Mr. Gorton (for himself, Mr. Johnston, Mr. Shelby, Mr. Breaux and Mr. Packwood) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works.

SECTION 1. SHORT TITLE; TABLE OF CONTENTS; REFERENCES.
(a) Short Title: This Act may be cited as the `Endangered Species Act Reform Act of 1995'.
(b) Table of Contents: The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents; references.
Sec. 2. Purposes.

TITLE I--ENSURING THE INTEGRITY OF THE LISTING AND CRITICAL HABITAT DESIGNATION PROCESSES
Sec. 101. Requiring peer review.
Sec. 102. Considering State, local, and foreign government activities.
Sec. 103. Improving the collection and analysis of scientific information.
Sec. 104. Improving public hearings in the listing process.
Sec. 105. Considering breeding populations in making listing determinations.
Sec. 106. Providing equal access to judicial review.
Sec. 107. Setting a standard for emergency rulemaking.

TITLE II--BROADENING THE RECOVERY PLAN TO CONSTITUTE A CONSERVATION PLAN AND MAKING THE CONSERVATION PLAN CENTRAL TO THE IMPLEMENTATION OF THE ENDANGERED SPECIES ACT OF 1973
Sec. 201. Providing for coordination of conservation decisionmaking for a species after the listing determination; ensuring timely, comprehensive, and effective conservation plans.
Sec. 202. Providing transition periods for conservation plan preparation.
Sec. 203. Making technical and conforming amendments to ensure that conservation objectives and plans are the focus of management under the Endangered Species Act of 1973.

TITLE III--IMPROVING THE CONSULTATION AND CONFERENCING PROCESSES FOR FEDERAL AGENCY ACTIONS
Sec. 301. Clarifying the consultation and conferencing standards.
Sec. 302. Identifying when consultation is required.
Sec. 303. Making the consultation deadlines binding.
Sec. 304. Enhancing applicant participation.
Sec. 305. Specifying the reasonable and prudent alternatives identification process.
Sec. 306. Clarifying the relationship of the consultation requirement with the land management planning requirements for Federal lands.
Sec. 307. Further clarifying Federal agency responsibilities.
Sec. 308. Clarifying the effects of secondary impacts.
Sec. 309. Requiring risk assessment and cost benefit analyses in the consultation process.
Sec. 310. Eliminating the Endangered Species Committee.

TITLE IV--ENSURING THAT THE COMPLIANCE PROCEDURES AND STANDARDS FOR NON-FEDERAL PERSONS ARE NOT MORE BURDENSOME THAN THE PROCEDURES AND STANDARDS APPLICABLE TO FEDERAL AGENCIES
Sec. 401. Establishing consultation procedures with respect to private actions.
Sec. 402. Defining the taking prohibition in accordance with the intent of Congress.
Sec. 403. Clarifying the application of taking prohibitions.
Sec. 404. Authorizing the issuance of general permits.
Sec. 405. Improving the non-Federal conservation planning process.
Sec. 406. Encouraging exchanges to protect habitat on non-Federal lands.

TITLE V--PROVIDING FOR HABITAT CONSERVATION INCENTIVE PROGRAMS
Sec. 501. Providing for cooperative management agreements.
Sec. 502. Providing for habitat reserve grants.

TITLE VI--OTHER AMENDMENTS MAKING THE ENDANGERED SPECIES ACT OF 1973 MORE EFFECTIVE AND LESS BURDENSOME
Sec. 601. Providing guidance for the release of experimental populations.
Sec. 602. Recognizing captive propagation as a means of recovery.
Sec. 603. Clarifying the application of prohibitions to threatened species.
Sec. 604. Encouraging research on alternative methods and technologies.
Sec. 605. Modifying enforcement authority.
Sec. 606. Providing adequate notice of hearings.
Sec. 607. Ensuring the protection of private property rights.
Sec. 608. Ensuring the use of water rights in accordance with existing State laws.
Sec. 609. Providing for Federal cost-sharing of implementation costs imposed under conservation plans or agency consultations.
Sec. 610. Enhancing public educational opportunities.

TITLE VII--AUTHORIZING INCREASED APPROPRIATIONS
Sec. 701. Reauthorizing the Endangered Species Act of 1973. (c) 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 a section or other provision of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to improve and protect the integrity of the programs established under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) for the conservation of endangered species and threatened species;
(2) to ensure the scientific validity of decisions to designate the species and the critical habitat of the species;
(3) to ensure balanced consideration of all impacts of decisions implementing the Act;
(4) to make the conservation planning process central to, and reduce the number of decisions needed for, the implementation of the Act;
(5) to provide for equitable treatment of non-Federal persons and Federal agencies under the Act;
(6) to ameliorate the impact of the Act on, and provide less costly and time-consuming procedures for, non-Federal lands; and
(7) to encourage non-Federal persons to contribute voluntarily to species conservation.

TITLE I--ENSURING THE INTEGRITY OF THE LISTING AND CRITICAL HABITAT DESIGNATION PROCESSES
SEC. 101. REQUIRING PEER REVIEW. Section 4 (16 U.S.C. 1533) is amended by adding at the end the following:
(j) Peer Review Requirement:
(1) Definitions: In this subsection:
(A) Action: The term `action' means--
(i) the determination that a species is an endangered species or a threatened species under subsection (a)(1);
(ii) the determination under subsection (a)(1) that an endangered species or a threatened species be removed from any list published under subsection (c); and
(iii) the designation, or revision of the designation, of critical habitat for an endangered species or a threatened species under section 5(m).
(B) Qualified individual: The term `qualified individual' means an individual with appropriate knowledge, training, or experience who--
(i) is not otherwise employed by or under contract to the Secretary of the Interior or the Secretary of Commerce; and
(ii) who has not participated in the listing decision.
(2) Notice of right to seek peer review: On publication of the notice of proposed rulemaking for a proposed action, the Secretary shall provide notice of the right to seek peer review of the proposed action, by publication in the Federal Register and in 1 or more newspapers of general circulation in each area affected by the proposed action. Any interested person may request the Secretary to conduct a peer review of the proposed action by submitting the request to the Secretary not later than 45 days after the date of publication of the notice.
(3) Peer review: If an interested person submits, in accordance with paragraph (2), a request for a peer review of an action, the Secretary shall appoint, from among individuals recommended by the head of the National Academy of Sciences, 3 qualified individuals who shall review, and report to the Secretary on, the scientific information and analyses on which the proposed action is based.
(4) Publication of results of peer review: The Secretary shall publish with any final regulation implementing an action a summary of the report of the peer review panel described in paragraph (3) and the response of the Secretary to the report.'.

SEC. 102. CONSIDERING STATE, LOCAL, AND FOREIGN GOVERNMENT ACTIVITIES.
Section 4(a)(1)(D) (16 U.S.C. 1533(a)(1)(D)) is amended by inserting `Federal, State, and local government and international' after `existing'.

SEC. 103. IMPROVING THE COLLECTION AND ANALYSIS OF SCIENTIFIC INFORMATION.
(a) State Participation: Section 4(b)(1)(A) (16 U.S.C. 1533(b)(1)(A)) is amended--
(1) by striking `best scientific and commercial data available to him' and inserting `best reasonably obtainable scientific information'; and
(2) by inserting after `and after' the following: `soliciting and fully considering the best reasonably obtainable scientific information concerning the status of a species from the appropriate State, if any, and'. (b) Federal Government Responsibility: Section 4(b) (16 U.S.C. 1533(b)) is amended by adding at the end the following:
(9) Scientific information:
(A) In general: The Secretary shall identify and publish in the Federal Register, with each proposed regulation promulgated under subsection (a)(1) or section 5(m), a description of--
(i) the efforts to field test all scientific information used as a basis for the regulation; and
(ii) any additional scientific information that has not been collected and that is necessary to ensure the scientific validity of the determination, along with a plan and deadlines for collecting the additional information.
(B) Public review and comment: The Secretary shall provide an opportunity for public review and comment on the scientific information referred to in subparagraph (A)(ii).'.
(c) Best Reasonably Obtainable Scientific Information:
(1) Definitions: Section 3 (16 U.S.C. 1532) is amended--
(A) by redesignating paragraphs (15) through (21) as paragraphs (21) through (27), respectively;
(B) by redesignating paragraphs (12) through (14) as paragraphs (17) through (19), respectively;
(C) by redesignating paragraph (10) as paragraph (13);
(D) by redesignating paragraphs (5) through (9) as paragraphs (7) through (11), respectively;
(E) by redesignating paragraphs (2) through (4) as paragraphs (3) through (5), respectively; and
(F) by inserting after paragraph (1) the following:
(2) Best reasonably obtainable scientific information: The term `best reasonably obtainable scientific information' means information obtainable from both public sector and private sector sources.'.
(2) Applicability:
(A) Basis for determinations: Section 4(b) (16 U.S.C. 1533(b)) is amended--
(i) in paragraph (3)(B)(iii), by striking `data' and inserting `best reasonably obtainable scientific information';
(ii) in paragraph (6)(B)(i), by striking `data' each place it appears and inserting `best reasonably obtainable scientific information';
(iii) in the last sentence of paragraph (7), by striking `best appropriate data available to him' and inserting `best reasonably obtainable scientific information'; and
(iv) in paragraph (8), by striking `data' each place it appears and inserting `best reasonably obtainable scientific information'.
(B) Cooperative agreements: Section 6(c)(2)(B) (16 U.S.C. 1535(c)(2)(B)) is amended by striking `data' and inserting `best reasonably obtainable scientific information'.
(C) Biological assessment: The second sentence of section 7(c)(1) (16 U.S.C. 1536(c)(1)) is amended by striking `best scientific and commercial data available' and inserting `best reasonably obtainable scientific information'.
(D) Notice and review of exemptions: The second sentence of section 10(c) (16 U.S.C. 1539(c)) is amended by striking `data' and inserting `information'.

SEC. 104. IMPROVING PUBLIC HEARINGS IN THE LISTING PROCESS.
Section 4(b)(5) (16 U.S.C. 1533(b)(5)) is amended by striking subparagraph (E) and inserting the following:
`(E) promptly hold at least 2 hearings in each State in which the species proposed for determination as an endangered species or a threatened species is located (including at least 1 hearing in an affected rural area if 1 or more rural areas within the State are affected by the determination), except that the Secretary may not be required to hold more than 10 hearings under this subparagraph.'.

SEC. 105. CONSIDERING BREEDING POPULATIONS IN MAKING LISTING DETERMINATIONS.
Section 4(b) (16 U.S.C. 1533(b)) is amended--
(1) by striking paragraph (2);
(2) by redesignating paragraph (1)(B) as paragraph (2);
(3) in paragraph (1), by adding at the end the following:
`(B) Consideration of bred populations: 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.'; and
(4) in paragraph (2) (as so redesignated), by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively.

SEC. 106. PROVIDING EQUAL ACCESS TO JUDICIAL REVIEW.
Section 4(b)(3)(C) (16 U.S.C. 1533(b)(3)(C)) is amended by striking clause (ii) and inserting the following:
`(ii) Judicial review: Any negative finding described in subparagraph (A) or any finding described in subparagraph (B) shall be subject to judicial review.'.

SEC. 107. SETTING A STANDARD FOR EMERGENCY RULEMAKING.
(a) In General: Section 4(b)(7) (16 U.S.C. 1533(b)(7)) is amended--
(1) in the first sentence, by striking `a significant risk to the well-being of' and inserting `an imminent threat to the existence of'; and
(2) by adding at the end the following: `The Secretary may not delegate the final decision to issue an emergency regulation under this paragraph.'. (b) Definition of Imminent Threat to the Existence Of: Section 3 (16 U.S.C. 1532) is further amended by inserting after paragraph (11) (as redesignated by section 103(c)(1)) the following:
`(12) Imminent threat to the existence of: 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(o)(2) solely on the basis of the best reasonably obtainable scientific information, that there is a significant likelihood that the species will be placed on an irreversible course to extinction during the 2-year period beginning on the date of the listing determination, unless the species is accorded fully the protections available under this Act during the period.'.

TITLE II--BROADENING THE RECOVERY PLAN TO CONSTITUTE A CONSERVATION PLAN AND MAKING THE CONSERVATION PLAN CENTRAL TO THE IMPLEMENTATION OF THE ENDANGERED SPECIES ACT OF 1973
SEC. 201. PROVIDING FOR COORDINATION OF CONSERVATION DECISIONMAKING FOR A SPECIES AFTER THE LISTING DETERMINATION; ENSURING TIMELY, COMPREHENSIVE, AND EFFECTIVE CONSERVATION PLANS.
(a) In General: The Act is amended-- (1) by redesignating section 5 (16 U.S.C. 1534) as section 5A; and (2) by inserting after section 4 (16 U.S.C. 1533) the following:

`SEC. 5. COORDINATION OF SPECIES CONSERVATION EFFORTS; SPECIES CONSERVATION PLANS.

(a) Species Protection: Upon a determination that a species is endangered or threatened, the Secretary shall consider whether to--
(1) issue 1 or more incidental taking permits under section 10;
(2) enter into 1 or more cooperative management agreements under section 6;
(3) commence the development of a conservation objective under this section; or
(4) carry out a combination of the activities described in paragraphs (1) through (3).
(b) Schedule for Conservation Objective Establishment: The Secretary shall publish a conservation objective for an affected species under subsection (e) not later than 30 days after the date of issuance of the assessment and planning team report under subsection (d).
(c) Appointment of Assessment and Planning Team:
(1) In general: Not later than 30 days after the date of a determination described in subsection (a), the Secretary shall appoint an assessment and planning team consisting of--
(A) appropriate biologists, economists, and land use specialists from the Department of the Secretary, other Federal agencies, and the private sector;
(B) such representatives from each affected State as are nominated by the Governor of the State; and
(C) representatives nominated by affected local governments.
(2) Inapplicability of federal advisory committee act: The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to an assessment and planning team appointed under this subsection.
(d) Assessments: Not later than 180 days after the date of a determination described in subsection (a), the assessment and planning team shall report to the Secretary concerning the following factors with respect to the affected species:
(1) Biological assessment: The team shall assess--
(A) the biological considerations necessary to carry out this Act;
(B) the biological significance of the species;
(C) the geographic range and occupied habitat of the species;
(D) the current population of the species;
(E) the population trend of the species;
(F) the technical practicality of recovering the species;
(G) the potential management measures capable of recovering or reducing the risks to survival of the species, including--
(i) enhancement of the viability of natural populations at selected locations;
(ii) control of predators and competitors;
(iii) supplemental feeding;
(iv) other measures to increase the quantities or accessibility of food supplies; and
(v) other measures to enhance reproductive success and survival of young;
(H) the contribution of existing or potential captive breeding programs for the species; and
(I) whether any management measure might include release of an experimental population of the species outside the current range of the species and, if the release is required, an identification of each likely geographic area for the release.
(2) Economic assessment: The team shall assess the direct, indirect, and cumulative economic and social impacts on both the public and private sectors that may result from the listing of the species, including any effects on any county, parish, State, or multi-State region or any segment of the national economy, and the potential management measures identified under paragraph (1), including--
(A) the cost of governmental actions and the impacts on tax and other revenues;
(B) the impacts on employment;
(C) the impacts on the use and value of property; and
(D) the impacts on other social, cultural, and community values.
(3) Intergovernmental assessment: The team shall assess the impacts that may result from the listing of the species and the potential management measures identified under paragraph (1) on State and local land use laws, conservation measures, and water allocation policies.
(e) Secretarial Establishment of a Conservation Objective and Determination of Whether To Prepare a Conservation Plan for the Species:
(1) Publication: After considering the report of the assessment and planning team under, and the factors described in, subsection (d), the Secretary shall publish in the Federal Register, in accordance with the schedule established under subsection (b), a conservation objective for the affected species, together with a statement of findings on which the conservation objective was established.
(2) Range of conservation objectives: The conservation objective, which the Secretary shall establish within the discretion of the Secretary, may be--
(A) recovery of the affected species;
(B) such level of conservation of the species and any critical habitat to be designated as the Secretary considers practicable and reasonable to the extent that the benefits of the conservation measures justify the human and economic costs of implementation for the Federal Government, State, and local governments, the private sector (including any permit or license applicants), and affected private individuals and organizations;
(C) 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
(D) such other objective as the Secretary may determine that does not provide a lesser level of protection than the level described in subparagraph (C).
(3) No conservation plan: If the conservation objective established by the Secretary is the objective provided in paragraph (2)(C), the Secretary shall not prepare a conservation plan under subsection (g).
(f) National Interest Determination Within Establishment of a Conservation Objective for Distinct Population Segments: The Secretary may establish a conservation objective, other than the objective provided in subsection (e)(2)(C), for a distinct population segment designated under section 4(a) after the date of enactment of this subsection only if the Secretary issues, in conjunction with the conservation objective, a determination that the objective is in the national interest based on biological, social, and economic considerations.
(g) Schedule for Conservation Plan Preparation: Except as provided in subsection (e)(3), the Secretary shall--
(1) direct the assessment and planning team to prepare a draft conservation plan for the affected species that includes alternative strategies required under subsection (i);
(2) not later than 1 year after the date of a determination described in subsection (a), publish a draft conservation plan for the affected species and a draft regulation to designate any habitat of the species as critical habitat under subsection (m); and
(3) not later than 18 months after the date of a determination described in subsection (a), publish a final conservation plan for the affected species and a final regulation to designate any habitat of the species as critical habitat under subsection (m).
(h) Conservation Plan Priorities: In the development and implementation of a conservation plan or plan revision under this section, the Secretary shall accord priority to--
(1) the development of an integrated plan for 2 or more endangered species or threatened species that are likely to benefit from an integrated plan;
(2) the geographic areas where conflicts between the conservation of species and development projects or other forms of economic activity exist or are likely to exist; and
(3) the implementation of conservation measures that have the least economic and social costs.
(i) Alternative Strategies: On the basis of the assessments made under subsection (d), the assessment and planning team shall include, in each draft conservation plan and plan revision, alternative strategies to achieve the conservation objective for the affected species. The alternative strategies shall 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 alternative strategy shall contain--
(1) an estimate of the risks to the survival and recovery of the species that the alternative would entail;
(2) a description of any site-specific management measures recommended for the alternative;
(3) an analysis of the relationship of any habitat of the species proposed for designation as critical habitat to the site-specific measures;
(4) a description of the direct and indirect costs to the public and private sectors, including effects on employment, any multi-State region, or any segment of the national economy, that may result from the alternative;
(5) a description of any social dislocation that may result from the alternative;
(6) an analysis of any impacts that the alternative would have on the use and value of property;
(7) a description of any captive breeding program recommended for the alternative;
(8) 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;
(9) a clear differentiation between--
(A) any matters recommended generally for Federal agencies to conserve the species under section 7(a)(1);
(B) any matters recommended for Federal agency actions to avoid being likely to jeopardize the continued existence of the species as determined under section 7(a)(2); and
(C) any matters recommended for any person to avoid a taking of the species prohibited under section 4(d) or 9(a)(1);
(10) objective and measurable criteria, including a population level target, that, if met, would result in a determination under section 4 that the species be removed from a list published under section 4(c)(1);
(11) estimates of the time and costs required to carry out the actions needed to achieve the conservation objective and to achieve intermediate steps toward the objective; and
(12) a description of the role of each affected State, if any, in achieving the conservation objective.
(j) Procedures:
(1) Consultation with states: 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 or plan revision.
(2) Publication and public comment: The Secretary shall publish in the Federal Register and a newspaper of general circulation in each affected county and parish--
(A) a notice of the availability, and a summary, of each draft conservation plan or plan revision and each draft regulation designating any critical habitat; and
(B) a request for the submission of comments on the draft conservation plan or plan revision and the draft regulation.
(3) Hearings: The Secretary shall hold at least 2 hearings on each draft conservation plan or plan revision in each State to which the plan or revision would apply (including at least 1 hearing in an affected rural area if 1 or more rural areas within the State are affected by the determination), except that the Secretary may not be required to hold more than 10 hearings under this paragraph.
(4) Consideration of comments by the secretary: Prior to any decision to adopt a final conservation plan or plan revision, the Secretary shall consider and weigh carefully all information presented during each hearing held under paragraph (3) or received in response to a request for comments published under paragraph (2)(B).
(k) Publication of Final Conservation Plan: Not later than the date of publication of a final conservation plan under subsection (g)(3), the Secretary shall publish in the Federal Register a notice of the availability, and a summary, of a final conservation plan or plan revision. The notice shall include a detailed description of--
(1) the reasons for the selection of the final conservation plan or plan revision;
(2) the reasons for not selecting each of the other alternatives included in the draft conservation plan or plan revision under subsection (i);
(3) the effect of the priorities specified in subsection (h) on the selection; and
(4) the response of the Secretary to the information referred to in subsection (j)(4).
(l) Participation by Other Persons: In developing and implementing conservation plans and plan revisions, the Secretary may use the services of appropriate public and private agencies and institutions and other qualified persons.
(m) Critical Habitat Designation:
(1) Designation: The Secretary may, by regulation under subsection (g) and this subsection and to the maximum extent prudent and determinable--
(A) designate any habitat of the affected species that is considered to be critical habitat and that supports the conservation objective for the species; and
(B) revise a critical habitat designation on determining that the critical habitat does not support the conservation objective.
(2) Basis for designation: The designation of critical habitat, and any revision of the designation, shall be made on the basis of the best reasonably obtainable scientific information after taking into consideration the economic impact, and any other relevant impact, of designating any particular area as critical habitat and of the determination made under section 4(a)(1).
(3) Economic impacts:
(A) Description: In issuing any draft regulation designating critical habitat of an endangered species or a threatened species, or revision of the designation, the Secretary shall describe the economic impacts and other relevant impacts that are to be considered under paragraph (2), and the benefits that are to be weighed under paragraph (4), in designating an area as critical habitat.
(B) Submission to bureau of labor statistics: 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. In issuing any final regulation designating critical habitat, the Secretary shall respond separately and fully to each comment.
(4) Consideration of costs and benefits: The Secretary shall exclude any area from critical habitat for which the Secretary determines that the benefits of the exclusion outweigh the benefits of designating the area as part of the critical habitat, unless the Secretary determines, on the basis of the best reasonably obtainable scientific information, that the failure to designate the area as critical habitat will create an imminent threat to the existence of the species.
(n) Effects of Actions Consistent With the Conservation Objective and Plan: If a conservation plan is prepared under subsection (g) or if a conservation objective is established that is described in subsection (e)(3)--
(1) any Federal agency that determines that the actions of the agency are consistent with the provisions of the conservation plan under subsection (i)(9)(A) or the 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 under subsection (i)(9)(B) or the conservation objective shall not be subject to section 7(a)(2) for the species, except that a Federal agency--
(A) 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 plan or objective; and
(B) shall initiate consultation under section 7(a)(2) on any action that the agency determines is inconsistent with the plan or objective; and
(3) any action of any person that is consistent with the provisions of the conservation plan under subsection (i)(9)(C) or the conservation objective shall not constitute a violation concerning the species of any applicable prohibition under section 4(d) or 9(a), except that the person may initiate consultation under section 10(a)(3) if the person--
(A) desires guidance from the Secretary on the consistency of the action with the plan or objective; or
(B) desires to obtain a permit under section 10 for any action that is inconsistent with the plan or objective.
(o) Interim Management:
(1) In general: Prior to the publication of a conservation objective described in subsection (e)(3) or a final conservation plan under subsection (g)(2), the entering into of a cooperative management agreement, or the issuance of an incidental taking permit with respect to an endangered species or a threatened species--
(A) the prohibitions of section 9(a) shall apply to any person, except in the case of a taking by a person that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity, which incidental taking activity may include the routine operation, maintenance, or repair of any structure, building, road, dam, airport, or any irrigation or other facility that is in operation prior to the publication of the listing 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 periods:
(A) In general: Notwithstanding paragraph (1) and subject to subparagraph (B), paragraphs (1) and (2) of section 7(a) and section 9(a) shall apply fully to the affected species during a period in which an emergency rulemaking is in effect under section 4(b)(7).
(B) Expiration of declaration: Any declaration of the Secretary described in subparagraph (A) shall expire on--
(i) the date of publication of a conservation objective described in subsection (e)(3); or
(ii) the date of publication of a final conservation plan.
(3) Extension of interim management period: The Secretary shall make every effort to issue any incidental taking permit, or enter into any cooperative management agreement, not later than 18 months after the date of a determination described in subsection (a). If no such permit has been issued or agreement entered into, the Secretary may extend the interim management period applicable to that portion of the affected species to which the permit or agreement would apply for an additional period of not to exceed 18 months if the Secretary determines that satisfactory progress is being made toward issuance of the permit or entering into of the agreement.
(p) Suspension of Conservation Plan or Objective:
(1) In general: If, at any time after the date of publication of a conservation objective described in subsection (e)(3) or a final conservation plan under subsection (g)(3), the Secretary issues an incidental taking permit or enters into a cooperative management agreement, the Secretary, by publication of notice in the Federal Register, shall suspend the conservation objective or conservation plan with respect to the portion of the species to which the permit or agreement applies.
(2) Suspension of measures within a plan: If a Federal contribution for costs incurred under a conservation plan required under section 16 is not made, the applicable provision of the conservation plan shall be suspended until such time as the full contribution is made. If the suspended provision includes a conservation easement or other instrument restricting title to property, nonpayment of the full contribution for a period of more than 4 consecutive years shall result in the nullification of the previously granted restriction on title.
(q) Nondelegation of Duties: The Secretary may not delegate the authority to issue an emergency rule or the final decision to establish a conservation objective or issue a conservation plan under this section.
(r) Report: Not later than 2 years after the date of enactment of this subsection and biennially thereafter, the Secretary shall report to the Committee on Environment and Public Works of the Senate and the Committee on Resources of the House of Representatives on the status of efforts to develop and implement conservation plans for all species included in a list published under section 4(c)(1) and on the status of all species for which the plans have been developed.
(s) Review of Conservation Plans:
(1) In general: The Secretary shall--
(A) review each conservation plan and conservation objective before the end of the 5-year period that begins on the date of publication of the plan, and before the end of each 5-year period thereafter; and
(B) determine whether the conservation plan and conservation objective meets the requirements of this section.
(2) Revisions: The Secretary shall revise a conservation plan or conservation objective 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 information that was 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) Applicable requirements to revisions: Any revision of a conservation plan or conservation objective shall be undertaken in accordance with the requirements of this section applicable to preparation of a conservation plan or conservation objective.
(t) Standard of Review: The standard for judicial review of any decision of the Secretary, or a Federal agency under this section shall be whether the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
(u) Other Plans Protecting Listed Species: Any conservation measure that provides protection to a species listed as endangered or threatened that is carried out under a plan developed under the Pacific Northwest Electric Power Planning and Conservation Act (16 U.S.C. 839 et seq.) shall be considered to be part of the conservation plan for the species for the purpose of any cost-sharing arrangement under section 16.'. (b) Definition of Critical Habitat: Section 3 (16 U.S.C. 1532) is further amended in paragraph (7) (as redesignated by section 103(c)(1))-- (1) by striking
(7)(A)' and all that follows through the end of subparagraph (A) and inserting the following:
(7) Critical habitat:
(A) In general: The term `critical habitat' for an endangered species or a threatened species means the specific areas within the geographic area occupied by a species at the time the species is listed in accordance with section 4 that 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) may require special management considerations or protection.'; and (2) in subparagraph (C), by striking `which can be'. (c) Conforming Amendments: (1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by striking `section 4(g)' and inserting `section 4(f)'. (2) Section 10(f)(5) (16 U.S.C. 1539(f)(5)) is amended by striking the last sentence. (3) Section 7(a)(1) of the Land and Water Conservation Fund Act of 1965 (16 U.S.C. 460l-9(a)(1)) is amended by striking `section 5(a)' and inserting `section 5A(a)'. (4) Section 5(b) of Public Law 103-64 (16 U.S.C. 460iii-4) is amended by striking
section 5(b) of the Endangered Species Act of 1973 (16 U.S.C. 1534(b))' and inserting `section 5A(b) of the Endangered Species Act of 1973'. (5) Section 101(a)(5)(E)(i)(II) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(5)(E)(i)(II)) is amended by striking `a recovery plan has been developed or is being developed for such species or stock pursuant to the' and inserting `a conservation plan has been developed or is being developed for the species or stock pursuant to section 5 of the'. (6) Section 104(c)(4) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1374(c)(4)) is amended-- (A) in subparagraph (A)(ii)-- (i) in subclause (I), by striking
any recovery plan developed under section 4(f)' and inserting
any conservation plan developed under section 5'; and (ii) in subclause (II)-- (I) by striking `or recovery'; and (II) by striking `or a recovery plan'; and (B) in subparagraph (B)(iii), by striking `recovery plan' and inserting `conservation plan'. (7) Section 115(b)(2) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1383b(b)(2)) is amended by striking `recovery plans required under section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f))' and inserting `conservation plans required under section 5 of the Endangered Species Act of 1973'. (8) Section 118(f)(11) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1387(f)(11)) is amended by striking `recovery plan developed for such species or stock under section 4' and inserting `conservation plan developed for the species or stock under section 5'.

SEC. 202. PROVIDING TRANSITION PERIODS FOR CONSERVATION PLAN PREPARATION.
(a) Expedited Conservation Plan Issuance:
(1) In general: 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 (16 U.S.C. 1532)) 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).
(2) Species listed in more than 1 state: In the case of a species that is listed as endangered or threatened in more than 1 State, the Secretary shall publish under section 5 of the Endangered Species Act of 1973 (as amended by section 201) a conservation objective not later than 210 days, a draft conservation plan not later than 1 year, and a final conservation plan not later than 18 months, after the date of enactment of this Act, unless a conservation objective is published that is described in section 5(e)(3) of the Act.
(3) Species listed in 1 state: In the case of a species that is listed as endangered or threatened in 1 State, the Secretary shall publish a conservation objective under section 5 of the Act (as amended by section 201) as expeditiously as practicable.
(b) Existing Recovery Plans:
(1) In general: 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 to apply to a species until a final revision of the final recovery plan is published under this subsection. Not later than 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 the Endangered Species Act of 1973 (16 U.S.C. 1533) for which 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).
(2) Species listed in more than 1 state: In the case of a species subject to a final recovery plan described in paragraph (1) that is listed in more than 1 State, the Secretary shall commence the development of a conservation objective under section 5 of the Endangered Species Act of 1973 (as amended by section 201) as expeditiously as practicable, but not later than 2 years after the date of enactment of this Act.Upon the commencement of the development of a conservation objective, the schedules established under section 5 of the Act shall apply.
(3) Species listed in 1 state: Not later than 1 year after the date of enactment of this Act, the Secretary shall publish a plan for the orderly review of all final recovery plans described in paragraph (1) that are not subject to paragraph (2).In reviewing the plans, the Secretary shall first review--
(A) those plans with respect to which conflicts between the conservation of a species and development projects or other forms of economic activity exist or are likely to exist; and
(B) those plans that have adverse social or economic impacts on affected communities or State or local governments.
(4) Rescission of recovery plan: If the Secretary publishes a conservation objective described in section 5(e)(3) of the Act (as amended by section 201) for any species subject to this subsection, the final recovery plan applicable to the species shall be rescinded.
(5) Prohibition on additional requirements: No increase in a population target or objective, other measurable criterion, or site-specific management action may be required by the Secretary or any other Federal agency in addition to the requirements of 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 objective has been published under section 5 of the Act (as amended by section 201) in accordance with this subsection.
(c) Existing Biological Opinions: In conjunction with the issuance of a conservation objective described in section 5(e)(3) of the Act (as amended by section 201) or a conservation plan under subsection (a) or (b), the Secretary (as defined in section 3 of the Endangered Species Act of 1973 (16 U.S.C. 1532)) shall review and reissue, in accordance with section 7 of the Act (as amended by this Act), any written opinion of the Secretary issued after January 1, 1995, that relates to the affected listed species and was issued under section 7(b)(3) of the Act (16 U.S.C. 1536(b)(3)) (as in effect on the day before the date of enactment of this Act).

SEC. 203. MAKING TECHNICAL AND CONFORMING AMENDMENTS TO ENSURE THAT CONSERVATION OBJECTIVES AND PLANS ARE THE FOCUS OF MANAGEMENT UNDER THE ENDANGERED SPECIES ACT OF 1973.
(a) Table of Contents: The table of contents in the first section (16 U.S.C. prec. 1531) is amended by striking the item relating to section 5 and inserting the following:
Sec. 5. Coordination of species conservation efforts; species conservation plans.
Sec. 5A. Land acquisition.'. (b) Definitions of Conservation Objective and Plan: Section 3 (16 U.S.C. 1532) is further amended by striking paragraph (4) (as redesignated by section 103(c)(1)) and inserting the following:
(4) Conservation objective; conservation plan: 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.'.
(c) Critical Habitat Designations: Section 4 (16 U.S.C. 1533) (as amended by section 101) is further amended--
(1) in subsection (a), by striking paragraph (3);
(2) in subsection (b)--
(A) in paragraph (3), by striking subparagraph (D);
(B) in paragraph (5), by striking
determination, designation, or revision referred to in subsection (a) (1) or (3),' and inserting
determination referred to in subsection (a)(1),';
(C) in paragraph (6)--
(i) in subparagraph (A)--
(I) by striking
Register' and all that follows through
(i) if' and inserting the following:
Register, if';
(II) by striking
species, or a revision of critical habitat,' and inserting
species';
(III) by striking clause (ii);
(IV) by striking `a' and inserting the following: `(i) a';
(V) by striking (II) a' and inserting the following: `(ii) a'; (VI) by striking `(III) notice' and inserting the following: `(iii) notice'; (VII) by striking `(IV) notice' and inserting the following: `(iv) notice'; and (VIII) in clause (iv) (as amended by subclause (VII)), by striking `based; or' and inserting `based.';
(ii) in subparagraph (B)--
(I) in clause (i), by striking `or revision concerned'; and (II) in clause (iii), by striking `or revision concerned, a finding that the revision should not be made,'; and (iii) by striking subparagraph (C); and
(D) in paragraph (8), by striking `regulation; and if such regulation designates or revises critical habitat, such summary shall, to the maximum extent practicable, also include a brief description and evaluation of those activities (whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify such habitat, or may be affected by such designation.' and inserting `regulation.';
(3) by striking subsection (f); and
(4) by redesignating subsections (g) through (j) as subsections (f) through (i), respectively.
(d) Secretarial Guidelines: Section 4(g)(4) (16 U.S.C. 1533(h)(4)) (as redesignated by subsection (c)(4)) is amended by striking `recovery plans under subsection (f) of this section' and inserting `conservation objectives and conservation plans'.
(e) Consultation Process: Section 7 (16 U.S.C. 1536) is amended--
(1) in subsection (a)--
(A) in the second sentence of paragraph (1), by striking `All' and inserting `Except as provided in subsections (e)(3), (n)(1), and (o)(1)(B) of section 5, all'; (B) in paragraph (2)-- (i) in the first sentence, by striking `Each' and inserting `Except as provided in subsections (e)(3), (n)(2), and (o)(1)(B) of section 5, each'; and (ii) by inserting after the first sentence the following: `As provided in section 5(n)(2), each Federal agency may initiate consultation with the Secretary to receive guidance from the Secretary on the consistency of an agency action with the conservation objective or conservation plan for the species, with an incidental taking permit for the species, or with a cooperative management agreement concerning the species.'; and
(C) in paragraph (3), by striking
project' and inserting `project, that the project is inconsistent with the conservation objective or conservation plan, an incidental taking permit, or a cooperative management agreement, for the species,'; and
(2) in the first sentence of subsection (b)(3)(A), by inserting after `detailing' the following: `whether the agency action is consistent with the conservation objective or plan, an incidental taking permit, or a cooperative management agreement, or'.
(f) Prohibited Acts: Section 9(a) (16 U.S.C. 1538(a)) is amended by striking
sections 6(g)(2) and 10 of this Act' each place it appears in paragraphs (1) and (2) and inserting `section 6(g)(2), subsections (n)(3) and (o) of section 5, and section 10'. (g) Non-Federal Conservation Plans: Section 10(a)(2) (16 U.S.C. 1539(a)(2)) is amended by inserting `non-Federal' before `conservation plan' each place it appears in subparagraphs (A) and (B).

TITLE III--IMPROVING THE CONSULTATION AND CONFERENCING PROCESSES FOR FEDERAL AGENCY ACTIONS
SEC. 301. CLARIFYING THE CONSULTATION AND CONFERENCING STANDARDS.
(a) Consultation and Conferencing Standard: Section 7(a) (16 U.S.C. 1536(a)) is amended-- (1) in the first sentence of paragraph (2), by striking `or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical,' and inserting `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,'; and
(2) in paragraph (4), by striking `or result in the destruction or adverse modification of critical habitat proposed to be designated for such species' and inserting `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'.
(b) Jeopardy Definition: Section 3 (16 U.S.C. 1532) is further amended by inserting after paragraph (13) (as redesignated by section 103(c)(1)) the following:
(15) Likely to jeopardize the continued existence of: 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 in the wild by significantly reducing the numbers or distribution of the entire species.'.

SEC. 302. IDENTIFYING WHEN CONSULTATION IS REQUIRED.
Section 7(a) (16 U.S.C. 1536(a)) is amended--
(1) in paragraph (2)--
(A) in the first sentence, by striking
shall, in consultation with and with the assistance of the Secretary, insure' and inserting
shall ensure'; and
(B) by inserting after the first sentence the following:
In the case of any agency action that 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.'; and
(2) by adding at the end the following:
(5) 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(n) or a conservation objective described in section 5(e)(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
(D) consists of routine maintenance or repair to a Federal or non-Federal project or facility.
(6) Actions not constituting takings: 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(n) or a conservation objective described in section 5(e)(3); or
(B) a cooperative management agreement or an incidental taking permit.'.

SEC. 303. MAKING THE CONSULTATION DEADLINES BINDING.
Section 7(b)(1) (16 U.S.C. 1536(b)(1)) is amended--
(1) in subparagraph (A), by striking `initiated or, subject to subparagraph (B), within such other period of time as is mutually agreeable to the Secretary and the Federal agency.' and inserting `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).';
(2) in subparagraph (B)-- (A) in the first sentence--
(i) by striking `In' and inserting `Subject to subparagraph (A), in'; and
(ii) in clause (ii), by striking `150 or more days' and inserting `on or after the 150th day but before the 210th day'; and
(B) by striking the second sentence; and
(3) by adding at the end the following:
(C) Effect of failure to timely conclude consultation:
If consultation is not concluded and the written statement of the Secretary required under paragraph (3)(A) is not provided to the Federal agency by the applicable deadline established under this paragraph, the requirements of subsection (a)(2) shall be deemed met and the Federal agency may proceed with the agency action.'.

SEC. 304. ENHANCING APPLICANT PARTICIPATION.
(a) Nature of Participation: Section 7 (16 U.S.C. 1536) is further amended--
(1) in subsection (a)(3), by inserting
with the involvement of,' after
at the request of,'; and
(2) in subsection (b)(1), by adding after subparagraph (C) (as added by section 303(3)) the following:
(D) Participation by applicant: 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.'.
(b) Definition of Applicant: Section 3 (16 U.S.C. 1532) is furtheramended by striking paragraph (17) (as redesignated by section 103(c)(1)) and inserting the following:
(17) Permit or license applicant: 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.'.

SEC. 305. SPECIFYING THE REASONABLE AND PRUDENT ALTERNATIVES IDENTIFICATION PROCESS.
(a) Identification: Section 7(b)(3)(A) (16 U.S.C. 1536(b)(3)(A)) is amended by striking the second sentence and inserting the following:
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.'.
(b) Definition: Section 3 (16 U.S.C. 1532) is further amended by inserting after paragraph (19) (as redesignated by section 103(c)(1)) the following:
(20) Reasonable and prudent alternative: The term `reasonable and prudent alternative' means an alternative action identified 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 action;
(B) can be implemented consistent with the scope of the legal authority and jurisdiction of the Federal agency;
(C) is economically and technologically feasible; and
(D) the Secretary believes would avoid being likely to jeopardize the continued existence of the species.'.

SEC. 306. CLARIFYING THE RELATIONSHIP OF THE CONSULTATION REQUIREMENT WITH THE LAND MANAGEMENT PLANNING REQUIREMENTS FOR FEDERAL LANDS.
Section 7(d) (16 U.S.C. 1536(d)) is amended--
(1) by striking `Resources: After'; and inserting the following: `Resources:
(1) In general: Except as provided in paragraph (2), after'; and (2) by adding at the end the following:
(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.'.

SEC. 307. FURTHER CLARIFYING FEDERAL AGENCY RESPONSIBILITIES.
Section 7(a) (16 U.S.C. 1536(a)) is further amended--
(1) in the last sentence of paragraph (2), by striking
best scientific and commercial data available' and inserting
best reasonably obtainable scientific information, shall consider any 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'; and
(2) by adding after paragraph (6) (as added by section 302(2)) the following:
(7) Relationship to duties under other laws:
(A) In general: The responsibilities of a Federal agency under this section shall not supersede duties assigned to the Federal agency by any other laws or by any treaties.
(B) Resolution of conflicts:
(i) Request by the agency: 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) Decision by the president: 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 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.
(8) 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.'.

SEC. 308. CLARIFYING THE EFFECTS OF SECONDARY IMPACTS.
Section 7(b)(3)(A) (16 U.S.C. 1536(b)(3)(A)) is amended--
(1) by striking `(3)(A) Promptly' and inserting the following: `(3) Written opinion of secretary:
(A) Issuance:
(i) In general: Promptly'; and (2) by adding at the end the following:
(ii) Scope: 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.'.

SEC. 309. REQUIRING RISK ASSESSMENT AND COST BENEFIT ANALYSES IN THE CONSULTATION PROCESS.
Section 7(b) (16 U.S.C. 1536(b)) is amended by adding at the end the following:
(5) Risk assessment:
(A) In general: Any opinion of the Secretary provided under this subsection shall include a clear and concise statement that--
(i) describes and, to the extent practicable, quantifies the risks to endangered species, threatened species, or critical habitat to be addressed by the opinion;
(ii) compares the risks to endangered species, threatened species, or critical habitat to be addressed by the terms of the opinion to other risks chosen by the Secretary, including--
(I) the risks to at least 3 other species listed as endangered or threatened under section 4(a); and
(II) such other risks as the Secretary considers appropriate;
(iii) estimates--
(I) the costs to the Federal Government, State and local governments, the applicant, and the private sector of implementing and complying with the elements of the opinion described in clause (i); and
(II) the benefits of the elements of the opinion described in clause (i); including both quantifiable measures of costs and benefits, to the fullest extent that the costs and benefits can be estimated, and qualitative measures that are difficult to quantify; and
(iv) contains a certification by the Secretary that--
(I) the analyses performed under clauses (i) through (iii) are based on the best reasonably obtainable scientific information;
(II) the elements of the opinion described in clause (i) are likely to significantly reduce the risks to the endangered species, threatened species, or critical habitat addressed by the opinion;
(III) there is no regulatory or administrative alternative that is allowed by this Act that would achieve an equivalent reduction in risk in a more cost-effective manner, along with a brief explanation of why other such regulatory or administrative alternatives that were considered by the Secretary were found to be less cost-effective; and
(IV) the elements of the opinion described in clause (i) are likely to produce benefits to endangered species, threatened species, or critical habitat that will justify the costs to the Federal Government, State and local governments, any applicant, and the private sector of implementing and complying with the elements.
(B) No effect on other law or action: Nothing in this paragraph--
(i) affects any other Federal law;
(ii) changes the factors that the Secretary shall consider under this subsection in issuing the opinion; or
(iii) shall delay any action required to meet a deadline imposed by statute or a court.
(C) No effect on rights:
(i) In general: Except as provided in clause (ii), nothing in this section creates any right to judicial review, or creates any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, agencies, instrumentalities, officers, or employees of the United States, or any other person.
(ii) Exception: Each risk assessment, cost-benefit analysis, certification, and peer review report prepared under this section shall be made part of the administrative review of any final agency action to which it relates. If the elements of the opinion described in subparagraph (A)(i) are subject to judicial review under any other law, the adequacy of the certification prepared under subparagraph (A)(iv), and any alleged failure to comply with this paragraph, may not be used as independent grounds for affecting or invalidating the opinion, although the adequacy of compliance or any failure to comply may be considered by the court solely for the purpose of determining whether a final agency action is arbitrary and capricious or an abuse of discretion under section 706(2)(A) of title 5, United States Code.'.

SEC. 310. ELIMINATING THE ENDANGERED SPECIES COMMITTEE.
Section 7 (16 U.S.C. 1536) is amended--
(1) in the first sentence of subsection (a)(2), by striking ` unless such agency has been granted an exemption for such action by the Committee under subsection (h) of this section';
(2) in subsection (c)--
(A) by striking `(1)'; and
(B) by striking paragraph (2);
(3) by striking subsection (e) and inserting the following:
(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 the 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.'; and (4) by striking subsections (f) through (p).

TITLE IV--ENSURING THAT THE COMPLIANCE PROCEDURES AND STANDARDS FOR NON-FEDERAL PERSONS ARE NOT MORE BURDENSOME THAN THE PROCEDURES AND STANDARDS APPLICABLE TO FEDERAL AGENCIES
SEC. 401. ESTABLISHING CONSULTATION PROCEDURES WITH RESPECT TO PRIVATE ACTIONS.
(a) In General: Section 10 (16 U.S.C. 1539) is amended--
(1) in subsection (a)--
(A) in paragraph (2)(A), by striking `No' and inserting `Except as provided in paragraph (3), no'; and (B) by adding at the end the following:
(3) Consultation:
(A) In general: 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, an incidental taking permit, or a cooperative management agreement; 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) Duration of consultation: A consultation under subparagraph (A) shall conclude not later than 90 days after 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.
(C) Written opinion of secretary:
(i) In general: As soon as practicable after the conclusion of consultation under subparagraph (A), the Secretary shall provide to the person initiating the consultation a written statement setting forth the opinion of the Secretary, and a summary of the information on which the opinion is based, describing in detail whether the prospective activity is consistent with the documents referred to in subparagraph (A)(i) and how the prospective activity affects the species or the critical habitat of the species as described in subparagraph (A)(ii).
(ii) Determination of no jeopardy: If the Secretary determines under clause (i) that the activity is not likely to jeopardize the continued existence of the species as described in subparagraph (A)(ii), the Secretary shall provide to the person initiating the consultation a statement that the proposed activity will not jeopardize the continued existence of the species.
(iii) Determination of likely jeopardy: If the Secretary determines under clause (i) that the activity is likely to jeopardize the continued existence of the species as described in subparagraph (A)(ii), the Secretary shall suggest the reasonable and prudent alternatives that the Secretary determines would not be likely to jeopardize the continued existence of the species and that can be taken by the person initiating the consultation in carrying out the activity.
(D) Issuance of permit: After the conclusion of consultation under subparagraph (A), if the person initiating the consultation so requests, the Secretary shall issue a permit under paragraph (1)(B) to the person if the Secretary determines that--
(i)(I) the activity of the person initiating the consultation is not likely to jeopardize the continued existence of the species as described in subparagraph (A)(ii); or
(II) the person has accepted a reasonable and prudent alternative offered by the Secretary under subparagraph (C)(iii), in which case the Secretary shall issue a permit requiring the alternative; and
(ii)(I) no taking of an endangered species or a threatened species incidental to the activity or alternative will occur; or
(II) the taking of an endangered species or a threatened species incidental to the activity or alternative may occur but is not likely to jeopardize the continued existence of the species as described in subparagraph (A)(ii).
(E) Revocation of permit: The Secretary shall revoke a permit issued under this paragraph if the Secretary determines that the permittee is not complying with the terms and conditions of the permit.
(F) Permits for incidental taking: If a determination is made under subparagraph (D)(ii)(II) that an incidental taking may occur, a permit issued under paragraph (1)(B) shall--
(i) describe the impact of the incidental taking on the species;
(ii) specify the reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize the impact; and
(iii) specify the terms and conditions that the person initiating the consultation shall comply with to implement the measures.
(G) Interim actions by person: After the initiation of consultation under subparagraph (A), the person initiating the consultation may not make any irreversible or irretrievable commitment of resources with respect to the activity that is the subject of the consultation if the commitment has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative or measure that would not be likely to have an effect described in subparagraph (A)(ii).
(H) Biological and environmental assessments: Any consultation initiated under subparagraph (A), and the activity that is the subject of the consultation, shall not be subject to section 7(c) of this Act or section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)).
(I) Takings: Notwithstanding section 4(d) and subparagraphs (B) and (C) of section 9(a)(1) of this Act and sections 101 and 102 of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371 and 1372), a taking of a species in the course of an action of a person that is the subject of a written opinion provided to the person by the Secretary under subparagraph (C)(ii) shall not be considered to be a prohibited taking under this Act if--
(i) the Secretary determines that the action is not likely to jeopardize the continued existence of the species under subparagraph (C)(ii); or
(ii) the taking is in compliance with the terms and conditions of a permit issued in accordance with subparagraph (D).'; and
(2) in the first sentence of subsection (c), by striking `this section' and inserting `subsections (a)(2) and (b)'.
(b) Definitions:
(1) Incidental taking permit: Section 3 (16 U.S.C. 1532) is further amended by inserting after paragraph (13) (as redesignated by section 103(c)(1)) the following:
`(14) Incidental taking permit: The term `incidental taking permit' means a permit issued under section 10(a)(1)(B).'. (2) Non-federal person: Section 3 (16 U.S.C. 1532) is further amended by inserting after paragraph (15) (as added by section 301(b)) the following:
(16) Non-federal person: 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.'.

SEC. 402. DEFINING THE TAKING PROHIBITION IN ACCORDANCE WITH THE INTENT OF CONGRESS.
Section 3 (16 U.S.C. 1532) is further amended by striking paragraph (25) (as redesignated by section 103(c)(1)) and inserting the following:
(25) Take:
(A) In general: The term `take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in that conduct. `(B) Harm: 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. 403. CLARIFYING THE APPLICATION OF TAKING PROHIBITIONS.
Section 9(a) (16 U.S.C. 1538(a)) is amended--
(1) in paragraph (1), by striking `Except as provided in sections 6(g)(2) and 10 of this Act,' and inserting `Except as provided in paragraph (3) and sections 6(g)(2) and 10,'; and (2) by adding at the end the following:
(3) Permitted takings: An activity of a non-Federal person is deemed not to constitute 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 taking permit or a cooperative management agreement;
(C) addresses a critical, imminent threat to public health or safety or a catastrophic natural event; 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(m), and the affected species is not a species of fish.'.

SEC. 404. AUTHORIZING THE ISSUANCE OF GENERAL PERMITS.
Section 10(a) (16 U.S.C. 1539(a)) is further amended by adding after paragraph (3) (as added by section 401(a)(1)(B)) the following:
(4) General permits:
(A) In general: 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 that is included in a list published under section 4(c)(1) 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) Duration: 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) Revocation or modification: 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).'.

SEC. 405. IMPROVING THE NON-FEDERAL CONSERVATION PLANNING PROCESS. (a) Scope of Non-Federal Conservation Plan: Section 10(a)(2) (16 U.S.C. 1539(a)(2)) is amended--
(1) by redesignating subparagraph (C) as subparagraph (H); and
(2) by inserting after subparagraph (B) the following:
(C) Scope of permit: 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, 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, unless the Secretary determines that the requirement will not appreciably increase the time or cost of processing the application or the cost of implementing the permit.
(D) Environmental assessments: The preparation and approval of a non-Federal 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)).'. (b) No Surprises Policy: Section 10(a)(2) (16 U.S.C. 1539(a)(2)) is further amended by inserting after subparagraph (D) (as added by subsection (a)(2)) the following:
(E) Prohibition on additional measures:
(i) In general: Except under extraordinary circumstances determined under clause (ii), 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 under the permit, without the consent of the permittee.
(ii) Extraordinary circumstances:
(I) In general: The Secretary shall have the burden of demonstrating that an extraordinary circumstance under clause (i) exists, based on the best reasonably obtainable scientific information.
(II) Factors: The Secretary shall establish, by regulation, the factors to be considered in making the determination whether an extraordinary circumstance under clause (i) exists.'. (c) Federal Cost-Sharing: Section 10(a)(2) (16 U.S.C. 1539(a)(2)) is further amended by inserting after subparagraph (E) (as added by subsection (b)) the following:
(F) Federal cost-sharing:
(i) In general: The Secretary shall pay 50 percent of the direct costs of implementing the terms and conditions of the permit, except that, at the request of the applicant, the Secretary may adjust the percentage of the Federal contribution to a higher or lower share. To the maximum extent practicable, the Secretary shall pay the sums directly (in lieu of reimbursement) to the permittee.
(ii) Effect of federal nonpayment: If the contribution required by clause (i) is not made, the application of the applicable term or condition shall be suspended until such time as the full contribution is made. If the suspended term or condition includes a conservation easement or other instrument restricting title to the property of the permittee, nonpayment of the full contribution for a period of more than 4 consecutive years shall result in the nullification of the previously granted restriction on title.
(iii) Loans: The Secretary may not consider a loan to the permittee in calculating the contribution required by clause (i).
(iv) Recovered costs: The Secretary may not consider as a portion of the contribution required by clause (i) any costs to the Federal Government that are recovered through rates for the sale or transmission of power or water.
(v) In-kind contributions: The permittee may include in-kind contributions in calculating the appropriate share of the costs of the permittee.'. (d) Interim Permits: Section 10(a)(2) (16 U.S.C. 1539(a)(2)) is further amended by inserting after subparagraph (F) (as added by subsection (c)) the following:
(G) Interim permits:
(i) In general: 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 and mitigate any 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) Contents: 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.'. (e) Multiple Species Non-Federal Conservation Plans: Section 10 (16 U.S.C. 1539) is amended by adding at the end the following:
(k) Multiple Species Non-Federal 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 non-Federal 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)(A); and
(B) any other species that--
(i) inhabits the area covered by the plan; and
(ii) is designated in the plan or is within a taxonomic group designated in the plan.
(2) Issuance of permits: The Secretary may issue a permit under subsection (a)(1)(B) authorizing a taking described in section 9(a)(1)(B) of a species for which a multiple species non-Federal 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 non-Federal 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.'.

SEC. 406. ENCOURAGING EXCHANGES TO PROTECT HABITAT ON NON-FEDERAL LANDS.
Section 5A (as redesignated by section 201(a)) is further amended by adding at the end the following:
(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.'.

TITLE V--PROVIDING FOR HABITAT CONSERVATION INCENTIVE PROGRAMS SEC. 501. PROVIDING FOR COOPERATIVE MANAGEMENT AGREEMENTS.
(a) In General: Section 6 (16 U.S.C. 1535) is amended by striking subsection (b) and inserting the following:
(b) Cooperative Management Agreements:
(1) In general: On the request of any State or group of States, political subdivision of a State, or local government having authority, control, or ownership over the area affected by any determination that a species is an endangered species or a threatened species, any proposed determination, or any proposed candidacy for determination, the Secretary may enter into a cooperative management agreement that shall govern the administration and management of each area that the Secretary identifies as habitat for the affected species that is within the authority, control, or ownership of the requesting party.
(2) Notification: Not later than 30 days after the submission of a request to enter into a cooperative management agreement, the person 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.
(3) Species assessment: On submission of a request to enter into a cooperative management agreement, the requesting party shall conduct an assessment of the affected species in accordance with section 5(d) and submit the assessment to the Secretary. On the receipt of the assessment, the Secretary may approve the assessment, or make a determination that the assessment is deficient and request the party to review and revise the assessment not later than 30 days after the date of issuance of the determination. If, on resubmission, the Secretary determines that the assessment remains deficient, or if no resubmission is made, the Secretary may conduct an independent assessment of the affected species in accordance with section 5(d).
(4) Submission of agreement: After completion of the assessment of the affected species under paragraph (3), the requesting party shall develop, and submit to the Secretary, a proposed cooperative management agreement.
(5) Publication in federal register: The Secretary shall publish in the Federal Register--
(A) a notice of availability of, and a request for public comment on, a proposed cooperative management agreement; and
(B) a notice of availability of each cooperative management agreement entered into by the Secretary.
(6) Public hearing: The Secretary shall hold a public hearing on a proposed cooperative management agreement in each county or parish to which the proposed agreement applies.
(7) Consideration of public comment:
(A) In general: Before entering into a cooperative management agreement, the Secretary shall consider and weigh carefully all information--
(i) received in response to the request for comment published under paragraph (5)(A); and
(ii) presented as testimony in each hearing held under paragraph (6).
(B) Publication of responses: The notice of availability of a cooperative management agreement required to be published under paragraph (5)(B) shall include the response of the Secretary to all information referred to in subparagraph (A) that is received or presented with respect to the agreement.
(8) Approval of agreement:
(A) In general: 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--
(i) is in accordance with this subsection; and
(ii) will promote the conservation of the species to which the proposed agreement applies.
(B) Criteria: The Secretary shall approve and enter into a proposed cooperative management agreement if the Secretary determines 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 to which the agreement applies;
(iii) the agreement provides for the administration and management of the area and adequately regulates activities occurring in the area that may not otherwise promote the conservation of the species to which the agreement applies;
(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 carry out the agreement; and
(vi) the agreement is adequately funded to carry out the agreement.
(C) Environmental assessments: The preparation, approval, and entering into of 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)).
(9) Critical habitat: As a term of a cooperative management agreement, the Secretary may--
(A) designate as critical habitat under section 5(m) any habitat within the geographic area covered by the agreement that is considered to be critical habitat as of the date of entering into the agreement; or
(B) revise a critical habitat designation under section 5(m).
(10) 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 applies is determined to be an endangered species or a threatened species under section 4.
(11) Applicability of certain provisions:
(A) In general: Sections 5 and 7 shall not apply to such activities of a person that is a party to a cooperative management agreement as are conducted in accordance with the agreement.
(B) Intentional or knowing violations: An intentional or knowing violation of a cooperative management agreement, or a law implementing a cooperative management agreement, shall be deemed a violation of this Act.
(12) Violations of agreements:
(A) Notification by the secretary: If the Secretary determines after public hearing and opportunity for comment 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) Failure to take corrective action: 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 and 7 shall apply to activities of the party.
(13) Federal cost-sharing:
(A) In general: The Secretary shall pay 50 percent of the direct costs of implementing the terms and conditions of a cooperative management agreement, including any costs incurred by a party to the agreement, non-Federal person, or Federal power marketing administration. To the maximum extent practicable, the sums paid by the Secretary shall be paid directly (in lieu of reimbursement) to the party, person, or administration.
(B) Effect of federal nonpayment: If the contribution required by subparagraph (A) is not made, the applicable term or condition shall be suspended until such time as the full contribution is made. If the suspended term or condition includes a conservation easement or other instrument restricting title to property, nonpayment of the full contribution for a period of more than 4 consecutive years shall result in nullification of the previously granted restriction on title.
(C) Loans: The Secretary may not consider a loan to the party, person, or administration in calculating the contribution required by subparagraph (A).
(D) Recovered costs: The Secretary may not consider as a portion of the contribution required by subparagraph (A) any costs to the Federal Government that are recovered through rates for the sale or transmission of power or water.
(E) In-kind contributions: The party, person, or administration may include in-kind contributions in calculating the appropriate share of the costs of the party.'. (b) Definition of Cooperative Management Agreement: Section 3 (16 U.S.C. 1532) is further amended by inserting after paragraph (5) (as redesignated by section 103(c)(1)) the following:
(6) Cooperative management agreement: The term `cooperative management agreement' means an agreement entered into under section 6(b).'. (c) Conforming Amendments: (1) Section 6 (16 U.S.C. 1535) is amended by striking the section heading and inserting the following:

SEC. 6. COOPERATION WITH NON-FEDERAL PERSONS.'.
(2) The table of contents in the first section (16 U.S.C. prec. 1531) is amended by striking the item relating to section 6 and inserting the following:
Sec. 6. Cooperation with non-Federal persons.'.

SEC. 502. PROVIDING FOR HABITAT RESERVE GRANTS. Section 6(b) (16 U.S.C. 1535(b)) (as amended by section 501(a)) is further amended by adding at the end the following:
(14) Habitat reserve grants:
(A) In general: The Secretary may provide a grant to a non-Federal person (other than an officer, employee, or agent (acting in the official capacity of the agent) of, or a department or instrumentality of, a State, municipality, or political subdivision of a State, or a State, municipality, or political subdivision of a State) for the purpose of preserving habitat for any species that is determined under section 4 to be an endangered species or a threatened species.
(B) Criteria for provision of grants: 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 dedicated to 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 preservation of the habitat advances the interest of species protection.
(C) Transferability of grants: A grant made under this paragraph shall be transferable to subsequent owners of the property for which the grant is provided.'.

TITLE VI--OTHER AMENDMENTS MAKING THE ENDANGERED SPECIES ACT OF 1973 MORE EFFECTIVE AND LESS BURDENSOME
SEC. 601. PROVIDING GUIDANCE FOR THE RELEASE OF EXPERIMENTAL POPULATIONS.
Section 10(j) (16 U.S.C. 1539(j)) is amended--
(1) in paragraph (2)--
(A) in subparagraph (B)-- (i) by inserting `and the precise boundaries of the geographic area for the release' after `the population'; and (ii) by inserting `whether the release is in the public interest and' after `information,'; and (B) in subparagraph (C)-- (i) in clause (i), by striking `and' at the end; (ii) by redesignating clause (ii) as clause (iii); and (iii) by inserting after clause (i) 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'; (2) by redesignating paragraph (3) as paragraph (4); and (3) by inserting after paragraph (2) the following:
(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. 602. RECOGNIZING CAPTIVE PROPAGATION AS A MEANS OF RECOVERY.
(a) In General: Section 13 (87 Stat. 902) is amended to read as follows:

SEC. 13. RECOGNITION OF CAPTIVE PROPAGATION AS MEANS OF RECOVERY.
(a) 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.
(b) Captive Propagation Grants: The Secretary may 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.'.
(b) Effect on Prior Amendments: Nothing in this section or the amendment made by this section affects the amendments made by section 13 of the Endangered Species Act of 1973 (87 Stat. 902), as in effect on the day before the date of enactment of this Act.
(c) Conforming Amendment: The table of contents in the first section (16 U.S.C. prec. 1531) is amended by striking the item relating to section 13 and inserting the following:
`Sec. 13. Recognition of captive propagation as means of recovery.'.

SEC. 603. CLARIFYING THE APPLICATION OF PROHIBITIONS TO THREATENED SPECIES.
Section 4(d) (16 U.S.C. 1533(d)) is amended--
(1) in the first sentence, by striking `issue' and inserting `issue, concurrently with or subsequent to the regulation that provides for the listing of the species,'; and (2) in the second sentence, by striking `by regulation prohibit with respect to any' and inserting `in the regulations prohibit with respect to the specific'.

SEC. 604. ENCOURAGING RESEARCH ON ALTERNATIVE METHODS AND TECHNOLOGIES.
Section 10(a) (16 U.S.C. 1539(a)) is further amended by adding after paragraph (4) (as added by section 404) the following:
(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 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.'.

SEC. 605. MODIFYING ENFORCEMENT AUTHORITY.
Section 11 (16 U.S.C. 1540) is amended-- (1) in paragraph (2) of the first sentence of subsection (d), by inserting `endangered or threatened' after `temporary care for any'; (2) in subsection (e)--
(A) in the fourth sentence of paragraph (3), by striking `fish, wildlife,' and inserting `endangered or threatened fish or wildlife,'; and
(B) in paragraph (4)--
(i) in subparagraph (A), by inserting `endangered or threatened' after `All'; and
(ii) in subparagraph (B), by inserting `endangered or threatened' after `importing of any';
(3) in the first sentence of subsection (f), by inserting `endangered or threatened' after `storage of'; and (4) in subsection (g)(2)(C), by inserting before the period at the end the following:
included in a list published under section 4(c)(1)'.

SEC. 606. PROVIDING ADEQUATE NOTICE OF HEARINGS.
(a) In General: Section 14 (87 Stat. 903) 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.'.
(b) Conforming Amendment: The table of contents in the first section (16 U.S.C. prec. 1531) is amended by striking the item relating to section 14 and inserting the following:
`Sec. 14. Notice of hearings.'. (c) Effect on Prior Repeal: Nothing in this section or the amendment made by this section affects the repeal made by section 14 of the Endangered Species Act of 1973 (87 Stat. 903), as in effect on the day before the date of enactment of this Act.

SEC. 607. ENSURING THE PROTECTION OF PRIVATE PROPERTY RIGHTS.
(a) Policy:
(1) Purpose: The purpose of this subsection is to establish a national policy that implementation of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) shall respect private property rights.
(2) Amendment: Section 2(c) (16 U.S.C. 1531(c)) is amended by adding at the end the following:
`(3) Private property rights: It is further declared to be the policy of Congress that Federal agencies shall carry out this Act in a manner that--
(A) ensures that persons are not denied the reasonable use of their private property; and
(B) avoids any significant diminishment of the value of private property.'.
(b) Duty:
(1) Purpose: The purpose of this subsection is to establish an affirmative duty that the Secretary and Federal agencies minimize the impact of conservation measures on private property. (2) Duty: The Act (16 U.S.C. 1531 et seq.) is amended-- (A) by redesignating section 15 as section 19; and (B) by inserting after section 14 the following:

SEC. 15. MINIMIZATION OF IMPACT OF CONSERVATION MEASURES ON PRIVATE PROPERTY.
(a) In General: In carrying out sections 5 and 7--
(1) the Secretary shall balance the objectives of--
(A) achieving the conservation objective for the species; and
(B) ensuring continuing economic growth, providing essential infrastructure, maintaining strong State and local tax bases, and protecting against the diminishment of the use and value of private property; and
(2) the Secretary, the heads of all other Federal agencies, and other officials of the Federal Government shall seek to minimize the adverse impacts on the use and value of private property resulting from any requirements imposed on the property under the sections.
(b) Right To Seek Compensation: Nothing in this Act diminishes or impedes the right of an owner of private property to receive compensation from the Federal Government under the Fifth Amendment of the Constitution or other Federal law for lost use of value of the property due to requirements imposed on the property under this Act after the date of acquisition of the property by the owner.
(c) Exceptions to the Application of the Act to Private Property: This Act shall not apply to activities carried out on--
(1) privately owned property consisting of 5 contiguous acres or less, unless the proposed activity presents an imminent threat to the existence of an endangered species or a threatened species; and
(2) such other property specifically identified by the Secretary, by regulation, based on a determination by the Secretary that the proposed activity will not be likely to jeopardize the continued existence of a species.'. (3) Conforming amendments: (A) The table of contents in the first section (16 U.S.C. prec. 1531) is further amended--
(i) by striking the item relating to section 15 and inserting the following:
Sec. 15. Minimization of impact of conservation measures on private property.'; and (ii) by adding at the end the following:
Sec. 19. Authorization of appropriations.'.
(B) Section 8(a) (16 U.S.C. 1537(a)) is amended by striking
section 15 of this Act' and inserting
section 19'. (c) Citizen Suits: Section 11(g) (16 U.S.C. 1540(g)) is amended-- (1) in paragraph (1)--
(A) in subparagraph (A) of the first sentence, by striking `any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution),' and inserting `the United States or any agency or official of the United States'; and
(B) in the second sentence, by striking `, without regard to the amount in controversy or the citizenship of the parties,';
(2) in paragraph (3)-- (A) by striking `(A)'; and (B) by striking subparagraph (B); and (3) by adding at the end the following:
`(6) Actions to remedy economic injury: Any person (including a person that sustains actual or imminent economic injury as a direct or indirect result of a violation of this Act or a regulation issued under this Act by the United States or any agency or official of the United States) may--
(A) to the full extent permitted by the Constitution without regard to any prudential limitations, commence a civil suit as authorized by this subsection to remedy any violation of this Act or a regulation issued under this Act by the United States or any agency or official of the United States; and
(B) intervene as a matter of right in any suit brought under this Act that threatens to cause injury to the person or relates to any injury sustained by the person.'.

SEC. 608. ENSURING THE USE OF WATER RIGHTS IN ACCORDANCE WITH EXISTING STATE LAWS.
Section 6(f) (16 U.S.C. 1535(f)) is amended--
(1) in the first sentence-- (A) by striking `(1)' and inserting `(A)'; and (B) by striking `(2)' and inserting `(B)';
(2) by striking `Laws: Any State' and inserting the following:

`Laws:
(1) In general: Any State'; and
(3) adding at the end the following: (2) Water rights: Any water right acquired, or otherwise used, by the United States, a permit or license applicant, or any other non-Federal party for any purpose under this Act shall be acquired and exercised in accordance with the laws of the State in which the water will be used, including a law providing for any priority system between types of water uses.'.

SEC. 609. PROVIDING FOR FEDERAL COST-SHARING OF IMPLEMENTATION COSTS IMPOSED UNDER CONSERVATION PLANS OR AGENCY CONSULTATIONS.
(a) In General: Section 16 (16 U.S.C. 1531 note) is amended to read as follows:
SEC. 16. FEDERAL COST-SHARING REQUIREMENTS FOR CONSERVATION OBLIGATIONS.
(a) Definition of Allowed Costs: In this section, the term
allowed costs' includes any direct or indirect cost incurred by a non-Federal person or Federal power marketing administration that results from compliance with a provision of a conservation plan under this Act, a conservation measure described in section 5(u), or a requirement imposed on the person or administration under section 7.
(b) Cost Sharing For Conservation Plans:
(1) Costs exceeding $10,000,000: The Secretary shall pay 50 percent of allowed costs incurred by a non-Federal person or Federal power marketing administration that result from compliance with any provision of a conservation plan, to the extent that the allowed costs exceed, in the aggregate, $10,000,000.
(2) Costs at or below $10,000,000: The Secretary may pay a Federal share to a non-Federal person or Federal power marketing administration of any allowed costs less than or equal to $10,000,000 that result from compliance with a conservation plan.
(c) Cost Sharing for Compliance With Consultation Requirements: The Secretary shall pay 50 percent of allowed costs incurred by a non-Federal person or Federal power marketing administration that result solely from requirements imposed on the person or marketing administration under section 7.
(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 incurring the costs 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 Federal share determined under subsection (b) or (c) with respect to the person.
(f) Provision of Federal Share:
(1) In general:
(A) Non-federal persons: The Secretary may make a contribution under subsection (b) or (c) by--
(i) providing to the non-Federal person a habitat reserve grant under section 6(b)(14);
(ii) acquiring, from or for the person, land or an interest in land as provided in section 5A; or
(iii) providing appropriated funds to the person.
(B) Federal power marketing administration: The Secretary shall make a contribution under subsection (b) or (c) to a Federal power marketing administration by providing appropriated funds directly to the power marketing administration.
(2) Loans: The Secretary may not consider a loan to the non-Federal person or Federal power marketing administration as a contribution or portion of a contribution under subsection (b) or (c).
(3) Recovered costs: The Secretary may not claim as a portion of the Federal share under subsection (b) or (c) any costs to the Federal Government that are recovered through rates for the sale or transmission of power or water.
(4) Effect of federal nonpayment: If the Secretary fails to make the contribution required under subsection (b), (c), or (d), the application of the applicable provision of the conservation plan or the requirement under section 7 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 for a period of more than 4 consecutive years shall result in the nullification of the previously granted restriction on title.
(g) 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.
(h) Costs Paid by the Secretary: Compensation from the Federal Government under section 15(b) may not cover costs incurred by a non-Federal person that were paid by the Secretary under subsection (b) or (c).'. (b) Conforming Amendments: (1) The table of contents in the first section (16 U.S.C. prec. 1531) is further amended by striking the item relating to section 16 and inserting the following:
Sec. 16. Federal cost-sharing requirements for conservation obligations.'. (2) Section 10(b)(1)(B) (16 U.S.C. 1539(b)(1)(B)) is amended by striking `the effective date of this Act' and inserting `December 28, 1973,'.

SEC. 610. ENHANCING PUBLIC EDUCATIONAL OPPORTUNITIES.
(a) Licensed Exhibitors: Section 3 (16 U.S.C. 1532) is further amended in the proviso of paragraph (3) (as redesignated by section 103(c)(1)) by striking `by museums' and inserting `or species by exhibitors licensed under the Animal Welfare Act (7 U.S.C. 2131 et seq.), museums,'.
(b) Education of the Public: Section 10(a) (16 U.S.C. 1539(a)) is further amended--
(1) in paragraph (1)(A)--
(A) by striking `to, acts' and inserting the following: `to--`(i) acts'; and
(B) by adding at the end the following:
(ii) the public display or exhibition of living wildlife in a manner designed to educate, or that otherwise contributes to the education of, the public about the ecological role and conservation needs of the affected species; or'; and
(2) by adding after paragraph (5) (as added by section 604) the following:
(6) Educational permits:
(A) Conditions of issuance: A permit referred to in paragraph (1)(A)(ii) shall be issued if--
(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) the applicant maintains a public display or exhibition of living wildlife described in paragraph (1)(A)(ii); and
(iii) viewing of the public display or exhibition is not limited or restricted other than by charging an admission fee.
(B) Term: A permit referred to in paragraph (1)(A)(ii) shall be for a term of not less than 6 years.
(C) Additional authority: 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.
(D) Revocation: 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.'. (c) Wildlife Bred in Captivity: Section 10 (16 U.S.C. 1539) is further amended by adding after subsection (k) (as added by section 405(e)) the following:
(l) Wildlife Bred in Captivity: For the purpose of export or import, or registration of captive-bred wildlife under the captive-bred wildlife registration system established under section 17.21(g) of title 50, Code of Federal Regulations, the terms `bred in captivity' and `captive-bred', with respect to wildlife, mean wildlife, including eggs, born or otherwise produced from parents in captivity.'.

TITLE VII--AUTHORIZING INCREASED APPROPRIATIONS
SEC. 701. REAUTHORIZING THE ENDANGERED SPECIES ACT OF 1973.
Section 19 (as redesignated by section 607(b)(2)(A)) is further amended to read as follows:
SEC. 19. 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 Reserve Grants: There are authorized to be appropriated to the Department of the Interior to provide habitat reserve grants under section 6(b)(14) $20,000,000 for each of fiscal years 1996 though 2001, to remain available until expended.'.

Source: Library of Congress