Sponsors: Mr. Young of Alaska (for himself, Mr. Pombo, Mr. Tauzin, Mr. Brewster, Mr. Doolittle, Mr. Hansen, Mr. Dooley, Mr. Calvert, Mr. Condit, Mr. Stenholm, Mr. Stump, Mr. Smith of Texas, Mr. Gallegly, Mr. Fields of Texas, Mr. Kolbe, Ms. Danner, Mr. Hutchinson, Mr. Hayworth, Mr. Hastings of Washington, Mr. Bonilla, Mr. McHugh, Mr. Dornan, Mr. Herger, Mr. Everett, Mr. Taylor of North Carolina, Mr. Packard, Mr. Cunningham, Mr. Thornberry, Mr. Hayes, Mr. Royce, Mr. Combest, Mr. Cooley, Mr. Salmon, Mr. Bono, Mr. Baker of California, Mr. Hunter, Mr. Lewis of California, Mrs. Cubin, Mr. McKeon, Mr. Radanovich, Mr. Riggs, Mr. Rohrabacher, Mrs. Seastrand, Mr. Thomas, Mr. Allard, Mr. Schaefer, Mr. Mica, Mr. Chambliss, Mr. Collins of Georgia, Mr. Linder, Mr. Baker of Louisiana, Mr. Crapo, Mr. Ewing, Mr. Burton of Indiana, Mr. Hostettler, Mr. McIntosh, Mr. Roberts, Mr. Lewis of Kentucky, Mr. Bartlett of Maryland, Mr. Knollenberg, Mr. Emerson, Mr. Hancock, Mr. Skeen, Mr. Paxon, Mr. Solomon, Mr. Ballenger, Mr. Jones, Mr. Oxley, Mr. Coburn, Mr. Largent, Mr. Lucas, Mr. Watts of Oklahoma, Mr. Barton of Texas, Mr. DeLay, Mr. Sam Johnson of Texas, Mr. Stockman, Mr. Shadegg, Mr. Callahan, Mr. Laughlin, Mrs. Vucanovich, Mr. Tejeda, Mr. Bachus, Mr. Cox of California, Mr. Funderburk, Mr. Boehner, Mr. Crane, Mr. Dreier, Mr. Edwards, Mr. Nethercutt, Mr. Pete Geren of Texas, Mr. Ortiz, Mr. Hall of Texas, Mr. Duncan, Mr. McCrery, and Mr. Livingston) introduced the following bill; which was referred to the Committee on Resources, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.

To reauthorize and amend the Endangered Species Act of 1973. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title: This Act may be cited as the `Endangered Species Conservation and Management Act of 1995'.
(b) Table of Contents: The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. References to Endangered Species Act of 1973.
Sec. 3. Findings, purposes, and policy of Endangered Species Act of 1973.

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

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

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

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

TITLE III--IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND PROCEDURES
Sec. 301. Improving the validity and credibility of decisions.
Sec. 302. Peer review.
Sec. 303. Making data public.
Sec. 304. Improving the petition and designation processes.
Sec. 305. Greater State involvement.
Sec. 306. Monitoring the status of species.
Sec. 307. Petitions to delist species.

TITLE IV--RECOGNIZING OTHER FEDERAL ACTION, LAWS, AND MISSIONS
Sec. 401. Balance ESA with other laws and missions.
Sec. 402. Exemptions from consultation and conferencing.
Sec. 403. Eliminating the exemption committee (GOD committee).

TITLE V--BETTER MANAGEMENT AND CONSERVATION OF LISTED SPECIES
Sec. 501. Setting conservation objectives.
Sec. 502. Preparing a conservation plan.
Sec. 503. Interim measures.
Sec. 504. Critical habitat for species.
Sec. 505. Recognition of captive propagation as means of recovery.
Sec. 506. Introduction of species.
Sec. 507. Conserving threatened species.

TITLE VI--HABITAT PROTECTIONS
Sec. 601. Federal biological diversity reserve.
Sec. 602. Land acquisition.
Sec. 603. Property exchanges.

TITLE VII--STATE AUTHORITY TO PROTECT ENDANGERED AND THREATENED SPECIES
Sec. 701. State authority.
Sec. 702. State programs affected by the Convention.

TITLE VIII--FUNDING OF CONSERVATION MEASURES
Sec. 801. Authorizing increased appropriations.
Sec. 802. Funding of Federal mandates.
Sec. 803. Endangered Species and Threatened Species Conservation Trust Fund.

TITLE IX--MISCELLANEOUS PROVISIONS
Sec. 901. Amendments to definitions.
Sec. 902. Review of species of national interest.
Sec. 903. Preparation of conservation plans for species listed before enactment of this Act.
Sec. 904. Conforming amendment to table of contents.

SEC. 2. REFERENCES TO ENDANGERED SPECIES ACT OF 1973.
Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to such section or other provision of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

SEC. 3. FINDINGS, PURPOSES, AND POLICY OF ENDANGERED SPECIES ACT OF 1973.
(a) Findings: Section 2(a) (16 U.S.C. 1531(a)) is amended-- (1) by amending paragraph (1) to read as follows: `(1) various species of fish, wildlife, and plants in the United States have been rendered extinct because of inadequate conservation practices and natural processes;'; and (2) by striking `and' after the semicolon at the end of paragraph (4)(G), by striking the period at the end of paragraph (5) and inserting `; and', and by adding at the end the following new paragraph: `(6) the Nation's economic well-being is essential to the ability to maintain a sustainable resource base, therefore economic impacts and private property owners' rights must be considered while encouraging practices that protect species.'.
(b) Purposes and Policy: Section 2 (b) and (c) (16 U.S.C. 1531 (b), (c)) are amended to read as follows: `(b) Purposes: The purposes of this Act are the following:
`(1) To provide a feasible and practical means to conserve endangered species and threatened species consistent with protection of the rights of private property owners and ensuring economic stability.
`(2) To provide a program for the conservation and management of such endangered species and threatened species taking into account the economic and social consequences of such program.
`(3) To take such steps as may be practicable to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.
`(c) Policy:
(1) Federal authority: It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve and manage endangered species and threatened species and shall, consistent with their primary missions, utilize their authorities in furtherance of the purposes of this Act.
`(2) Cooperation with states: It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species and consistent with State and local water laws.
`(3) Protection of private property rights: It is the policy of the Federal Government that agency action taken pursuant to this Act shall not use or limit the use of privately owned property when such action diminishes the value of such property without payment of fair market value to the owner of private property. Each Federal agency, officer, and employee shall exercise authority under this Act to ensure that agency action will not violate the policy established in this paragraph.'

TITLE I--PRIVATE PROPERTY RIGHTS AND VOLUNTARY INCENTIVES FOR PRIVATE PROPERTY OWNERS
SEC. 101. COMPENSATION FOR USE OR TAKING OF PRIVATE PROPERTY. The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) is amended by adding at the end the following new section:
SEC. 19. RIGHT TO COMPENSATION.
(a) Prohibition: The Federal Government shall not take an agency action affecting privately owned property or nonfederally owned property under this Act which results in diminishment of value of any portion of that property by 20 percent or more unless compensation is offered in accordance with this section.
(b) Compensation for Use or Limitation on Use: The agency or agencies that take an agency action that exceeds the amount provided in subsection (a) shall compensate the private property owner for the otherwise lawful use or limitation on the otherwise lawful use in the amount of the diminution in value of the portion of that property resulting from the use or limitation on use. If the diminution in value of a portion of that property is greater than 50 percent, at the option of the owner, the agency or agencies shall buy that portion of the property and shall pay fair market value based on the value of the property before the use or limitation on use was imposed. Compensation paid shall reflect the duration of the use or limitation on use necessary to achieve the purposes of this Act.
(c) Request of Owner: An owner seeking compensation under this section shall make a written request for compensation to the agency implementing the agency action. The request shall, at a minimum, identify the affected portion of the property, the nature of the use or limitation, and the amount of compensation claimed. No such request may be made later than one year after the owner receives actual notice that the use of property has been limited by an agency action.
(d) Negotiations: The agency may negotiate with that owner to reach agreement on the amount of the compensation and the terms of any agreement for payment.If such an agreement is reached, the agency shall promptly pay the owner the amount agreed upon. An agreement under this section may include a transfer of the title or an agreement to use the property for a limited period of time.
(e) Choice of Remedies: If, not later than 180 days after the written request is made, the parties have not reached an agreement on compensation, the owner may elect binding arbitration or seek compensation due under this section in a civil action.
(f) Arbitration: The procedures that govern the arbitration shall, as nearly as practicable, be those established under title 9, United States Code, for arbitration proceedings to which that title applies.An award made in such arbitration shall include a reasonable attorney's fee and other arbitration costs, including appraisal fees.The agency shall promptly pay any award made to the owner.
(g) Civil Action: An owner who prevails in a civil action against the agency pursuant to this section shall be entitled to, and the agency shall be liable for, the amount of compensation awarded plus reasonable attorney's fees and other litigation costs, including appraisal fees.The court shall award interest on the amount of any compensation from the time of the limitation.
(h) Source of Payments: Any payment made under this section to an owner, and any judgment obtained by an owner in a civil action under this section shall, notwithstanding any other provision of law, be made from the annual appropriation of the agency that took the agency action. If the agency action resulted from a requirement imposed by another agency, then the agency making the payment or satisfying the judgment may seek partial or complete reimbursement from the appropriated funds of the other agency.For this purpose the head of the agency concerned may transfer or reprogram any appropriated funds available to the agency.If insufficient funds exist for the payment or to satisfy the judgment, it shall be the duty of the head of the agency to seek the appropriation of such funds for the next fiscal year.
(i) Availability of Appropriations: Notwithstanding any other provision of law, any obligation of the United States to make any payment under this section shall be subject to the availability of appropriations.
(j) Duty of Notice to Owners: Whenever an agency takes an agency action limiting the use of private property the agency shall give appropriate notice to the owners of that property directly affected explaining their rights under this section and the procedures for obtaining any compensation that may be due to them under this section.
(k) Rules of Construction: The following rules of construction shall apply to this Act:
(1) Other rights preserved: Nothing in this Act shall be construed to limit any right to compensation that exists under the Constitution or under other laws.
(2) Extent of federal authority: Payment of compensation under this section (other than when the property is bought by the Federal Government at the option of the owner) shall not confer any rights on the Federal Government other than the use or limitation on use resulting from the agency action for the duration so that the agency action may achieve the species conservation purposes of this Act.
(l) Definitions: For the purposes of this section:
(1) Agency: The term `agency' has the meaning given that term in section 551 of title 5, United States Code.
(2) Agency action: The term `agency action'--
(A) subject to subparagraph (B), has the meaning given that term in section 551 of title 5, United States Code, and
(B) includes--
(i) the loss of use of property to avoid prosecution under section 11;
(ii) a designation pursuant to section 9(i) of privately owned property as critical habitat;
(iii) the denial of a permit under section 10 that restricts the use of private property;
(iv) an agency action pursuant to a biological opinion under section 7 that would cause an agency to restrict the use of private property;
(v) an agreement under section 6 to set aside property for habitat under the terms of an easement or other contract;
(vi) a restriction imposed on private property as part of a conservation plan adopted by the Secretary under section 5;
(vii) any other agency action that restricts a legal right to use that property, including, the right to alter habitat; and
(viii) the making of a grant of land or money, to a public authority or a private entity as a predicate to an agency action by the recipient that would constitute a limitation if done directly by the agency.
(3) Fair market value: The term `fair market value' means the most probable price at which property would change hands, in a competitive and open market under all conditions requisite to fair sale, between a willing buyer and willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts, prior to occurrence of the agency action.
(4) Law of thestate: The term `law of the State' includes the law of a political subdivision of a State.
(5) Limitation on use: The term `limitation on use' means only a limitation on a use which is otherwise permissable under applicable State property or nuisance laws.
(6) Private property, privately owned property, non-federal property: The term `private property', `privately owned property', or `non-Federal property' means property which is owned by a person other than any Federal entity of government.
(7) Property: The term `property' means land, an interest in land, the right to use or receive water, and any personal property that is subject to use by the Federal Government or to a restriction on use.'.

SEC. 102. VOLUNTARY COOPERATIVE MANAGEMENT AGREEMENTS.
(a) Cooperative Management Agreement Defined: Section 3 (16 U.S.C. 1532) is amended--
(1) by redesignating paragraphs (2) through (21) in order as paragraphs (3), (4), (5), (7), (9), (10), (11), (12), (13), (18), (19), (20), (22), (23), (24), (25), (26), (27), and (28); and
(2) by adding after paragraph (5) (as redesignated by paragraph (1) of this section) the following new paragraph: `(6) The term `cooperative management agreement' means a voluntary agreement entered into under section 6(b).'. (b) Voluntary Cooperative Management Agreements: Section 6 (16 U.S.C. 1535) is amended by striking so much as precedes subsection (c) and inserting the following:

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

SEC. 103. GRANTS FOR IMPROVING AND CONSERVING HABITAT FOR SPECIES.
Section 6 (16 U.S.C. 1535), as amended by section 102(b) of this Act, is amended by adding at the end of subsection (b) the following new paragraph:
(11) Habitat conservation grants: (A) The Secretary may, from amounts in the account established by section 13 or from funds appropriated for such purpose, provide a grant to a non-Federal person (other than an officer, employee, or agent (acting in an official capacity) or a department or instrumentality of a State, municipality, or political subdivision thereof) for the purpose of conserving, preserving, or improving habitat for any species that is determined under section 4 to be an endangered species or a threatened species.
(B) The Secretary may provide a grant under this paragraph if the Secretary determines that--
(i) the property for which the grant is provided contains habitat that significantly contributes to the protection of the population of the species;
(ii) the property has been managed for species protection for a period of time that has been sufficient to significantly contribute to the protection of the population of the species; and
(iii) the management of the habitat advances the interest of species protection.
(C) A grant made under this paragraph shall be transferable to subsequent owners of the property for which the grant is provided.'.

SEC. 104. TECHNICAL ASSISTANCE PROGRAMS.
Section 5 (16 U.S.C. 1534), as added by section 501 of this Act and as amended by sections 502(a), 503, 504(a), and 505 of this Act, is amended by adding at the end the following new subsection:
(m) Technical Assistance Program:
(1) In general: The Secretary shall initiate a technical assistance program to provide technical advice and assistance to non-Federal persons who wish to participate in achieving the conservation objective for a species for which a conservation goal has been adopted under this section. The technical assistance provided shall include information on habitat needs of species, optimum management of habitat for species, methods for propagation of species, feeding needs and habits, predator controls, and any other information which a non-Federal person may utilize or request for the purpose of conserving a species determined to be an endangered species or threatened species or proposed to be determined as an endangered species or threatened species.
(2) Regulations to provide exemptions from section 9: The Secretary shall promulgate regulations that establish exemptions from section 9 for any person who participates in a conservation program under this subsection.'.

SEC. 105. WATER RIGHTS.
Section 6 (16 U.S.C. 1535) is amended by adding at the end the following:
(j) Water Rights: Nothing in this Act shall be construed to supersede, abrogate, or otherwise impair any right or authority of a State to allocate or administer quantities of water (including boundary waters). Nothing in this Act shall be implemented, enforced, or construed to allow any officer or agency of the United States to utilize directly or indirectly the authorities established under this Act to impose any requirement not imposed by the State which would supersede, abrogate, condition, restrict, or otherwise impair rights to the use of water resources allocated under State law, interstate water compact, or Supreme Court decree, or held by the United States for use by a State, its political subdivisions, or its citizens. The exercise of authority pursuant to or in furtherance of this Act shall not be construed to create a limitation on the exercise of rights to water or constitute a cause for nondelivery of water pursuant to contract or State law.'.

TITLE II--IMPROVING ABILITY TO COMPLY WITH THE ENDANGERED SPECIES ACT OF 1973
SEC. 201. ENFORCEMENT PROCEDURES.
(a) In General: Section 9(a) (16 U.S.C. 1538(a)) is amended-- (1) in paragraph (1) by amending the matter preceding subparagraph (A) to read as follows: `(1) Except as provided in paragraph (3), section 6(g)(2), subsections (d)(3) and (e)of section 5, section 7(a), and section 10, with respect to any endangered species of fish or wildlife listed pursuant to section 4 it is unlawful for any person subject to the jurisdiction of the United States to--'; (2) in paragraph (2) by amending the matter preceding subparagraph (A) to read as follows: `(2) Except as provided in section 6(g)(2), subsections (d)(3) and (e) of section 5, and section 10, with respect to any endangered species of plants listed pursuant to section 4, it is unlawful for any person subject to the jurisdiction of the United States to--'; and (3) by adding at the end the following new paragraph: `(3) Permitted takings: An activity of a non-Federal person is not a taking of a species if the activity--
(A) is consistent with the provisions of a final conservation plan or conservation objective;
(B) complies with the terms and conditions of an incidental take permit or a cooperative management agreement;
(C) addresses a critical, imminent threat to public health or safety or a catastrophic natural event, or is mandated by any Federal, State, or local government agency for public health or safety purposes; or
(D) is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity that occurs within an area of the territorial sea or exclusive economic zone established by Proclamation Numbered 5030, dated March 10, 1983, that is not designated as critical habitat under section 5(i), and the affected species is not a species of fish.'.
(b) Rewards and Incidental Expenses: Section 11 (16 U.S.C. 1540) is amended--
(1) in subsection (d)(2) by inserting after `temporary care for any' the following: `endangered species or threatened species of';
(2) in subsection (e)(3) in the fourth sentence by striking `Any fish, wildlife,' and inserting `Any endangered species or threatened species of fish or wildlife,';
(3) in subsection (e)(4)(A) by inserting `endangered species or threatened species of' after `All';
(4) in subsection (e)(4)(B) by inserting `endangered species or threatened speices of' after `importing of any';
(5) in subsection (f) in the first sentence by inserting `endangered species or threatened species of' after `storage of';
(6) in subsection (e) by adding at the end the following new paragraph:
(7) Adoption of regulations: (A) No interpretation, policy, guideline, finding, or other informal determination may be relied upon by the Secretary in the implementation and enforcement of this Act unless such determination has been the subject of a proposed rule, subject to review by the public and comment for a period of no less than 60 days. Any proposed rule under this subparagraph must include--
(i) a plain-language explanation of the reasons for and purpose of the proposed rule;
(ii) an analysis of the anticipated impact of the proposed rule;
(iii) an analysis showing that the restoration benefit of the proposed rule outweighs any negative conservation impact of that proposed rule;
(iv) an analysis showing that compliance with the proposed rule is reasonably within the means of the State or the range nation concerned; and
(v) a summary of the literature reviewed and experts consulted in regard to the species involved, and a summary of the Secretary's findings based on that review and consultation.
(B) No refusal of entry, seizure of evidence, or other enforcement action may take place under this Act if the action is based solely on a notification under the Convention or on a resolution of the Conference of the Parties to the Convention.
(C) The burden is on the Secretary to show that a specimen belongs to a species which is determined to be an endangered species or threatened species under this Act or is included in an Appendix to the Convention. The Secretary may not detain a specimen for longer than 30 days for the purpose of identification. If the specimen cannot be positively identified within that time, then it shall be released.'; and (7) by amending subsection (g) to read as follows:
(g) Citizen Suits:
(1) In general: Except as provided in paragraph (2), a civil suit may be commenced by any person on his or her own behalf, who satisfies the requirements of the Constitution and who has suffered or is threatened with economic or other injury resulting from the violation, regulation, application, nonapplication, or failure to act--
(A) to enjoin the United States or any agency or official of the United States who is alleged to be in violation of any provision of this Act or regulation issued under the authority thereof, if the violation poses immediate and irreparable harm to a threatened species or endangered species;
(B) to compel the Secretary to apply, or modify the application of, the prohibitions set forth in or authorized pursuant to section 9(a)(1)(B) or 4(d);
(C) to compel the Secretary to apply, or modify the application of, the provisions of section 10(a); or
(D) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 4(d) which is not discretionary with the Secretary. The district courts shall have jurisdiction to enforce any such provision or regulation, or to order the Secretary to perform such act or duty, as the case may be.
(2) Prerequisite procedures: (A) No action may be commenced under paragraph (1)(A)--
(i) prior to 60 days after written notice of the alleged violation has been given to the Secretary, and to any agency or official of the United States who is alleged to be in violation, except that a State may commence an action at any time;
(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection (a); or
(iii) if the United States has commenced and is diligently prosecuting a criminal action in a court of the United States or a State to redress the alleged violation of any such provision or regulation.
(B) No action may be commenced under paragraph (1)(B) prior to 60 days after written notice has been given to the Secretary setting forth the reasons for applying, or modifying the application of, the prohibitions with respect to the taking of a threatened species.
(C) No action may be commenced under paragraph (1)(C) prior to 60 days after written notice has been given to the Secretary, except that such action may be brought immediately after such notification in the case of an action under this subsection respecting an emergency posing a significant risk to the well-being of any species of fish or wildlife or plants.
(3) Venue: Any suit under this subsection may be brought in the judicial district in which the violation occurs.
(4) Costs: The court, in issuing any final order in any suit brought pursuant to paragraph (1), may award costs of litigation (excluding attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.
(5) Injunctive relief: The injunctive relief provided by this subsection shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief (including relief against the Secretary or a State agency).
(6) Intervention: Any person may intervene as a matter of right in any civil suit brought under this subsection if such suit presents a reasonable threat of economic injury to such person.Any intervenor under this paragraph shall have the same right to present argument and to accept or reject potential settlements as do the parties to the suit.'.

SEC. 202. REMOVING PUNITIVE DISINCENTIVES.
Section 3(26) (as redesignated by section 102(a)(1) of this Act) is amended to read as follows:
(26)(A) The term `take' means to harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in that conduct.
(B) In subparagraph (A), the term `harm' means to take a direct action against any member of an endangered species of fish or wildlife that actually injures or kills a member of the species.'.

SEC. 203. ALLOWING NON-FEDERAL PERSONS TO USE THE CONSULTATION PROCEDURES.
Section 10(a) (16 U.S.C. 1539(a)), as amended by section 204(b) of this Act, is amended by adding at the end the following new paragraph:
(3) Voluntary consultation: (A) Subject to such regulations as the Secretary may issue, any non-Federal person may initiate consultation with the Secretary on any prospective activity of the person--
(i) to determine if the activity is consistent or inconsistent with a conservation plan or conservation objective; or
(ii) if the person determines that the activity is inconsistent, to determine whether the activity is likely to jeopardize the continued existence of an endangered species or a threatened species, or to destroy or adversely modify the designated critical habitat of the species in a manner that is likely to jeopardize the continued existence of the species.
(B) The voluntary consultation process for non-Federal persons authorized by subparagraph (A) shall be conducted in accordance with the procedures and requirements for consultation on agency actions set forth in section 7, except that--
(i) the period for completion of the consultation shall be 90 days from the date on which the consultation is initiated, or not later than such other date as is mutually agreeable to the Secretary and the person initiating the consultation;
(ii) the person initiating the consultation shall not be required to prepare a biological assessment or equivalent document;
(iii) neither the activity for which the consultation process is sought nor the consultation process itself shall be deemed a Federal action for the purpose of compliance with section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)) or an agency action for the purpose of compliance with the consultation requirement of section 7(a)(2);
(iv) the Secretary shall provide the person initiating the consultation with a written opinion only, unless such person requests a permit referred to in paragraph (1)(B) and meets the requirements of clause (v); and
(v) a permit described in clause (iv) shall be issued if the Secretary makes a finding of--
(I) consistency pursuant to subparagraph (A)(i);
(II) no jeopardy pursuant to subparagraph (A)(ii); or
(III) jeopardy pursuant to subparagraph (A)(ii), but offers a reasonable and prudent alternative which the person initiating the consultation accepts.'.

SEC. 204. PERMITTING REQUIREMENTS FOR INCIDENTAL TAKES.
(a) Incidental Take Permit Defined: Section 3 (16 U.S.C. 1532) is amended by adding after paragraph (14) (as added by section 301(b)(3) of this Act) the following new paragraph: `(15) The term `incidental take permit' means a permit issued under section 10(a)(1)(B).'.
(b) Take Permits: Section 10 (16 U.S.C. 1539) is amended by striking so much as precedes subsection (b) and inserting the following:
SEC. 10. EXCEPTIONS.
(a) Permits:
(1) Authority to issue permits: The Secretary may permit, under such terms and conditions as the Secretary shall prescribe--
(A) any act otherwise prohibited by section 9 undertaken for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to--
(i) acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j);
(ii) the public display or exhibition of living wildlife in a manner designed to educate, or which otherwise contributes to the education of the public about the ecological role and conservation needs of the affected species;
(iii) in the case of foreign species, acts that are consistent with the Convention and with conservation strategies adopted by the foreign nations responsible for the conservation of the species; and
(iv) acts necessary for the research in and carrying out of captive propagation; or
(B) any taking otherwise prohibited by section 9(a)(1)(B) if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. `(2) Species conservation plans: (A) Except as provided in paragraph (3), no permit may be issued by the Secretary authorizing any taking referred to in paragraph (1)(B) unless the applicant therefor submits to the Secretary a species conservation plan that specifies--
(i) the impact on the species which will be the likely result of the activities to be permitted;
(ii) what steps the applicant can reasonably and economically take consistent with the purposes and objectives of the activity to minimize such impacts, and the funding that will be available to implement such steps; and
(iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized.
(B) If the Secretary finds, after opportunity for public comment, with respect to a permit application and the related species conservation plan that--
(i) the taking will be incidental;
(ii) the applicant will, to the extent reasonable and economically practicable, minimize the impacts of such taking;
(iii) the applicant will ensure that adequate funding for the plan will be provided;
(iv) the taking will not appreciably reduce the likelihood of the survival and conservation of the species; and
(v) the measures specified under subparagraph (A)(ii) will be met; and the Secretary has received such other assurances as the Secretary may require that the plan will be implemented, the Secretary shall issue the permit.The permit shall contain such reasonable and economically practicable terms and conditions consistent with the purposes and objectives of the activity as the Secretary deems necessary or appropriate to carry out the purposes of this paragraph, including, but not limited to, such reporting requirements as the Secretary deems necessary for determining whether such terms and conditions are being complied with.
(C) The Secretary may not require the applicant, as a condition of processing the application or issuing the permit, to expand the application to include land, an interest in land, right to use or receive water, or a proprietary water right not owned by the applicant or to address a species other than the species for which the application is made.
(D)(i) The Secretary shall complete the processing of, and approve or deny, any application for a permit under paragraph (1)(B) within 90 days of the date of submission of the application or within such other period of time after such date of submission to which the Secretary and the permit applicant mutually agree.
(ii) The preparation and approval of a species conservation plan and issuance of a permit under paragraph (1)(B) shall not be subject to section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)).
(E) No additional measures to minimize and mitigate impacts on a species that is a subject of a permit issued under paragraph (1)(B) shall be required of a permittee that is in compliance with the permit. With respect to any species that is a subject of such a permit, under no circumstance shall a permittee in compliance with the permit be required to make any additional payment for any purpose, or accept any additional restriction on any parcel of land available for development or land management or any water or water-related right under the permit, without the consent of the permittee.
(F)(i) For such activities as the Secretary determines will not appreciably reduce the chances of survival of a species, the Secretary may issue an interim permit to any applicant for a permit under this section that provides evidence of appropriate interim measures that--
(I) will minimize impacts of any incidental taking that may be associated with the activity proposed for permitting; and
(II) are to be performed while the underlying permit application is being considered under this section.
(ii) An interim permit issued under clause (i)--
(I) shall specifically state the types of activities that are authorized to be carried out under the interim permit;
(II) shall not create any right to the issuance of a permit under this section;
(III) shall expire on the date of the granting or denial of the underlying permit application; and
(IV) may be revoked by the Secretary upon failure to comply with any term of the interim permit.
(G) The Secretary shall revoke a permit issued under this paragraph if he finds that the permittee is not complying with the terms and conditions of the permit.'.
(c) Multi-Species Planning: Section 10 (16 U.S.C. 1539) is amended by adding at the end the following new subsection:
(k) Multiple Species Conservation Plans:
(1) Development: The Secretary may assist a non-Federal person in the development of a plan, to be known as a `multiple species conservation plan', for the conservation of--
(A) any species with respect to which a finding is made and a status review is commenced under section 4(b)(3)(B); and
(B) any other species that--
(i) inhabit the area covered by the plan; and
(ii) are designated in the plan or are within a taxonomic group designated in the plan.
(2) Issuance of permits: The Secretary may issue a permit under subsection (a)(1)(B) authorizing the take described in section 9(a)(1)(B) of a species for which a multiple species conservation plan is developed under this subsection, if the Secretary, after providing opportunity for public comment on the plan--
(A) determines that the plan specifies the information described in subsection (a)(2)(A);
(B) makes the findings described in subsection (a)(2)(B) with respect to the permit application and the plan; and
(C) receives such assurances as the Secretary may require that the plan will be implemented.
(3) Effect of listing of species: A multiple species conservation plan developed under this subsection and a permit issued with respect to the plan shall remain in effect and shall not be required to be amended if a species to which the plan and permit apply is determined to be an endangered species or a threatened species under section 4.'.
(d) Foreign Species: Section 10(a), as amended by subsection (b) of this section and sections 203 and 205(a) of this Act, is amended by adding at the end the following new paragraph: `
(7) Foreign species: (A) In determining whether to issue a permit under subsection (a)(1)(A)(iii), there shall be a rebuttable presumption that the survival of a species is enhanced by the ordinary benefit occurring from the taking of a specimen for an inherently limited use in accordance with the laws and wildlife management policies of the nation in which it is found.
(B) The Secretary may not refuse to issue a permit for such specimens and may not limit the number of such specimens which may be imported unless he makes and publishes in the Federal Register a finding that there is substantial evidence that the detriment resulting from the taking of such specimens outweighs the benefit derived, and subsequently promulgates regulations containing the limitation.
`(C) The Secretary shall transmit the full text and a complete description of the proposed regulation referred to in the preceding paragraph directly to the appropriate wildlife management authorities of the nations from which the specimens are exported, in the language of those countries, with at least 180 days allowed for review and comment. The 180-day period shall be counted from the date of the delivery of the materials to the wildlife management authority of each of the nations.
(D) For the purpose of this paragraph, the term `inherently limited use' means scientific collection, live export for captive breeding, sport hunting, and falconry.'.

SEC. 205. GENERAL, RESEARCH, AND EDUCATIONAL PERMITS.
(a) In General: Section 10(a) (16 U.S.C. 1539(a)), as amended by sections 203 and 204(b) of this Act, is amended by adding at the end the following new paragraphs: `(4) General permits: (A) After providing notice and opportunity for public hearing, the Secretary may issue a general permit under paragraph (1)(B) on a county, parish, State, regional, or nationwide basis for any category of activities that may affect a species determined to be an endangered species or threatened species if the Secretary determines that the activities in the category are similar in nature, will cause only minimal adverse effects on the species if performed separately, and will have only minimal cumulative adverse effects on the species generally. A general permit issued under this paragraph shall specify the requirements and standards that apply to an activity authorized by the general permit.
(B) A general permit issued under this paragraph shall be effective for a period to be specified by the Secretary, but not to exceed the 5-year period that begins on the date of issuance of the permit.
(C) The Secretary may revoke or modify a general permit if, after providing notice and opportunity for public hearing, the Secretary determines that the activities authorized by the general permit have a greater than minimal adverse effect on a species that is included in a list published under section 4(c)(1) or that the activities are more appropriately authorized by individual permits issued under paragraph (1) or (3).
(5) Research on alternative methods and technologies: Priority for issuing permits under paragraph (1)(A) shall be accorded to applications for permits to conduct research, captive breeding, or education on alternative methods and technologies, and the comparative costs of the methods and technologies, to reduce the incidental taking as described in paragraph (1)(B) of an endangered species or a threatened species for which the employment of existing methods or technologies for avoidance of the incidental taking entails significant costs for non-Federal persons.
(6) Educational or propagation permits: (A) A permit under paragraph (1)(A)(ii) or (iv) shall be issued if-- `(i)(I) the applicant holds a current and valid license as an exhibitor under the Animal Welfare Act (7 U.S.C. 2131 et seq.);
(II) in the case of a permit under paragraph (1)(A)(ii), the applicant maintains a public display or exhibition of living wildlife described in that paragraph; and
(III) viewing of the public display or exhibition is not limited or restricted other than by charging an admission fee; or
(ii) in the case of a permit under paragraph (1)(A)(iv), the applicant has demonstrated the ability to use propagation techniques that result in increases in the populations of species held in captivity for eventual release into the wild, maintenance of live specimens, or falconry purposes.
(B)(i) The Secretary shall issue a permit within 30 days from the effective date of this subparagraph to any qualified organization or person who has demonstrated the ability to handle or recover species for a minimum of 15 years or who has at least 10 permits in the aggregate issued pursuant to this Act or the other laws listed in subparagraph (H).
(ii) The Secretary shall issue a permit within 90 days of receipt of a completed application from any qualified organization or person who currently does not hold any permit but who has demonstrated the ability to handle or recover species for a minimum of 15 years of who has received at least 10 permits in the aggregate and who has not violated any terms or conditions of any permits previously issued pursuant to this Act or the laws listed in subparagraph (H).
(C) A permit referred to in paragraph (1)(A)(ii) shall be for a term of not less than 6 years.
(D) A permit referred to in paragraph (1)(A)(ii) shall also authorize the permittee to import, export, sell, purchase, or otherwise transfer possession of the affected species.
(E) The Secretary shall revoke a permit referred to in paragraph (1)(A)(ii) if the Secretary determines that the permittee--
(i) no longer meets the requirements of subparagraph (A) and is not reasonably likely to meet the requirements in the near future;
(ii) is not complying with the terms and conditions of the permit; or
(iii) is engaging in an activity likely to jeopardize the continued existence of the species subject to the permit.
(F) The Secretary may require an annual report on the activities authorized by a general permit, but may not require reports more frequently than annually.
(G) A permit authorized in this paragraph shall be the only permit required for the activities authorized therein, and may cover activities for one or more species or taxa simultaneously.
(H) The authorizations for any activities permitted under this paragraph or permitted by the Bald Eagle Protection Act (16 U.S.C. 668-668d), the Fish and Wildlife Conservation Act of 1980 (16 U.S.C. 2901-2911), the Lacey Act Amendments of 1981 (18 U.S.C. 42; 16 U.S.C. 3371-3378), the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407), the Migratory Bird Conservation Act (16 U.S.C. 715-715d), the Migratory Bird Treaty Act (16 U.S.C. 703-712), or the Wild Bird Conservation Act of 1992 (Public Law 102-440) shall be consolidated into a general permit to cover all authorized activities, notwithstanding any law or regulation to the contrary.'. (b) Exceptions for Wildlife Bred in Captivity: Section 10, as amended by section 204(c) of this Act, is amended by adding at the end the following new subsection:
(l) Wildlife Bred in Captivity: For the purposes of this Act or any regulation adopted pursuant to this Act, the terms `bred in captivity' or `captive-bred', with respect to wildlife, means wildlife, including eggs, born or otherwise produced in captivity from parents that mated or otherwise transferred gametes in captivity if reproduction is sexual, or from parents that were in captivity when development of the progeny began, if development is asexual. Such progeny shall be considered domestic fish or wildlife for all purposes and shall not come under the provisions and prohibitions of this Act and the laws listed in subsection (a)(6)(H) unlessintentionally and permanently released to the wild. Any person holding any fish or wildlife or their progeny as described in this subsection must be able to demonstrate that such fish or wildlife do, in fact, qualify under the provision of this subsection, and shall maintain and submit to the Secretary, on request, such inventories, documentation, and records as the Secretary may by regulation require as being reasonable and appropriate to carry out the purposes of this subsection. Such requirements shall not unnecessarily duplicate the requirements of other rules and regulations promulgated by the Secretary.'.

SEC. 206. MAINTENANCE OF AQUATIC HABITATS FOR LISTED SPECIES.
The Endangered Species Act of 1973 (16 U.S.C. 1851 et seq.) is amended by adding at the end the following new section:

RECOGNIZING NET BENEFITS TO AQUATIC SPECIES
`Sec. 20. (a) Encouraging Net Benefits: In carrying out this Act, if the number of individual members of an endangered species or threatened species exiting an aquatic habitat area under the control, authority or ownership of a non-Federal person is equal to or greater than the number of individual members of the species entering such area, the Secretary shall not require, provide for, or recommend the imposition of any restriction or obligation on the activity of the non-Federal person in a manner which would require the non-Federal person to support the maintenance of any greater number of individual members of the species than that which enters such aquatic habitat area.
`(b) Consideration of Hatchery Populations: In calculating the number of individual members of a species entering and exiting a specific aquatic habitat area pursuant to this section, the Secretary shall consider hatchery populations.
`(c) Limitations: The Secretary shall not require, provide for, or recommend the imposition of any restriction or obligation on the activity of any non-Federal person in an aquatic habitat area to remedy adverse impacts on a species resulting from activities of individuals other than the non-Federal person.'.

SEC. 207. COMPLIANCE WITH INTERNATIONAL REQUIREMENTS AND TREATIES.
(a) Respecting the Sovereignty of Other Nations: Section 8 (16 U.S.C. 1537) is amended by adding at the end the following new subsection:
`(e) Encouragement of Foreign Programs: Any action taken by the Secretary pursuant to this Act in regard to a foreign species which occurs in a country which is a party to the Convention--
`(1) shall be done in cooperation with the wildlife conservation authorities of such country; and
`(2) shall not obstruct any wildlife conservation program of such country unless the Secretary can show, based on adequate findings supported by substantial evidence, that the country's wildlife conservation program for the species in question is not consistent with the Convention.'.
(b) Compliance With the Convention: Section 8A (16 U.S.C. 1537a) is amended by adding at the end the following new subsections:
`(f) Nonduplication of Findings: The Secretary, in making the findings required in paragraph 3(a) of Article III of the Convention, shall limit such findings to the purpose of the importation, and shall not duplicate the findings required to be made by the exporting nation except for good cause based on adequate findings supported by substantial evidence.
`(g) Relationship of Protective Regulations to the Convention: In determining the provisions of protective regulations pursuant to section 4(d) of this Act when such regulations relate to a foreign species--
`(1) the Secretary may not prohibit any act that is permissible under the Convention, notwithstanding Article XIV of the Convention;
`(2) the Secretary shall, prior to publishing a proposal for such protective regulations in the Federal Register, transmit the full text and a complete description of the proposed regulation directly to the appropriate wildlife management authority of that country, in the language of that country, with at least 180 days allowed for review and comment, the 180 days shall be counted from the date of delivery of the materials to the wildlife authorities of the country;
`(3) such transmission must be accompanied by--
`(A) a plain-language explanation of the reasons for and purpose of the proposed regulation;
`(B) an analysis of the anticipated beneficial impact or detrimental impact of the regulation on the economic, social, and cultural utilization of the species, if any, and of the beneficial or detrimental impact on the resource management and conservation programs of that country; and
`(C) a summary of the literature reviewed and experts consulted by the Secretary in regard to the species involved, and a summary of the Secretary's findings based on that review and consultation;
`(4) the Secretary shall enter into discussions with appropriate wildlife management officials of the countries to which he has sent the transmission referred to in the previous paragraph, and if those officials feel that further studies of the species are indicated the Secretary shall assist in finding the funds for such studies and in carrying out the studies; and
`(5) the Secretary must obtain the written concurrence of all the nations contacted, and if such concurrence is not obtained the Secretary may not issue the proposed regulation except by an order submitted to and approved by the President.'.
(c) Conservation of Threatened Species: Section 9 (16 U.S.C. 1538), as amended by section 206 of this Act, is amended by adding at the end the following new subsection:
`(i) Importation and Exportation:
`(1) Limitation on importation: The prohibition on importation in subsection (a) of this section shall not apply to a specimen of a threatened species taken for an inherently limited use in accordance with the laws of a foreign nation and accompanied by an export permit issued by that nation or an equivalent document. For the purpose of this subsection, the term `inherently limited use' means scientific collection, live export for captive breeding, sport hunting, and falconry.
`(2) Regulations for shipping under convention: (A) The Secretary shall adopt regulations regarding the finding required by the Convention that live specimens exported from the United States will be so prepared as to minimize the risk of injury, damage to health, or cruel treatment. Such regulations shall provide clear, consistent and reliable guidance to exporters.
`(B) In any instance in which the Secretary believes that a shipment for export is not prepared in accordance with the regulations, a detailed written notice of noncompliance shall be issued to the exporter. The notice shall contain recommendations as to how future shipments should be modified in order to come into compliance with the regulations. The notice shall go into effect 30 days after receipt by the shipper, subject to appeal to an Administrative Law Judge or a court. The filing of an appeal shall toll the effectiveness of the notice. The issue of noncompliance may be appealed as well as the issue of the appropriateness of the recommendation for compliance.'.

SEC. 208. INCENTIVES FOR PROTECTION OF MARINE SPECIES.
(a) In General: Section 10 (16 U.S.C. 1539), as amended by section 205(b) of this Act, is amended by adding at the end the following new subsection:
`(m) Incentives: (1) The Secretary shall exempt, under such terms and conditions as the Secretary may prescribe by regulation, any operator of a trawl vessel required to use a turtle excluder device under regulations promulgated under this Act from such requirement if such operator agrees to support a conservation program approved under paragraph (2) and such support is determined to be appropriate under paragraph (4).
`(2) No later than 180 days after the effective date of this subsection and each year thereafter, the Secretary shall--
`(A) review all those programs intended to conserve the endangered species and threatened species of sea turtles found in the Gulf of Mexico and along the Atlantic seaboard, including those programs involving protection of nesting beaches in other nations;
`(B) approve any such program determined by the Secretary to be of significant benefit to the recovery of the species of such sea turtles under this subsection; and
`(C) publish notice of such determination in the Federal Register.
`(3)(A) Any person or group of persons operating trawl vessels may submit in writing a request to the Secretary for an exemption under this subsection.
`(B) Not later than 60 days after receipt of such request the Secretary shall provide such person or group written notice of the issuance or denial of such request.
`(4) The Secretary shall determine that the support offered by an operator in a written request submitted under paragraph (3) is appropriate if the benefits provided by such support to the recovery of such species exceed any harm to the recovery of such species incurred as a result of the operator not using turtle excluder devices under an exemption provided under this subsection.
`(5) The Secretary shall prescribe such regulations as the Secretary considers necessary and appropriate to carry out the purposes of this subsection.'.
(b) Incidental Take Statements: Section 7(b) (16 U.S.C. 1536(b)) is amended by adding at the end of paragraph (4)(C)(ii) the following: `including incentives to encourage the support of conservation programs approved under section 10(k),'.

TITLE III--IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND PROCEDURES
SEC. 301. IMPROVING THE VALIDITY AND CREDIBILITY OF DECISIONS.
(a) Basing Listings on Credible Science:
(1) Listing determinations: Subsections (a) and (b) (1) and (2) of section 4 (16 U.S.C. 1533) are amended to read as follows: `(a) Generally: 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:
`(1) The present or threatened loss of its habitat.
`(2) Overutilization for commercial, recreational, scientific, or educational purposes.
`(3) Disease or predation.
`(4) The inadequacy of existing Federal, State, and local government regulatory mechanisms.
`(5) Other natural or manmade factors affecting its continued existence.
`(b) Secretarial Determinations:
`(1) Basis for determination: (A) The Secretary shall make determinations required by subsection (a)(1) solely on the basis of the best scientific and commercial data available to the Secretary after conducting a review of the status of the species and after soliciting and fully considering the best scientific and commercial data available concerning the status of a species from any affected State or any interested non-Federal person, and taking into account those efforts being made by any State, any political subdivision of a State, or any non-Federal person or conservation organization, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas, and shall accord greater weight, consideration, and preference to empirical data rather than projections or other extrapolations developed through modeling.
`(B) In making a determination whether a species is an endangered species or a threatened species under this section, the Secretary shall fully consider populations of the species that are bred through private sector, university, and Federal, State, and local government breeding programs for release in the habitat of the species. In the case of fish species, the bred populations referred to in the preceding sentence shall include hatchery populations.
`(2) Consideration of state recommendations: In making a determination pursuant to paragraph (1), the Secretary shall give consideration to species which have been identified as in danger of extinction, or likely to become so within the foreseeable future, by any State agency that is responsible for the conservation of fish or wildlife or plants.'.
(2) Listing foreign species: Section 4(b) (16 U.S.C. 1533(b)), as amended by subsection (f) of this section, is amended by adding at the end the following new paragraph: `(10) Foreign species: (A) In determining under subsection (a) whether a foreign species is an endangered species or a threatened species, the Secretary shall not determine that a species that is listed under the Convention is endangered or threatened unless he makes an adequate finding, supported by substantial evidence, that the Convention does not provide adequate regulation.
`(B) The Secretary shall, prior to publishing a proposal in the Federal Register to determine that a foreign species is endangered or threatened, transmit the full text and a complete description of the proposed listing directly to the appropriate wildlife management authority of that nation, in the language of that nation, with at least 180 days allowed for review and comment. The 180 days shall be counted from the date of delivery of the materials supporting the proposed listing to the wildlife authorities of the country.
`(C) Such transmission must be accompanied by--
`(i) a plain-language explanation of the objective criteria for and purpose of the proposed listing;
`(ii) an analysis of the anticipated beneficial impact or detrimental impact of the listing on the economic, social, and cultural utilization of the species, if any, and of the beneficial or detrimental impact on the resource management and conservation programs of that nation; and
`(iii) a summary of the literature reviewed and experts consulted by the Secretary in regard to the species involved, and a summary of the Secretary's findings based on that review and consultation.
`(D) The Secretary shall enter into discussions with the appropriate wildlife management officials of the nations to which he has sent the transmission referred to in subparagraph (C). If those officials feel that further studies of the species are indicated, the Secretary shall assist in finding the funds for such studies and in carrying out the studies.
`(E) The Secretary must obtain the written concurrence of all the nations contacted. If such concurrence is not obtained, the Secretary may not issue the proposed regulation except by an order submitted to and approved by the President.'.
(b) Definitions: Section 3 (16 U.S.C. 1532) is amended-- (1) by adding after paragraph (1) the following new paragraph: `(2) The term `best scientific and commercial data available' means factual information, including but not limited to peer reviewed scientific information obtainable from any source, including governmental and nongovernmental sources, which has been to the maximum extent feasible verified by field testing.'; (2) by adding after paragraph (7) (as redesignated by section 102(a)(1) of this Act) the following new paragraphs: `(8) The term `distinct population of national interest' means a distinct population of a vertebrate species that is not otherwise an endangered species or threatened species in the United States, Canada, or Mexico, but which because of its value to the Nation as a whole has been designated by Congress as needing protection under this Act.
`(8a) The term `foreign species' means a species naturally occurring outside the territory of the United States, but does not include any marine species, any species having a significant population occurring in the wild within the United States, or any migratory species whose migration route includes United States territory.';
(3) by adding after paragraph (13) (as redesignated by section 102(a)(1) of this Act) the following new paragraph: `(14) The term `imminent threat to the existence of', with respect to a species, means, as determined by the Secretary under section 4(b)(7) or the President under section 5(e)(2) solely on the basis of the best scientific and commercial data available, that there is a significant likelihood that the species will become extinct, or will be placed on an irreversible course to extinction, during the 2-year period beginning on the date of the determination that the species is an endangered species or a threatened species, unless the species is accorded fully the protection available under this Act during such period.'; (4) by amending paragraph (22) (as redesignated by section 102(a)(1) of this Act) to read as follows: `(22) The term `Secretary' means, except as otherwise herein provided, the Secretary of the Interior, except that with respect to the enforcement of the provisions of this Act and the Convention which pertain to the importation or exportation of terrestrial plants, the term also means the Secretary of Agriculture.'; and (5) by amending paragraph (23) (as redesignated by section 102(a)(1) of this Act) to read as follows: `(23) The term `species' includes any subspecies of fish or wildlife or plants, and any distinct population of national interest of any species or vertebrate fish or wildlife which interbreeds when mature.'.
(c) Soliciting Scientific Information: Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections 303(a), 304(a), 305(a), and 306 of this Act, is amended by adding at the end the following new subparagraph:
`(F) Before any further action is taken in accordance with this paragraph, the Secretary shall publish in the Federal Register a solicitation for further information regarding the status of a species which is the subject of a proposed rule to list the species as an endangered species or threatened species, including current population, populations trends, current habitat, Federal conservation lands which could provide habitat for the species, food sources, predators, breeding habits, captive breeding efforts, commercial, nonprofit, avocational, or voluntary conservation activities, or other pertinent information which may assist in making a determination under this section.The solicitation shall give a time limit within which to submit the information which shall be not less than 180 days.The time limit shall be extended for an additional 180 days at the request of any person who submits a request for such extension along with the reasons therefor.The Secretary in making the determination required in this subsection, shall give equal weight to the information submitted in accordance with this paragraph.'. (d) Emergency Listings: Section 4(b)(7) (16 U.S.C. 1533(b)(7)) is amended--
(1) by striking the matter preceding subparagraph (A) and inserting the following:
`(7) Emergency regulations: Neither paragraph (4), (5), or (6) of this subsection nor section 553 of title 5, United States Code, shall apply to any regulation issued by the Secretary in regard to any emergency posing an imminent threat to the existence of any species of fish or wildlife or plants, but only if--'; and (2) by adding at the end the following new sentence: `The Secretary may not delegate the final decision to issue an emergency regulation under this paragraph.'. (e) Using Best Data: Section 4(b)(8) (16 U.S.C. 1533(b)(8)) is amended by striking `the data' and inserting `the best scientific and commercial data'.
(f) Identifying Data Used for Decisions: Section 4(b) (16 U.S.C. 1533(b)) is amended by adding at the end the following new paragraph: `(9) Publication in federal register: (A) The Secretary shall identify and publish in the Federal Register with each proposed rule under paragraph (1) or section 5(i) a description of-- `(i) all data that are to be considered in making the determination under the subsection to which the proposed rule relates and that have yet to be collected or field verified; `(ii) data that are necessary to make determinations and that can be collected prior to any determination; and `(iii) data that are necessary to ensure the scientific validity of the determination, and each deadline for collecting these data. `(B) In making a determination pursuant to paragraph (1) or section 5(i), the Secretary shall collect and consider the data identified and described pursuant to subparagraph (A)(ii). `(C) The Secretary shall identify and publish in the Federal Register with each final rule promulgated under paragraph (1) or section 5(i)-- `(i) a description of any data that have not been collected and considered in the determination to which the rule relates and that are necessary to ensure the continued scientific validity of the determination; and `(ii) each deadline by which the Secretary shall collect and consider the data in accordance with subparagraph (D). `(D) Not later than the deadline published by the Secretary pursuant to subparagraph (C)(ii), the Secretary shall-- `(i) collect the data referred to in each paragraph; `(ii) provide an opportunity for public review and comment on the data; `(iii) consider the data after the review and comment; and `(iv) publish in the Federal Register the results of that consideration and a description of and schedule for any actions warranted by the data.'. (g) Judicial Review: Section 4 (16 U.S.C. 1533), as amended by section 302 of this Act, is amended by adding at the end the following new subsection: `(j) Judicial Review of Determinations: Any determination with regard to whether a species is a threatened species or endangered species shall be subject to a de novo judicial review with the court determining whether the decision is supported by a preponderance of the evidence.'.

SEC. 302. PEER REVIEW.
Section 4 (16 U.S.C. 1533) is amended by adding after subsection (h), as redesignated by section 507(b)(2) of this Act, the following new subsection:
`(i) Peer Review Requirement:
`(1) Definitions: In this subsection:
`(A) The term `action' means--
`(i) the determination that a species is an endangered species or a threatened species under subsection (a);
`(ii) the determination under subsection (a) that an endangered species or a threatened species be removed from any list published under subsection (c)(1);
`(iii) the designation, or revision of the designation, of critical habitat for an endangered species or a threatened species under section 5(i); and
`(iv) the determination that a proposed action is likely to jeopardize the continued existence of a listed species and the proposal of any reasonable and prudent alternatives by the Secretary under section 7(b)(3).
`(B) The term `qualified individual' means an individual with expertise in the biological sciences--
`(i) who is by virtue of advanced education, training, or avocational, academic, commercial, research, or other experience competent to review the adequacy of any scientific methodology supporting the action, the validity of any conclusions drawn from the supporting data, and the competency of the individual who conducted the research or prepared the data;
`(ii) who is not otherwise employed by or under contract to the Secretary of the Interior; and
`(iii) who has not participated in the listing decision.
`(2) List of peer reviewers: In order to provide a substantial list of individuals who on a voluntary basis are available to participate in peer review actions, the Secretary shall, through the Federal Register, through scientific and commercial journals, and through the National Academy of Sciences and other such institutions, seek nominations of persons who agree to peer review action upon appointment by the Secretary.
`(3) Appointment of peer reviewers: Before any action shall become final, the Secretary shall appoint, from among the list prepared in accordance with paragraph (2), not more than 2 qualified individuals who shall review, and report to the Secretary on, the scientific information and analyses on which the proposed action is based.The Governor of each State in which the species is located that is the subject of the proposal, may appoint up to 2 qualified individuals to conduct peer review of the action.If any individual declines the appointment, the Secretary or the Governor shall appoint another individual to conduct the peer review.
`(4) Data provided to peer reviewer: The Secretary shall make available to each person conducting peer review all scientific information available regarding the species which is the subject of the peer review. The Secretary shall not indicate to a peer reviewer the name of any person that submitted a petition for listing or delisting that is reviewed by the reviewer.
`(5) Opinion of peer reviewers: The peer reviewer shall give his or her opinion with regard to any technical or scientific deficiencies in the proposal, whether the methodology and analysis supporting the petition conform to the standards of the academic and scientific community, and whether the proposal is supported by sufficient credible evidence.
`(6) Publication of peer review report: The Secretary shall publish with any final regulation implementing an action a summary of the report of the peer review panel noting points of disagreement between peer reviewers, if any, and the response of the Secretary to the report.'.

SEC. 303. MAKING DATA PUBLIC.
(a) Public Data: Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections 304(a), 305(a), and 306 of this Act, is amended by adding at the end the following new subparagraph:
`(E)(i) All data or information considered by the Secretary in making the determination to list as provided in this section, shall be considered public information and shall be subject to section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act') unless the Secretary, for good cause, determines that the information must be kept confidential.The burden shall be on the Secretary to prove that such information shall be confidential and such decision shall be reviewable by a district court of competent jurisdiction, which shall review the decision in chambers. Good cause can include that the information is of a proprietary nature or that release of the location of the species may endanger the species further.
`(ii) The Secretary shall minimize releasing the identification of particular private property as habitat for a species which is determined to be an endangered species or threatened species or proposed to be determined to be an endangered species or threatened species, unless the Secretary first notifies the owner thereof and receives his or her consent, or the information is otherwise public information.'. (b) Public Hearings: Section 4(b) (16 U.S.C. 1533(b)) is amended-- (1) in paragraph (5) (as amended by section 305(b) of this Act) by adding at the end the following new subparagraph:
`(E) promptly hold at least 1 hearing in each State in which the species proposed for determination as an endangered species or a threatened species is believed to occur, and in a location that is as close as possible to the center of the habitat of such species in such State.'; and (2) in paragraph (6) by amending all that precedes subparagraph (B) to read as follows:
`(6) Publication of determination: (A) Within the one-year period beginning on the date on which general notice is published in accordance with paragraph (5)(A)(i) regarding a proposed regulation, the Secretary shall publish in the Federal Register, if a determination as to whether a species is an endangered species or a threatenedspecies is involved, either--
`(i) a final regulation to implement such determination,
`(ii) a final regulation to implement such revision or a finding that such revision should not be made,
`(iii) notice that such one-year period is being extended under subparagraph (B)(i), or
`(iv) notice that the proposed regulation is being withdrawn under subparagraph (B)(ii), together with the finding on which such withdrawal is based.'. (c) Notice of Hearings: Section 14 is amended to read as follows:

`SEC. 14. NOTICE OF HEARINGS.
`Except as otherwise provided by this Act, the Secretary shall provide notice of any hearing or other public meeting at which public comment is accepted under this Act by publication in the Federal Register and in a newspaper of general circulation in the location of the hearing or meeting at least 30 days prior to the hearing or meeting.'.

SEC. 304. IMPROVING THE PETITION AND DESIGNATION PROCESSES.
(a) Petitions To List: Section 4(b)(3) (16 U.S.C. 1533(b)(3)) is amended to read as follows:
`(3) Petitions: (A) A petition submitted to the Secretary asserting that a species is a threatened species or endangered species and requesting that the Secretary make a determination to that effect shall contain at a minimum the following:
`(i) Information on the current population and range of the species.
`(ii) Any information on efforts to field test the population estimates on the species.
`(iii) If literature from scientific or other journals, dissertations or other such scientific writings of another person are submitted, they must be accompanied by an affidavit that the literature or writings have been peer reviewed along with the names of the persons performing the peer review.
`(iv) The qualifications of any person asserting expertise on the species or status of the species.
`(v) Information about the demonstrated habitat needs of the species, along with the known occupied habitat of the species.
`(vi) Known causes of the species decline.
`(B) Petitions to add a species to, or to remove a species from, either of the lists published under subsection (c)(1) shall be submitted in accordance with section 553(e) of title 5, United States Code.The Secretary may commence a review of the status of the species concerned consistent with the priorities set by the Secretary for the listing of species. The Secretary shall promptly publish any finding made under this subparagraph in the Federal Register.'. (b) Conforming Amendments: Section 4(g), as redesignated by section 507(b)(2), is amended-- (1) by striking paragraph (2); and (2) by redesignating paragraphs (3) and (4) in order as paragraphs (2) and (3).

SEC. 305. GREATER STATE INVOLVEMENT.
(a) State Consultation on Petitions: Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by section 304(a) of this Act, is amended by adding after subparagraph (B) the following subparagraph: `(C) At the time the review provided in subparagraph (B) is commenced--
`(i) the Secretary shall contact the Governor of each State in which the proposed species is located and shall solicit from the Governor information about the action requested in the petition in that State necessary to render a decision and shall solicit the advice of the Governor on whether the status of species merits the action petitioned for, and if the Governor advises that the petition action is not warranted and thereafter the Secretary proceeds with the action, the Secretary shall have the burden of showing that the information submitted by the Governor is incorrect and that the action is warranted; and
`(ii) the Secretary shall, to the maximum extent feasible, require by field testing, the verification of the information presented regarding the status of the species.'. (b) Regulations To Implement Determinations: Section 4(b)(5) (16 U.S.C. 1533(b)(5)) is amended to read as follows: `(5) Notice required: With respect to any regulation proposed by the Secretary to implement a determination referred to in subsection (a)(1) of this section, the Secretary shall--
`(A) not less than 90 days before the effective date of the regulation--
`(i) publish a general notice and the complete text of the proposed regulation in the Federal Register, and
`(ii) give actual notice of the proposed regulation (including the complete text of the regulation) to the Governor of each State in which the species is believed to occur, and to each county, or equivalent jurisdiction in which the species is believed to occur, and consult with such agency, and each such jurisdiction, thereon;
`(B) in cooperation with the Secretary of State, give notice of the proposed regulation to each foreign nation in which the species is believed to occur or whose citizens harvest the species on the high seas, and consult with such nation thereon;
`(C) give notice of the proposed regulation to any person who requests such notice, any person who has submitted additional data, each State and local government within which the species is believed to occur or which is likely to experience any effects of any measures to protect the species under this Act, and such professional scientific organizations as the Secretary deems appropriate; and
`(D) publish a summary of the proposed regulation in a newspaper of general circulation in each area of the United States in which the species is believed to occur.'. (c) State Consultation on Final Determination: Section 4(h), as redesignated by section 507(b)(2) of this Act, is amended to read as follows:
`(h) Submission to State Agency of Justification for Regulations Inconsistent With State Agency's Comments or Petition: If, in the case of any regulation proposed by the Secretary under the authority of this section, a State agency which consulted with the Secretary in accordance with subsection (b)(5)(A)(ii) of this section files comments disagreeing with all or part of the proposed regulation, the Secretary shall not issue a final regulation which is in conflict with such comments until the Secretary further consults with the President, or if the Secretary fails to adopt a regulation pursuant to an action petitioned by a State agency under subsection (b)(3) of this section, the Secretary shall submit to the State agency a written justification for the failure of the Secretary to adopt regulations consistent with the agency's comments or petition.'.

SEC. 306. MONITORING THE STATUS OF SPECIES.
Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections 304(a) and 305(a) of this Act, is amended by adding after subparagraph (C) the following subparagraph:
(D) The Secretary shall implement a system to monitor effectively the status of all species with respect to which a finding is made that the petitioned action is warranted but precluded by proposals to determine whether any species is an endangered species or a threatened species and progress is being made to add qualified species to the list published under subsection (c) and to remove from lists published under that subsection species for which protection of this Act is no longer necessary, and shall make prompt use of the authority under paragraph (7) to prevent a significant risk to the well being of any such species.'.

SEC. 307. PETITIONS TO DELIST SPECIES.
Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections 301(a) and (c), 303(a), 304(a), 305(a), and 306 of this Act, is further amended by adding at the end the following new subparagraphs:
`(G) Any person may submit to the Secretary a petition to revise a previous determination by the Secretary under this Act that a species is an endangered species or threatened species and to remove the species from a list published under subsection (c), on the basis that--
`(i) new data or a reinterpretation of prior data indicates that the previous determination was in error;
`(ii) the species is extinct; or
`(iii) the population level target established for the species in a conservation plan under section 5(c)(3)(C)(vii) has been achieved.
`(H) Not later than 90 days after receiving a petition under subparagraph (D) for a species, the Secretary shall publish--
`(i) a proposed regulation to revise a previous determination for the species and to remove the species from a list published under subsection (c) on a basis set forth in subparagraph (G); or
`(ii) a finding that such a basis for the action requested by the petition does not exist.'.

TITLE IV--RECOGNIZING OTHER FEDERAL ACTION, LAWS, AND MISSIONS SEC. 401. BALANCE ESA WITH OTHER LAWS AND MISSIONS.
(a) Federal Agency Actions: Section 7 (16 U.S.C. 1536) is amended by amending the matter preceding subsection (b) to read as follows:

`SEC. 7. INTERAGENCY COOPERATION.
`(a) Federal Agency Actions and Consultations:
`(1) Programs administered by the secretary of the interior: The Secretary shall review other programs administered bythe Secretary and utilize such programs in furtherance of the purposes of this Act. Except as provided in section 5(d), (e), and (i), all other Federal agencies shall, consistent with their primary missions and in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4.
`(2) Programs administered by other agencies: Except as provided in section 5(d) and (e), each Federal agency shall ensure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an `agency action') is not likely to jeopardize the continued existence of any endangered species or threatened species or destroy or adversely modify any habitat that is designated by the Secretary as critical habitat of the species in a manner that is likely to jeopardize the continued existence of the species. In the case of any agency action that the agency has determined is subject to this paragraph and that is likely to significantly and adversely affect an endangered species or a threatened species, the Federal agency shall fulfill the requirements of this paragraph in consultation with and with the assistance of the Secretary.As provided in section 5(d)(2), each Federal agency may initiate consultation with the Secretary to receive guidance from the Secretary on the consistency of its action with the conservation objective or conservation plan for such species developed pursuant to section 5, with an incidental take permit for such species issued pursuant to section 10(a), or with a cooperative management agreement concerning such species executed pursuant to section 6(b). In fulfilling the requirements of this paragraph each agency shall use the best available scientific and commercial data, shall consider expert opinion and any reasonable and prudent alternatives developed under subsection (b)(3)(A), and shall render the decision of the agency in a manner consistent with the obligations and responsibilities of the agency under each applicable law and treaty.
`(3) Involvement of applicants for federal approvals: Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with the Secretary on any prospective agency action at the request of, with the involvement of, and in cooperation with, the prospective permit or license applicant if the applicant has reason to believe that an endangered species or a threatened species may be present in the area affected by his project, that the project is inconsistent with theconservation objective or plan for such species developed pursuant to section 5, an incidental take permit for such species issued pursuant to section 10(a), or a cooperative management agreement for such species executed pursuant to section 6(b), and that implementation of such action will likely affect such species.
`(4) Conferring on candidate species: Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 4 or to destroy or adversely modify any habitat that is proposed to be designated by the Secretary as critical habitat of such a species in a manner that is likely to jeopardize the continued existence of the species.This paragraph does not require a limitation on the commitment of resources as described in subsection (d).
`(5) Limitations on modifications to land management: Notwithstanding any other provision of this Act, the authority in this Act shall not be construed to authorize or form the basis for any Federal agency to modify a land management plan, policy, standard, or guideline or water allocation plan unless a determination has been made under section 4 that a species is threatened or endangered. Notwithstanding any other law or regulation, management plans, practices, policies, projects, or guidelines, including management plans which, as of October 1, 1995, are subject to modification pending completion of a final environmental impact statement, shall not be amended for the purpose of maintaining viable populations of native and desired non-native species unless it is determined under this Act that current practices are likely to jeopardize the continued existence of the species.'. (b) Resolving Conflicts Between Federal Agencies: Section 7(a), as amended by subsection (a) of this section and section 402 of this Act, is amended by adding at the end the following new paragraphs:
`(8) Relationship to duties under other laws: (A) The responsibilities of a Federal agency under this section shall not supersede and shall be implemented in a manner consistent with duties assigned to the Federal agency by any other laws or by any treaties.
`(B)(i) If a Federal agency determines that the responsibilities and duties described in subparagraph (A) are in irreconcilable conflict, the action agency shall request the President to resolve the conflict.
`(ii) In determining a resolution to such a conflict, the President shall consider and choose the course of action that best meets the public interest and, to the extent possible, balances pursuit of the conservation objective or the purposes of the conservation plan with economic and social needs and pursuit of the purposes of the other laws or treaties. The authority assigned to the President by this subparagraph may not be delegated to a member of the executive branch who has not been confirmed by the Senate.
`(9) Modification of projects and facilities: Any consultation and conferencing required under paragraphs (2) and (4) for an agency action that consists solely of a modification of a Federal, State, local government, or private project or facility shall be limited to the consideration of the effects that result from the modification that comprises the agency action.'. (c) Procedures for Consultation: Section 7(b) (16 U.S.C. 1536(b)) is amended by striking so much as precedes paragraph (3)(B) and inserting the following:
`(b) Opinion of Secretary:
`(1) Periods within which consultation must be completed: (A) Consultation under subsection (a)(2) with respect to any agency action shall be concluded within the 90-day period beginning on the date on which initiated by the Federal agency. The period may be extended by not more than 45 days by the Secretary or head of the Federal agency by publication of notice in the Federal Register that sets forth the reasons for the extension. Consultation on an agency action involving a permit or license applicant shall be concluded not later than the earlier of--
`(i) 1 year after the date of submission of the application to the Federal agency; or
`(ii) the end of the period established under subparagraph (B).
`(B) Subject to subparagraph (A), in the case of an agency action involving a permitor license applicant, the Secretary and the Federal agency may not mutually agree to conclude consultation within a period exceeding 90 days unless the Secretary, before the close of the 90th day referred to in subparagraph (A)--
`(i) if the consultation period proposed to be agreed to will end before the 150th day after the date on which consultation was initiated, submits to the applicant a written statement setting forth--
`(I) the reasons why a longer period is required,
`(II) the information that is required to complete the consultation, and
`(III) the estimated date on which consultation will be completed; or
`(ii) if the consultation period proposed to be agreed to will end on or after the 150th day but before the 210th day after the date on which consultation was initiated, obtains the consent of the applicant to such period.
`(C) If consultation is not concludedand the written statement of the Secretary required under paragraph (3)(A) is not provided to the Federal agency by the applicable deadline established under this paragraph, the requirements of subsection (a)(2) shall be deemed met and the Federal agency may proceed with the agency action.
`(D) A permit or license applicant shall be entitled to participate fully in any consultation or conferencing under this section with respect to any agency action required for the granting of an authorization or provision of funding to the applicant.
`(2) Procedure for applicant consultation: Consultation under subsection (a)(3) shall be concluded within such period as is agreeable to the Secretary, the Federal agency, and the applicant concerned.
`(3) Written opinion of secretary: (A)(i) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a), the Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing whether the agency action is consistent with the conservation objective or plan developed pursuant to section 5, an incidental taking permit issued pursuant to section 10(a), or a cooperative management agreement executed pursuant to section 6(b). If the Secretary determines that the action is likely to jeopardize the continued existence of the species as described in subsection (a), the Secretary shall suggest reasonable and prudent alternatives (considering any reasonable and prudent alternatives undertaken by other Federal agencies) that are consistent with subsection (a)(2) and that impose the least social and economic costs.
`(ii) Unless required by law other than subsections (a) through (d), the Secretary, in any opinion or statement concerning an agency action made under this subsection (including any reasonable and prudent alternative suggested under clause (i) or any reasonable and prudent measure specified under clause (ii) of paragraph (4)), and the head of the Federal agency proposing the agency action, may not require, provide for, or recommend the imposition of any restriction or obligation on the activity of any person that is not authorized, funded, carried out, or otherwise subject to regulation by the Federal agency. Nothing in this clause prevents the Secretary from pursuing any appropriate remedy under section 11 for any activity prohibited by section 4(d) or 9.
`(iii) The Secretary shall not require a reasonable and prudent alternative that may or will result in a significant adverse impact upon waterfowl populations, waterfowl habitat management, or waterfowl hunting opportunities in a significant waterfowl breeding, staging, or wintering habitat area. In this clause, the term `significant adverse impact' means any actions, proposed or in effect, which individually or cumulatively are likely to reduce the carrying capacity of habitat for waterfowl by 10 percent or more of its current capability, as determined on a local, regional, statewide or national basis. In this clause, the term `significant waterfowl breeding, staging, or wintering habitat areas' means those private or public lands managed primarily for, or providing, waterfowl breeding, staging or wintering habitat including seasonal/permanent marsh lands or land under rice cultivation for three out of the past five years.
`(iv) Notwithstanding any other provision of law, if the Secretary renders an opinion or suggests any reasonable and prudent alternative which has general application to a group of individuals conducting a commercial operation, the Secretary may not promulgate an emergency rule without providing at least 30 days for public comment on the emergency rule. (d) Activities Prior to Completion of Consultation: Section 7(d) (16 U.S.C. 1536(d)) is amended to read as follows:
`(d) Limitation on Commitment of Resources:
`(1) In general: Except as provided in paragraph (2), after initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2).
`(2) Relationship to land management planning requirements: If the listing of a species, or other procedure or decision related to a species listed under section 4(c)(1), requires consultation under subsection (a)(2) on a land use plan or land or resource management plan (or an amendment to or revision of the plan) prepared under section 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1712) or section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604), the land management agency implementing the plan may authorize, fund, or carry out an agency action that is consistent with the plan prior to the completion of the consultation, if, under the procedures established by this section, the head of the land management agency responsible for the action determines or has determined that the action--
`(A) is not likely to significantly and adversely affect the species; or
`(B) is likely to significantly and adversely affect the species, and the Secretary issues an opinion on the action that finds that the action--
`(i) is not likely to jeopardize the continued existence of the species; or
`(ii) is likely to jeopardize the continued existence of the species, and the agency agrees to a reasonable and prudent alternative.'. (e) Definitions: Section 3 (16 U.S.C. 1532) is amended-- (1) by adding after paragraph (15) (as added by section 204(a) of this Act) the following new paragraph: `(16) The term `likely to jeopardize the continued existence of', with respect to an action or activity affecting an endangered species or a threatened species, means an action or activity that significantly diminishes the likelihood of the survival of the species by significantly reducing the numbers or distribution of the entire species.'; (2) by amending paragraph (18) (as redesignated by section 102(a)(1) of this Act) to read as follows: `(18) The term `permit or license applicant' means, with respect to the consultation procedures established by section 7, any person that requires authorization or funding from a Federal agency as a prerequisite to conducting an activity (including a party to a written lease, right-of-way, license, contract to purchase or provide a product or service, or other permit with a Federal agency) that requires an action from the agency to obtain the benefit of the activity.'; and (3) by adding after paragraph (20) (as redesignated by section 102(a)(1) of this Act) the following new paragraph: `(21) The term `reasonable and prudent alternative' means an alternative action under section 7(b)(3) during consultation on an agency action that--
`(A) can be implemented in a manner consistent with the intended purpose of the agency action or the activity of a non-Federal person under section 10;
`(B) can be implemented consistent with the scope of the legal authority and jurisdiction of the Federal agency;
`(C) is economically and technologically feasible for the applicant or non-Federal person to undertake; and
`(D) the Secretary believes would avoid being likely to jeopardize the continued existence of the species.'.

SEC. 402. EXEMPTIONS FROM CONSULTATION AND CONFERENCING.
Section 7(a), as amended by section 401(a) of this Act, is amended by adding at the end the following new paragraphs:
`(6) Actions exempt from consultation and conferencing: Consultation and conferencing under paragraphs (2) and (4) shall not be required for any agency action that--
`(A) is consistent with the provisions of a final conservation plan under section 5(c)(5) or a conservation objective described in section 5(b)(3);
`(B) is consistent with a cooperative management agreement or an incidental taking permit;
`(C) addresses a critical, imminent threat to public health or safety or a catastrophic natural event or compliance with Federal, State, or local safety or public health requirements;
`(D) consists of routine operation, maintenance, rehabilitation, repair, or replacement to a Federal or non-Federal project or facility, including operation of a project or facility in accordance with a previously issued Federal license, permit, or other authorization; or
`(E) permits activities that occur on private land.
`(7) Actions not prohibited: An agency action shall not constitute a taking of a species prohibited by this Act or any regulation issued under this Act if the action is consistent with--
`(A) the actions provided for in a final conservation plan under section 5(c)(5) or a conservation objective described in section 5(b)(3); or
`(B) a cooperative management agreement or an incidental take permit.'.

SEC. 403. ELIMINATING THE EXEMPTION COMMITTEE (GOD COMMITTEE).
(a) Conforming Amendments: Section 7(c) (16 U.S.C. 1536(c)) is amended--
(1) in the first full sentence by striking `(1) To facilitate' and inserting `To facilitate'; and
(2) by striking paragraph (2).
(b) Presidential Exemptions: Section 7(e) (16 U.S.C. 1536(e)) is amended to read as follows:
`(e) Exemptions: Notwithstanding any other provision of this Act--
`(1) the Secretary shall grant an exemption from this Act for any activity if the Secretary of Defense determines that the exemption of the activity is necessary for reasons of national security; and
`(2) the President may grant an exemption from this Act for any area that the President has declared to be a major disaster area under The Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) for any project for the repair or replacement of a public facility substantially as the facility existed prior to the disaster under section 405 or 406 of that Act (42 U.S.C. 5171 and 5172), if the President determines that the project--
`(A) is necessary to prevent the recurrence of such a natural disaster and to reduce the potential loss of human life; and
`(B) involves an emergency situation that does not allow the procedures of this Act (other than this subsection) to apply.'.
(c) Repeal: Subsections (f) through (p) of section 7 (16 U.S.C. 1536(f)-(p)) are repealed.

TITLE V--BETTER MANAGEMENT AND CONSERVATION OF LISTED SPECIES SEC. 501. SETTING CONSERVATION OBJECTIVES.
Section 5 (16 U.S.C. 1534) is redesignated as section 5A, and the following new section is added after section 4:
`SEC. 5.SPECIES CONSERVATION PLANS.
`(a) In General: Except as provided in subsection (b)(3)(C), the Secretary shall publish a conservation objective and a conservation plan for each species determined to be an endangered species or a threatened species pursuant to section 4.
`(b) Development of Conservation Objective:
`(1) Assessment and planning team: Not later than 30 days after the listing determination, the Secretary shall appoint an assessment and planning team which shall not be subject to the Federal Advisory Committee Act (5 U.S.C. App.) and shall consist of--
`(A) experts in biology or pertinent scientific fields, economics, property law and regulation, and other appropriate disciplines from the Department of the Secretary, other Federal agencies, and the private sector;
`(B) a representative nominated by the Governor of each affected State;
`(C) representatives nominated by each affected local government, if the local government agrees to the appointment of a representative; and
`(D) representatives of persons who may be directly, economically impacted by the conservation plan.
`(2) Assessments: Not later than 180 days after the listing determination, the assessment and planning team shall report to the Secretary the assessment of the following biological, economic, and intergovernmental factors with respect to the listed species:
`(A) The team shall assess--
`(i) the biological considerations necessary to carry out this Act;
`(ii) the biological significance of the species;
`(iii) the geographic range and occupied habitat of the species, and the type and amounts of habitat needed, at a minimum, to maintain the existence of the species and, at a maximum, to secure recovery of the species;
`(iv) the current population, and the population trend, of the species;
`(v) the technical practicality of recovering the species;
`(vi) the potential management measures capable of recovering, or reducing the risks to survival of, the species, including the contribution of existing or potential captive breeding programs for the species, predator control, enhancement of food sources, supplemental feeding, and other methods which enhance the survival of the young of the species; and
`(vii) where appropriate, the demonstrable commercial or medicinal value of the species.
`(B) The team shall assess the direct, indirect, and cumulative economic and social impacts on the public and private sectors, including local governments, that may result from the listing determination and any potential management measures identified under subparagraph (A)(vi), including impacts on the cost of governmental actions, tax and other revenues, employment, the use and value of property, other social, cultural, and community values, and an assessment of any commercial activity which could potentially result in a net benefit to the conservation of the species.
`(C) The team shall assess the impacts on State and local land use laws, conservation measures, and water allocation policies that may result from the listing determination and from the potential management measures identified under subparagraph (A)(vi).
`(3) Secretarial review of assessments and establishment of conservation objective: (A) Not later than 210 days after a listing determination, the Secretary shall review the report of the assessment and planning team prepared pursuant to paragraph (2), establish a conservation objective for the species, and publish in the Federal Register the conservation objective, along with a statement of findings on which the conservation objective was established.
`(B) The conservation objective may be, in the discretion of the Secretary--
`(i) recovery of the listed species;
`(ii) such level of conservation of the species which the Secretary determines practicable and reasonable to the extent that the benefits of the potential conservation measures outweigh the economic and social costs of such measures, including but not limited to maintenance of existing population levels;
`(iii) no Federal action other than enforcement against any person whose activity violates the prohibitions specified in section 9(a), including any activity that results in a taking of the species, unless the taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity; or
`(iv) such other objective as the Secretary may determine that does not provide a lesser level of protection than the level described in clause (iii).
`(C) If the conservation objective established by the Secretary is the objective provided in subparagraph (B)(iii), the Secretary shall not develop a conservation plan for the affected species under subsection (c).'.

SEC. 502. PREPARING A CONSERVATION PLAN.
(a) In General: Section 5 (16 U.S.C. 1534), as added by section 501 of this Act, is amended by adding at the end the following new subsections:
`(c) Development of Conservation Plan:
`(1) Priorities: In the development and implementation of a conservation plan under this subsection, the Secretary shall accord priority to--
`(A) the development of an integrated plan for 2 or more endangered species or threatened species that are likely to benefit from an integrated conservation plan;
`(B) the geographic areas where conflicts between the conservation of the affected species and development projects or other forms of economic activity exist or are likely to exist;
`(C) protection of the listed species on units of the National Biological Diversity Reserve as provided in section 5A(a);
`(D) the implementation of conservation measures that have the least economic and social costs;
`(E) nonregulatory, incentive-based conservation measures and commercial activities that provide a net benefit to the conservation of the species; and `
(F) plans in which States or private organizations or persons are the primary implementors.
`(2) Publication of draft plan: Not later than 12 months after the date of a determination that a species is an endangered species or a threatened species, the assessment and planning team for the species shall publish a draft conservation plan for the species which is based on the assessments made pursuant to subsection (b)(2) and designed to achieve the conservation objective established pursuant to subsection (b)(3).
`(3) Contents of draft plan: Each draft conservation plan shall contain--
`(A) recommendations for Federal agency compliance with section 7(a)(1) and 7(a)(2);
`(B) recommendations for avoiding a taking of a listed species prohibited under section 9(a)(1) and a list of specific activities that would constitute a take under section 9;
`(C) alternative strategies to achieve the conservation objective for the listed species which range from a strategy requiring the least possible Federal management to achieve the conservation objective to a strategy involving more intensive Federal management to achieve the objective, each of which contains--
`(i) an estimate of the risks to the survival and recovery of the species that the alternative would entail;
`(ii) a description of any site-specific management measures recommended for the alternative;
`(iii) an analysis of the relationship of any habitat of the species proposed for designation as critical habitat to the recommended management measures;
`(iv) a description of the direct, indirect, and cumulative economic and social impacts on the public and private sectors including impacts on employment, the cost of government actions, tax and other revenues, the use and value of property, and other social, cultural, and community values;
`(v) a description of any captive breeding program recommended for the alternative;
`(vi) an analysis of whether the alternative would include any release of an experimental population outside the current range of the species and an identification of candidate geographic areas for the release;
`(vii) objective and measurable criteria, including a population level target, that, if met, would result in a determination under section 4 that the species is no longer an endangered species or threatened species;
`(viii) estimates of the time and costs required to carry out the management measures, including any intermediate steps; and
`(ix) a description of the role of each affected State, if any, in achieving the conservation objective.
`(4) Plan preparation procedures: (A) The Secretary shall consult with the Governor of each State in which the affected species is located during the preparation of each draft and final conservation plan. Each plan shall provide for equitable treatment of affected States and other non-Federal persons.
`(B) The Secretary shall publish in the Federal Register and a newspaper of general circulation in each affected county and parish a notice of the availability and a summary of, and a request for the submission of comments on, each draft conservation plan.
`(C) The Secretary shall hold at least 1 hearing on each draft conservation plan in each State to which the plan would apply in a location that is as close as possible to the center of the habitat of the affected species in such State.
`(D) Prior to any decision to adopt a final conservation plan, the Secretary shall consider and weigh carefully all information presented during each hearing held under subparagraph (C) or received in response to a request for comments published under subparagraph (B).
`(5) Publication of final plan: Not later than 18 months from the date of a determination that a species is an endangered species or a threatened species, the Secretary shall publish in the Federal Register a notice of the availability, and a summary, of a final conservation plan for the species.The notice shall include a detailed description of--
`(A) the reasons for the selection of the final conservation plan;
`(B) the reasons for not selecting each of the other alternatives included in the draft conservation plan, including, if any alternative is selected other than the alternative that would impose the least total costs on the public and private sectors, the reasons for such selection;
`(C) the effect of the priorities specified in paragraph (1) on the selection; and
`(D) the response of the Secretary to the information referred to in paragraph (4).
`(6) Participation by other persons: In developing and implementing conservation plans, the Secretary may use the services of appropriate public and private agencies and institutions and other qualified persons.
`(7) Plan revision or amendment: Any revision of or amendment to a conservation plan shall be made in accordance with the procedures and requirements of subsection (b) and this subsection, except that the Secretary by regulation may provide for other procedures and requirements for any amendment that does not increase the direct or indirect cost of implementation of the plan or enlarge the area to which the plan applies.
`(d) No Further Procedures or Requirements for Actions Consistent With the Conservation Plan: If a conservation plan is prepared under subsection (c) or if a conservation objective is established under subsection (b)(3)(C)--
`(1) any Federal agency that determines that the actions of the agency are consistent with the provisions of the conservation plan or conservation objective shall be considered to comply with section 7(a)(1) for the affected species;
`(2) any agency action that the Federal agency determines is consistent with the provisions of the conservation plan or conservation objective shall not be subject to section 7(a)(2) for the affected species, except that a Federal agency may initiate consultation under section 7(a)(2) if the agency desires guidance from the Secretary on the consistency of the action of the agency with the conservation plan or conservation objective; and
`(3) any action of any person that is consistent with the provisions of the conservation plan or conservation objective shall not constitute a violation concerning the affected species of any applicable prohibition under section 9(a), except that a non-Federal person may initiate consultation under section 10(a)(2)--
`(A) if the person desires guidance from the Secretary on the consistency of the action with the plan or objective; or
`(B) in order to determine whether to apply for a permit under section 10 for any action that is inconsistent with the plan or objective.'.
(b) Conservation Objective and Conservation Rule Defined: Section 3(4) (16 U.S.C. 1532), as redesignated by section 102(a) of this Act, is amended to read as follows:
`(4) The terms `conservation objective' and `conservation plan' (except when modified by `non-Federal') mean a conservation objective and a conservation plan, respectively, developed under section 5.'.

SEC. 503. INTERIM MEASURES.
Section 5 (16 U.S.C. 1534), as added by section 501 of this Act and as amended by section 502 of this Act, is amended by adding at the end the following new subsections:
`(e) Management Prior to Publication of Conservation Plan:
`(1) In general: After a listing determination and before the publication of a final conservation plan, or, if no plan is required pursuant to subsection (b)(3)(C), a conservation objective, for the species--
`(A) the prohibitions of section 9(a) shall apply to any person, except in the case of a taking of a member of the species that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity which incidental taking activity may include but is not limited to the routine operation, maintenance, rehabilitation, replacement, or repair of any structure, building, road, dam, airport, or any irrigation or other facility which is in operation prior to the publication of the determination under section 4(b)(6); and
`(B) no Federal agency shall be required to comply with section 7(a)(1) and no consultation shall be required on any agency action under section 7(a)(2).
`(2) Emergency rulemaking protections: Notwithstanding paragraph (1), sections 7(a) and 9(a) shall apply fully to the listed species during a period in which an emergency rulemaking is in effect pursuant to section 4(b)(7) or if the President declares, and advises the Secretary, that there exists an imminent threat to the existence of the species.Such declaration of the President expires upon the deadline for publication of a final conservation plan for the species pursuant to subsection (c)(5) or the publication of a conservation objective for the species provided in subsection (b)(3) or if no conservation plan is required pursuant to subsection (b)(3)(C).
`(f) Suspension of Conservation Plan or Objective: If the Secretary issues an incidental take permit or enters into a cooperative management agreement under section 6, the Secretary, by publication of notice in the Federal Register, shall suspend the conservation objective or conservation plan with respect to the geographic area or action applicable to the species to which the permit or agreement applies.
`(g) Nondelegation of Duties: The Secretary may not delegate the authority to make the final decision to select a conservation objective, issue a conservation plan, or designate critical habitat under this section.
`(h) Review of Conservation Plans:
`(1) Deadlines: The Secretary shall review each conservation plan and the conservation objective on which it is based before the end of the 5-year period that begins on the date of publication of the conservation plan, and before the end of each 5- year period thereafter.
`(2) Revisions: The Secretary shall revise a conservation plan or the conservation objective on which it is based if the Secretary determines--
`(A) through a 5-year review under paragraph (1), that the conservation plan or conservation objective does not meet the requirements of this section; or
`(B) at any time--
`(i) that funding is not available for the implementation of a specific conservation measure that is integral to the conservation plan or that a more cost-effective alternative exists for a specific conservation measure that is integral to the conservation plan; or
`(ii) on the basis of scientific or commercial data that were not available during the development of the conservation objective or conservation plan, that the conservation objective is not achievable or the conservation plan will not achieve the conservation objective.
`(3) No reopening of consultations: Section 7 consultations shall not be reopened as a result of modifications to a conservation plan under paragraph (2).'.

SEC. 504. CRITICAL HABITAT FOR SPECIES.
(a) Critical Habitat Designation: Section 5, as added by section 501 of this Act and as amended by sections 502 and 503 of this Act, is amended by adding at the end the following new subsections:
`(i) Critical Habitat Designation:
`(1) Designation: The Secretary may, by regulation and to the extent prudent and determinable--
`(A) designate critical habitat of a species determined to be an endangered species or threatened species that meets the requirements of paragraph (3) utilizing the National Biodiversity Reserve established under section 5A(a) as a first priority; and
`(B) revise a critical habitat designation on determining that the critical habitat does not meet the requirements of paragraph (3). Designation of critical habitat shall not result in reopening or reinitiation of consultations on Federal actions pursuant to section 7.
`(2) Deadlines for designation: Any proposed regulation and any final regulation to designate critical habitat shall be published not later than 12 months and 18 months, respectively, after the date on which the affected species is determined to be an endangered species or a threatened species.
`(3) Basis for designation: The designation of critical habitat, and any revision of the designation, shall be made on the basis of the best available scientific and commercial data after taking into consideration the economic impact, and any other relevant impact, of designating any particular area as critical habitat and of the determination that the affected species is an endangered species or threatened species.The Secretary shall exclude any area from critical habitat--
`(A) which does not meet the definition of critical habitat set forth in section 3(7);
`(B) which is not necessary to achieve the conservation objective for the affected species established pursuant to subsection (b);
`(C) for which the Secretary determines that the benefits of the exclusion of the area from designation as critical habitat outweigh the benefits of designation, unless the Secretary determines, on the basis of the best available scientific and commercial data, that the failure to designate the area as critical habitat will result in the extinction of the affected species; or
`(D) in the case of property owned by a non-Federal person, where the owner thereof has not given written consent to the designation or has not been compensated as provided in section 19.
`(4) Procedure for designation: In the Federal Register notice containing the proposed regulation to designate critical habitat, the Secretary shall describe the economic impacts and other relevant impacts that are to be considered, and the benefits that are to be weighed, under paragraph (3) in designating an area as critical habitat, along with maps showing the location of the area to be designated as critical habitat.The Secretary shall submit the description, and the documentation supporting the description, to the Bureau of Labor Statistics of the Department of Labor.The Commissioner of Labor Statistics shall submit written comments during the comment period on the proposed regulation.The Secretary shall hold at least one public hearing in each State on the proposed rule in which critical habitat is designated for a species. In issuing any final regulation designating critical habitat, the Secretary shall respond separately and fully to each comment.
`(5) Judicial review of critical habitat designation: The decision whether to designate critical habitat shall be subject to a de novo judicial review with the court determining whether the decision is supported by a preponderance of the evidence.
`(j) Judicial Review of Conservation Objective or Plan: The standard for judicial review of any decision of the Secretary, or a Federal agency pursuant to this section shall be whether the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
`(k) Conservation Plans for Foreign Species: In developing conservation objectives and conservation plans under this section, the Secretary shall, in regard to foreign species--
`(1) act consistently with the Convention; and
`(2) cooperate and support the conservation strategy adopted for that species by any foreign nation in which the species occurs.'.
(b) Conforming Amendments: Section 4(b)(6) (16 U.S.C. 1533(b)(6)) is amended--
(1) in subparagraph (B)(i) by striking `or revision concerned';
(2) in subparagraph (B)(iii) by striking `or revision concerned, a finding that the revision should not be made,'; and
(3) by striking subparagraph (C).
(c) Conforming Amendment: Section 4(b)(8) (16 U.S.C. 1533(b)(8)) is amended by striking `regulation' the third time it appears and all that follows through the end of the paragraph and inserting `regulation.'.
(d) Definition of Critical Habitat: Section 3(7), as redesignated by section 102(a) of this Act, is amended to read as follows:
`(7)(A) The term `critical habitat' for an endangered species or a threatened species means the specific areas which are within the geographic area found to be occupied by a species at the time the species is determined to be an endangered species or a threatened species in accordance with section 4 and which contain such physical or biological features as--
`(i) are essential to the persistence of the species over the 50-year period beginning on the date the regulation designating the critical habitat, or any revision of the regulation, is promulgated; and
`(ii) require special management considerations or protection.
`(B) Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area occupied by the threatened species or endangered species.'.

SEC. 505. RECOGNITION OF CAPTIVE PROPAGATION AS MEANS OF RECOVERY.
Section 5, as added by section 501 of this Act and as amended by sections 502, 503, and 504 of this Act, is amended by adding at the end the following new subsection:
`(l) Recognition of Captive Propagation as Means of Conservation:
`(1) In general: In carrying out this Act, the Secretary shall recognize to the maximum extent practicable, and may utilize, captive propagation as a means of protecting or conserving an endangered species or a threatened species.
`(2) Captive propagation grants: The Secretary may, subject to appropriations therefor, provide annual grants to non-Federal persons to fund captive propagation programs for the purpose of protecting or conserving any species that is determined under section 4 to be an endangered species or a threatened species, if the Secretary determines that such a program contributes to enhancement of the population of the species.'.

SEC. 506. INTRODUCTION OF SPECIES.
Section 10(j) (16 U.S.C. 1539(j)) is amended-- (1) by amending paragraph (2)(B) to read as follows: `(B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and the precise boundaries of the geographic area for the release and determine, on the basis of the best available information, whether the release is in thepublic interest, whether or not such population is essential to the continued existence of an endangered species or a threatened species.'; (2) in paragraph (2)(C)--
(A) in clause (i) by striking `and' after the semicolon; and
(B) by striking clause (ii) and inserting the following:
`(ii) for the purposes of sections 4(d) and 9(a)(1)(B), any member of an experimental population found outside the geographic area in which the population is released shall not be treated as a threatened species if the member poses a threat to the welfare of the public; and
`(iii) critical habitat shall not be designated under this Act for any experimental population determined under subparagraph (B) to be not essential to the continued existence of a species.';
(3) by redesignating paragraph (3) as paragraph (4); and
(4) by inserting after paragraph (2) the following new paragraph:
`(3) Requirements for releases: In authorizing the release of a population under paragraph (2), the Secretary shall require that--
`(A) to the maximum extent practicable, the release occurs only in a unit of the National Park System or the National Wildlife Refuge System;
`(B) a release outside a unit occurs only in an area that has been identified as a candidate site for release of the population in a conservation plan for the species;
`(C) in the case of a release outside a unit, measures to protect the safety and welfare of the public and domestic animals and the funding for the measures are identified in the regulations authorizing the release and are implemented;
`(D) the regulations authorizing the release identify precisely the geographic area for the release;
`(E) a release on non-Federal land occurs only with the written consent of the owner of the land; and
`(F) the regulations authorizing the release include measurable reintroduction goals to restore viable populations only within the specific geographic area identified for release in the regulations.'.

SEC. 507. CONSERVING THREATENED SPECIES.
(a) Regulations: Section 4(d) (16 U.S.C. 1533(d)) is amended to read as follows:
`(d) Regulations To Protect Threatened Species: Whenever any species is listed as a threatened species pursuant to subsection (c), the Secretary shall issue, concurrently with the regulation that provides for the listing of the species, such regulations as the Secretary deems necessary and advisable to provide for the conservation of such species. Such regulations may apply to the threatened species one or more of the prohibitions under section 9(a)(1), in the case of fish and wildlife, or section 9(a)(2) in the case of plants, with respect to endangered species. The prohibition applied to the threatened species shall address the specific circumstances of such species and may not be as restrictive as such prohibition for endangered species. With respect to the taking of resident species of fish or wildlife, such regulations shall apply in any State which has entered into a cooperative agreement pursuant to section 6(c) only to the extent that such regulations have also been adopted by such State.'. (b) Conforming Amendments: Section 4 (16 U.S.C. 1533) is amended-- (1) by striking subsection (f); and (2) by redesignating subsections (g), (h), and (i) in order as subsections (f), (g), and (h). (c) Conservation Guidelines: Section 4 is amended in subsection (g), as redesignated by subsection (b)(2) of this section, by amending paragraph (3), as redesignated by section 304(b)(2) of this Act, to read as follows:
`(3) a system for developing and implementing, on a pr iority basis, conservation objectives and conservation plans.The Secretary shall provide to the public notice of, and opportunity to submit written comments on, any guideline (including any amendment thereto) proposed to be established under this subsection.'.

TITLE VI--HABITAT PROTECTIONS
SEC. 601. FEDERAL BIOLOGICAL DIVERSITY RESERVE.
Section 5A, as redesignated by section 501 of this Act, is amended to read as follows:

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

SEC. 602. LAND ACQUISITION.
Section 5A, as redesignated by section 501 of this Act and as amended by section 601 of this Act, is amended by adding at the end the following new subsection:
`(b) Land Acquisition:
`(1) Program: The Secretary, and the Secretary of Agriculture with respect to the National Forest System, shall establish and implement a program to conserve fish, wildlife, and plants, including those which are determined to be endangered species or threatened species pursuant to section 4. To carry out such a program, the appropriate Secretary--
`(A) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of 1956 (16 U.S.C. 742a et seq.), the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), and the Migratory Bird Conservation Act (16 U.S.C. 715 et seq.), as appropriate; and
`(B) is authorized to acquire by purchase, lease, donation, or otherwise, lands, waters, or interest therein, including short- or long-term conservation easements, and such authority shall be in addition to any other land acquisition authority vested in that Secretary.
`(2) Availability of funds for acquisition of lands, water, etc: Funds made available pursuant to the Land and Water Conservation Fund Act of 1965 (16 U.S.C. 4601-4 et seq.) may be used for the purpose of acquiring or leasing lands, waters, or interests therein under subsection (a) of this section.'.

SEC. 603. PROPERTY EXCHANGES.
Section 5A, as redesignated by section 501 of this Act and as amended by sections 601 and 602 of this Act, is amended by adding at the end the following new subsections:
`(c) Exchanges:
`(1) In general: In accordance with subsection (a), the Secretary of the Interior and the Secretary of Agriculture shall encourage exchanges of lands, waters, or interests in land or water within the jurisdiction of each Secretary (other than units of the National Park System and units of the National Wilderness Preservation System) for lands, waters, or interests in land or water that are not in Federal ownership and that are affected by this Act.
`(2) Timing of exchanges: An exchange under this subsection may be made if the Secretary of the Interior or the Secretary of Agriculture determines, without a formal appraisal, that the lands to be exchanged are of approximately equal value.
`(3) Environmental assessment: An environmental assessment shall be the only document under section 102(2) of the National Environmental Policy Act of 1976 (16 U.S.C. 4332(2)) that shall be prepared with respect to any exchange under this subsection.
`(4) Expeditious exchange decisions: An exchange under this subsection shall be processed as expeditiously as practicable. The Secretary of the Interior or the Secretary of Agriculture shall periodically provide information to the non-Federal landowner on the status of the exchange.
`(5) Applicable law: The Secretary of the Interior and the Secretary of Agriculture shall process exchanges under this subsection in accordance with applicable laws that are consistent with this subsection.
`(d) Valuation: Any land, water, or interest in land or water to be acquired by the Secretary or the Secretary of Agriculture by purchase, exchange, donation, or otherwise under this section shall be valued as if the land, water, or interest in land or water were not subject to any restriction on use under this Act imposed after the date of acquisition by the current owner of the land, water, or interest in land or water.
`(e) XX: For any land or water acquired by the Secretary or the Secretary of Agriculture by purchase, exchange, lease, donation or otherwise under this section, the Secretary or Secretary of Agriculture shall ensure that such purchase, exchange, lease, donation, or other transfer shall not supersede, abrogate, or otherwise impair existing easements, rights-of-way, fencing, water sources, water delivery lines or ditches, and current uses of adjacent land.'.

TITLE VII--STATE AUTHORITY TO PROTECT ENDANGERED AND THREATENED SPECIES
SEC. 701. STATE AUTHORITY.
(a) In general: Section 6 (16 U.S.C. 1535) is amended by striking subsection (c) and all that follows through subsection (f) and inserting the following:
`(c) State Authority To Protect Endangered and Threatened Species:
`(1) Delegation of authority: In furtherance of the purposes of this Act, the Secretary may delegate to a State which establishes and maintains an adequate program for the conservation of endangered species and threatened species the authority contained in this Act with respect to species of fish, wildlife, and plants that are residents in the State. Within 120 days after the Secretary receives a certified copy of such a proposed State program, the Secretary shall make a determination whether such program will be adequate to provide protections to endangered species and threatened species in such State. In order for a State program to be determined to be an adequate program for the conservation of endangered species and threatened species, the Secretary must find that under the State program--
`(A)(i) authority resides in the State agency to conserve resident species of fish or wildlife determined by the State agency or the Secretary to be endangered species or threatened species;
`(ii) the State agency has established acceptable conservation programs, consistent with the purposes and policies of this Act, for all resident species of fish or wildlife in the State which are deemed by the Secretary to be endangered species or threatened species or for those species or taxonomic groups of species which the State proposes to cover under its program, and has furnished a copy of such plan and program together with all pertinent details, information, requested to the Secretary;
`(iii) the State agency is authorized to conduct investigations to determine the status and requirements for survival of resident species of fish and wildlife;
`(iv) an agency of the State is authorized to establish programs, including the acquisition of land or aquatic habitat or interests therein, for the conservation of resident endangered species or threatened species of fish or wildlife;
`(v) provision is made for public participation in designating resident species of fish or wildlife as endangered species or threatened species; and
`(vi) the State agency has initiated or encouraged voluntary or incentive based programs to further the conservation objectives for the species; or
`(B)(i) the requirements set forth in clauses (iii), (iv), and (v) of subparagraph (A) are complied with, and `(ii) plans are included under which immediate attention will be given to those resident species of fish and wildlife which are determined by the Secretary or the State agency to be endangered species or threatened species and which the Secretary and the State agency agree are most urgently in need of conservation programs.
`(2) Prohibitions not affected: A delegation to a State whose program is deemed adequate pursuant to paragraph (1) shall not affect the applicability of prohibitions set forth in or authorized pursuant to section 4(d) or section 9(a)(1) with respect to the taking of any resident endangered species or threatened species in the State.
`(d) Allocation of Funds:
`(1) Financial assistance: The Secretary may provide financial assistance to any State, through its respective State agency, which has received delegation pursuant to subsection (c) of this section to assist in development of programs for the conservation of endangered species and threatened species or to assist in monitoring the status of candidate species pursuant to subparagraph (C) of section 4(b)(3) and recovered species pursuant to section 4(f). The Secretary shall allocate each annual appropriation made in accordance with subsection (i) to such States based on consideration of--
`(A) the international commitments of the United States to protect endangered species or threatened species;
`(B) the readiness of a State to proceed with a conservation program consistent with the objectives and purposes of this Act;
`(C) the number of endangered species and threatened species within a State;
`(D) the potential for restoring endangered species and threatened species within a State;
`(E) the relative urgency to initiate a program to restore and protect an endangered species or threatened species in terms of survival of the species;
`(F) the importance of monitoring the status of candidate species within a State to prevent a significant risk to the well-being of any such species; and
`(G) the importance of monitoring the status of recovered species within a State to assure that such species do not return to the point at which the measures provided pursuant to this Act are again necessary. So much of the annual appropriation made in accordance with subsection (i) allocated for obligation to any State for any fiscal year as remains unobligated at the close thereof may be made available to that State until the close of the succeeding fiscal year. Any amount allocated to any State which is unobligated at the end of the period during which it is available for expenditure may be made available for expenditure by the Secretary in conducting programs under this section.
`(2) Contents of delegation agreement: Such delegation shall provide for--
`(A) the actions to be taken by the Secretary and the States;
`(B) the benefits that are expected to be derived in connection with the conservation of endangered species or threatened species;
`(C) the estimated cost of these actions; and
`(D) the share of such costs to be borne by the Federal Government and by the States; except that--
`(i) the Federal share of such program costs shall not exceed 75 percent of the estimated program cost stated in the agreement; and
`(ii) the Federal share may be increased to 90 percent whenever two or more States having a common interest in one or more endangered species or threatened species, the conservation of which may be enhanced by cooperation of such States, enter jointly into an agreement with the Secretary. The Secretary may, in the Secretary's discretion, and under such rules and regulations as he may prescribe, advance funds to the State for financing the United States pro rata share agreed upon in the cooperative agreement. For the purposes of this section, the non-Federal share may, in the discretion of the Secretary, be in the form of money or real property, the value of which will be determined by the Secretary, whose decision shall be final.
`(3) Compliance with procedures: In implementing this Act under authority delegated to a State by the Secretary, the State shall comply with all requirements, prohibitions, and procedures set forth by this Act.
`(e) Review of State Programs: Any action taken by the Secretary under this section shall be subject to his periodic review at no greater than intervals of 5 years.
`(f) Conflicts Between Federal and State Laws: Any State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent that it may effectively--
`(1) permit what is prohibited by this Act or by any regulation which implements this Act, or
`(2) prohibit what is authorized pursuant to an exemption or permit provided for in this Act or in any regulation which implements this Act. This Act shall not otherwise be construed to void any State law or regulation which is intended to conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this Act or in any regulation which implements this Act.'. (b) Conforming Amendment: Section 6(g)(2)(A) (16 U.S.C. 1535(g)(2)(A)) is amended to read as follows:
`(A) to which the Secretary has delegated authority under subsection (c); or'.

SEC. 702. STATE PROGRAMS AFFECTED BY THE CONVENTION.
Section 8A (16 U.S.C. 1537a), as amended by section 207(b) of this Act, is amended by adding at the end the following new subsection:
`(h) Issuance of Permits for Export:
`(1) Compliance with state recommendation: In any instance in which a State has a program for management of a native species which is the subject of a request for an export permit under the Convention, the Secretary shall act in accordance with the recommendation of the State unless the Secretary makes a finding and publishes a notice in the Federal Register that scientific evidence justifies a conclusion contrary to the advice of the State.
`(2) Appeal: The State which is the subject to such a finding, or any person in that State directly affected because of inability to obtain a permit, may appeal the finding to an Administrative Law Judge or a court. The burden shall be on the Secretary to show that the evidence supports a finding contrary to the recommendation of the State.'.

TITLE VIII--FUNDING OF CONSERVATION MEASURES
SEC. 801. AUTHORIZING INCREASED APPROPRIATIONS.
Section 15 (16 U.S.C. 1542) is amended to read as follows:

`SEC. 15. AUTHORIZATION OF APPROPRIATIONS.
`(a) In General: In addition to the amounts authorized to be appropriated under section 6(i) and subsections (b) through (e), there are authorized to be appropriated--
`(1) to the Department of the Interior to carry out the duties of the Secretary of the Interior under this Act $110,000,000 for fiscal year 1996, $120,000,000 for fiscal year 1997, $130,000,000 for fiscal year 1998, $140,000,000 for fiscal year 1999, $150,000,000 for fiscal year 2000, and $160,000,000 for fiscal year 2001;
`(2) to the Department of Commerce to carry out the duties of the Secretary of Commerce under this Act $15,000,000 for fiscal year 1996, $20,000,000 for fiscal year 1997, $25,000,000 for fiscal year 1998, $30,000,000 for fiscal year 1999, $35,000,000 for fiscal year 2000, and $40,000,000 for fiscal year 2001; and
`(3) to the Department of Agriculture to carry out the duties of the Secretary of Agriculture under this Act $4,000,000 for each of fiscal years 1996 through 2001.
`(b) Cooperative Management Agreements: There are authorized to be appropriated to the Department of the Interior to carry out section 6(b), $20,000,000 for each of fiscal years 1996 through 2001, to remain available until expended.
`(c) Convention Implementation: There are authorized to be appropriated to the Department of the Interior to carry out section 8A(e) $1,000,000 for each of fiscal years 1996 through 2001, to remain available until expended.
`(d) Non-Federal Conservation Planning: There are authorized to be appropriated to the Department of the Interior to carry out section 10(a)(2)(F) $20,000,000 for each of fiscal years 1996 through 2001, to remain available until expended.
`(e) Habitat Conservation Grants: There are authorized to be appropriated to the Department of the Interior to provide habitat conservation grants under section 6(b)(14) $20,000,000 for each of fiscal years 1996 though 2001, to remain available until expended.'.

SEC. 802. FUNDING OF FEDERAL MANDATES.
Section 16 is amended to read as follows:
`SEC. 16. FEDERAL COST-SHARING REQUIREMENTS FOR CONSERVATION OBLIGATIONS.
`(a) Direct Costs Defined: In this section, the term `direct costs' means--
`(1) expenditures on labor, material, facilities, utilities, equipment, supplies and other resources which are necessary to undertake a specific conservation measure;
`(2) increased purchase power costs and lost revenues caused by changes in the operation of a hydropower system from which the non-Federal person or Federal power marketing administration markets power to meet a specific conservation measure; and
`(3) other reimbursable costs specifically identified by the Secretary as directly related to the performance of a specific conservation measure.
`(b) Cost-Sharing:
`(1) Conservation plans: For any non-Federal person or Federal power marketing administration, the Secretary shall pay 50 percent of any direct costs that result from the compliance by the person or administration mandated by a conservation plan issued under section 5 or any conservation measure that provides protection to a listed species under a plan developed under the Pacific Northwest Electric Power Planning and Conservation Act (16 U.S.C. 839 et seq.) including a plan that provides protection to a larger population unit of the same listed species.
`(2) Consultation requirements: For any non-Federal person or Federal power marketing administration, the Secretary shall pay 50 percent of direct costs that result solely from requirements imposed by the Secretary on the person or marketing administration under section 7.
`(3) Incidental take permits: For any non-Federal person issued an incidental take permit under section 10, the Secretary shall pay to such person 50 percent of the direct costs of preparing the application for the permit and implementing the terms and conditions of the permit.
`(4) Cooperative management agreements: The Secretary shall pay 50 percent of the direct costs of preparing and implementing the terms and conditions of a cooperative management agreement incurred by a party to the agreement and any costs incurred by any other non-Federal person or Federal power marketing administration subject to the terms of such agreement.
`(c) Method of Cost-Sharing:
`(1) In general: Except as provided in paragraph (2), the Secretary may make a contribution required under subsection (b) by--
`(A) providing a habitat reserve grant under section 6(b)(14);
`(B) acquiring, from or for the party to the cost-share, land or an interest in land as provided in section 5A; or
`(C) providing appropriated funds.
`(2) Cost-share payment for federal power marketing administrations and other state or local governmental entities: The Secretary shall make a contribution under subsection (b) to a Federal power marketing administration or any other State or local governmental entity by providing appropriated funds directly to the administration or governmental entity.
`(3) Appropriated funds: To the maximum extent practicable, any appropriated funds paid by the Secretary under paragraphs (1) and (2) shall be paid directly (in lieu of reimbursement) to the party, person, or administration.
`(4) Loans: The Secretary may not consider a loan to the party to the cost-share as a contribution or portion of a contribution under subsection (b).
`(5) Recovered costs: The Secretary may not claim as a portion of the Federal share under subsection (b) any costs to the Federal Government that are recovered through rates for the sale or transmission of power or water.
`(6) Effect of federal nonpayment: If the Secretary fails to make the contribution required under subsection (b), the application of the applicable provision of the conservation plan, requirement under section 7, term under the incidental take permit, or provision of the cooperative management agreement shall be suspended until such time as the full contribution is made.If the suspended provision or requirement includes a conservation easement or other instrument restricting title to the property of the non-Federal person, nonpayment of the full contribution shall result in the nullification of the previously granted restriction on title.
`(7) In-kind contributions: A non-Federal person or Federal power marketing administration may include in-kind contributions in calculating the appropriate share of the costs of the person or administration under this section.
`(8) Costs paid by the secretary: Compensation from the Federal Government under section 19 may not cover costs incurred by a non-Federal person that were otherwise paid by the Secretary under subsection (b).
`(d) Existing Cost-Sharing Agreements: Any cost-sharing agreement with a non-Federal person provided in any recovery plan or other agreement in existence prior to the date of enactment of this subsection shall remain in effect unless the non-Federal person requests that the cost-sharing percentage be reconsidered.
`(e) Adjustments to Cost-Sharing Percentage: At the request of the non-Federal person, the Secretary may adjust the percentage of the Federal contribution to a higher share.'.

SEC. 803. ENDANGERED SPECIES AND THREATENED SPECIES CONSERVATION TRUST FUND.
Section 13 is amended to read as follows:
`SEC. 13. ENDANGERED SPECIES AND THREATENED SPECIES CONSERVATION TRUST FUND.
`(a) Establishment: There is established in the general fund of the Treasury a separate account which shall be known as the `Endangered Species and Threatened Species Conservation Trust Fund' (in this section referred to as the `Fund').
`(b) Contents: The Fund shall consist of the following:
`(1) Amounts received as gifts, bequests, and devises under subsection (d).
`(2) Other amounts appropriated to or otherwise deposited in the Fund.
`(c) Use: Amounts in the fund shall be available to the Secretary, subject to appropriations, for the following:
`(1) Payment of compensation under section 19.
`(2) Habitat conservation grants under section 6(b)(11).
`(3) Payment of cost sharing under section 16.
`(d) Gifts, Bequests, and Devises:
`(1) In general: The Secretary may accept, use, and dispose of gifts, bequests, or devises of services or property, both real and personal, for the purpose of carrying out this Act.
`(2) Deposit into fund: Gifts, bequests, or devises of money, and proceeds from sales of other property received as gifts, bequests, or devises, shall be deposited in the Fund and shall be available for disbursement upon order of the Secretary.
`(3) Treatment: For purposes of Federal income, estate, and gift taxes, property accepted under this subsection shall be considered as a gift, bequest, or devise to the United States.'.

TITLE IX--MISCELLANEOUS PROVISIONS
SEC. 901. AMENDMENTS TO DEFINITIONS.
Section 3 (16 U.S.C. 1532) is amended-- (1) by adding after paragraph (16) (as added by section 401(e)(1) of this Act) the following new paragraph:
`(17) The term `non-Federal person' means a person other than an officer, employee, agent, department, or instrumentality of the Federal Government or a foreign government, acting in the official capacity of the person.'; and
(2) by amending paragraph (3) (as redesignated by section 102(a)(1) of this Act) to read as follows:
`(3) The term `commercial activity' means all activities of industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling, except that it does not include exhibition of commodities or species by exhibitors licensed under the Animal Welfare Act (7 U.S.C. 2131 et seq.), museums, or similar cultural or historical organizations.'.

SEC. 902. REVIEW OF SPECIES OF NATIONAL INTEREST.
No later than 60 days after the date of the enactment of this Act, the Secretary (as that term is defined in section 3 of the Endangered Species Act of 1973, as amended by this Act) shall identify those species which are listed under section 4 of that Act as a result of being determined to be a population segment. No later than one year after the date of the enactment of this Act, the Secretary shall review and determine whether or not it is in the national interest to continue to list each such population segment. Those population segments which the Secretary recommends for continued listing in the national interest shall be submitted to the Congress for approval. Any population segment which is not determined to be in the national interest shall be delisted within 60 days after that determination.

SEC. 903. PREPARATION OF CONSERVATION PLANS FOR SPECIES LISTED BEFORE ENACTMENT OF THIS ACT.
(a) Listed Species Without Recovery Plans:
(1) Priority for development of conservation plans: Not later than 30 days after the date of enactment of this Act, the Secretary (as defined in section 3 of the Endangered Species Act of 1973, as amended by this Act) shall publish a list of all species that were determined to be endangered species or threatened species under section 4 of the Act (16 U.S.C. 1533) for which no final recovery plans were issued under section 4(f) of the Act (16 U.S.C. 1533(f)) (as in effect on the day before the date of enactment of this Act) divided equally into three tiers of priority for preparation of conservation objectives and conservation plans therefor pursuant to section 5 of the Act. Any species which is listed as an endangered species or threatened species in more than one State shall be placed in the first tier of priority.
(2) Schedule for adoption of plans: The Secretary shall publish pursuant to section 5 of the Endangered Species Act of 1973 a conservation objective, draft conservation plan, and final conservation plan (except when a conservation objective is published pursuant to section 5(b)(3)(C) of such Act) for each species within each tier of priority identified pursuant to paragraph (1) within the following periods after the date of enactment of this Act:
(A) Conservation objective:First tier, 120 days; second tier, 12 months; and third tier, 24 months.
(B) Draft conservation plan:First tier, 6 months; second tier, 18 months; and third tier, 30 months.
(C) Final conservation plan:First tier, 12 months; second tier, 24 months; and third tier, 36 months.
(b) Listed Species With Recovery Plans:
(1) Priority for revision of existing plans: Except as provided in paragraph (3), a final recovery plan issued under section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)) (as in effect on the day before the date of enactment of this Act) shall continue in effect until the expiration of the deadline for revision thereof established under this paragraph.Within 90 days after the date of enactment of this Act, the Secretary shall publish a list of all species that were determined to be endangered species or threatened species under section 4 of such Act (16 U.S.C. 1533) and for which final recovery plans were issued under section 4(f) of such Act (16 U.S.C. 1533(f)) (as in effect on the day before the date of enactment of this Act) divided equally into three tiers of priority for preparation of conservation objectives pursuant to section 5(b) of such Act and revisions of the recovery plans consistent with the requirements for conservation plans set forth in section 5(c) of such Act.Any species which is listed as an endangered species or threatened species in more than one State shall be placed in the first tier of priority.
(2) Schedule for revision of plans: The Secretary shall publish pursuant to section 5 of the Endangered Species Act of 1973 a conservation objective, draft revision of the existing recovery plan, and final revision of the existing recovery plan (except when a conservation objective is published pursuant to section 5(b)(3)(C) of such Act) for each species within each tier of priority identified pursuant to paragraph (1) within the following periods after the date of enactment of this Act:
(A) Conservation objective: First tier, 180 days; second tier, 18 months; and third tier, 30 months.
(B) Draft revised recovery plan: First tier, 12 months; second tier, 24 months; and third tier, 36 months.
(C) Final revised recovery plan:First tier, 18 months; second tier, 30 months; and third tier, 42 months.
(3) Species for which no conservation plan is required: If the Secretary publishes a conservation objective for which no conservation plan is required pursuant to section 5(b)(3)(C) of the Endangered Species Act of 1973 for any species subject to this subsection, the final recovery plan applicable to the species shall be rescinded.
(c) Prohibition on Additional Requirements: The Secretary or any other Federal agency may not require any increase in any measurable criterion contained in, or any site specific management action in addition to those provided in, a final recovery plan issued under section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)) (as in effect on the day before the date of enactment of this Act) until such time as a conservation plan, or, pursuant to section 5(b)(3)(C) of such Act, a conservation objective, has been published under section 5 of such Act.
(d) Existing Biological Opinions: In conjunction with the issuance of a conservation plan, or, pursuant to section 5(b)(3)(C) of the Endangered Species Act of 1973, a conservation objective under subsection (a) or (b), the Secretary (as defined in section 3 of such Act (16 U.S.C. 1532)) shall review and reissue, in accordance with section 7 of such Act, any written opinion of the Secretary that relates to the affected species and was issued after January 1, 1995, under section 7(b)(3) of such Act (16 U.S.C. 1536(b)(3)) (as in effect on the day before the date of enactment of this Act).

SEC. 904. CONFORMING AMENDMENT TO TABLE OF CONTENTS.
The table of contents at the end of the first section is amended to read as follows:

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

Source: Library of Congress