Threatened and Endangered Species Recovery 
Act of 2005, the Secretary shall promulgate regulations 
regarding selection of the jointly selected appraisers under 
this subsection.
  (h) Limitation on Aid Availability.--Any person receiving aid 
under this section may not receive additional aid under this 
section for the same foregone use of the same property and for 
the same period of time.
  (i) Annual Reporting.--The Secretary shall by January 15 of 
each year provide a report of all aid and grants awarded under 
this section to the Committee on Resources of the House of 
Representatives and the Environment and Public Works Committee 
of the Senate and make such report electronically available to 
the general public on the website required under section 14.

                PUBLIC ACCESSIBILITY AND ACCOUNTABILITY

  Sec. 14. The Secretary shall make available on a publicly 
accessible website on the Internet--
          (1) each list published under section 4(c)(1);
          (2) all final and proposed regulations and 
        determinations under section 4;
          (3) the results of all 5-year reviews conducted under 
        section 4(c)(2)(A);
          (4) all draft and final recovery plans issued under 
        section 5(a), and all final recovery plans issued and 
        in effect under section 4(f)(1) of this Act as in 
        effect immediately before the enactment of the 
        Threatened and Endangered Species Recovery Act of 2005;
          (5) all reports required under sections 5(e) and 16, 
        and all reports required under sections 4(f)(3) and 18 
        of this Act as in effect immediately before the 
        enactment of the Threatened and Endangered Species 
        Recovery Act of 2005; and
          (6) data contained in the reports referred to in 
        paragraph (5) of this section, and that were produced 
        after the date of enactment of the Threatened and 
        Endangered Species Recovery Act of 2005, in the form of 
        databases that may be searched by the variables 
        included in the reports.

                  MARINE MAMMAL PROTECTION ACT OF 1972

  Sec. [17] 15. Except as otherwise provided in this Act, no 
provision of this Act shall take precedence over any more 
restrictive conflicting provision of the Marine Mammal 
Protection Act of 1972.

         [ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE

  [Sec. 18. Notwithstanding section 3003 of Public Law 104-66 
(31 U.S.C. 1113 note; 109 Stat. 734), on or before January 15, 
1990, and each January 15 thereafter, the Secretary of the 
Interior, acting through the Fish and Wildlife Service, shall 
submit to the Congress an annual report covering the preceding 
fiscal year which shall contain--
          [(1) an accounting on a species by species basis of 
        all reasonably unidentifiable Federal expenditures made 
        primarily for the conservation of endangered or 
        threatened species pursuant to this Act; and
          [(2) an accounting on a species by species basis for 
        all reasonably identifiable expenditures made primarily 
        for the conservation of endangered or threatened 
        species pursuant to this Act by States receiving grants 
        under section 6.]

    ANNUAL COST ANALYSIS BY UNITED STATES FISH AND WILDLIFE SERVICE

  Sec. 16. (a) In General.--On or before January 15 of each 
year, the Secretary shall submit to the Congress an annual 
report covering the preceding fiscal year that contains an 
accounting of all reasonably identifiable expenditures made 
primarily for the conservation of species included on lists 
published and in effect under section 4(c).
  (b) Specification of Expenditures.--Each report under this 
section shall specify--
          (1) expenditures of Federal funds on a species-by-
        species basis, and expenditures of Federal funds that 
        are not attributable to a specific species;
          (2) expenditures by States for the fiscal year 
        covered by the report on a species-by-species basis, 
        and expenditures by States that are not attributable to 
        a specific species; and
          (3) based on data submitted pursuant to subsection 
        (c), expenditures voluntarily reported by local 
        governmental entities on a species-by-species basis, 
        and such expenditures that are not attributable to a 
        specific species.
  (c) Encouragement of Voluntary Submission of Data by Local 
Governments.--The Secretary shall provide a means by which 
local governmental entities may--
          (1) voluntarily submit electronic data regarding 
        their expenditures for conservation of species listed 
        under section 4(c); and
          (2) attest to the accuracy of such data.

   REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED SPECIES

  Sec. 17. (a) In General.--The Secretary of the Interior, 
acting through the Director of the United States Fish and 
Wildlife Service, may reimburse the owner of livestock for any 
loss of livestock resulting from depredation by any population 
of a species if the population is listed under section 4(c) and 
includes or derives from members of the species that were 
reintroduced into the wild.
  (b) Eligibility for and Amount.--Eligibility for, and the 
amount of, reimbursement under this section shall not be 
conditioned on the presentation of the body of any animal for 
which reimbursement is sought.
  (c) Limitation on Requirement to Present Body.--The Secretary 
may not require the owner of livestock to present the body of 
individual livestock as a condition of payment of reimbursement 
under this section.
  (d) Use of Donations.--The Secretary may accept and use 
donations of funds to pay reimbursement under this section.
  (e) Availability of Appropriations.--The requirement to pay 
reimbursement under this section is subject to the availability 
of funds for such payments.

                    AUTHORIZATION OF APPROPRIATIONS

  Sec. 18. (a) In General.--There are authorized to be 
appropriated to carry out this Act, other than section 8A(e)--
          (1) to the Secretary of the Interior to carry out 
        functions and responsibilities of the Department of the 
        Interior under this Act, such sums as are necessary for 
        fiscal years 2006 through 2010; and
          (2) to the Secretary of Agriculture to carry out 
        functions and responsibilities of the Department of the 
        Interior with respect to the enforcement of this Act 
        and the convention which pertain the importation of 
        plants, such sums as are necessary for fiscal year 2006 
        through 2010.
  (b) Convention Implementation.--There is authorized to be 
appropriated to the Secretary of the Interior to carry out 
section 8A(e) such sums as are necessary for fiscal years 2006 
through 2010.
                              ----------                              


                  MARINE MAMMAL PROTECTION ACT OF 1972



           *       *       *       *       *       *       *
TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS

           *       *       *       *       *       *       *


                                PERMITS

  Sec. 104. (a) * * *

           *       *       *       *       *       *       *

  (c)(1) * * *

           *       *       *       *       *       *       *

  (4)(A) A permit may be issued for enhancing the survival or 
recovery of a species or stock only with respect to a species 
or stock for which the Secretary, after consultation with the 
Marine Mammal Commission and after notice and opportunity for 
public comment, has first determined that--
          (i) * * *
          (ii) taking or importation is consistent (I) with any 
        conservation plan adopted by the Secretary under 
        section 115(b) of this title or any recovery plan 
        developed under [section 4(f)] section 5 of the 
        Endangered Species Act of 1973 for the species or 
        stock, or (II) if there is no conservation or recovery 
        plan in place, with the Secretary's evaluation of 
        actions required to enhance the survival or recovery of 
        the species or stock in light to the factors that would 
        be addressed in a conservation plan or a recovery plan.

           *       *       *       *       *       *       *


                   STATUS REVIEW; CONSERVATION PLANS

  Sec. 115. (a) * * *
  (b)(1) * * *
  (2) Each plan shall have the purpose of conserving and 
restoring the species or stock to its optimum sustainable 
population. The Secretary shall model such plans on recovery 
plans required under [section 4(f) of the Endangered Species 
Act of 1973 (16 U.S.C. 1533(f))] section 5 of the Endangered 
Species Act of 1973.

           *       *       *       *       *       *       *


                            ADDITIONAL VIEWS

                              ----------                              


               ADDITIONAL VIEWS OF CONGRESSMAN DON YOUNG

    For too long, the Endangered Species Act has been used not 
as a tool for protecting the environment but as a roadblock. 
The original intent of species protection has been lost by 
those eager to wield the ESA's power for legal and bureaucratic 
ensnarement. The problems with the current Act ensure that it 
will remain primarily used in this dilatory role instead of its 
higher calling.
    I particularly applaud the improvement to the scientific 
standards included in H.R. 3824: The Threatened and Endangered 
Species Recovery Act. My fellow Alaskans, for instance, have 
told me of wildlife counts drastically at odds with government 
agency findings, but the Act's unclear definition of ``best 
available'' allows information gathered during airplane fly-
overs to count more than the on the ground reality as found by 
those who live there.
    While the Federal Government has failed to recover 
endangered species to healthy and sustainable populations, it 
has unfortunately not failed to cause massive hardship for 
landowners and communities while pursuing this so far widely 
unobtained goal. A better approach is needed--for plants, 
wildlife, and humans. I applaud Chairman Pombo and his efforts 
on this urgent matter.

                                                         Don Young.

             ADDITIONAL VIEWS OF REPRESENTATIVE MARK UDALL

    While I have strongly supported the Endangered Species Act, 
I have never rejected the idea of changing it.
    On the contrary, I have repeatedly said that I thought it 
would be possible to improve the way it was implemented.
    So, I regret that I was unable to support H.R. 3824 as 
ordered reported by the Resources Committee.
    I don't think the bill is all bad. I like the idea of 
putting more emphasis on recovery plans and on steps to provide 
incentives for landowners and other private parties to help 
with recovering species. And there are other provisions that I 
think are acceptable or even desirable.
    Unfortunately, though, to my mind the bill's defects are 
still so numerous and so serious that it does not deserve to be 
favorably reported as it stands. It simply isn't ready for 
prime time on the floor of the House.
    That was why I offered an amendment to retain protections 
for species listed as ``threatened'' and why I joined with the 
gentleman from New Mexico, Mr. Pearce, in offering an amendment 
to authorize the fish and wildlife service to compensate 
ranchers for livestock lost to an endangered predator that has 
been reintroduced into the wild--something I supported to help 
ensure fair treatment for ranchers where those reintroductions 
take place or where those predators may relocate themselves. I 
am pleased that the Committee adopted those amendments.
    In addition, I voted for a number of amendments that would 
have made other improvements in the bill. If all those 
amendments had been adopted, I would have a much higher opinion 
of the bill.
    Regrettably, that did not happen, and the legislation's 
other flaws meant that I could not vote to approve the bill.
    However, I take hope from the fact that the vote on 
reporting the bill will not be the last vote on this 
legislation. And, as the legislative process goes forward, I 
will continue to do what I can to maintain essential 
protections for endangered species while working to improve the 
way those protections are implemented.

                                                        Mark Udall.

                            DISSENTING VIEWS

    Enacted in 1973, the Endangered Species Act (ESA) has 
demonstrated that it is possible to protect our country's 
heritage and at the same time effectively compete in a global 
economy. H.R. 3824 will unravel the progress this Nation has 
made in sparing from extinction more than 1,200 species, 
including the bald eagle and grizzly bear, on their way to 
recovery, and the brown pelican, American Peregrine Falcon and 
gray whale, which have recovered.
    Those who argue that the law is a failure because it has 
not recovered more species do not understand that the 
Endangered Species Act was never intended as a quick fix to 
protect our favorite species. It is the law of last resort when 
other State and Federal laws fail to result in species 
conservation. The true value of the Endangered Species Act lies 
in the intricacies of life itself.
    The Endangered Species Act has been amended several times. 
There are administrative remedies available to address most, if 
not all, the reasonable issues that have been raised about the 
law. But there is no justification for H.R. 3824, except for 
the expedience of a short-sighted political agenda. H.R. 3824 
would establish precedents we strongly oppose.

                            Pesticide Waiver

    H.R. 3824 would repeal the Endangered Species Act 
provisions that protect threatened and endangered species from 
the harmful impacts of pesticides. Have we forgotten that it 
was the pesticide DDT that was largely responsible for the 
demise of our Nation's most enduring symbol, the American bald 
eagle? Pesticides have also been blamed for poisoning the 
salmon in the Pacific Northwest, and are suspected of playing a 
key role in the recent dramatic decline of fish populations in 
California's San Francisco Bay/Sacramento-San Joaquin Delta.
    Yet, H.R. 3824 would insulate those who use pesticides from 
the Endangered Species Act's prohibitions against killing 
endangered and threatened species. Additionally, it would waive 
the requirements in Section 7 of ESA that Federal agencies 
consult with the National Oceanic and Atmospheric 
Administration's National Marine Fisheries Service or Fish and 
Wildlife Service (Services) to determine the effects that a 
proposed action may have on listed species. As long as 
corporations and Federal agencies comply with the Federal 
Insecticide, Fungicide and Rodenticide Act, they will have no 
further obligation to meet the requirements in the Endangered 
Species Act.
    Notwithstanding the billions of dollars this country has 
spent to restore estuaries and waterways, from the Chesapeake 
Bay to the Everglades and San Francisco Bay/Sacramento-San 
Joaquin Delta, this provision would lift prohibitions in place 
to protect drinking water quality, fisheries and wildlife. The 
economic and environmental implications of this provision are 
staggering.

                       Payment for ESA Compliance

    Under the misleading label ``conservation grants,'' Section 
14 creates a new, potentially open-ended entitlement program 
for property developers and speculators. Section 14 would 
establish the dangerous precedent that private individuals must 
be paid in order to comply with an environmental law designed 
to protect the public interest in preserving endangered species
    Under Section 14, the Services would be put in an untenable 
position where enforcement of the Endangered Species Act would 
generate countless compensation claims and virtually unlimited 
liability against the agencies and Federal taxpayers.
    The ``takings'' clause of the Fifth Amendment to the 
Constitution states: ``[N]or shall private property be taken 
for public use, without just compensation.'' However, under the 
provisions of Section 14, property developers would be 
compensated for government actions which do not constitute 
takings under the Fifth Amendment. The Majority's intent to 
disregard the long-standing principles of Fifth-amendment based 
compensation was made clear by their rejection of Mr. Inslee's 
amendment.
    If the ``pay people to comply with the law'' language of 
Section 14 were applied to local zoning, no Mayor or city 
council could govern a community without facing fear that a 
decision might drive the community into financial ruin. Among 
its many flaws, Section 14 redefines ``fair market value'' to 
include speculative ``business losses'' and allows for 
compensation of ``no less than fair market value'' even if only 
a portion of the property is affected by the government action.
    Ironically, Section 14 provides no assurance that the new 
compensation program would lead to greater conservation or 
recovery of endangered species. The far greater likelihood is 
an unwarranted windfall for land developers, and speculators, 
and their lawyers at an enormous cost to the taxpayers and 
budget deficit.

                  Alternative Consultation Procedures

    H.R. 3824 cuts the heart out of the Section 7 consultation 
process, the lynchpin of the ESA. H.R. 3824 allows the 
Secretary of the Interior or Commerce to delegate those 
responsibilities to other Federal agencies through undefined 
procedures. Section 12 imposes no standards for these 
procedures, thus potentially allowing destructive Federal 
activities to proceed without the normal review by the 
scientists with wildlife expertise. The only justification 
given for this provision is that the Services have a heavy 
workload. This problem could be addressed if additional 
resources for ESA compliance were allocated to the responsible 
agencies, a solution repeatedly suggested in testimony before 
the Committee.
    Those tasked with determining the effects of a proposed 
agency action would be forced to wear blinders when considering 
whether a species is in jeopardy of extinction. Under existing 
law, the Services consider the condition of the species at the 
time the proposed action would be carried out. If other 
projects are also negatively impacting the species, the 
Services address their cumulative effects when evaluating 
whether the species is in trouble. Yet H.R. 3824 forbids the 
Services from taking these baseline conditions into account. 
The Services will be obligated to ignore reality and base their 
decision on fiction. There is a real risk that this provision 
could allow political expediency to override the concerns of 
qualified agency scientists.
    Once the Secretary of the Interior or Commerce has entered 
into a cooperative agreement with a State, H.R. 3824 limits the 
applicability of the Section 7 consultation provisions in the 
ESA to the time when the agreement is renewed or amended. If it 
is found that the agreement results in the harm or jeopardy of 
a listed species, it is questionable whether consultation would 
have to be reinitiated. There is no requirement that the 
cooperative agreement meet any meaningful conservation 
standard.

                          Jeopardy Definition

    While we are highly critical of H.R. 3824, we believe that 
including a statutory definition of ``jeopardize the continued 
existence'' of listed species is a step in the right direction. 
The existing regulatory definition in 50 CFR 402.02 allows 
agency actions to proceed unless they impede both the 
``survival and recovery'' of a listed species. This definition 
allows too many species to totter on the brink of extinction. A 
species that is merely surviving is clearly not recovering.
    The statutory definition of what constitutes jeopardy in 
H.R. 3824 prohibits any agency action that is likely to make 
species' conservation significantly less likely in the long-
term. The term ``long-term'' will allow the Secretary to 
balance the proven long-term benefits of an action intended to 
promote the species' conservation against potential short term 
negative impacts in assessing whether jeopardy is likely to 
occur. For example, prescriptive-burning or other active 
habitat management may be necessary to ensure a species' 
conservation in the long-term, even though such management 
actions may cause short-term adverse impacts to individual 
members of a species. It is expected that a species' recovery 
plan, including the identification in such plans of habitat 
necessary for the conservation of the species, is to factor 
significantly in making a jeopardy determination during the 
Section 7 consultation process.
    The bill replaces the Secretary's obligation to designate 
critical habitat for listed species with a new obligation to 
identify in a species' recovery plan that habitat which is of 
special value for the conservation of the species. It is 
expected that an endangered or threatened species' recovery 
plan, including the identification in such plan of areas of 
special value to the conservation of the species, will factor 
significantly in making a jeopardy determination during the 
Section 7 consultation process. In the absence of a meaningful 
recovery plan or criteria or where the Secretary has determined 
that he or she cannot yet ascertain recovery criteria, the 
jeopardy analysis shall be informed by the proposed agency 
action's likely impact on achieving interim recovery criteria, 
if any, and the extent to which the proposed agency action is 
likely to impact the species' current status and potential 
prospects for recovery.

                               Conclusion

    Notwithstanding our support for the inclusion of a 
statutory definition of jeopardy, we strongly oppose H.R. 3824 
which will undermine any progress this country has seen in 
species recovery. There is no justification to overhaul the law 
in this way, and its enactment will likely result in more 
species extinctions and greater costs to the taxpayer.
    We cannot know what currently unforeseen miracles of 
science and medicine reside in the small, seemingly 
insignificant life forms which surround us. But modern medicine 
has saved untold numbers of lives by gaining a deeper 
understanding of life forms. If we wish for human life to 
continue, we must recognize that our lives are inextricably 
woven with all other life.
    None among us fully understands the complex design of life 
on earth. Until we do, we should preserve God's wonders in all 
their forms. It is not for us to decide which pieces of God's 
plan meet our standards, which should survive, and which should 
be extinguished for our convenience and pleasure.

                                   Nick Rahall.
                                   Edward J. Markey.
                                   Frank Pallone, Jr.
                                   Raul M. Grijalva.
                                   Ron Kind.
                                   Dale E. Kildee.
                                   Mark Udall.
                                   Tom Udall.
                                   George Miller.
                                   Grace F. Napolitano.

ADDITIONAL DISSENTING VIEWS OF REPRESENTATIVES MARKEY, PALLONE, INSLEE, 
                              AND GRIJALVA

    In addition to the concerns that we have about other 
objectionable components of the bill approved by the Resources 
Committee, we would also like to address specifically the 
provisions in H.R. 3824 that deal with the designation of 
habitat. This bill eliminates the mandatory and enforceable 
designation of a listed species' critical habitat that is in 
current law. Instead, section 10 of this bill directs the 
Secretary to create recovery plans for listed species that 
include identification of areas of ``special value'' to a 
species' conservation. Replacing the current mandatory 
designation and protection of critical habitat with a recovery 
plan, which continues to lack regulatory force, represents a 
dangerous shift in policy that would significantly undermine 
the protection and recovery of threatened and endangered 
species.
    Designating critical habitat for listed species is an 
integral part of a species' continued existence and recovery. A 
major factor forcing threatened and endangered species towards 
extinction is the loss and deterioration of habitat necessary 
for survival. We cannot expect a species to recover without 
first ensuring that it has the habitat in which to do so.
    One example of the necessity and success of critical 
habitat designation is the case of the whooping crane. The 
whooping crane is a bird that was at the brink of extinction--
at one point there were only 16 in the wild. Enforcement action 
under the critical habitat protection led to the protection of 
the bird's designated migratory path along the Platte River and 
now there are over 200 wild whooping cranes.
    The critical habitat designation is the only part of the 
current law that protects the entire habitat needed for the 
recovery of a species. Under the current law, Federal agencies 
and private actors within a Federal nexus must refrain from 
``adverse modification'' of critical habitat. There is no 
provision in this bill that similarly expressly protects a 
species' habitat. To mandate that areas of special value be 
identified but then to prevent the enforcement of the 
protection of those areas, will simply result in the filing of 
plans that have no regulatory effect. It would create a 
blizzard of unenforceable bureaucratic paperwork which, in the 
words of Shakespeare, would be ``full of sound and fury but 
signifying nothing.''
    We strongly oppose the elimination of critical habitat 
requirements as an enforceable feature of our national law to 
protect endangered species and urge that habitat designations 
and protections be strengthened as the bill moves forward.

                                   Edward J. Markey.
                                   Jay Inslee.
                                   Frank Pallone, Jr.
                                   Raul M. Grijalva.