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House Report 119-568 - ESA AMENDMENTS ACT OF 2025
[House Report 119-568]
[From the U.S. Government Publishing Office]
119th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 119-568
=======================================================================
ESA AMENDMENTS ACT OF 2025
----------------
March 24, 2026.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
----------------
Mr. Westerman, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1897]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1897) to amend the Endangered Species Act of
1973 to optimize conservation through resource prioritization,
incentivize wildlife conservation on private lands, provide for
greater incentives to recover listed species, create greater
transparency and accountability in recovering listed species,
streamline the permitting process, eliminate barriers to
conservation, and restore congressional intent, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``ESA Amendments Act
of 2025''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Endangered Species Act of 1973 definitions.
Sec. 3. Authorization of appropriations.
Sec. 4. Rule of construction.
Sec. 5. Renaming of Endangered Species Act of 1973 to Endangered
Species Recovery Act.
TITLE I--OPTIMIZING CONSERVATION THROUGH RESOURCE PRIORITIZATION
Sec. 101. Prioritization of listing petitions, reviews, and
determinations.
TITLE II--INCENTIVIZING WILDLIFE CONSERVATION ON PRIVATE LANDS
Sec. 201. Conservation Benefit Agreements.
Sec. 202. Conservation plans.
Sec. 203. NEPA exemption for incidental take permits.
TITLE III--PROVIDING FOR GREATER INCENTIVES TO RECOVER LISTED SPECIES
Sec. 301. Protective regulations under Endangered Species Act of 1973.
Sec. 302. 5-year review determinations.
Sec. 303. Judicial review during monitoring period.
Sec. 304. Designation of critical habitat.
Sec. 305. Treatment of State, Tribal, and local government data.
Sec. 306. Clarifying significant portion of range of species.
Sec. 307. Delisting criteria.
TITLE IV--CREATING GREATER TRANSPARENCY AND ACCOUNTABILITY IN
RECOVERING LISTED SPECIES
Sec. 401. Requirement to publish basis for listings and critical
habitat designations online.
Sec. 402. Decisional transparency and use of State, Tribal, and local
information.
Sec. 403. Disclosure of expenditures under Endangered Species Act of
1973.
Sec. 404. Award of litigation costs to prevailing parties in accordance
with existing law.
Sec. 405. Analysis of impacts and benefits of determination of
endangered or threatened status.
Sec. 406. Notification of Congress of certain critical habitat
designations.
Sec. 407. Notification of Congress of certain releases of experimental
populations.
Sec. 408. Annual cost analysis by the Fish and Wildlife Service.
TITLE V--STREAMLINING PERMITTING PROCESS
Sec. 501. Limitation on reasonable and prudent measures.
Sec. 502. Successive consultations.
Sec. 503. Clarifying jeopardy.
Sec. 504. Clarifying action area.
Sec. 505. Judicial review.
Sec. 506. Expansion of exemption process and eligibility under section
7 of Endangered Species Act of 1973.
TITLE VI-- ELIMINATING BARRIERS TO CONSERVATION
Sec. 601. Permits for CITES-listed species.
Sec. 602. Utilize Convention standard for permits applicable to non-
native species.
TITLE VII--RESTORING CONGRESSIONAL INTENT
Sec. 701. Limiting agency regulations.
SEC. 2. ENDANGERED SPECIES ACT OF 1973 DEFINITIONS.
(a) Foreseeable Future.--Section 3(20) Endangered Species Act of 1973
(16 U.S.C. 1532(20)) is amended by--
(1) striking ``The term'' and inserting ``(A) The term''; and
(2) by adding at the end the following:
``(B) For the purposes of applying subparagraph (A), the term
`foreseeable future' means the period of time extending into the future
within which the Secretary, based on the best scientific and commercial
data available, is able to determine that a factor described in
subparagraphs (A) through (E) of section 4(a)(1) is likely to occur
with respect to the species.''.
(b) Commercial Activity.--Section 3(2) Endangered Species Act of 1973
(16 U.S.C. 1532(2)) is amended by inserting ``or public display or
education aimed at the preservation or conservation of a species''
after ``organizations''.
(c) Conserve; Conserving; Conservation.--Section 3(3) of the
Endangered Species Act of 1973 (16 U.S.C. 1532(3)) is amended by
striking ``and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include'' and inserting ``transplantation, and, at the
discretion of the Secretary,''.
(d) Habitat.--Section 3(5) of the Endangered Species Act of 1973 (16
U.S.C. 1532(5)) is amended by adding at the end the following:
``(D)(i) For the purpose of designating critical habitat for a
threatened species or an endangered species under this Act, the term
`habitat'--
``(I) means the abiotic and biotic setting that currently or
periodically contains the resources and conditions necessary to
support 1 or more life processes of the threatened species or
endangered species; and
``(II) does not include an area--
``(aa) outside the current or historic range of the
threatened species or endangered species; or
``(bb) visited by only vagrant individual members of
the threatened species or endangered species.
``(ii) If the setting described in clause (i)(I) does not support all
of the life processes of the relevant threatened species or endangered
species, the threatened species or endangered species must be able to
access, from the setting, other areas necessary to support its
remaining life processes.''.
(e) Best Scientific and Commercial Data Available.--Section 3 of the
Endangered Species Act of 1973 (16 U.S.C. 1532) is amended--
(1) by redesignating paragraphs (2) through (10) as
paragraphs (3) through (11), respectively; and
(2) by inserting after paragraph (1) the following:
``(2) The terms `best scientific and commercial data available' and
`best scientific data available'--
``(A) mean all relevant and objective scientific and
commercial information available at the time of the agency
action; and
``(B) include credible and reliable data, quantitative
analyses, conceptual and numerical models, and model results
that--
``(i) account for known or potential sources or
error;
``(ii) are applied using prevailing principles,
methods, tools, and professional standards of practice;
and
``(iii) are impartially gathered and objectively
applied without reliance on precautionary assumptions
in favor of a species or other assumptions or policy
prescriptions that bias the application.''.
(f) Environmental Baseline.--Section 7 of the Endangered Species Act
of 1973 (16 U.S.C. 1536) is amended by adding at the end the following:
``(q) Environmental Baseline Defined.--In this section, the term
`environmental baseline'--
``(1) means the condition of the species or the critical
habitat of the species in the area directly affected by the
agency action at the time of the proposed agency action,
without the consequences to the species or the critical habitat
of the species caused by the proposed action; and
``(2) includes--
``(A) the past and present effects of all Federal,
State, local, and private actions and other human
activities in the area directly affected by the agency
action;
``(B) the anticipated effects of each proposed
Federal project within the area directly affected by
the agency action for which a consultation under this
section has been completed;
``(C) the effects of State and private actions that
are contemporaneous with the consultation in process;
``(D) existing structures and facilities and the
past, present, and future effects of the physical
existence of such structures and facilities on the
species or the critical habitat of the species; and
``(E) the effects of Federal actions being carried
out at the time of the proposed agency action and
existing Federal facilities that are not within the
discretion of the Secretary to modify.''.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--Section 15 of the Endangered Species Act of 1973 (16
U.S.C. 1542) is amended--
(1) in subsection (a)--
(A) by striking ``subsection (b), (c), and (d)'' and
inserting ``subsections (b) and (c)'';
(B) in paragraph (1)--
(i) by striking ``and'' after ``fiscal year
1991,''; and
(ii) by inserting ``, and $287,978,000 for
each of fiscal years 2026 through 2031'' after
``fiscal year 1992'';
(C) in paragraph (2)--
(i) by striking ``and'' after ``fiscal years
1989 and 1990,''; and
(ii) by inserting ``, and $105,400,000 for
each of fiscal years 2026 through 2031'' after
``fiscal years 1991 and 1992''; and
(D) in paragraph (3)--
(i) by striking ``and'' after ``fiscal years
1989 and 1990,''; and
(ii) by inserting ``and $2,600,000 for each
of fiscal years 2026 through 2031'' after
``fiscal years 1991 and 1992,'';
(2) in subsection (b), by inserting ``and $600,000 for each
of fiscal years 2026 through 2031'' after ``1992''; and
(3) in subsection (c)--
(A) by striking ``and'' after ``fiscal years 1988,
1989, and 1990,''; and
(B) by inserting ``and $9,900,000 for each of fiscal
years 2026 through 2031,'' after ``fiscal years 1991
and 1992,''.
(b) Technical Amendment.--Section 15(b) of the Endangered Species Act
of 1973 (16 U.S.C. 1542(b)) is amended by striking ``sections 7 (e),
(g), and (h)'' and inserting ``subsections (e), (g), and (h) of section
7''.
SEC. 4. RULE OF CONSTRUCTION.
Nothing in this Act or the amendments made by this Act may be
construed to enlarge or diminish the authority, jurisdiction, or
responsibility of a State (as that term is defined in section 3 of the
Endangered Species Act of 1973 (16 U.S.C. 1532)) to manage, control, or
regulate fish and wildlife on lands and waters, including Federal lands
and waters, within the State.
SEC. 5. RENAMING OF ENDANGERED SPECIES ACT OF 1973 TO ENDANGERED
SPECIES RECOVERY ACT.
(a) Renaming.--The first section of the Endangered Species Act of
1973 (16 U.S.C. 1531 note; Public Law 93-205) is amended by striking
``may be cited as the `Endangered Species Act of 1973''' and inserting
``may be cited as the `Endangered Species Recovery Act'''.
(b) References.--Any reference in a law, map, regulation, document,
paper, or other record of the United States to the ``Endangered Species
Act of 1973'' shall be deemed to be a reference to the ``Endangered
Species Recovery Act''.
TITLE I--OPTIMIZING CONSERVATION THROUGH RESOURCE PRIORITIZATION
SEC. 101. PRIORITIZATION OF LISTING PETITIONS, REVIEWS, AND
DETERMINATIONS.
(a) In General.--Section 4 of the Endangered Species Act of 1973 (16
U.S.C. 1533) is amended by adding at the end the following:
``(j) National Listing Work Plan.--
``(1) In general.--Not later than the date described in
paragraph (2), the Secretary shall submit to Congress a
national listing work plan that establishes, for each covered
species, a schedule for the completion during the 5-fiscal year
period beginning on October 1 of the first fiscal year after
the date of the submission of the work plan of--
``(A) findings as described in subsection (b)(3)(B);
``(B) any proposed or final determination under
subsection (a)(1) required by a court order, court
decree, or court-approved settlement agreement; and
``(C) any proposed or final designation of critical
habitat under subsection (a)(3) required by a court
order, court decree, or court-approved settlement
agreement.
``(2) Submission to congress.--
``(A) In general.--The Secretary shall submit to
Congress--
``(i) together with the budget request of the
Secretary for the first fiscal year that begins
not less than 365 days after the date of the
enactment of this subsection, the initial work
plan required under paragraph (1); and
``(ii) together with the budget request of
the Secretary for each fiscal year thereafter,
an updated work plan under paragraph (1).
``(B) Additional inclusions.--The Secretary shall
include with each budget request referred to in
subparagraph (A) a description of the amounts to be
requested to carry out the work plan for the fiscal
year covered by the budget request, including any
amounts requested to address potential future listings
of species considered on an emergency basis in that
fiscal year.
``(3) Priority.--
``(A) In general.--In developing a work plan under
this subsection, the Secretary shall assign to each
species included in the work plan a priority
classification of Priority 1 through Priority 5, such
that, as determined by the Secretary, the following
apply:
``(i) Priority 1 represents species of the
highest priority, to be designated as
critically imperiled and in need of immediate
action.
``(ii) Priority 2 represents species with
respect to which the best scientific and
commercial data available support a clear
decision regarding the status of the species.
``(iii) Priority 3 represents species with
respect to which studies regarding the status
of the species are being carried out--
``(I) to answer key questions that
may influence the findings of a
petition to list the species submitted
under subsection (b)(3); and
``(II) to resolve any uncertainty
regarding the status of the species
within a reasonable timeframe.
``(iv) Priority 4 represents species for
which proactive conservation efforts likely to
reduce the effects of the factors described in
subparagraphs (A) through (E) of subsection
(a)(1) on the species are being developed or
carried out, within a reasonable timeframe and
in an organized manner, by Federal agencies,
States, landowners, or other stakeholders.
``(v) Priority 5 represents species--
``(I) for which there exists little
information regarding--
``(aa) the effects of the
factors described in
subparagraphs (A) through (E)
of subsection (a)(1) on to the
species; or
``(bb) the status of the
species; or
``(II) that would receive limited
conservation benefit in the foreseeable
future by listing the species as a
threatened species or endangered
species under this section.
``(B) Use of methodology.--The Secretary shall
establish and assign priority classifications under
subparagraph (A) in accordance with the notice of the
Director of the United States Fish and Wildlife Service
titled `Methodology for Prioritizing Status Reviews and
Accompanying 12-Month Findings on Petitions for Listing
Under the Endangered Species Act' (81 Fed. Reg. 49248;
published July 27, 2016), or any successor document.
``(C) Extensions for certain priority
classifications.--
``(i) Priority 3.--With respect to a species
classified as Priority 3 under subparagraph
(A)(iii), if the Secretary determines that
additional time would allow for more complete
data collection or the completion of studies
relating to the species, the Secretary may
retain the species under the work plan for a
period of not more than 5 years after the
deadline under paragraph (4).
``(ii) Priority 4.--With respect to a species
classified as Priority 4 under subparagraph
(A)(iv), if the Secretary determines that
existing conservation efforts continue to meet
the conservation needs of the species, the
Secretary may retain the species under the work
plan for a period of not more than 5 years
after the deadline under paragraph (4).
``(iii) Priority 5.--With respect to a
species classified as Priority 5 under
subparagraph (A)(v), the Secretary may retain
the species under the work plan for a period of
not more than 5 years after the deadline under
paragraph (4).
``(D) Revision of priority classification.--The
Secretary may revise, in accordance with subparagraph
(A), the assignment to a priority classification of a
species included in a work plan at any time.
``(E) Effect of priority classification.--The
assignment of a priority classification to a species
included in a work plan is not a final agency action.
``(4) Deadline.--The Secretary shall act on any petition to
add a species to a list published under subsection (c)
submitted under subsection (b)(3) not later than the last day
of the fiscal year specified for that petition in the most
recent work plan.
``(5) Regulations.--The Secretary may issue such regulations
as the Secretary determines appropriate to carry out this
subsection.
``(6) Effect of subsection.--Nothing in this subsection may
be construed to preclude or otherwise affect the emergency
listing authority of the Secretary under subsection (b)(7).
``(7) Definitions.--In this subsection:
``(A) Covered species.--The term `covered species'
means a species that is not included on a list
published under subsection (c)--
``(i) for which a petition to add the species
to such a list has been submitted under
subsection (b)(3); or
``(ii) that is otherwise under consideration
by the Secretary for addition to such a list.
``(B) Work plan.--The term `work plan' means the
national listing work plan submitted by the Secretary
under paragraph (1).''.
(b) Conforming Amendment.--Section 4(b)(3)(B) of the Endangered
Species Act of 1973 (16 U.S.C. 1533(b)(3)(B)) is amended by striking
``Within 12 months'' and inserting ``In accordance with the national
listing work plan submitted under subsection (j),''.
TITLE II--INCENTIVIZING WILDLIFE CONSERVATION ON PRIVATE LANDS
SEC. 201. CONSERVATION BENEFIT AGREEMENTS.
(a) Listing Determinations.--Section 4(b)(1) of the Endangered
Species Act of 1973 (16 U.S.C. 1533(b)(1)) is amended by adding at the
end the following:
``(C) In making a determination under subsection (a)(1) with
respect to a species, the Secretary shall take into account and
document the effect of any net conservation benefit (as that
term is defined in section 10(k)) of any approved Conservation
Benefit Agreement (as that term is defined in such section)
relating to the species.''.
(b) Conservation Benefit Agreements.--Section 10 of the Endangered
Species Act of 1973 (16 U.S.C. 1539) is amended by adding at the end
the following:
``(k) Conservation Benefit Agreements.--
``(1) Proposed agreement.--
``(A) In general.--A covered party may submit a
proposed Agreement to the Secretary.
``(B) Determination of completeness.--Not later than
30 days after the date on which the Secretary receives
a proposed Agreement, the Secretary shall--
``(i) determine whether the proposed
Agreement is complete; and
``(ii) if the Secretary determines the
proposed Agreement is incomplete under clause
(i), provide the covered party with a written
explanation of such determination, including
any specific adjustment required for the
Secretary to determine the proposed Agreement
is complete.
``(C) Approval; rejection.--Not later than 120 days
after the date on which the Secretary receives a
proposed Agreement that the Secretary determines under
subparagraph (B)(i) is complete, the Secretary shall--
``(i) approve the proposed Agreement if the
Secretary determines that the proposed
Agreement--
``(I) is in compliance with, as
applicable, section 17.22(c)(1) or
17.32(c)(1) of title 50, Code of
Federal Regulations (or a successor
regulation); and
``(II) provides assurances to the
covered party that, if the covered
species becomes listed after the
effective date of such Agreement--
``(aa) no additional
conservation measures will be
required; and
``(bb) additional land,
water, or resource use
restrictions will not be
imposed on the covered party;
``(ii) reject the proposed Agreement if the
Secretary determines that the proposed
Agreement does not meet the requirements
described in subclauses (I) and (II) of clause
(i); and
``(iii) if the Secretary rejects the proposed
Agreement under clause (ii), provide the
submitting covered party a written explanation
for such rejection, including any specific
adjustment required, as of the date on which
the Secretary rejects the proposed Agreement,
for the Secretary to approve the proposed
Agreement.
``(2) Programmatic conservation benefit agreements.--The
Secretary may enter into a Conservation Benefit Agreement with
a covered party that authorizes such covered party--
``(A) to administer such Conservation Benefit
Agreement;
``(B) to hold any permit issued under this section
with regard to such Conservation Benefit Agreement;
``(C) to enroll other covered parties within the area
covered by such Conservation Benefit Agreement in such
Conservation Benefit Agreement; and
``(D) to convey any permit authorization held by such
covered party under clause (ii) to each covered party
enrolled under clause (iii).
``(3) Take authorization.--If a covered species is listed as
a threatened species or an endangered species under section 4,
the Secretary, consistent with the applicable Agreement, shall
issue to the relevant covered party a permit under this section
for the incidental take of and modification to the habitat of
such covered species by such covered party.
``(4) Technical assistance.--The Secretary shall, upon the
request of a covered party, provide the covered party with
technical assistance in developing a proposed Agreement.
``(5) Applicability to federal land.--An Agreement may apply
with respect to a covered party that conducts activities on
land administered by any Federal agency pursuant to a permit or
lease issued to the covered party by that Federal agency.
``(6) Exemptions.--
``(A) Consultation.--Section 7(a)(2) does not apply
to the approval by the Secretary of a proposed
Agreement under this subsection.
``(B) Disclosure.--Information submitted by a private
party to the Secretary pursuant to this subsection
shall be exempt from disclosure under section
552(b)(3)(B) of title 5, United States Code.
``(C) National environmental policy act of 1969.--The
approval by the Secretary of a proposed Agreement under
this subsection shall not be considered a major Federal
action under section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)).
``(7) Definitions.--In this subsection:
``(A) Affected species.--The term `affected species'
means a species--
``(i) designated by the Secretary as a
candidate species under this Act;
``(ii) proposed to be listed pursuant to
section 4; or
``(iii) that is declining and at risk of
being designated by the Secretary as a
candidate species under this Act.
``(B) Agreement.--The term `Agreement' means--
``(i) a Conservation Benefit Agreement; or
``(ii) a programmatic Conservation Benefit
Agreement.
``(C) Conservation benefit agreement.--The term
`Conservation Benefit Agreement' means the supporting
document required for the issuance of a permit under
subsection (a)(1)(A) to enhance the propagation or
survival of an affected species, as described in the
final rule issued by the United States Fish and
Wildlife Service titled `Endangered and Threatened
Wildlife and Plants; Enhancement of Survival and
Incidental Take Permits' (89 Fed. Reg. 26070; published
April 12, 2024).
``(D) Covered party.--The term `covered party' means
a--
``(i) party that conducts activities on land
administered by a Federal agency pursuant to a
permit or lease issued to the party;
``(ii) private property owner;
``(iii) county;
``(iv) State or State agency; or
``(v) Tribal government.
``(E) Covered species.--The term `covered species'
means, with respect to an Agreement, the affected
species that is the subject of such Agreement.
``(F) Net conservation benefit.--The term `net
conservation benefit' means the net effect of an
Agreement on the covered species, determined by
comparing the existing situation of the covered species
without the Agreement in effect and a situation in
which the Agreement is in effect, including the net
effect on--
``(i) the effects of the factors described in
subparagraphs (A) through (E) of subsection
(a)(1) on the covered species;
``(ii) the number of individuals of the
covered species; or
``(iii) the habitat of the covered species.
``(G) Programmatic conservation benefit agreement.--
The term `programmatic Conservation Benefit Agreement'
means a Conservation Benefit Agreement described in
paragraph (4).''.
SEC. 202. CONSERVATION PLANS.
(a) In General.--Section 10(a)(2) of the Endangered Species Act of
1973 (16 U.S.C. 1539(a)(2)) is amended--
(1) in subparagraph (B), by inserting ``, and shall include
the terms and conditions of the related conservation plan,
which shall be legally binding on all parties thereto'' after
``being complied with''; and
(2) by adding at the end the following:
``(D) Each Federal agency shall, as applicable and to the maximum
extent practicable, adopt the mitigation measures contained in a permit
issued under subparagraph (B) in any authorization issued by such
Federal agency with respect to the action that is covered by such
permit.
``(E) With respect to an action that is covered by a permit issued
under subparagraph (B) and consistent with the implementation of the
related conservation plan, the Secretary shall not seek any additional
mitigation measures through any other Federal or State or local process
from the permittee.''.
(b) Exemption From Consultation Requirement.--Section 10(a) of the
Endangered Species Act of 1973 (16 U.S.C. 1539(a)) is amended by adding
at the end the following:
``(3) Section 7(a)(2) does not apply to the issuance by the Secretary
of a permit under this subsection.''.
SEC. 203. NEPA EXEMPTION FOR INCIDENTAL TAKE PERMITS.
Section 10(a) of the Endangered Species Act of 1973 (16 U.S.C.
1539(a)) is amended by adding at the end the following:
``(4) The issuance of a permit under paragraph (2) shall not be
considered a major Federal action under section 102(2)(C) of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).''.
TITLE III--PROVIDING FOR GREATER INCENTIVES TO RECOVER LISTED SPECIES
SEC. 301. PROTECTIVE REGULATIONS UNDER ENDANGERED SPECIES ACT OF 1973.
Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) is
amended--
(1) in subsection (d), to read as follows:
``(d) Protective Regulations.--
``(1) Issuance.--
``(A) In general.--Whenever any species is listed as
a threatened species pursuant to subsection (c), the
Secretary shall issue such regulations as are necessary
and advisable to provide for the conservation of that
species.
``(B) Requirement.--In issuing a regulation under
subparagraph (A), the Secretary, consistent with the
findings, purposes, and policy described in section 2
and based on the best scientific and commercial data
available, shall consider the conservation and economic
effects of such regulation.
``(2) Recovery goals.--
``(A) In general.--If the Secretary issues a
regulation under paragraph (1) that prohibits an act
described in section 9(a), the Secretary shall, with
respect to the species that is the subject of such
regulation--
``(i) establish objective, incremental
recovery goals;
``(ii) provide for the stringency of such
regulation to decrease as such recovery goals
are met; and
``(iii) provide for State management within
such State, if such State is willing to take on
such management, beginning on the date on which
the Secretary determines that each such
recovery goal is met and, if each such recovery
goal remains met, continuing until such species
is removed from the list of threatened species
published pursuant to subsection (c).
``(B) Status review.--On the date on which the
Secretary determines that each recovery goal
established under subparagraph (A)(i) for a species is
met, the Secretary shall begin a review of the species
and subsequently determine, on the basis of such
review, whether the species should be removed from the
lists published pursuant to subsection (c)(1).
``(3) Cooperative agreement.--A regulation issued under
paragraph (1) that prohibits an act described in section 9(a)
with respect to a resident species shall apply with respect to
a State that has entered into a cooperative agreement with the
Secretary pursuant to section 6(c) only to the extent that such
regulation is adopted by such State.
``(4) State recovery strategy.--
``(A) In general.--A State may develop a recovery
strategy for a threatened species or a candidate
species and submit to the Secretary a petition for the
Secretary to use such recovery strategy as the basis
for any regulation issued under paragraph (1) with
respect to such species within such State.
``(B) Approval or denial of petition.--Not later than
120 days after the date on which the Secretary receives
a petition submitted under subparagraph (A), the
Secretary shall--
``(i) approve such petition if the Secretary
determines the recovery strategy is reasonably
certain to be implemented by the petitioning
State and to be effective in conserving the
species that is the subject of such recovery
strategy; or
``(ii) deny such petition if the requirements
described in clause (i) are not met.
``(C) Publication.--Not later than 60 days after the
date on which the Secretary approves or denies a
petition under subparagraph (B), the Secretary shall
publish such approval or denial on the website of the
applicable department.
``(D) Denial of petition.--
``(i) Written explanation.--If the Secretary
denies a petition under subparagraph (B), the
Secretary shall include in such denial a
written explanation for such denial, including
a description of the changes to such petition
that are necessary for the Secretary to approve
such petition.
``(ii) Resubmission of denied petition.--A
State may resubmit a petition that is denied
under subparagraph (B).
``(E) Use in protective regulations.--If the
Secretary approves a petition under subparagraph (B),
the Secretary shall--
``(i) issue a regulation under paragraph (1)
that adopts the recovery strategy as such
regulation with respect to the species that is
the subject of such recovery strategy within
the petitioning State; and
``(ii) establish objective criteria to
evaluate the effectiveness of such recovery
strategy in conserving such species within such
State.
``(F) Revision.--If a recovery strategy that is
adopted as a regulation issued under paragraph (1) is
determined by the Secretary to be ineffective in
conserving the species that is the subject of such
recovery strategy in accordance with the objective
criteria established under subparagraph (E)(ii) for
such recovery strategy, the Secretary shall revise such
regulation and reissue such regulation in accordance
with paragraph (1).''; and
(2) in subsection (f)(1)(B)--
(A) in clause (ii), by striking ``and'' at the end;
(B) in clause (iii), by striking the period at the
end and inserting ``; and''; and
(C) by adding at the end the following:
``(iv) with respect to an endangered species,
objective, incremental recovery goals in accordance
with subsection (d)(2)(A) for use under that subsection
if such endangered species is changed in status from an
endangered species to a threatened species under
subsection (c)(2)(B)(ii).''.
SEC. 302. 5-YEAR REVIEW DETERMINATIONS.
Section 4(c) of the Endangered Species Act of 1973 (16 U.S.C.
1533(c)) is amended by adding at the end the following:
``(3) Not later than 30 days after the date on which the Secretary
makes a determination under paragraph (2)(B), the Secretary shall
initiate a rulemaking to carry out such determination.''.
SEC. 303. JUDICIAL REVIEW DURING MONITORING PERIOD.
Section 4(g) of the Endangered Species Act of 1973 (16 U.S.C.
1533(g)) is amended by adding at the end the following:
``(3) The removal of a species from a list published under subsection
(c)(1) is not subject to judicial review during the period established
under paragraph (1) with respect to the species.''.
SEC. 304. DESIGNATION OF CRITICAL HABITAT.
(a) Not Prudent Determinations.--Section 4(a)(3)(A) of the Endangered
Species Act of 1973 (16 U.S.C. 1533(a)(3)(A)) is amended to read as
follows:
``(A)(i) The Secretary, by regulation promulgated in
accordance with subsection (b) and to the maximum
extent prudent and determinable--
``(I) shall, concurrently with making a
determination under paragraph (1) that a
species is an endangered species or a
threatened species, designate any habitat of
such species which is then considered to be
critical habitat; and
``(II) may, from time-to-time thereafter as
appropriate, revise such designation.
``(ii) The Secretary may determine, based on the best
scientific data available, that it is not prudent to
designate habitat as described in clause (i)(I) for a
species, including if the Secretary determines--
``(I) the species is determined under
paragraph (1) to be a threatened species or an
endangered species because of take or other
human activity and such designation will
increase the degree of such take or other human
activity;
``(II) the species is determined under
paragraph (1) to be a threatened species or an
endangered species because of a factor--
``(aa) other than that described in
subparagraph (A) of that paragraph; or
``(bb) that cannot be addressed
through reasonable and prudent
alternatives resulting from
consultations carried out pursuant to
section 7(a)(2); or
``(III) the species primarily occurs in areas
not under the jurisdiction of the United States
and areas under the jurisdiction of the United
States where the species occurs provide no more
than a negligible conservation value to the
species.
``(iii) Notwithstanding clause (i)(I), if the
Secretary determines under clause (ii) that it is not
prudent to designate habitat as described in clause
(i)(I), the Secretary is not required to so designate
habitat for the species.''.
(b) Privately Owned or Controlled Land.--Section 4(a)(3) of the
Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) is amended by
adding at the end the following:
``(C) The Secretary may not designate as critical habitat under
subparagraph (A) any privately owned or controlled land or other
geographical area that is subject to a land management plan that--
``(i) the Secretary determines is similar in nature to an
integrated natural resources management plan described in
section 101 of the Sikes Act (16 U.S.C. 670a);
``(ii)(I) is prepared in cooperation with the Secretary and
the head of each applicable State fish and wildlife agency of
each State in which such land or other geographical area is
located; or
``(II) is submitted to the Secretary in a manner that is
similar to the manner in which an applicant submits a
conservation plan to the Secretary under section 10(a)(2)(A);
``(iii) includes an activity or a limitation on an activity
that the Secretary determines will likely conserve the species
concerned;
``(iv) the Secretary determines will result in--
``(I) an increase in the population of the species
concerned above the population of such species on the
date that such species is listed as a threatened
species or an endangered species; or
``(II) maintaining the same population of such
species on the land or other geographical area as the
population that would likely occur if such land or
other geographical area is designated as critical
habitat; and
``(v) to the maximum extent practicable, will minimize and
mitigate the impacts of any activity that will likely result in
an incidental taking of the species concerned.''.
(c) Designation Considerations.--Section 4(b) of the Endangered
Species Act of 1973 (16 U.S.C. 1533(b)) is amended--
(1) in paragraph (2)--
(A) by inserting ``the impact on existing efforts of
private landowners to conserve the species,'' after
``impact on national security,'';
(B) by striking ``The Secretary'' and inserting ``(A)
The Secretary''; and
(C) by adding at the end the following:
``(B) In addition to any area otherwise considered by the Secretary
for exclusion from critical habitat under subparagraph (A), the
Secretary shall consider for exclusion from critical habitat any area--
``(i) submitted by a person through public comment pursuant
to paragraph (5) or (6); and
``(ii) for which such submission includes credible
information regarding a meaningful economic impact, impact on
national security, impact on existing efforts of private
landowners to conserve the applicable species, or other
relevant impact of specifying the area as critical habitat that
supports the exclusion from critical habitat of that area.'';
(2) in paragraph (5)(A)(i), by striking ``, and'' and
inserting the following: ``, including, with respect to a
proposed regulation to designate or revise critical habitat
under subsection (a)(3)--
``(I) a draft economic analysis that
identifies any impacts on national security and
existing efforts of private landowners to
conserve the applicable species and other
relevant impacts of the designation or revision
that the Secretary determines are within the
area proposed for designation or covered by the
revision; and
``(II) a draft exclusion analysis that
identifies each area the Secretary has reason
to consider for exclusion under paragraph (2)
and why; and''; and
(3) in paragraph (6)(A)--
(A) in clause (i)(II), by striking ``made,'' and
inserting the following: ``made, including, with
respect to such a final regulation--
``(aa) a final economic analysis that
identifies any impacts on national security and
existing efforts of private landowners to
conserve the applicable species and other
relevant impacts of the revision that the
Secretary determines are within the area
covered by the revision; and
``(bb) a final exclusion analysis that
identifies each area the Secretary has
determined under paragraph (2) to exclude from
such revision and why;''; and
(B) in clause (ii)(I), by striking ``, or'' and
inserting the following: ``, including--
``(aa) a final economic analysis that
identifies any impacts on national security and
existing efforts of private landowners to
conserve the applicable species and other
relevant impacts of the designation that the
Secretary determines are within the area
proposed for designation; and
``(bb) a final exclusion analysis that
identifies each area the Secretary has
determined under paragraph (2) to exclude from
such designation and why; or''.
SEC. 305. TREATMENT OF STATE, TRIBAL, AND LOCAL GOVERNMENT DATA.
Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C.
1533(b)) is amended--
(1) in paragraph (1)(A), by inserting ``data submitted to the
Secretary by a State, Tribal, or local government, and'' after
``account''; and
(2) in paragraph (2)(A), as so designated by section
304(c)(1)(B) of this Act, by inserting ``data submitted to the
Secretary by a State, Tribal, or local government, as well as''
after ``consideration''.
SEC. 306. CLARIFYING SIGNIFICANT PORTION OF RANGE OF SPECIES.
Section 4(a) of the Endangered Species Act of 1973 (16 U.S.C.
1533(a)) is amended by adding at the end the following:
``(4) If the Secretary determines under paragraph (1) that a species
is a threatened species or an endangered species in only a significant
portion of the range of the species, the Secretary may only list the
species under subsection (c) as a threatened species or an endangered
species with respect to that portion of the range of the species.''.
SEC. 307. DELISTING CRITERIA.
Section 4(c) of the Endangered Species Act of 1973 (16 U.S.C.
1533(c)) is amended by adding at the end the following:
``(4) The Secretary shall determine under paragraph (2)(B)(i) that a
species described in paragraph (2)(A) should be removed from a list
described in that paragraph and shall remove such species from such
list only if the Secretary determines, pursuant to a review conducted
under that paragraph and based on the best scientific and commercial
data available, such species--
``(A) is extinct;
``(B) is not a threatened species or an endangered species;
or
``(C) is not a species.''.
TITLE IV--CREATING GREATER TRANSPARENCY AND ACCOUNTABILITY IN
RECOVERING LISTED SPECIES
SEC. 401. REQUIREMENT TO PUBLISH BASIS FOR LISTINGS AND CRITICAL
HABITAT DESIGNATIONS ONLINE.
Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C.
1533(b)) is amended by adding at the end the following:
``(9)(A) The Secretary shall make publicly available on the website
of the applicable department the best scientific and commercial data
available that is used as the basis for each regulation, including each
proposed regulation, promulgated under paragraphs (1) and (3) of
subsection (a).
``(B) If a Governor, agency, or legislature of a State determines
that public disclosure of any best scientific and commercial data
available described in subparagraph (A) is prohibited by a law or
regulation of the State, including such a law or regulation requiring
the protection of personal information--
``(i) the Governor, agency, or legislature of the State may
submit to the Secretary a request to exempt such best
scientific and commercial data available from the application
of subparagraph (A); and
``(ii) the Secretary shall so exempt such best scientific and
commercial data available.
``(C) Subparagraph (A) does not apply with respect to global
positioning system coordinates or other geographically specific species
location information.
``(D) Not later than 30 days after the date of the enactment of this
paragraph, the Secretary shall execute an agreement with the Secretary
of War that prevents the disclosure under this paragraph of classified
information pertaining to Department of War personnel, facilities,
lands, or waters.''.
SEC. 402. DECISIONAL TRANSPARENCY AND USE OF STATE, TRIBAL, AND LOCAL
INFORMATION.
Section 6(a) of the Endangered Species Act of 1973 (16 U.S.C.
1535(a)) is amended--
(1) by inserting ``(1)'' before the first sentence; and
(2) by striking ``Such cooperation shall include'' and
inserting the following:
``(2) Such cooperation shall include--
``(A) before making a determination under section 4(a),
providing to States affected by such determination all data
that is the basis of the determination; and
``(B)''.
SEC. 403. DISCLOSURE OF EXPENDITURES UNDER ENDANGERED SPECIES ACT OF
1973.
(a) Requirement to Disclose.--Section 13 of the Endangered Species
Act of 1973 (87 Stat. 902) is amended to read as follows:
``SEC. 13. DISCLOSURE OF EXPENDITURES.
``(a) Requirement.--The Chair of the Council on Environmental
Quality, in consultation with the Secretary of the Interior and
Secretary of Commerce, shall--
``(1) not later than 90 days after the end of each fiscal
year, submit to the Committee on Natural Resources of the House
of Representatives and the Committee on Environment and Public
Works of the Senate an annual report detailing Federal
Government expenditures for covered suits during the preceding
fiscal year; and
``(2) make publicly available through the Internet a
searchable database, updated monthly, of the information
described in subsection (b).
``(b) Included Information.--Each report submitted under subsection
(a) shall include--
``(1) the case name and number of each covered suit, and,
with respect to each covered suit, a hyperlink to each
settlement decision, final decision, consent decree,
stipulation of dismissal, release, interim decision, motion to
dismiss, partial motion for summary judgement, or related final
document;
``(2) a description of each claim or cause of action in each
covered suit;
``(3) the name of each covered agency the actions of which
give rise to any claim in a covered suit and each plaintiff in
such covered suit;
``(4) funds expended by each covered agency (disaggregated by
agency account) to receive and respond to notices referred to
in section 11(g)(2) or to prepare for litigation of, litigate,
negotiate a settlement agreement or consent decree in, or
provide material, technical, or other assistance in relation
to, a covered suit;
``(5) the number of full-time equivalent employees that
participated in the activities described in paragraph (4);
``(6) any information required to be published under section
1304 of title 31, United States Code, with respect to a covered
suit; and
``(7) attorneys fees and other expenses (disaggregated by
agency account) awarded in covered suits, including any consent
decrees or settlement agreements (regardless of whether a
decree or settlement agreement is sealed or otherwise subject
to nondisclosure provisions), including the basis for such
awards.
``(c) Requirement to Provide Information.--The head of each covered
agency shall provide to the Chair of the Council on Environmental
Quality in a timely manner all information requested by the Chair to
comply with the requirements of this section.
``(d) Limitation on Disclosure.--Notwithstanding any other provision
of this section, this section shall not affect any restriction in a
consent decree or settlement agreement on the disclosure of information
that is not described in subsection (b).
``(e) Definitions.--In this section:
``(1) Covered agency.--The term `covered agency' means any
agency of the--
``(A) Department of the Interior;
``(B) Forest Service;
``(C) Environmental Protection Agency;
``(D) National Marine Fisheries Service;
``(E) Bonneville Power Administration;
``(F) Western Area Power Administration;
``(G) Southwestern Power Administration; or
``(H) Southeastern Power Administration.
``(2) Covered suit.--The term `covered suit' means--
``(A) any civil action containing any claim arising
under this Act against the Federal Government and based
on the action of a covered agency; and
``(B) any administrative proceeding under which the
Federal Government awards fees and other expenses to a
third party under section 504 of title 5, United States
Code.''.
(b) Clerical Amendment.--The table of contents in the first section
of the Endangered Species Act of 1973 (16 U.S.C. 1531 note) is amended
by striking the item relating to section 13 and inserting the
following:
``Sec. 13. Disclosure of expenditures.''.
SEC. 404. AWARD OF LITIGATION COSTS TO PREVAILING PARTIES IN ACCORDANCE
WITH EXISTING LAW.
Section 11(g)(4) of the Endangered Species Act of 1973 (16 U.S.C.
1540(g)(4)) is amended to read as follows:
``(4)(A) The court, in issuing any final order in any suit brought
pursuant to paragraph (1), may award costs of litigation (including
reasonable attorney and expert witness fees) to an eligible party,
whenever the court determines such award is appropriate.
``(B) In awarding reasonable attorney and expert witness fees under
subparagraph (A) in a suit brought pursuant to paragraph (1), the
court--
``(i) shall base such fees on the prevailing market rates for
the kind and quality of services furnished; and
``(ii) may not award--
``(I) such fees at a rate that exceeds $125 per hour
unless the court determines a higher rate is justified
because of cost of living or a special factor, such as
the limited availability of qualified attorneys for
such suit; or
``(II) more than $200,000 total in such fees in a
single such suit.
``(C)(i) In this paragraph, the term `eligible party'--
``(I) means a party to a suit brought pursuant to paragraph
(1) that is, as of the date on which the suit was initiated--
``(aa) an individual who has a net worth of not more
than $2,000,000;
``(bb) an owner of an unincorporated business or a
partnership, corporation, association, unit of local
government, or organization, including an organization
that is described in section 501(c)(3) of the Internal
Revenue Code and exempt from taxation under section
501(a) of such Code, that has--
``(AA) a net worth of not more than
$7,000,000, including both personal and
business interests; and
``(BB) not more than 500 employees; or
``(cc) a cooperative association (as that term is
defined in section 15(a) of the Agriculture Marketing
Act (12 U.S.C. 1141j(a))); and
``(II) does not include a party to a suit brought pursuant to
paragraph (1) otherwise described in clause (i) of this subparagraph
that has sought to recover attorney or expert witness fees under this
subsection in 3 or more instances in the 12-month period preceding the
date on which the final order in such suit is issued, including in such
suit.
``(ii) Where 2 or more parties to a suit brought pursuant to
paragraph (1) are co-plaintiffs and each such party individually is an
eligible party, clause (i)(I) shall be applied to such parties
collectively.''.
SEC. 405. ANALYSIS OF IMPACTS AND BENEFITS OF DETERMINATION OF
ENDANGERED OR THREATENED STATUS.
Section 4(a) of the Endangered Species Act of 1973 (16 U.S.C.
1533(a)) is amended by adding at the end the following:
``(5)(A) The Secretary shall, concurrently with determining under
paragraph (1) whether a species is a threatened species or an
endangered species, prepare an analysis with respect to such
determination of--
``(i) the economic effect;
``(ii) the effects on national security;
``(iii) the effects on human health and safety; and
``(iv) any other relevant effect.
``(B) The analysis is to be prepared in coordination with the States,
local governments, and Tribes impacted by the determination.
``(C) Nothing in this paragraph shall delay a determination made by
the Secretary under paragraph (1) or change the criteria used by the
Secretary to make such a determination.''.
SEC. 406. NOTIFICATION OF CONGRESS OF CERTAIN CRITICAL HABITAT
DESIGNATIONS.
Section 4(a)(3) of the Endangered Species Act of 1973 (16 U.S.C.
1533(a)(3)) is amended by adding at the end the following:
``(D)(i) The Secretary shall submit to the Committee on Natural
Resources of the House of Representatives and the Committee on
Environment and Public Works of the Senate a notification of any
proposed designation of critical habitat under subparagraph (A) of an
area greater than 50,000 acres.
``(ii) A notification submitted under clause (i) shall include--
``(I) a description of the area proposed to be designated as
critical habitat;
``(II) an inventory and evaluation of the natural resource
uses and values of the area and adjacent public and nonpublic
land and the economic impact of the proposed designation on
individuals, local communities, and the United States;
``(III) an identification of users of the area and how such
users will be affected by the proposed designation;
``(IV) an analysis of the manner in which existing and
potential natural resource uses are incompatible with or in
conflict with the proposed designation and a statement of the
provisions to be made for continuation or termination of
existing such uses, including an economic analysis of such
continuation or termination;
``(V) a statement of the consultation which has been or will
be had with other Federal departments and agencies, regional,
State, and local government bodies, and other appropriate
individuals and groups with respect to the proposed
designation; and
``(VI) a statement indicating the effect of the proposed
designation, if any, on State and local government interests
and the regional economy.''.
SEC. 407. NOTIFICATION OF CONGRESS OF CERTAIN RELEASES OF EXPERIMENTAL
POPULATIONS.
Section 10(j) of the Endangered Species Act of 1973 (16 U.S.C.
1539(j)) is amended by adding at the end the following:
``(4)(A) The Secretary shall submit to the Committee on Natural
Resources of the House of Representatives and the Committee on
Environment and Public Works of the Senate a notification of any
proposed release under this subsection that covers an area greater than
50,000 acres.
``(B) A notification submitted under subparagraph (A) shall include--
``(i) a description of the area covered by the proposed
release;
``(ii) an inventory and evaluation of the natural resource
uses and values of the area and adjacent public and nonpublic
land and the economic impact of the proposed release on
individuals, local communities, and the United States;
``(iii) an identification of users of the area, and how such
users will be affected by the proposed release;
``(iv) an analysis of the manner in which existing and
potential natural resource uses are incompatible with or in
conflict with the proposed release and a statement of the
provisions to be made for continuation or termination of
existing such uses, including an economic analysis of such
continuation or termination;
``(v) a statement of the consultation which has been or will
be had with other Federal departments and agencies, regional,
State, and local government bodies, and other appropriate
individuals and groups with respect to the proposed release;
and
``(vi) a statement indicating the effect of the proposed
release, if any, on State and local government interests and
the regional economy.''.
SEC. 408. ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE.
Section 18 of the Endangered Species Act of 1973 (16 U.S.C. 1544) is
amended--
(1) by inserting ``, and make publicly available on the
website data.gov,'' after ``to the Congress''; and
(2) in paragraph (1), by inserting ``, including any such
expenditures made with respect to an experimental population
(as that term is defined in section 10(j))'' after ``to this
Act''.
TITLE V--STREAMLINING PERMITTING PROCESS
SEC. 501. LIMITATION ON REASONABLE AND PRUDENT MEASURES.
Section 7(b)(4) of the Endangered Species Act of 1973 (16 U.S.C.
1536(b)(4)) is amended--
(1) in subparagraph (A), by adding ``and'' at the end;
(2) in subparagraph (B), by striking ``and'' at the end;
(3) by striking subparagraph (C);
(4) by striking ``taking on the species,'' and inserting
``taking on the species, including, as necessary, through the
use of a substitute used to represent a listed species,
habitat, or an ecological function to express the amount or
extent of such incidental taking;'';
(5) by striking ``minimize such impact,'' and inserting
``minimize such impact and that do not propose, recommend, or
require the Federal agency or the applicant concerned, if any,
to mitigate or offset such impact; and'';
(6) by striking ``measures specified under clauses (ii) and
(iii)'' and inserting ``measures specified under clause (ii)'';
(7) by striking clause (iii); and
(8) by redesignating clause (iv) as clause (iii).
SEC. 502. SUCCESSIVE CONSULTATIONS.
Section 7(b) of the Endangered Species Act of 1973 (16 U.S.C.
1536(b)) is amended by adding at the end the following:
``(5)(A) With respect to an ongoing agency action for which the
applicable Federal agency has adopted a reasonable and prudent
alternative or a reasonable and prudent measure to comply with
subsection (a)(2), in any subsequent consultation for the agency action
that occurs 10 years or more after the date on which the initial
consultation for the agency action was completed, the Secretary shall
determine whether continuing to implement the reasonable and prudent
alternative or reasonable and prudent measure will materially increase
the likelihood of and reduce the time for recovery of the applicable
threatened species or endangered species.
``(B) If the Secretary determines under subparagraph (A) that
continued implementation of the reasonable and prudent alternative or
reasonable and prudent measure will not materially increase the
likelihood of and shorten the time for the recovery of the applicable
threatened species or endangered species, the Federal agency shall
discontinue implementation of the reasonable and prudent alternative or
reasonable and prudent measure notwithstanding subsection (a)(2).''.
SEC. 503. CLARIFYING JEOPARDY.
Section 7(a) of the Endangered Species Act of 1973 (16 U.S.C.
1536(a)) is amended by adding at the end the following:
``(5)(A) In carrying out a consultation under paragraph (2) or a
conference under paragraph (4), the Secretary--
``(i) except as provided in clause (ii), may only consider
the effects of the action that is the subject of such
consultation or conference that the Secretary determines, based
on clear and substantial information, using the best scientific
and commercial data available, and in accordance with
subparagraphs (B) and (C), respectively, are caused by the
action itself and are reasonably certain to occur; and
``(ii) shall consider as a beneficial effect of the action
that is the subject of such consultation or conference any
avoidance, minimization, or mitigation measure proposed by the
applicable Federal agency or the applicant, if any.
``(B) In determining whether an effect of an action described in
subparagraph (A)(i) is caused by the action itself, the Secretary shall
consider whether--
``(i) the effect is so remote in time from the action under
consultation that it is not reasonably certain to occur;
``(ii) the effect is so geographically remote from the
immediate area involved in the action that it is not reasonably
certain to occur;
``(iii) the effect is only reached through a lengthy causal
chain such that the effect not reasonably certain to occur;
``(iv) the applicable Federal agency does not have the
ability to prevent the effect due to its limited statutory
authority; or
``(v) would occur regardless of whether the action is carried
out.
``(C) In determining whether an effect of an action described in
subparagraph (A)(i) is reasonably certain to occur, the Secretary shall
consider factors including the following:
``(i) Experiences with other such actions that are similar in
scope, nature, and magnitude to the applicable such action.
``(ii) Plans for such action.
``(iii) Any economic, administrative, or legal requirement
necessary for the action to be carried out that has not been
fulfilled.
``(iv) Whether the effect has been observed previously and to
what extent.
``(D) In carrying out a consultation under paragraph (2) or a
conference under paragraph (4), the Secretary may not consider an
effect of the action that is the subject of such consultation or
conference for which there is not clear and substantial information for
the Secretary to base a determination on under subparagraph (A)(i) that
the effect of the action is reasonably certain to occur.
``(E) In this paragraph, the terms `effect of the action' and
`effects of the action' mean a consequence or all consequences,
respectively, to listed species or critical habitat that is or are
caused by the proposed action.''.
SEC. 504. CLARIFYING ACTION AREA.
Section 7(b)(3)(A) of the Endangered Species Act of 1973 (16 U.S.C.
1536(b)(3)(A)) is amended to read as follows:
``(A)(i) Promptly after conclusion of consultation under paragraph
(2) or (3) of subsection (a), the Secretary shall provide to the
Federal agency and the applicant, if any, a written statement setting
forth the Secretary's opinion, and a summary of the information on
which the opinion is based, detailing how the agency action affects the
species or its critical habitat within the area directly affected by
the agency action, which such area may not be speculative or remote in
time or distance from the agency action. In so doing, the Secretary
shall differentiate the effects of the agency action from the
environmental baseline.
``(ii) If jeopardy or adverse modification is found, the Secretary,
in cooperation and consultation with the Federal agency and applicant,
if any, shall consider a range of reasonable and prudent alternatives
and suggest from among that range those reasonable and prudent
alternatives which the Secretary believes--
``(I) would not violate subsection (a)(2);
``(II) can be taken by the Federal agency or applicant, if
any, in implementing the agency action;
``(III) are economically and technologically feasible for the
Federal agency and applicant, if any, to implement; and
``(IV) impose the fewest economic and other relevant costs
for the applicant, if any.''.
SEC. 505. JUDICIAL REVIEW.
Section 7(n) of the Endangered Species Act of 1973 (16 U.S.C.
1536(n)) is amended--
(1) by striking ``Any person, as defined by section 3(13) of
this Act,'' and inserting ``(1) Any person'';
(2) in paragraph (1), as so designated, by redesignating
paragraphs (1) and (2) as subparagraphs (A) and (B),
respectively; and
(3) by adding at the end the following:
``(2) Any person may obtain judicial review, under chapter 7 of title
5 of the United States Code, of any opinion issued by the Secretary
under subsection (b) of this section in the United States Court of
Appeals for the District of Columbia by filing in such court not later
than 150 days after the date on which the opinion is issued a written
petition for review.''.
SEC. 506. EXPANSION OF EXEMPTION PROCESS AND ELIGIBILITY UNDER SECTION
7 OF ENDANGERED SPECIES ACT OF 1973.
Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) is
amended--
(1) in subsection (g)--
(A) in paragraph (1), to read as follows:
``(1)(A) A Federal agency, the Governor of the State in which an
agency action will occur, if any, or a permit or license applicant may
apply to the Secretary for an exemption for an agency action of such
agency if, after consultation under subsection (a)(2), the Secretary's
opinion under subsection (b) indicates that--
``(i) the agency action would violate subsection (a)(2); or
``(ii) a reasonable and prudent alternative necessary for the
agency action to comply with subsection (a)(2) may--
``(I) impair national security; or
``(II) result in significant adverse national or
regional economic impacts.
``(B) An application for an exemption shall be considered initially
by the Secretary in the manner provided for in this subsection, and
shall be considered by the Committee for a final determination under
subsection (h) after a report is made pursuant to paragraph (5).
``(C) The applicant for an exemption shall be referred to as the
`exemption applicant' in this section.'';
(B) in paragraph (3)--
(i) in subparagraph (A), to read as follows:
``(A) determine--
``(i) that the Federal agency concerned and the
exemption applicant have--
``(I) carried out the consultation
responsibilities described in subsection (a) in
good faith and made a reasonable and
responsible effort to develop and fairly
consider reasonable and prudent alternatives to
the proposed agency action which would not
violate subsection (a)(2);
``(II) conducted any biological assessment
required by subsection (c); and
``(III) to the extent determinable within the
time provided herein, refrained from making any
irreversible or irretrievable commitment of
resources prohibited by subsection (d); and
``(ii) if the exemption applicant submitted to the
Secretary the application for exemption pursuant to
paragraph (1)(A)(ii), whether a reasonable and prudent
alternative necessary for the proposed agency action to
comply with subsection (a)(2) may--
``(I) impair national security; or
``(II) result in significant adverse national
or regional economic impacts; or''; and
(ii) in subparagraph (B), by striking ``(i),
(ii), and (iii)'';
(C) in paragraph (4), by striking ``(i), (ii) and
(iii)''; and
(D) in paragraph (5)--
(i) by redesignating subparagraphs (B)
through (D) as subparagraphs (C) through (E),
respectively; and
(ii) by inserting after subparagraph (A) the
following:
``(B) if the exemption applicant submitted to the Secretary
the application for exemption pursuant to paragraph (1)(A)(ii),
after consultation with the National Security Council regarding
potential impacts to national security and the Director of the
National Economic Council regarding potential significant
adverse national and regional economic impacts, any impairment
to national security or significant adverse national or
regional economic impacts that would result from a reasonable
and prudent alternative necessary for the agency action to
comply with subsection (a)(2), including a description of the
analysis and conclusions produced by the National Security
Council and the Director of the National Economic Council as a
result of each such consultation;''; and
(2) in subsection (h)(1)(A)(i), to read as follows:
``(i)(I) there are no reasonable and prudent
alternatives to the agency action; or
``(II) with respect to an agency action the
application for exemption of which was submitted to the
Secretary pursuant to subsection (g)(1)(A)(ii), a
reasonable and prudent alternative necessary for the
agency action to comply with subsection (a)(2) may--
``(aa) impair national security; or
``(bb) result in significant adverse national
or regional economic impacts;''.
TITLE VI-- ELIMINATING BARRIERS TO CONSERVATION
SEC. 601. PERMITS FOR CITES-LISTED SPECIES.
Section 9(c)(2) of Endangered Species Act of 1973 (16 U.S.C.
1538(c)(2)) is amended to read as follows:
``(2) An export from or import into the United States of fish or
wildlife listed as a threatened species or an endangered species
pursuant to section 4 is lawful under this Act and not subject to
permit requirements or other regulations issued by the Secretary with
respect to exportation and importation pursuant to this Act if--
``(A) such fish or wildlife--
``(i) is a species that is not native to the United
States; and
``(ii) is listed in Appendix I or II of the
Convention; and
``(B) with respect to the export or import, each applicable
requirement--
``(i) of the Convention is satisfied; and
``(ii) of subsections (d), (e), and (f) is
satisfied.''.
SEC. 602. UTILIZE CONVENTION STANDARD FOR PERMITS APPLICABLE TO NON-
NATIVE SPECIES.
Section 10(a)(1) of the Endangered Species Act of 1973 (16 U.S.C.
1539(a)(1)) is amended--
(1) in subparagraph (A), to read as follows:
``(A)(i) with respect to a species that is native to the
United States, any act otherwise prohibited by section 9 for
scientific purposes or to enhance the propagation or survival
of the affected species, including acts necessary for the
establishment and maintenance of experimental populations
pursuant to subsection (j); and
``(ii) with respect to a species that is not native to the
United States, any act otherwise prohibited by section 9 that
the Secretary determines is not detrimental to the survival of
the species, including--
``(I) the export or import, delivery, receipt,
carrying, transporting, or shipping in interstate or
foreign commerce; and
``(II) buying or selling or offering for sale in
interstate or foreign commerce; or''; and
(2) by adding at the end the following:
``(C) In this subsection, the term `is not detrimental to the
survival of the species' means--
``(i)(I) will not have a negative effect on the
status of the species in the wild;
``(II) is not a use or removal from the wild that
will result in the loss or destruction of critical
habitat of the species; and
``(III) will not directly interfere with recovery
efforts with respect to the species; or
``(ii) is an activity--
``(I) involving wildlife described in section
17.21(g)(1) of title 50, Code of Federal
Regulations; and
``(II) that satisfies the conditions for
registration under clauses (iii) through (v) of
that section.''.
TITLE VII--RESTORING CONGRESSIONAL INTENT
SEC. 701. LIMITING AGENCY REGULATIONS.
Section 11(f) of the Endangered Species Act of 1973 (16 U.S.C.
1540(f)) is amended--
(1) by striking ``The Secretary,'' and inserting the
following:
``(1) In general.--The Secretary,'';
(2) in paragraph (1), as so designated, by striking ``to
enforce this Act'' and inserting ``to enforce this section and
section 8A''; and
(3) by adding at the end the following:
``(2) Rule of construction.--This subsection may not be
construed to be an independent source of authority to
promulgate regulations to enforce the provisions of this Act
other than those included in this section and section 8A.''.
Purpose of the Legislation
The purpose of H.R. 1897 is to amend the Endangered Species
Act of 1973 to optimize conservation through resource
prioritization, incentivize wildlife conservation on private
lands, provide for greater incentives to recover listed
species, create greater transparency and accountability in
recovering listed species, streamline the permitting process,
eliminate barriers to conservation, and restore congressional
intent.
Background and Need for Legislation
The Endangered Species Act (ESA, or Act)\1\ was enacted in
1973 ``to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be
conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such
steps as may be appropriate to achieve the purposes of the
treaties and conventions set forth'' in the Act.\2\
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\1\Pub. L. No. 93-205; 16 U.S.C. Sec. 1531 et seq.
\2\Id.
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The last time Congress significantly amended the ESA was in
1988.\3\ Despite those revisions, the ESA's main provisions
remain intact and govern species conservation efforts today.
H.R. 1897 reauthorizes the ESA for five years and makes
significant changes for the betterment of both the species and
people directly impacted by its regulations.
---------------------------------------------------------------------------
\3\Pub. L. No. 100-478.
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The bill codifies the Trump administration's 2019 framework
for interpreting ``foreseeable future,'' a term that the ESA
uses in the definition of a ``threatened species'' but does not
separately define.\4\ When the U.S. Fish and Wildlife Service
(USFWS) and the National Oceanic and Atmospheric Administration
(NOAA) consider the ``foreseeable future'' in relation to a
species, the 2019 interpretation provides that that period can
extend ``only so far into the future'' as USFWS and NOAA
(collectively, the Services) ``can reasonably determine that
both the future threats [to the species] and the species''
responses to those threats are likely.''\5\ Codifying this
original framework, which was ambiguously amended in 2024,
returns clarity and consistency to the process of determining
whether a species qualifies as threatened.
---------------------------------------------------------------------------
\4\90 Fed. Reg. 52607.
\5\Id.
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H.R. 1897 also amends the shared definition of
``conserve,'' ``conserving,'' and ``conservation'' to allow for
the regulated take of threatened species at the discretion of
the Secretary.\6\ Currently, the definition allows for
regulated take only ``in the extraordinary case where
population pressures within a given ecosystem cannot be
otherwise relieved.''\7\ Federal courts have interpreted this
standard to prohibit most regulated take of threatened
species,\8\ raising tensions with the public, which has no
means of controlling listed species populations, even when they
are well above recovery goals. Another change to the definition
allows for regulated take ``at the discretion of the
Secretary,'' therefore granting additional flexibility to the
Services.
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\6\H.R. 1897 uses the ESA's definition of the term ``Secretary,''
which is defined in 16 U.S.C. Sec. 1532 as ``mean[ing], except as
otherwise herein provided, the Secretary of the Interior or the
Secretary of Commerce as program responsibilities are vested pursuant
to the provisions of Reorganization Plan Numbered 4 of 1970; except
that with respect to the enforcement of the provisions of this Act and
[the Convention on International Trade in Endangered Species of Wild
Fauna and Flora, signed on March 3, 1973, and the appendices thereto]
which pertain to the importation or exportation of terrestrial plants,
the term also means the Secretary of Agriculture.''
\7\16 U.S.C. Sec. 1532.
\8\David Willms, ``Unlocking the Full Power of Section 4(d) to
Facilitate Collaboration and Greater Species Recovery,'' The Codex of
the Endangered Species Act, Volume II, available at https://
republicans-naturalresources.house.gov/UploadedFiles/
Codex_II_Chapter_3.pdf.
---------------------------------------------------------------------------
Further, the bill codifies a definition of ``habitat'' to
improve critical habitat designations. The bill's definition
ensures that an area can be considered critical habitat only if
that area provides the resources and conditions necessary for
all the life processes of the relevant species, except under
specific circumstances. In cases when an area does not support
all the life processes, the species must be able to access from
the designated area other areas that can support the remaining
processes. The definition also clarifies that areas outside the
current or historical range of the species or only visited by
vagrant individual members of the species cannot be designated
critical habitat. This definition conforms the statute to the
2018 U.S. Supreme Court decision in Weyerhaeuser Company v.
United States Fish and Wildlife Service, which stated that an
area must logically be considered ``habitat'' for that area to
meet the definition of ``critical habitat'' under the ESA.\9\
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\9\Erin H. Ward & Pervaze A. Sheikh, ``Final Rules Amending ESA
Critical Habitat Regulations,'' Congressional Research Service, https:/
/crsreports.congress.gov/product/pdf/IF/IF11740.
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Another definition H.R. 1897 codifies is that of ``Best
Scientific and Commercial Data Available.'' This change will
ensure that ESA decision-making is impartial and applied
objectively without the use of precautionary assumptions that
unscientifically skew analysis. This codification is a response
to a 2023 case in which the U.S. Court of Appeals for the
District of Columbia Circuit ruled that NOAA distorted the
science driving regulations for the Maine lobster industry and
their interaction with whales.\10\ The Court found that the
National Marine Fisheries Service (NMFS) improperly relied on
dubious assumptions and worst-case scenarios when determining
the risk that the industry posed to right whales. H.R. 1897
requires the Services to comply with this ruling.
---------------------------------------------------------------------------
\10\Maine Lobstermen's Association v. National Marine Fisheries
Service, No. 22-5238 (D.C. Cir. 2023), available at https://
law.justia.com/cases/federal/appellate-courts/cadc/22-5238/22-5238-
2023-06-16.html.
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The bill also codifies into law a definition of
``environmental baseline.'' When conducting interagency
consultations on federal actions, the Services use the
environmental baseline to help determine the effects those
actions have on listed species and critical habitat. The bill
codifies three environmental baseline criteria that are based
upon current regulations: (1) the past and present effects of
all federal, state, and local actions and other human
activities on the area directly affected by the agency action;
(2) the anticipated effects of each proposed federal project
within the area directly affected by the agency action for
which a consultation has been completed; and (3) the effects of
state and private actions that are contemporaneous with the
consultation in process.\11\
---------------------------------------------------------------------------
\11\89 Fed. Reg. 24268.
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The bill then adds two new environmental baseline criteria.
As a fourth criterion, it adds ``existing structures and
facilities and the past, present, and future effects of the
physical existence of such structures and facilities on the
species or the critical habitat of the species.'' This change
reflects the fact that the environmental baseline should act as
a snapshot of a species' health at the time of the
consultation. Too often, however, the Services have used the
environmental baseline to create a hypothetical environment
that ignores existing infrastructure. This change will require
the Services to use a more complete picture of current impacts
to species. The bill adds a fifth criterion that requires
consideration of federal actions and facilities that are not
within the Secretary's discretion to modify. This change is
intended to cover actions like the delivery of water from
federal projects to senior water rights holders.
Title I of the bill amends Section 4 of the ESA to codify
agencies' existing efforts to reduce current backlogs in
listing petitions and critical habitat designations through a
``National Listing Work Plan.''\12\ These changes would lower
the risk of litigation in the listing process and allow the
Services to allocate those resources toward the species most in
need of protection. The bill requires the Services to submit,
each fiscal year, a work plan to Congress that covers listing
actions for the next five fiscal years. The work plan must
include information on listing petitions, listing
determinations, and critical habitat designations. In the work
plans, the Services must assign each species a priority
classification, with priority one being the highest and
priority five being the lowest. For example, a priority one
species would be classified as critically imperiled and in need
of immediate action, whereas a priority five species is a
species for which little information exists regarding threats
and its status.
---------------------------------------------------------------------------
\12\``National Listing Workplan,'' U.S. Fish and Wildlife Service,
https://www.fws.gov/project/
national-listing-workplan.
---------------------------------------------------------------------------
Private lands play a significant role in managing and
recovering endangered and threatened species. Renowned 19th
century conservationist Aldo Leopold said it best:
``conservation will ultimately boil down to rewarding the
private landowner who conserves the public interest.''\13\ In
2023, USFWS reported that ``two-thirds of federally listed
species have at least some habitat on private land, and some
species have most of their remaining habitat on private
land.''\14\ According to the Audubon Society, more than 80
percent of the grassland and wetlands that provide essential
bird habitat are in private ownership.\15\
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\13\S.L. Flader, et al., The River of the mother of God: and other
Essays by Aldo Leopold, University of Wisconsin Press, Madison (1992).
\14\``ESA Basics: 50 Years of Conserving Endangered Species,'' U.S.
Fish and Wildlife Service, February 1, 2023, https://www.fws.gov/sites/
default/files/documents/endangered-species-act-basics-february-
2023.pdf.
\15\C.B. Wilsey, et al., North American Grasslands and Birds
Report, National Audubon Society, New York (2019), https://nas-
national-prod.s3.amazonaws.com/audubon_north_
american_grasslands_birds_report-final.pdf.
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To incentivize private landowners to invest in wildlife
conservation on their property, Title II of the legislation
amends the ESA to provide them with greater regulatory
certainty. H.R 1897 codifies into law Conservation Benefit
Agreements (CBA), which allow private landowners to commit to
implementing voluntary actions designed to reduce threats to a
species that is a candidate to be listed under the ESA. In
return, if the species is listed, landowners party to the
agreement would be able to continue their operations.
Currently, these agreements exist only through executive action
and secretarial orders, giving the Services great discretion in
how they take these agreements into account when making listing
decisions. To improve certainty, the bill requires the Services
to take the conservation benefit of these agreements into
account when making listing decisions.
Title II also contains provisions intended to streamline
and provide certainty in the permitting process for incidental
take permits (ITP) and associated voluntary conservation
agreements under Section 10 of the ESA, such as Habitat
Conservation Plans (HCP). ITPs are issued to private, non-
federal entities undertaking otherwise lawful projects that
might result in the taking of a listed species. To issue an ITP
under current law, the Services must confirm that several
criteria have been met, including that issuing such a permit
``will not appreciably reduce the likelihood of the survival
and recovery of the species in the wild.''\16\
---------------------------------------------------------------------------
\16\16 U.S.C. Sec. 1539.
---------------------------------------------------------------------------
HCPs are species conservation agreements into which private
entities can enter with the Services after a species has
already been listed under the ESA. Like CBAs, HCPs allow
private entities to continue operations through an ITP if their
conservation measures are followed. These agreements can take
as long as a decade to be approved by the Services, and in some
cases, the Services have reneged on HCPs or leveraged other
federal and state regulatory processes to facilitate additional
restrictions.
To streamline and provide certainty in the permitting
process, Title II binds all parties, including the Services, to
an HCP's requirements. It also explicitly prohibits the
Services from using other federal or state regulatory processes
to require additional conservation measures beyond what is
included in the HCP. Under Title II, federal agencies are
required to adopt the measures included in the HCP for any
authorization related to the action that is the subject of the
HCP. ITPs issued under Section 10 are also exempted from the
duplicative requirements to conduct Section 7 consultation and
a National Environmental Policy Act (NEPA) review.
Title III of H.R. 1897 reasserts congressional intent by
providing regulatory incentives and opportunities in the ESA
process. Section 9 of the ESA prohibits the ``take'' of an
endangered species. Take is defined as to ``harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture or collect, or
to attempt to engage in any such conduct.''\17\ The Act,
however, does not automatically apply the same prohibitions to
threatened species. Instead, Section 4(d) gives the Services
the discretion to grant some exceptions to the take
prohibitions for threatened species.\18\ While NOAA has used
this flexibility,\19\ USFWS manages threatened species as
endangered species, counter to congressional intent.\20\
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\17\16 U.S.C. Sec. 1532.
\18\16 U.S.C. Sec. Sec 1533.
\19\88 Fed. Reg. 40742.
\20\Megan E. Jenkins & Camille Wardle, ``Revisions of the
Regulations for Prohibitions to Threatened Wildlife and Plants,'' The
Center for Growth and Opportunity at Utah State University, October 17,
2018, https://www.thecgo.org/research/revision-of-the-regulations-for-
prohibitions-to-threatened-wildlife-and-plants/.
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USFWS began issuing 4(d) rules in 1974, but in 1975 the
agency finalized what has become known as the ``blanket 4(d)
rule'' (blanket rule).\21\ The blanket rule allows USFWS to
extend all Section 9 prohibitions to threatened species unless
a specific 4(d) rule for the species was drafted that exempted
certain activities from those prohibitions. By regulating
threatened species as endangered species, the blanket rule
removes conservation incentives for impacted parties because no
regulatory burdens are relaxed when species are downlisted. In
2019, the Trump administration finalized a rulemaking that
rescinded USFWS's ability to issue blanket rules,\22\ but the
Biden administration reinstated that authority in 2024.\23\
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\21\David Willms, ``Unlocking the Full Power of Section 4(d) to
Facilitate Collaboration and Greater Species Recovery,'' The Codex of
the Endangered Species Act, Volume II, available at https://
republicans-naturalresources.house.gov/UploadedFiles/
Codex_II_Chapter_3.pdf.
\22\84 Fed. Reg. 44753.
\23\89 Fed. Reg. 23919.
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Title III of the bill changes this dynamic by requiring the
Services to include the following whenever they issue a 4(d)
rule that contains take prohibitions: (1) objective,
incremental recovery goals for the species in question; (2)
decreasing stringency of the prohibitions as such recovery
goals are met; and (3) provision for state management of the
species once all recovery goals are met in preparation for the
species being delisted. H.R. 1897 also requires the Services to
account for the conservation and economic effects in their
regulations governing take of threatened species, codifying a
recent decision by the U.S. District Court for the Western
District of Texas in Kansas Natural Resources Coalition v. U.S.
Fish and Wildlife Service.
These steps improve accountability and transparency and
incentivize states and private landowners to take conservation
actions that restore habitat for and help recover listed
species, given the tangible regulatory relief that will follow.
The bill adopts a similar approach for the recovery of species
listed as endangered. Specifically, the bill requires the
Services to propose objective and incremental recovery goals
for endangered species. Those goals would form the bases for
4(d) rules when species are downlisted to threatened species
status.
H.R. 1897 also affords each state the opportunity to
propose recovery strategies for threatened species and species
that are candidates for listing in that state. The bill
requires the Services to review a proposed recovery strategy
and determine whether (1) the state would be able to implement
the strategy and (2) whether that strategy would be effective
in conserving the species in question. If it is determined that
both of those tests are satisfied, the strategy is approved,
and it would become the regulation governing the species in
that state.
Additionally, Title III amends Section 4(g), which requires
the Services to monitor, in cooperation with the states, the
status of a species for no less than five years after it is
delisted to ensure that it does not require relisting. The bill
adds language that prohibits judicial review of the delisting
of a species during the five-year, post-delisting monitoring
period. There are many examples of species that have been
successfully delisted through rigorous scientific decisions,
such as wolves and grizzly bears, only to have courts overrule
those decisions.
The legislation gives private landowners the regulatory
certainty to invest in habitat conservation on their lands.
Specifically, the bill prohibits the Services from designating
critical habitat on private lands that are already implementing
habitat conservation and restoration actions designed to
conserve the species in question and approved by the Services.
This provision mirrors language from the Sikes Act,\24\ which
prevents critical habitat designations on lands controlled by
the Department of War if approved habitat conservation measures
are already being implemented on those lands.
---------------------------------------------------------------------------
\24\16 U.S.C. Sec. 670a.
---------------------------------------------------------------------------
Title III also codifies provisions from the 2025 proposed
rule, ``Endangered and Threatened Wildlife and Plants;
Regulations for Listing Species and Designating Critical
Habitat.'' These provisions provide guidelines for how the
Services determine whether a critical habitat designation is
necessary, how an analysis of the impact of a critical habitat
designation should be conducted, and criteria for delisting
species. It also requires the Services to consider data
submitted by a state, tribal, or county government when making
listing and critical habitat determinations.
Lastly, Title III clarifies that when one or both Services
determine that a species is threatened or endangered only in a
``significant portion of its range,'' the Secretary may list
the species with respect to only that portion. The Services
have incorrectly interpreted current law by determining that
species are threatened or endangered only in significant
portions of their ranges but still extending ESA protections
wherever the species are found. The language in this title
corrects that misinterpretation by ensuring that listings occur
only in the portion of a species range where it is truly at
risk.
Title IV amends the ESA to require that the ``best
scientific and commercial data available'' used to make listing
and critical habitat decisions be readily available and
accessible online. ESA-related regulations are often
controversial and impact the public in many ways, including
through land use, access to natural resources, and property
values. In many cases, all the public sees is the result of a
decision-making process, not what led to that decision being
made. H.R. 1897, however, improves public understanding of what
the Services identified as the ``best scientific and commercial
data available.''
Relatedly, the bill requires the Services to coordinate
with states when making listing and critical habitat decisions.
Before finalizing an ESA regulation, the Services must provide
each affected state the data used as the basis of a regulation.
The bill defines ``best scientific and commercial data
available'' to include all such data submitted to the Services
by state, tribal, and local governments.
Title IV brings additional transparency by requiring the
Chair of the Council on Environmental Quality (CEQ) to disclose
to Congress and make publicly available each fiscal year all
federal government expenditures on ESA-related lawsuits. The
ESA has become a magnet for lawsuits designed to frustrate the
process laid out in the underlying statute, with the Services
often settling with litigious environmental groups.
Additionally, Title IV unwinds the perverse financial
incentives that spur litigious environmental groups to sue over
ESA-related actions. The bill places a $200,000 cap on the
awarding of attorneys fees in a single ESA-related adjudication
and prohibits an entity from receiving attorneys fees more than
three times in a 12-month period. The bill also requires that
when two or more parties are co-plaintiffs in an ESA-related
lawsuit, they are considered collectively when determining
attorneys fees eligibility.
Title IV requires any listing decision to be accompanied by
an analysis of the decision's effects on the economy, national
security, human health and safety, and any other relevant
areas. This analysis must be conducted in coordination with the
states, local governments, and tribes affected by the
determination. This section does not preclude a species from
being listed for economic and national security reasons but
gives the public necessary information on how a listing may
impact them. Currently, the ESA requires an analysis of
economic and national security impacts to be performed only
when designating critical habitat. Areas can be excluded from
critical habitat for these reasons.
Title IV also includes language requiring transparency on
the impacts of large critical habitat designations and
experimental population areas. Specifically, it requires the
Services to submit to the House Committee on Natural Resources
and the Senate Committee on Environment and Public Works a
notification of any proposed designation of critical habitat or
any experimental population area over 50,000 acres. The
notification must include an inventory and evaluation of the
natural resource uses and values of the area; analysis of how
those uses may be incompatible with or in conflict with the
proposed designation; and statements regarding the consultation
that took place with federal, state, and local governments with
respect to the proposed designation. Additionally, it requires
data on the costs of ESA recovery efforts to be published on
data.gov, including the costs of experimental populations
defined under Section 10(j) of ESA.
On April 5, 2024, the Services finalized a rule that
changed the interagency consultation process on federal
projects.\25\ This rule includes a provision that allows the
Services to impose measures that ``offset'' any remaining
impacts on a species caused by an agency action after avoidance
and minimization measures have been imposed. This provision
greatly expands the Services' discretion. Yet allowing the
Services to require offsets for any residual impacts from an
agency action on a listed species is not supported by the ESA's
statutory language. As written, Section 7 of the ESA requires
federal agencies and project applicants to ``minimize'' impacts
to listed species and critical habitat.\26\ The words
``offset'' or ``mitigate'' are not mentioned. To provide
clarity to the Services, the bill amends Section 7 to state
explicitly that federal agencies and project applicants are not
required to fully offset impacts to listed species and critical
habitat.
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\25\89 Fed. Reg. 24268.
\26\16 U.S.C. Sec. 1536.
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Title V amends Section 7(b)(4) of the ESA in several ways.
Importantly, it codifies the Services' approach to quantifying,
as a part of an ESA Section 7 consultation, the take of a
listed species through the use of surrogates or ``substitutes''
when directly quantifying take is impossible or infeasible.
This approach streamlines the permitting process by allowing
the Services to use a similar species or habitat, for which
anticipated take is better understood, to quantify take.
Additionally, this title removes language that precludes
conclusion of consultations regarding an ESA-listed marine
mammal if Marine Mammal Protection Act (MMPA) permitting
requirements have not already been satisfied. This process is
redundant, as the ESA requires actions permitted under Section
7 to avoid jeopardizing the existence of the species. The ESA
can and should stand on its own. Moreover, receiving an MMPA
authorization requires a negligible impact determination (NID),
which federal agencies have weaponized to shut down otherwise
lawful activities, such as in the case of the Maine lobster
fishery, with respect to which NMFS stated that receiving an
NID would require massive shutdowns of federal fisheries.
Title V also directs the Services to conduct a
retrospective review of modifications that have been adopted to
proposed actions during successive Section 7 consultations.
This provision requires the Services, for any consultation that
occurs 10 years or more after the original consultation, to
determine if those modifications will improve the likelihood of
the species' survival. During the Section 7 consultation
process, the Services often propose Reasonable and Prudent
Alternatives (RPA) or Reasonable and Prudent Measures (RPM) to
modify federal actions to avoid jeopardizing a listed species.
Often these RPAs and RPMs impose additional costs and, in some
cases, significantly change the action. If the Services
determine that continuing the modification will not increase
the likelihood of the species' survival, they shall discontinue
the modification.
Further, Title V requires the Services to conduct Section 7
consultations based solely on effects that are (1) caused by
the actions that are subject to such consultations and (2)
reasonably certain to occur. The bill provides explicit
criteria to determine whether an effect is ``caused by the
action itself'' and whether such effects are ``reasonably
certain to occur,'' giving the Services consistent
congressional direction on how to conduct consultations.
Language is included to ensure that the beneficial effects of
avoidance, minimization, and mitigation measures proposed by
the applicable Federal action agency or applicant (bolded for
emphasis) are considered during the consultation. This will
ensure that any voluntary actions taken by the proponent of an
action are considered, while also protecting against overreach
by the Services.
Title V also amends Section 7 to ensure that consultations
are confined to the area directly affected by the agency action
and, in instances when a Section 7 consultation finds that a
project is likely to result in jeopardy or adverse
modification, requires the Secretary to suggest only RPAs that
are feasible for the federal agency and applicant. The RPAs
must also impose the fewest economic and other relevant costs
for the applicant.
Title V also prohibits judicial review of biological
opinions more than 150 days after the date on which the opinion
was issued. Challenges to biological opinions are required to
be filed in the U.S. Court of Appeals for the District of
Columbia, a court with expertise in, and a long history of,
handling these cases.
Lastly, Title V allows access to the ESA Committee during a
Section 7 consultation if the Services determine that (1) an
action is likely to jeopardize the continued existence of a
threatened or endangered species or destroy or adversely modify
the species' critical habitat or (2) any RPA necessary to avoid
such jeopardization or adverse modification would impair
national security or result in significant adverse national or
regional economic impacts. The ESA Committee is a cabinet-level
committee established in the 1978 amendments to the ESA, which
can allow a proposed action to move forward even if it
jeopardizes the continued existence of the species or adversely
modifies critical habitat. Under current law, the ESA Committee
can be triggered only if the Services issue a jeopardy
biological opinion without any RPAs.
Use of the ESA Committee is rare under current law, having
occurred only three times, most recently in 1992. Title V's
language is not intended to vastly increase the number of times
the ESA Committee is utilized but instead aims to provide
greater access to projects of national and regional
significance where RPAs may exist but key national priorities
outweigh their costs. Projects that achieve this threshold may
include the Central Valley Project and energy development in
the Gulf of America.
Title VI amends Sections 9 and 10 of the ESA to remove
duplicative permitting processes related to the importation and
exportation of species that are not native to the U.S. It
clarifies that regulating trade of non-native species should be
governed by the standards used in the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora (CITES), not by additional ESA regulations that stifle
conservation efforts.
CITES is an international agreement signed in 1973 that
governs the trade of endangered plants and animals.\27\ The
U.S., 183 other countries, and the European Union are parties
to CITES,\28\ which is implemented in Section 8a of the
ESA.\29\ Over 40,000 species are granted some level of
protection by CITES, which in many ways mirrors ESA
protections, with species listed in CITES Appendix I being
considered the most at risk of extinction.\30\ The ESA,
however, lists many species not native to the U.S. because the
Act requires the Services to list species regardless of the
species' range country.
---------------------------------------------------------------------------
\27\``What is CITES?'' CITES.org, https://cites.org/eng/disc/
what.php.
\28\Id.
\29\16 U.S.C. Sec. 1537a.
\30\``The CITES Species,'' CITES.org, https://cites.org/eng/disc/
species.php.
---------------------------------------------------------------------------
In most cases, private entities that wish to legally import
a CITES- or ESA-listed species into the U.S. must receive an
import permit from the Services. Title VI removes the
duplicative process of receiving an ESA import permit for a
CITES-listed species if such species is not native to the U.S.
and if all CITES requirements are met. This provision
streamlines the permitting process and removes the uncertainty
that sportsmen and entities like zoos and aquariums face when
conducting conservation activities abroad.
Title VI also clarifies that the Services must use the
CITES ``not detrimental to the survival of the species''
standard instead of the current ``enhancement'' standard when
issuing permits related to species that are not native to the
U.S.\31\ Currently, for the Services to issue permits related
to non-native CITES- and ESA-listed species, they must certify
that issuing the permit would ``enhance the propagation or
survival of the species.''\32\ This standard is extremely
subjective and has caused complications in the permitting
process, in some cases even turning into a ``pay-to-play''
exercise. Title VI also contains language pertaining to what is
not detrimental in the case of captive-bred species, which is
intended to provide clear direction to guide the permitting
process for activities such as routine animal transport between
zoo or animal research facilities.
---------------------------------------------------------------------------
\31\Articles III and IV of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora, (1973), available at
https://cites.org/sites/default/files/eng/disc/CITES-
Convention-EN.pdf.
\32\16 U.S.C. Sec. 1539.
---------------------------------------------------------------------------
Title VII limits the application of Section 11(f) of the
ESA to enforcing Section 11 and Section 8a. This ensures that
the Services cannot misuse this section to prohibit otherwise
lawful activities by issuing regulations that are independent
of existing statutory authority in Section 11 and Section 8a.
Section 11 is the enforcement section of the Act, granting
federal agencies the ability to enforce the ESA and giving
private citizens the ability to file ESA-related lawsuits.\33\
Section 11(f) states that ``[t]he Secretary . . . [is]
authorized to promulgate such regulations as may be appropriate
to enforce this chapter . . .''\34\ The plain language of this
provision explicitly limits the agency's rulemaking authority
to regulations that will further statutory enforcement.
---------------------------------------------------------------------------
\33\16 U.S.C. Sec. 1540.
\34\Id.
---------------------------------------------------------------------------
However, against congressional intent, the Services,
especially NMFS, have exploited Section 11(f) as a
justification for issuing regulations that lower the chance of
taking a listed species. An example of this misuse is NFMS's
recently withdrawn 2022 rule that expanded vessel speed
restrictions related to the North Atlantic Right Whale (NARW).
Essentially, that rule placed requirements on vessel operators
that were designed to lower the likelihood of striking an
endangered NARW.\35\ During a February 26, 2025, oversight
hearing, the Subcommittee on Water, Wildlife and Fisheries
heard testimony on why Section 11(f), as currently written,
should not be interpreted as allowing NMFS to issue such a
regulation. As Paul Weiland, a partner at Nossaman LLP who has
worked on numerous ESA issues, stated in his testimony: ``Those
means Congress included in the ESA do not include regulations
to prevent take. The vessel speed rule purports to impose an
enforceable requirement on vessel operators under the ESA, even
when those operators have not engaged in prohibited take of
Right Whales and there is a de minimis risk that their conduct
could result in prohibited take.''\36\ Nonetheless, the bills
clarifies the proper scope of this provision to prevent future
misuses of this authority.
---------------------------------------------------------------------------
\35\87 Fed. Reg. 46921.
\36\Testimony of Mr. Paul Weiland, House Committee on Natural
Resources, Subcommittee on Water, Wildlife and Fisheries, February 26,
2025, https://docs.house.gov/meetings/II/II13/20250226/117865/HHRG-119-
II13-Wstate-WeilandP-20250226.pdf.
---------------------------------------------------------------------------
Committee Action
H.R. 1897 was introduced on March 6, 2025, by Rep. Bruce
Westerman (R-AR). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water, Wildlife and Fisheries. On March 25, 2025, the
Subcommittee on Water, Wildlife and Fisheries held a hearing on
the bill. On December 17, 2025, the Committee on Natural
Resources met to consider the bill. The Subcommittee on Water,
Wildlife and Fisheries was discharged from further
consideration of H.R. 1897 by unanimous consent. Rep. Harriet
Hageman (R-WY) offered an Amendment in the Nature of a
Substitute designated Westerman_036 ANS. The Amendment in the
Nature of a Substitute, as amended, was agreed to by voice
vote. Rep. Harriet Hageman (R-WY) offered an amendment to the
Amendment in the Nature of a Substitute designated Hageman_108.
The amendment was agreed to by voice vote. Rep. Paul Gosar (R-
AZ) offered an amendment to the Amendment in the Nature of a
Substitute designated Gosar_070. The amendment was agreed to by
a roll call vote of 23 yeas to 18 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Rep. Pete Stauber (R-MN) offered an amendment to the
Amendment in the Nature of a Substitute designated Stauber #1.
The amendment was agreed to by voice vote. Ranking Member Jared
Huffman (D-CA) offered an amendment to the Amendment in the
Nature of a Substitute designated Huffman #1. The amendment was
not agreed to by a roll call vote of 16 yeas to 25 nays, as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Rep. Emily Randall (D-WA) offered an amendment to the
Amendment in the Nature of a Substitute designated Randall #4.
The amendment was not agreed to by a roll call vote of 17 yeas
to 24 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Rep. Adam Gray (D-CA) offered an amendment to the Amendment
in the Nature of a Substitute designated Gray_019. The
amendment was agreed to by voice vote. Rep. Adelita Grijalva
(D-AZ) offered an amendment to the Amendment in the Nature of a
Substitute designated Grijalva #2. The amendment was not agreed
to by a roll call vote of 17 yeas to 24 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Rep. Debbie Dingell (D-MI) offered an amendment to the
Amendment in the Nature of a Substitute designated Dingell #5.
The amendment was not agreed to by a roll call vote of 16 yeas
to 25 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The bill, as amended, was ordered favorably reported to the
House of Representatives by a roll call vote of 25 yeas to 16
nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Hearings
For the purposes of clause 3(c)(6) of House rule XIII, the
following hearing was used to develop or consider this measure:
hearing by the Subcommittee on Water, Wildlife and Fisheries
held on March 25, 2025.
Section-by-Section Analysis
Section 1. Short title; table of contents
Names the bill the ``ESA Amendments Act of 2025.''
Section 2. Endangered Species Act of 1973 Definitions
Foreseeable Future: Defines the previously
undefined term ``foreseeable future,'' which is used in current
law as a key factor in determining whether a species should be
considered a threatened species. This codifies the definition
the Trump administration adopted in the 2019 rulemaking,
``Endangered and Threatened Wildlife and Plants; Regulations
for Listing Species and Designating Critical Habitat.''
Commercial Activity: Clarifies that public display
or education for conservation purposes does not constitute a
commercial activity under the ESA.
Conserve; Conserving; Conservation: Clarifies the
ability of the Secretary to permit regulated take of listed
species for conservation purposes by eliminating the
prerequisite of an ``extraordinary case'', which has proven
unimplementable.
Habitat: Clarifies that areas that cannot support
listed species' full biological requirements are not classified
as critical habitat.
Best Scientific and Commercial Data Available:
Amends the definition of ``best scientific and commercial data
available'' to ensure that data used in ESA decision-making is
impartial and is objectively applied without the use of
precautionary assumptions in favor of the species.
Environmental Baseline: Defines the term
``environmental baseline'' in the Section 7 consultation
process to include existing infrastructure, ensuring that
operating assumptions in ESA decision-making reflect current
reality, rather than an ideal fiction. The definition also
includes the effects of ongoing federal actions and federal
facilities that are not within the Secretary's discretion to
modify.
Section 3. Authorization of Appropriations
Reauthorizes the ESA through fiscal year (FY) 2031
at levels consistent with the fiscally responsible House FY
2026 appropriations bills and the Majority Leader's Floor
Protocols for the 119th Congress.
Section 4. Rule of Construction
Clarifies that nothing in this bill modifies any
state's primacy over management of fish and wildlife on lands
and waters within that state.
Section 5. Renaming the Endangered Species Act of 1973 to Endangered
Species Recovery Act
Renames the ESA the ``Endangered Species Recovery
Act'' and requires all references in federal documents to
reflect this change.
TITLE I: OPTIMIZING CONSERVATION THROUGH RESOURCE PRIORITIZATION
Establishes a science-based ESA listing work plan
structure that provides greater flexibility in the timing of
acting on petitions to list a species as threatened or
endangered based on the severity of threats to the species,
ongoing conservation efforts for the species, and level of
scientific information on the species' status.
Replaces the unscientific requirement for the
Services to act within 12 months on listing petitions with the
listing work plan framework.
TITLE II: INCENTIVIZING WILDLIFE CONSERVATION ON PRIVATE LANDS
Codifies CBAs, which promote voluntary
conservation and prevent regulatory overreach if the Services
ultimately list the relevant species.
Exempts CBA approvals from the Section 7
consultation process and NEPA.
Prevents the federal government from seeking
mitigation measures beyond what a Habitat Conservation Plan or
other approved permit already requires.
Exempts from the Section 7 consultation process
the issuance of voluntary consultation agreements under Section
10 of the ESA.
Exempts from NEPA incidental take permits issued
consistent with Section 10 voluntary conservation plans.
TITLE III: PROVIDING FOR GREATER INCENTIVES TO RECOVER LISTED SPECIES
Requires the Services to account for the
conservation and economic effects of their regulations
governing take of threatened species.
Requires the Services to establish objective,
incremental recovery goals for threatened species, decrease
regulatory burdens as populations improve, and provide for
state management of species once all recovery goals are met.
Allows states to develop and submit recovery
strategies to the Services for candidate or threatened species.
Permits state-developed recovery plans to become the management
regulations if the Services determine such plans would
effectively conserve the species.
Requires objective, incremental recovery goals for
endangered species to be developed in preparation for when the
species is upgraded to threatened status.
Imposes on the Services a 30-day deadline to
initiate a rulemaking process adjusting a species' status under
the ESA once their own science recommends such adjustment.
Prohibits judicial review within the five-year
monitoring period after a species is delisted, preventing years
of successful conservation work from being undone in a
courtroom by radical environmental groups and activist judges.
Codifies provisions from the 2025 proposed rule,
``Endangered and Threatened Wildlife and Plants; Regulations
for Listing Species and Designating Critical Habitat,'' that
guide the Services in determining whether a critical habitat
designation is necessary, analyzing the impacts of a critical
habitat designation, and establishing criteria for delisting
species.
Requires the Services to consider data submitted
by state, tribal, or county governments when making listing and
critical habitat determinations.
Clarifies that when the Services determine a
species is threatened or endangered only in a ``significant
portion of its range,'' the Secretary must list the species
with respect to only that portion of its range.
Promotes private property rights and voluntary
conservation efforts by preventing critical habitat
designations on private lands when landowners implement land
management plans to conserve listed species. This mirrors
existing provisions from the Sikes Act (16 U.S.C. Sec. 670a).
Provides clear statutory guidelines on the process
and sole criteria that may serve as the basis for delisting
decisions, rectifying the Services' historical practices that
have resulted in species remaining listed despite no longer
meeting the requirements to be listed as threatened or
endangered.
TITLE IV: CREATING GREATER TRANSPARENCY AND ACCOUNTABILITY IN
RECOVERING LISTED SPECIES
Requires the Services to publish online the
scientific and commercial data used as the basis for listings
and critical habitat determinations. Provides exceptions for
data that states or the Department of War do not want to be
made publicly available. Requires the Services to provide to
states affected by a forthcoming species listing all data
justifying the listing.
Requires the Chairman of the CEQ, in consultation
with the Secretary of the Interior and the Secretary of
Commerce, to disclose all costs associated with ESA-related
lawsuits to Congress.
Places a $200,000 cap on the awarding of attorneys
fees in a single ESA-related adjudication and prohibits an
entity from receiving attorneys fees more than three times in a
12-month period.
Requires that when two or more parties are co-
plaintiffs in an ESA-related lawsuit they be considered
collectively in determining whether they are eligible for
attorneys fees.
Requires an analysis of the economic impacts,
national security impacts, and human health and safety impacts
of each listing. This analysis is required to be conducted in
coordination with the states, local governments, and tribes
impacted by the determination.
Requires the Services to submit to the House
Committee on Natural Resources and the Senate Committee on
Environment and Public Works a notification of any proposed
designation of critical habitat or any experimental population
area over 50,000 acres. The notification must include an
inventory and evaluation of the natural resource uses and
values of the area, analysis of how those uses may be
incompatible with or in conflict with the proposed designation,
and statements regarding the consultation that took place with
federal, state, and local governments with respect to the
proposed designation.
Requires publication on data.gov of data on the
costs of ESA recovery efforts, including the costs of
experimental populations defined under Section 10(j) of ESA.
TITLE V: STREAMLINING PERMITTING PROCESS
Amends Section 7 of the ESA to prevent the
Services from compelling mitigation as a part of the RPM
process, restoring decades of regulatory precedent. This
provision will ensure the Services cannot weaponize the RPM
process, which Congress intended to be used only to recommend
small modifications without substantially increasing the cost
of projects. Reduces regulatory duplication by separating the
Section 7 consultation process from the MMPA.
Amends Section 7 to require the Services to
determine if longstanding modifications to federal projects
adopted as part of ESA consultation materially benefit listed
species. They must be discontinued if the Services determine
they are not benefiting the relevant species.
Amends Section 7 to require the Services to
conduct consultations based on effects that are caused by the
action itself and that are reasonably certain to occur.
Amends Section 7 to ensure that consultations are
confined to the area directly affected by the agency action. In
addition, requires in instances when a Section 7 consultation
finds a project is likely to result in jeopardy or adverse
modification that the Secretary shall suggest only RPAs that
are feasible for the federal action agency and applicant. The
RPAs must also impose the fewest economic and other relevant
costs for the applicant.
Prohibits judicial review of biological opinions
after 150 days from the date on which the opinion is issued.
Allows access to the ESA Committee during a
Section 7 consultation if proposed RPAs would impair national
security or have significant adverse national or regional
economic impacts.
TITLE VI: ELIMINATING BARRIERS TO CONSERVATION
Streamlines the permitting of international
movement of non-native species by eliminating redundant ESA
permits for species listed under CITES.
Clarifies that CITES ``not detrimental to the
survival of the species'' standard governs permitting
requirements for non-native species.
TITLE VII: RESTORING CONGRESSIONAL INTENT
Amends Section 11(f) of the ESA to clarify that
the Services do not have authority to prohibit otherwise lawful
activities by issuing regulations, independent of existing
statutory authority in Section 11 and Section 8A of the ESA,
that are designed to reduce the mere potential of impacting
listed species.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Performance Goals and Objectives
As required by clause 3(c)(4) of rule XIII, the general
performance goal or objective of this bill is to amend the
Endangered Species Act of 1973 to optimize conservation through
resource prioritization, incentivize wildlife conservation on
private lands, provide for greater incentives to recover listed
species, create greater transparency and accountability in
recovering listed species, streamline the permitting process,
eliminate barriers to conservation, and restore congressional
intent.
New Budget Authority, Entitlement Authority,
and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to Section 402 of the Congressional
Budget Act of 1974.
Congressional Budget Office Estimates
Pursuant to clause 3(d)(1) of House rule XIII, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to the
Congressional Budget Act of 1974.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Unfunded Mandates Reform Act Statement
The Committee adopts as its own the estimate of the Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to Section 423 of the Unfunded Mandates Reform
Act.
Existing Programs
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to Section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of Section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act [may be cited as the ``Endangered Species Act of 1973'']
may be cited as the ``Endangered Species Recovery Act''.
TABLE OF CONTENTS
* * * * * * *
[Sec. 13. Conforming amendments.]
Sec. 13. Disclosure of expenditures.
* * * * * * *
definitions
Sec. 3. For the purposes of this Act--
(1) The term ``alternative courses of action'' means all
alternatives and thus is not limited to original project
objectives and agency jurisdiction.
(2) The terms ``best scientific and commercial data
available'' and ``best scientific data available''--
(A) mean all relevant and objective scientific and
commercial information available at the time of the
agency action; and
(B) include credible and reliable data, quantitative
analyses, conceptual and numerical models, and model
results that--
(i) account for known or potential sources or
error;
(ii) are applied using prevailing principles,
methods, tools, and professional standards of
practice; and
(iii) are impartially gathered and
objectively applied without reliance on
precautionary assumptions in favor of a species
or other assumptions or policy prescriptions
that bias the application.
[(2)] (3) The term ``commercial activity'' means all
activities of industry and trade, including, but not limited
to, the buying or selling of commodities and activities
conducted for the purpose of facilitating such buying and
selling: Provided, however, That it does not include
exhibitions of commodities by museums or similar cultural or
historical organizations or public display or education aimed
at the preservation or conservation of a species.
[(3)] (4) The terms ``conserve,''``conserving,'' and
``conservation'' mean to use and the use of all methods and
procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary. Such
methods and procedures include, but are not limited to, all
activities associated with scientific resources management such
as research, census, law enforcement, habitat acquisition and
maintenance, propagation, live trapping, [and transplantation,
and, in the extraordinary case where population pressures
within a given ecosystem cannot be otherwise relieved, may
include] transplantation, and, at the discretion of the
Secretary, regulated taking.
[(4)] (5) The term ``Convention'' means the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.
[(5)] (6)(A) The term ``critical habitat'' for a threatened
or endangered species means--
(i) the specific areas within the geographical area
occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this
Act, on which are found those physical or biological
features (I) essential to the conservation of the
species and (II) which may require special management
considerations or protection; and
(ii) specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of this
Act, upon a determination by the Secretary that such
areas are essential for the conservation of the
species.
(B) Critical habitat may be established for those species now
listed as threatened or endangered species for which no
critical habitat has heretofore been established as set forth
in subparagraph (A) of this paragraph.
(C) Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire
geographical area which can be occupied by the threatened or
endangered species.
(D)(i) For the purpose of designating critical habitat for a
threatened species or an endangered species under this Act, the
term ``habitat''--
(I) means the abiotic and biotic setting that
currently or periodically contains the resources and
conditions necessary to support 1 or more life
processes of the threatened species or endangered
species; and
(II) does not include an area--
(aa) outside the current or historic range of
the threatened species or endangered species;
or
(bb) visited by only vagrant individual
members of the threatened species or endangered
species.
(ii) If the setting described in clause (i)(I) does not
support all of the life processes of the relevant threatened
species or endangered species, the threatened species or
endangered species must be able to access, from the setting,
other areas necessary to support its remaining life processes.
[(6)] (7) The term ``endangered species'' means any species
which is in danger of extinction throughout all or a
significant portion of its range other than a species of the
Class Insecta determined by the Secretary to constitute a pest
whose protection under the provisions of this Act would present
an overwhelming and overriding risk to man.
[(7)] (8) The term ``Federal agency'' means any department,
agency, or instrumentality of the United States.
[(8)] (9) The term ``fish or wildlife'' means any member of
the animal kingdom, including without limitation any mammal,
fish, bird (including any migratory, nonmigratory, or
endangered bird for which protection is also afforded by treaty
or other international agreement), amphibian, reptile, mollusk,
crustacean, arthropod or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or
parts thereof.
[(9)] (10) The term ``foreign commerce'' includes, among
other things, any transaction--
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a
person in a foreign country; or
(D) between persons within the United States, where
the fish and wildlife in question are moving in any
country or countries outside the United States.
[(10)] (11) The term ``import'' means to land on, bring into,
or introduce into or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the
United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of
the customs laws of the United States.
(12) The term ``permit or license applicant'' means, when
used with respect to an action of a Federal agency for which
exemption is sought under section 7, any person whose
application to such agency for a permit or license has been
denied primarily because of the application of section 7(a) to
such agency action.
(13) The term ``person'' means an individual, corporation,
partnership, trust, association, or any other private entity;
or any officer, employee, agent, department, or instrumentality
of the Federal Government, of any State, municipality, or
political subdivision of a State, or of any foreign government;
any State, municipality, or political subdivision of a State;
or any other entity subject to the jurisdiction of the United
States.
(14) The term ``plant'' means any member of the plant
kingdom, including seeds, roots and other parts thereof.
(15) The term ``Secretary'' means, except as otherwise herein
provided, the Secretary of the Interior or the Secretary of
Commerce as program responsibilities are vested pursuant to the
provisions of Reorganization Plan Numbered 4 of 1970; except
that with respect to the enforcement of the provisions of this
Act and the Convention which pertain to the importation or
exportation of terrestrial plants, the term also means the
Secretary of Agriculture.
(16) The term ``species'' includes any subspecies of fish or
wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when
mature.
(17) The term ``State'' means any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, Guam, and the Trust Territory of the
Pacific Islands.
(18) The term ``State agency'' means any State agency,
department, board, commission, or other governmental entity
which is responsible for the management and conservation of
fish, plant, or wildlife resources within a State.
(19) The term ``take'' means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.
(20) (A) The term ``threatened species'' means any species
which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of
its range.
(B) For the purposes of applying subparagraph (A), the term
``foreseeable future'' means the period of time extending into
the future within which the Secretary, based on the best
scientific and commercial data available, is able to determine
that a factor described in subparagraphs (A) through (E) of
section 4(a)(1) is likely to occur with respect to the species.
(21) The term ``United States,'' when used in a geographical
context, includes all States.
determination of endangered species and threatened species
Sec. 4. (a) General.--(1) The Secretary shall by regulation
promulgated in accordance with subsection (b) determine whether
any species is an endangered species or a threatened species
because of any of the following factors:
(A) the present or threatened destruction,
modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational,
scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;
or
(E) other natural or manmade factors affecting its
continued existence.
(2) With respect to any species over which program
responsibilities have been vested in the Secretary of Commerce
pursuant to Reorganization Plan Numbered 4 of 1970--
(A) in any case in which the Secretary of Commerce
determines that such species should--
(i) be listed as an endangered species or a
threatened species, or
(ii) be changed in status from a threatened
species to an endangered species, he shall so
inform the Secretary of the Interior, who shall
list such species in accordance with this
section;
(B) in any case in which the Secretary of Commerce
determines that such species should--
(i) be removed from any list published
pursuant to subsection (c) of this section, or
(ii) be changed in status from an endangered
species to a threatened species, he shall
recommend such action to the Secretary of the
Interior, and the Secretary of the Interior, if
he concurs in the recommendation, shall
implement such action; and
(C) the Secretary of the Interior may not list or
remove from any list any such species, and may not
change the status of any such species which are listed,
without a prior favorable determination made pursuant
to this section by the Secretary of Commerce.
(3)[(A) The Secretary, by regulation promulgated in
accordance with subsection (b) and to the maximum extent
prudent and determinable--
[(i) shall, concurrently with making a determination
under paragraph (1) that a species is an endangered
species or a threatened species, designate any habitat
of such species which is then considered to be critical
habitat; and
[(ii) may, from time-to-time thereafter as
appropriate, revise such designation.]
(A)(i) The Secretary, by regulation promulgated in
accordance with subsection (b) and to the maximum
extent prudent and determinable--
(I) shall, concurrently with making a
determination under paragraph (1) that
a species is an endangered species or a
threatened species, designate any
habitat of such species which is then
considered to be critical habitat; and
(II) may, from time-to-time
thereafter as appropriate, revise such
designation.
(ii) The Secretary may determine, based on
the best scientific data available, that it is
not prudent to designate habitat as described
in clause (i)(I) for a species, including if
the Secretary determines--
(I) the species is determined under
paragraph (1) to be a threatened
species or an endangered species
because of take or other human activity
and such designation will increase the
degree of such take or other human
activity;
(II) the species is determined under
paragraph (1) to be a threatened
species or an endangered species
because of a factor--
(aa) other than that
described in subparagraph (A)
of that paragraph; or
(bb) that cannot be addressed
through reasonable and prudent
alternatives resulting from
consultations carried out
pursuant to section 7(a)(2); or
(III) the species primarily occurs in
areas not under the jurisdiction of the
United States and areas under the
jurisdiction of the United States where
the species occurs provide no more than
a negligible conservation value to the
species.
(iii) Notwithstanding clause (i)(I), if the
Secretary determines under clause (ii) that it
is not prudent to designate habitat as
described in clause (i)(I), the Secretary is
not required to so designate habitat for the
species.
(B)(i) The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are
subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides
a benefit to the species for which critical habitat is proposed
for designation.
(ii) Nothing in this paragraph affects the requirement to
consult under section 7(a)(2) with respect to an agency action
(as that term is defined in that section).
(iii) Nothing in this paragraph affects the obligation of the
Department of Defense to comply with section 9, including the
prohibition preventing extinction and taking of endangered
species and threatened species.
(C) The Secretary may not designate as critical habitat under
subparagraph (A) any privately owned or controlled land or
other geographical area that is subject to a land management
plan that--
(i) the Secretary determines is similar in nature to
an integrated natural resources management plan
described in section 101 of the Sikes Act (16 U.S.C.
670a);
(ii)(I) is prepared in cooperation with the Secretary
and the head of each applicable State fish and wildlife
agency of each State in which such land or other
geographical area is located; or
(II) is submitted to the Secretary in a manner that
is similar to the manner in which an applicant submits
a conservation plan to the Secretary under section
10(a)(2)(A);
(iii) includes an activity or a limitation on an
activity that the Secretary determines will likely
conserve the species concerned;
(iv) the Secretary determines will result in--
(I) an increase in the population of the
species concerned above the population of such
species on the date that such species is listed
as a threatened species or an endangered
species; or
(II) maintaining the same population of such
species on the land or other geographical area
as the population that would likely occur if
such land or other geographical area is
designated as critical habitat; and
(v) to the maximum extent practicable, will minimize
and mitigate the impacts of any activity that will
likely result in an incidental taking of the species
concerned.
(D)(i) The Secretary shall submit to the Committee on Natural
Resources of the House of Representatives and the Committee on
Environment and Public Works of the Senate a notification of
any proposed designation of critical habitat under subparagraph
(A) of an area greater than 50,000 acres.
(ii) A notification submitted under clause (i) shall
include--
(I) a description of the area proposed to be
designated as critical habitat;
(II) an inventory and evaluation of the natural
resource uses and values of the area and adjacent
public and nonpublic land and the economic impact of
the proposed designation on individuals, local
communities, and the United States;
(III) an identification of users of the area and how
such users will be affected by the proposed
designation;
(IV) an analysis of the manner in which existing and
potential natural resource uses are incompatible with
or in conflict with the proposed designation and a
statement of the provisions to be made for continuation
or termination of existing such uses, including an
economic analysis of such continuation or termination;
(V) a statement of the consultation which has been or
will be had with other Federal departments and
agencies, regional, State, and local government bodies,
and other appropriate individuals and groups with
respect to the proposed designation; and
(VI) a statement indicating the effect of the
proposed designation, if any, on State and local
government interests and the regional economy.
(4) If the Secretary determines under paragraph (1) that a
species is a threatened species or an endangered species in
only a significant portion of the range of the species, the
Secretary may only list the species under subsection (c) as a
threatened species or an endangered species with respect to
that portion of the range of the species.
(5)(A) The Secretary shall, concurrently with determining
under paragraph (1) whether a species is a threatened species
or an endangered species, prepare an analysis with respect to
such determination of--
(i) the economic effect;
(ii) the effects on national security;
(iii) the effects on human health and safety; and
(iv) any other relevant effect.
(B) The analysis is to be prepared in coordination with the
States, local governments, and Tribes impacted by the
determination.
(C) Nothing in this paragraph shall delay a determination
made by the Secretary under paragraph (1) or change the
criteria used by the Secretary to make such a determination.
(b) Basis for Determinations.--(1)(A) The Secretary shall
make determinations required by subsection (a)(1) solely on the
basis of the best scientific and commercial data available to
him after conducting a review of the status of the species and
after taking into account data submitted to the Secretary by a
State, Tribal, or local government, and those efforts, if any,
being made by any State or foreign nation, or any political
subdivision of a State or foreign nation, to protect such
species, whether by predator control, protection of habitat and
food supply, or other conservation practices, within any area
under its jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give
consideration to species which have been--
(i) designated as requiring protection from
unrestricted commerce by any foreign nation, or
pursuant to any international agreement; or
(ii) identified as in danger of extinction, or likely
to become so within the foreseeable future, by any
State agency or by any agency of a foreign nation that
is responsible for the conservation of fish or wildlife
or plants.
(C) In making a determination under subsection (a)(1)
with respect to a species, the Secretary shall take
into account and document the effect of any net
conservation benefit (as that term is defined in
section 10(k)) of any approved Conservation Benefit
Agreement (as that term is defined in such section)
relating to the species.
(2)(A) The Secretary shall designate critical habitat, and
make revisions thereto, under subsection (a)(3) on the basis of
the best scientific data available and after taking into
consideration data submitted to the Secretary by a State,
Tribal, or local government, as well as the economic impact,
the impact on national security, the impact on existing efforts
of private landowners to conserve the species, and any other
relevant impact, of specifying any particular area as critical
habitat. The Secretary may exclude any area from critical
habitat if he determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best
scientific and commercial data available, that the failure to
designate such area as critical habitat will result in the
extinction of the species concerned.
(B) In addition to any area otherwise considered by the
Secretary for exclusion from critical habitat under
subparagraph (A), the Secretary shall consider for exclusion
from critical habitat any area--
(i) submitted by a person through public comment
pursuant to paragraph (5) or (6); and
(ii) for which such submission includes credible
information regarding a meaningful economic impact,
impact on national security, impact on existing efforts
of private landowners to conserve the applicable
species, or other relevant impact of specifying the
area as critical habitat that supports the exclusion
from critical habitat of that area.
(3)(A) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to add a species
to, or to remove a species from, either of the lists published
under subsection (c), the Secretary shall make a finding as to
whether the petition presents substantial scientific or
commercial information indicating that the petitioned action
may be warranted. If such a petition is found to present such
information, the Secretary shall promptly commence a review of
the status of the species concerned. The Secretary shall
promptly publish each finding made under this subparagraph in
the Federal Register.
(B) [Within 12 months] In accordance with the national
listing work plan submitted under subsection (j), after
receiving a petition that is found under subparagraph (A) to
present substantial information indicating that the petitioned
action may be warranted, the Secretary shall make one of the
following findings:
(i) The petitioned action is not warranted, in which
case the Secretary shall promptly publish such finding
in the Federal Register.
(ii) The petitioned action is warranted in which case
the Secretary shall promptly publish in the Federal
Register a general notice and the complete text of a
proposed regulation to implement such action in
accordance with paragraph (5).
(iii) The petitioned action is warranted but that--
(I) the immediate proposal and timely
promulgation of a final regulation implementing
the petitioned action in accordance with
paragraphs (5) and (6) is precluded by pending
proposals to determine whether any species is
an endangered species or a threatened species,
and
(II) expeditious progress is being made to
add qualified species to either of the lists
published under subsection (c) and to remove
from such lists species for which the
protections of the Act are no longer necessary,
in which case the Secretary shall promptly publish such
finding in the Federal Register, together with a
description and evaluation of the reasons and data on
which the finding is based.
(C)(i) A petition with respect to which a finding is made
under subparagraph (B)(iii) shall be treated as a petition that
is resubmitted to the Secretary under subparagraph (A) on the
date of such finding and that presents substantial scientific
or commercial information that the petitioned action may be
warranted.
(ii) Any negative finding described in subparagraph (A) and
any finding described in subparagraph (B)(i) or (iii) shall be
subject to judicial review.
(iii) The Secretary shall implement a system to monitor
effectively the status of all species with respect to which a
finding is made under subparagraph (B)(iii) and shall make
prompt use of the authority under paragraph 7 to prevent a
significant risk to the well being of any such species.
(D)(i) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to revise a
critical habitat designation, the Secretary shall make a
finding as to whether the petition presents substantial
scientific information indicating that the revision may be
warranted. The Secretary shall promptly publish such finding in
the Federal Register.
(ii) Within 12 months after receiving a petition that is
found under clause (i) to present substantial information
indicating that the requested revision may be warranted, the
Secretary shall determine how he intends to proceed with the
requested revision, and shall promptly publish notice of such
intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this
subsection, the provisions of section 553 of title 5, United
States Code (relating to rulemaking procedures), shall apply to
any regulation promulgated to carry out the purposes of this
Act.
(5) With respect to any regulation proposed by the Secretary
to implement a determination, designation, or revision referred
to in subsection (a)(1) or (3), the Secretary shall--
(A) not less than 90 days before the effective date
of the regulation--
(i) publish a general notice and the complete
text of the proposed regulation in the Federal
Register[, and] , including, with respect to a
proposed regulation to designate or revise
critical habitat under subsection (a)(3)--
(I) a draft economic analysis that
identifies any impacts on national
security and existing efforts of
private landowners to conserve the
applicable species and other relevant
impacts of the designation or revision
that the Secretary determines are
within the area proposed for
designation or covered by the revision;
and
(II) a draft exclusion analysis that
identifies each area the Secretary has
reason to consider for exclusion under
paragraph (2) and why; and
(ii) give actual notice of the proposed
regulation (including the complete text of the
regulation) to the State agency in each State
in which the species is believed to occur, and
to each county or equivalent jurisdiction in
which the species is believed to occur, and
invite the comment of such agency, and each
such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the
Secretary of State, give notice of the proposed
regulation to each foreign nation in which the species
is believed to occur or whose citizens harvest the
species on the high seas, and invite the comment of
such nation thereon;
(C) give notice of the proposed regulation to such
professional scientific organizations as he deems
appropriate;
(D) publish a summary of the proposed regulation in a
newspaper of general circulation in each area of the
United States in which the species is believed to
occur; and
(E) promptly hold one public hearing on the proposed
regulation if any person files a request for such a
hearing within 45 days after the date of publication of
general notice.
(6)(A) Within the one-year period beginning on the date on
which general notice is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the Secretary shall
publish in the Federal Register--
(i) if a determination as to whether a species is an
endangered species or a threatened species, or a
revision of critical habitat, is involved, either--
(I) a final regulation to implement such
determination,
(II) a final regulation to implement such
revision or a finding that such revision should
not be [made,] made, including, with respect to
such a final regulation--
(aa) a final economic analysis that
identifies any impacts on national
security and existing efforts of
private landowners to conserve the
applicable species and other relevant
impacts of the revision that the
Secretary determines are within the
area covered by the revision; and
(bb) a final exclusion analysis that
identifies each area the Secretary has
determined under paragraph (2) to
exclude from such revision and why;
(III) notice that such one-year period is
being extended under subparagraph (B)(i), or
(IV) notice that the proposed regulation is
being withdrawn under subparagraph (B)(ii),
together with the finding on which such
withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of
critical habitat is involved, either--
(I) a final regulation to implement such
designation[, or] , including--
(aa) a final economic analysis that
identifies any impacts on national
security and existing efforts of
private landowners to conserve the
applicable species and other relevant
impacts of the designation that the
Secretary determines are within the
area proposed for designation; and
(bb) a final exclusion analysis that
identifies each area the Secretary has
determined under paragraph (2) to
exclude from such designation and why;
or
(II) notice that such one-year period is
being extended under such subparagraph.
(B)(i) If the Secretary finds with respect to a proposed
regulation referred to in subparagraph (A)(i) that there is
substantial disagreement regarding the sufficiency or accuracy
of the available data relevant to the determination or revision
concerned, the Secretary may extend the one-year period
specified in subparagraph (A) for not more than six months for
purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph
(A)(i) is not promulgated as a final regulation within such
one-year period (or longer period if extension under clause (i)
applies) because the Secretary finds that there is not
sufficient evidence to justify the action proposed by the
regulation, the Secretary shall immediately withdraw the
regulation. The finding on which a withdrawal is based shall be
subject to judicial review. The Secretary may not propose a
regulation that has previously been withdrawn under this clause
unless he determines that sufficient new information is
available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is
extended under clause (i) with respect to a proposed
regulation, then before the close of such extended period the
Secretary shall publish in the Federal Register either a final
regulation to implement the determination or revision
concerned, a finding that the revision should not be made, or a
notice of withdrawal of the regulation under clause (ii),
together with the finding on which the withdrawal is based.
(C) A final regulation designating critical habitat of an
endangered species or a threatened species shall be published
concurrently with the final regulation implementing the
determination that such species is endangered or threatened,
unless the Secretary deems that--
(i) it is essential to the conservation of such
species that the regulation implementing such
determination be promptly published; or
(ii) critical habitat of such species is not then
determinable, in which case the Secretary, with respect
to the proposed regulation to designate such habitat,
may extend the one-year period specified in
subparagraph (A) by not more than one additional year,
but not later than the close of such additional year
the Secretary must publish a final regulation, based on
such data as may be available at that time,
designating, to the maximum extent prudent, such
habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor
section 553 of title 5, United States Code, shall apply to any
regulation issued by the Secretary in regard to any emergency
posing a significant risk to the well-being of any species of
fish and wildlife or plants, but only if--
(A) at the time of publication of the regulation in
the Federal Register the Secretary publishes therein
detailed reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident
species of fish or wildlife, or plants, the Secretary
gives actual notice of such regulation to the State
agency in each State in which such species is believed
to occur.
Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in
the Federal Register. Any regulation promulgated under the
authority of this paragraph shall cease to have force and
effect at the close of the 240-day period following the date of
publication unless, during such 240-day period, the rulemaking
procedures which would apply to such regulation without regard
to this paragraph are complied with. If at any time after
issuing an emergency regulation the Secretary determines, on
the basis of the best appropriate data available to him, that
substantial evidence does not exist to warrant such regulation,
he shall withdraw it.
(8) The publication in the Federal Register of any proposed
or final regulation which is necessary or appropriate to carry
out the purposes of this Act shall include a summary by the
Secretary of the data on which such regulation is based and
shall show the relationship of such data to such regulation;
and if such regulation designates or revises critical habitat,
such summary shall, to the maximum extent practicable, also
include a brief description and evaluation of those activities
(whether public or private) which, in the opinion of the
Secretary, if undertaken may adversely modify such habitat, or
may be affected by such designation.
(9)(A) The Secretary shall make publicly available on the
website of the applicable department the best scientific and
commercial data available that is used as the basis for each
regulation, including each proposed regulation, promulgated
under paragraphs (1) and (3) of subsection (a).
(B) If a Governor, agency, or legislature of a State
determines that public disclosure of any best scientific and
commercial data available described in subparagraph (A) is
prohibited by a law or regulation of the State, including such
a law or regulation requiring the protection of personal
information--
(i) the Governor, agency, or legislature of the State
may submit to the Secretary a request to exempt such
best scientific and commercial data available from the
application of subparagraph (A); and
(ii) the Secretary shall so exempt such best
scientific and commercial data available.
(C) Subparagraph (A) does not apply with respect to global
positioning system coordinates or other geographically specific
species location information.
(D) Not later than 30 days after the date of the enactment of
this paragraph, the Secretary shall execute an agreement with
the Secretary of War that prevents the disclosure under this
paragraph of classified information pertaining to Department of
War personnel, facilities, lands, or waters.
(c) Lists.--(1) The Secretary of the Interior shall publish
in the Federal Register a list of all species determined by him
or the Secretary of Commerce to be endangered species and a
list of all species determined by him or the Secretary of
Commerce to be threatened species. Each list shall refer to the
species contained therein by scientific and common name or
names, if any, specify with respect to such species over what
portion of its range it is endangered or threatened, and
specify any critical habitat within such range. The Secretary
shall from time to time revise each list published under the
authority of this subsection to reflect recent determinations,
designations, and revisions made in accordance with subsections
(a) and (b).
(2) The Secretary shall--
(A) conduct, at least once every five years, a review
of all species included in a list which is published
pursuant to paragraph (1) and which is in effect at the
time of such review; and
(B) determine on the basis of such review whether any
such species should--
(i) be removed from such list;
(ii) be changed in status from an endangered
species to a threatened species; or
(iii) be changed in status from a threatened
species to an endangered species.
Each determination under subparagraph (B) shall be made in
accordance with the provisions of subsection (a) and (b).
(3) Not later than 30 days after the date on which the
Secretary makes a determination under paragraph (2)(B), the
Secretary shall initiate a rulemaking to carry out such
determination.
(4) The Secretary shall determine under paragraph (2)(B)(i)
that a species described in paragraph (2)(A) should be removed
from a list described in that paragraph and shall remove such
species from such list only if the Secretary determines,
pursuant to a review conducted under that paragraph and based
on the best scientific and commercial data available, such
species--
(A) is extinct;
(B) is not a threatened species or an endangered
species; or
(C) is not a species.
[(d) Protective Regulations.--Whenever any species is listed
as a threatened species pursuant to subsection (c) of this
section, the Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation of such
species. The Secretary may by regulation prohibit with respect
to any threatened species any act prohibited under section
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in
the case of plants, with respect to endangered species; except
that with respect to the taking of resident species of fish or
wildlife, such, regulations shall apply in any State which has
entered into a cooperative agreement pursuant to section 6(c)
of this Act only to the extent that such regulations have also
been adopted by such State.]
(d) Protective Regulations.--
(1) Issuance.--
(A) In general.--Whenever any species is
listed as a threatened species pursuant to
subsection (c), the Secretary shall issue such
regulations as are necessary and advisable to
provide for the conservation of that species.
(B) Requirement.--In issuing a regulation
under subparagraph (A), the Secretary,
consistent with the findings, purposes, and
policy described in section 2 and based on the
best scientific and commercial data available,
shall consider the conservation and economic
effects of such regulation.
(2) Recovery goals.--
(A) In general.--If the Secretary issues a
regulation under paragraph (1) that prohibits
an act described in section 9(a), the Secretary
shall, with respect to the species that is the
subject of such regulation--
(i) establish objective, incremental
recovery goals;
(ii) provide for the stringency of
such regulation to decrease as such
recovery goals are met; and
(iii) provide for State management
within such State, if such State is
willing to take on such management,
beginning on the date on which the
Secretary determines that each such
recovery goal is met and, if each such
recovery goal remains met, continuing
until such species is removed from the
list of threatened species published
pursuant to subsection (c).
(B) Status review.--On the date on which the
Secretary determines that each recovery goal
established under subparagraph (A)(i) for a
species is met, the Secretary shall begin a
review of the species and subsequently
determine, on the basis of such review, whether
the species should be removed from the lists
published pursuant to subsection (c)(1).
(3) Cooperative agreement.--A regulation issued under
paragraph (1) that prohibits an act described in
section 9(a) with respect to a resident species shall
apply with respect to a State that has entered into a
cooperative agreement with the Secretary pursuant to
section 6(c) only to the extent that such regulation is
adopted by such State.
(4) State recovery strategy.--
(A) In general.--A State may develop a
recovery strategy for a threatened species or a
candidate species and submit to the Secretary a
petition for the Secretary to use such recovery
strategy as the basis for any regulation issued
under paragraph (1) with respect to such
species within such State.
(B) Approval or denial of petition.--Not
later than 120 days after the date on which the
Secretary receives a petition submitted under
subparagraph (A), the Secretary shall--
(i) approve such petition if the
Secretary determines the recovery
strategy is reasonably certain to be
implemented by the petitioning State
and to be effective in conserving the
species that is the subject of such
recovery strategy; or
(ii) deny such petition if the
requirements described in clause (i)
are not met.
(C) Publication.--Not later than 60 days
after the date on which the Secretary approves
or denies a petition under subparagraph (B),
the Secretary shall publish such approval or
denial on the website of the applicable
department.
(D) Denial of petition.--
(i) Written explanation.--If the
Secretary denies a petition under
subparagraph (B), the Secretary shall
include in such denial a written
explanation for such denial, including
a description of the changes to such
petition that are necessary for the
Secretary to approve such petition.
(ii) Resubmission of denied
petition.--A State may resubmit a
petition that is denied under
subparagraph (B).
(E) Use in protective regulations.--If the
Secretary approves a petition under
subparagraph (B), the Secretary shall--
(i) issue a regulation under
paragraph (1) that adopts the recovery
strategy as such regulation with
respect to the species that is the
subject of such recovery strategy
within the petitioning State; and
(ii) establish objective criteria to
evaluate the effectiveness of such
recovery strategy in conserving such
species within such State.
(F) Revision.--If a recovery strategy that is
adopted as a regulation issued under paragraph
(1) is determined by the Secretary to be
ineffective in conserving the species that is
the subject of such recovery strategy in
accordance with the objective criteria
established under subparagraph (E)(ii) for such
recovery strategy, the Secretary shall revise
such regulation and reissue such regulation in
accordance with paragraph (1).
(e) Similarity of Appearance Cases.--The Secretary may, by
regulation of commerce or taking, and to the extent he deems
advisable, treat any species as an endangered species or
threatened species even through it is not listed pursuant to
section 4 of this Act if he finds that--
(A) such species so closely resembles in appearance,
at the point in question, a species which has been
listed pursuant to such section that enforcement
personnel would have substantial difficulty in
attempting to differentiate between the listed and
unlisted species;
(B) the effect of this substantial difficulty is an
additional threat to an endangered or threatened
species; and
(C) such treatment of an unlisted species will
substantially facilitate the enforcement and further
the policy of this Act.
(f)(1) Recovery Plans.--The Secretary shall develop and
implement plans (hereinafter in this subsection referred to as
``recovery plans'') for the conservation and survival of
endangered species and threatened species listed pursuant to
this section, unless he finds that such a plan will not promote
the conservation of the species. The Secretary, in developing
and implementing recovery plans, shall, to the maximum extent
practicable--
(A) give priority to those endangered species or
threatened species, without regard to taxonomic
classification, that are most likely to benefit from
such plans, particularly those species that are, or may
be, in conflict with construction or other development
projects or other forms of economic activity;
(B) incorporate in each plan--
(i) a description of such site-specific
management actions as may be necessary to
achieve the plan's goal for the conservation
and survival of the species;
(ii) objective, measurable criteria which,
when met, would result in a determination, in
accordance with the provisions of this section,
that the species be removed from the list;
[and]
(iii) estimates of the time required and the
cost to carry out those measures needed to
achieve the plan's goal and to achieve
intermediate steps toward that goal[.]; and
(iv) with respect to an endangered species,
objective, incremental recovery goals in
accordance with subsection (d)(2)(A) for use
under that subsection if such endangered
species is changed in status from an endangered
species to a threatened species under
subsection (c)(2)(B)(ii).
(2) The Secretary, in developing and implementing recovery
plans, may procure the services of appropriate public and
private agencies and institutions and other qualified persons.
Recovery teams appointed pursuant to this subsection shall not
be subject to chapter 10 of title 5, United States Code.
(3) The Secretary shall report every two years to the
Committee on Environment and Public Works of the Senate and the
Committee on Merchant Marine and Fisheries of the House of
Representatives on the status of efforts to develop and
implement recovery plans for all species listed pursuant to
this section and on the status of all species for which such
plans have been developed.
(4) The Secretary shall, prior to final approval of a new or
revised recovery plan, provide public notice and an opportunity
for public review and comment on such plan. The Secretary shall
consider all information presented during the public comment
period prior to approval of the plan.
(5) Each Federal agency shall, prior to implementation of a
new or revised recovery plan, consider all information
presented during the public comment period under paragraph (4).
(g) Monitoring.--(1) The Secretary shall implement a system
in cooperation with the States to monitor effectively for not
less than five years the status of all species which have
recovered to the point at which the measures provided pursuant
to this Act are no longer necessary and which, in accordance
with the provisions of this section, have been removed from
either of the lists published under subsection (c).
(2) The Secretary shall make prompt use of the authority
under paragraph 7 of subsection (b) of this section to prevent
a significant risk to the well being of any such recovered
species.
(3) The removal of a species from a list published under
subsection (c)(1) is not subject to judicial review during the
period established under paragraph (1) with respect to the
species.
(h) Agency Guidelines.--The Secretary shall establish, and
publish in the Federal Register, agency guidelines to insure
that the purposes of this section are achieved efficiently and
effectively. Such guidelines shall include, but are not limited
to--
(1) procedures for recording the receipt and the
disposition of petitions submitted under subsection
(b)(3) of this section;
(2) criteria for making the findings required under
such subsection with respect to petitions;
(3) a ranking system to assist in the identification
of species that should receive priority review under
subsection (a)(1) of the section; and
(4) a system for developing and implementing, on a
priority basis, recovery plans under subsection (f) of
this section.
The Secretary shall provide to the public notice of, and
opportunity to submit written comments on, any guideline
(including any amendment thereto) proposed to be established
under this subsection.
(i) If, in the case of any regulation proposed by the
Secretary under the authority of this section, a State agency
to which notice thereof was given in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of
the proposed regulation, and the Secretary issues a final
regulation which is in conflict with such comments, or if the
Secretary fails to adopt a regulation pursuant to an action
petitioned by a State agency under subsection (b)(3), the
Secretary shall submit to the State agency a written
justification for his failure to adopt regulations consistent
with the agency's comments or petition.
(j) National Listing Work Plan.--
(1) In general.--Not later than the date described in
paragraph (2), the Secretary shall submit to Congress a
national listing work plan that establishes, for each
covered species, a schedule for the completion during
the 5-fiscal year period beginning on October 1 of the
first fiscal year after the date of the submission of
the work plan of--
(A) findings as described in subsection
(b)(3)(B);
(B) any proposed or final determination under
subsection (a)(1) required by a court order,
court decree, or court-approved settlement
agreement; and
(C) any proposed or final designation of
critical habitat under subsection (a)(3)
required by a court order, court decree, or
court-approved settlement agreement.
(2) Submission to congress.--
(A) In general.--The Secretary shall submit
to Congress--
(i) together with the budget request
of the Secretary for the first fiscal
year that begins not less than 365 days
after the date of the enactment of this
subsection, the initial work plan
required under paragraph (1); and
(ii) together with the budget request
of the Secretary for each fiscal year
thereafter, an updated work plan under
paragraph (1).
(B) Additional inclusions.--The Secretary
shall include with each budget request referred
to in subparagraph (A) a description of the
amounts to be requested to carry out the work
plan for the fiscal year covered by the budget
request, including any amounts requested to
address potential future listings of species
considered on an emergency basis in that fiscal
year.
(3) Priority.--
(A) In general.--In developing a work plan
under this subsection, the Secretary shall
assign to each species included in the work
plan a priority classification of Priority 1
through Priority 5, such that, as determined by
the Secretary, the following apply:
(i) Priority 1 represents species of
the highest priority, to be designated
as critically imperiled and in need of
immediate action.
(ii) Priority 2 represents species
with respect to which the best
scientific and commercial data
available support a clear decision
regarding the status of the species.
(iii) Priority 3 represents species
with respect to which studies regarding
the status of the species are being
carried out--
(I) to answer key questions
that may influence the findings
of a petition to list the
species submitted under
subsection (b)(3); and
(II) to resolve any
uncertainty regarding the
status of the species within a
reasonable timeframe.
(iv) Priority 4 represents species
for which proactive conservation
efforts likely to reduce the effects of
the factors described in subparagraphs
(A) through (E) of subsection (a)(1) on
the species are being developed or
carried out, within a reasonable
timeframe and in an organized manner,
by Federal agencies, States,
landowners, or other stakeholders.
(v) Priority 5 represents species--
(I) for which there exists
little information regarding--
(aa) the effects of
the factors described
in subparagraphs (A)
through (E) of
subsection (a)(1) on to
the species; or
(bb) the status of
the species; or
(II) that would receive
limited conservation benefit in
the foreseeable future by
listing the species as a
threatened species or
endangered species under this
section.
(B) Use of methodology.--The Secretary shall
establish and assign priority classifications
under subparagraph (A) in accordance with the
notice of the Director of the United States
Fish and Wildlife Service titled ``Methodology
for Prioritizing Status Reviews and
Accompanying 12-Month Findings on Petitions for
Listing Under the Endangered Species Act'' (81
Fed. Reg. 49248; published July 27, 2016), or
any successor document.
(C) Extensions for certain priority
classifications.--
(i) Priority 3.--With respect to a
species classified as Priority 3 under
subparagraph (A)(iii), if the Secretary
determines that additional time would
allow for more complete data collection
or the completion of studies relating
to the species, the Secretary may
retain the species under the work plan
for a period of not more than 5 years
after the deadline under paragraph (4).
(ii) Priority 4.--With respect to a
species classified as Priority 4 under
subparagraph (A)(iv), if the Secretary
determines that existing conservation
efforts continue to meet the
conservation needs of the species, the
Secretary may retain the species under
the work plan for a period of not more
than 5 years after the deadline under
paragraph (4).
(iii) Priority 5.--With respect to a
species classified as Priority 5 under
subparagraph (A)(v), the Secretary may
retain the species under the work plan
for a period of not more than 5 years
after the deadline under paragraph (4).
(D) Revision of priority classification.--The
Secretary may revise, in accordance with
subparagraph (A), the assignment to a priority
classification of a species included in a work
plan at any time.
(E) Effect of priority classification.--The
assignment of a priority classification to a
species included in a work plan is not a final
agency action.
(4) Deadline.--The Secretary shall act on any
petition to add a species to a list published under
subsection (c) submitted under subsection (b)(3) not
later than the last day of the fiscal year specified
for that petition in the most recent work plan.
(5) Regulations.--The Secretary may issue such
regulations as the Secretary determines appropriate to
carry out this subsection.
(6) Effect of subsection.--Nothing in this subsection
may be construed to preclude or otherwise affect the
emergency listing authority of the Secretary under
subsection (b)(7).
(7) Definitions.--In this subsection:
(A) Covered species.--The term ``covered
species'' means a species that is not included
on a list published under subsection (c)--
(i) for which a petition to add the
species to such a list has been
submitted under subsection (b)(3); or
(ii) that is otherwise under
consideration by the Secretary for
addition to such a list.
(B) Work plan.--The term ``work plan'' means
the national listing work plan submitted by the
Secretary under paragraph (1).
* * * * * * *
cooperation with the states
Sec. 6. (a) General.--(1) In carrying out the program
authorized by this Act, the Secretary shall cooperate to the
maximum extent practicable with the States. [Such cooperation
shall include]
(2) Such cooperation shall include--
(A) before making a determination under section 4(a),
providing to States affected by such determination all
data that is the basis of the determination; and
(B) consultation with the States concerned before
acquiring any land or water, or interest therein, for
the purpose of conserving any endangered species or
threatened species.
(b) Management Agreements.--The Secretary may enter into
agreements with any State for the administration and management
of any area established for the conservation of endangered
species or threatened species. Any revenues derived from the
administration of such areas under these agreements shall be
subject to the provisions of section 401 of the Act of June 15,
1935 (49 Stat. 383; 16 U.S.C. 715s).
(c)(1) Cooperative Agreements.--In furtherance of the
purposes of this Act, the Secretary is authorized to enter into
a cooperative agreement in accordance with this section with
any State which establishes and maintains an adequate and
active program for the conservation of endangered species and
threatened species. Within one hundred and twenty days after
the Secretary receives a certified copy of such a proposed
State program, he shall make a determination whether such
program is in accordance with this Act. Unless he determines,
pursuant to this paragraph, that the State program is not in
accordance with this Act, he shall enter into a cooperative
agreement with the State for the purpose of assisting in
implementation of the State program. In order for a State
program to be deemed an adequate and active program for the
conservation of endangered species and threatened species, the
Secretary must find, and annually thereafter reconfirm such
finding, that under the State program--
(A) authority resides in the State agency to conserve
resident species of fish or wildlife determined by the
State agency or the Secretary to be endangered or
threatened;
(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of fish
or wildlife in the State which are deemed by the
Secretary to be endangered or threatened, and has
furnished a copy of such plan and program together with
all pertinent details, information, and data requested
to the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and requirements
for survival of resident species of fish and wildlife;
(D) the State agency is authorized to establish
programs, including the acquisition of land or aquatic
habitat or interests therein, for the conservation of
resident endangered or threatened species of fish or
wildlife; and
(E) provision is made for public participation in
designating resident species of fish or wildlife as
endangered or threatened; or
that under the State program--
(i) the requirements set forth in subparagraphs (C),
(D), and (E) of this paragraph are complied with, and
(ii) plans are included under which immediate
attention will be given to those resident species of
fish and wildlife which are determined by the Secretary
or the State agency to be endangered or threatened and
which the Secretary and the State agency agree are most
urgently in need of conservation programs; except that
a cooperative agreement entered into with a State whose
program is deemed adequate and active pursuant to
clause (i) and this clause shall not affect the
applicability of prohibitions set forth in or
authorized pursuant to section 4(d) or section 9(a)(1)
with respect to the taking of any resident endangered
or threatened species.
(2) In furtherance of the purposes of this Act, the Secretary
is authorized to enter into a cooperative agreement in
accordance with this section with any State which establishes
and maintains an adequate and active program for the
conservation of endangered species and threatened species of
plants. Within one hundred and twenty days after the Secretary
receives a certified copy of such a proposed State program, he
shall make a determination whether such program is in
accordance with this Act. Unless he determines, pursuant to
this paragraph, that the State program is not in accordance
with this Act, he shall enter into a cooperative agreement with
the State for the purpose of assisting in implementation of the
State program. In order for a State program to be deemed an
adequate and active program for the conservation of endangered
species of plants and threatened species of plants, the
Secretary must find, and annually thereafter reconfirm such
findings, that under the State program--
(A) authority resides in the State agency to conserve
resident species of plants determined by the State
agency or the Secretary to be endangered or threatened;
(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of
plants in the State which are deemed by the Secretary
to be endangered or threatened, and has furnished a
copy of such plan and program together with all
pertinent details, information, and data requested to
the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and requirements
for survival of resident species of plants; and
(D) provision is made for public participation in
designating resident species of plants as endangered or
threatened; or that under the State program--
(i) the requirements set forth in
subparagraphs (C) and (D) of this paragraph are
complied with, and
(ii) plans are included under which immediate
attention will be given to those resident
species of plants which are determined by the
Secretary or the State agency to be endangered
or threatened and which the Secretary and the
State agency agree are most urgently in need of
conservation programs; except that a
cooperative agreement entered into with a State
whose program is deemed adequate and active
pursuant to clause (i) and this clause shall
not affect the applicability of prohibitions
set forth in or authorized pursuant to section
4(d) or section 9(a)(1) with respect to the
taking of any resident endangered or threatened
species.
(d) Allocation of Funds.--(1) The Secretary is authorized to
provide financial assistance to any State, through its
respective State agency, which has entered into a cooperative
agreement pursuant to subsection (c) of this section to assist
in development of programs for the conservation of endangered
and threatened species or to assist in monitoring the status of
candidate species pursuant to subparagraph (C) of section
4(b)(3) and recovered species pursuant to section 4(g). The
Secretary shall allocate each annual appropriation made in
accordance with the provisions of subsection (i) of this
section to such States based on consideration of--
(A) the international commitments of the United
States to protect endangered species or threatened
species;
(B) the readiness of a State to proceed with a
conservation program consistent with the objectives and
purposes of this Act;
(C) the number of endangered species and threatened
species within a State;
(D) the potential for restoring endangered species
and threatened species within a State;
(E) the relative urgency to initiate a program to
restore and protect an endangered species or threatened
species in terms of survival of the species;
(F) the importance of monitoring the status of
candidate species within a State to prevent a
significant risk to the well being of any such species;
and
(G) the importance of monitoring the status of
recovered species within a State to assure that such
species do not return to the point at which the
measures provided pursuant to this Act are again
necessary.
So much of the annual appropriation made in accordance with
provisions of subsection (i) of this section allocated for
obligation to any State for any fiscal year as remains
unobligated at the close thereof is authorized to be made
available to that State until the close of the succeeding
fiscal year. Any amount allocated to any State which is
unobligated at the end of the period during which it is
available for expenditure is authorized to be made available
for expenditure by the Secretary in conducting programs under
this section.
(2) Such cooperative agreements shall provide for (A) the
actions to be taken by the Secretary and the States; (B) the
benefits that are expected to be derived in connection with the
conservation of endangered or threatened species; (C) the
estimated cost of these actions; and (D) the share of such
costs to be bore by the Federal Government and by the States;
except that--
(i) the Federal share of such program costs shall not
exceed 75 percent of the estimated program cost stated
in the agreement; and
(ii) the Federal share may be increased to 90 percent
whenever two or more States having a common interest in
one or more endangered or threatened species, the
conservation of which may be enhanced by cooperation of
such States, enter jointly into agreement with the
Secretary.
The Secretary may, in his discretion, and under such rules and
regulations as he may prescribe, advance funds to the State for
financing the United States pro rata share agreed upon in the
cooperative agreement. For the purposes of this section, the
non-Federal share may, in the discretion of the Secretary, be
in the form of money or real property, the value of which will
be determined by the Secretary whose decision shall be final.
(e) Review of State Programs.--Any action taken by the
Secretary under this section shall be subject to his periodic
review at no greater than annual intervals.
(f) Conflicts Between Federal and State Laws.--Any State law
or regulation which applies with respect to the importation or
exportation of, or interstate or foreign commerce in,
endangered species or threatened species is void to the extent
that it may effectively (1) permit what is prohibited by this
Act or by any regulation which implements this Act, or (2)
prohibit what is authorized pursuant to an exemption or permit
provided for in this Act or in any regulation which implements
this Act. This Act shall not otherwise be construed to void any
State law or regulation which is intended to conserve
migratory, resident, or introduced fish or wildlife, or to
permit or prohibit sale of such fish or wildlife. Any State law
or regulation respecting the taking of an endangered species or
threatened species may be more restrictive than the exemptions
or permits provided for in this Act or in any regulation which
implements this Act but not less restrictive than the
prohibitions so defined.
(g) Transition.--(1) For purposes of this subsection, the
term ``establishment period'' means, with respect to any State,
the period beginning on the date of enactment of this Act and
ending on whichever of the following dates first occurs: (A)
the date of the close of the 120-day period following the
adjournment of the first regular session of the legislature of
such State which commences after such date of enactment, or (B)
the date of the close of the 15-month period following such
date of enactment.
(2) The prohibitions set forth in or authorized pursuant to
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with
respect to the taking of any resident endangered species or
threatened species (other than species listed in Appendix I to
the Convention or otherwise specifically covered by any other
treaty or Federal law) within any State--
(A) which is then a party to a cooperative agreement
with the Secretary pursuant to section 6(c) of this Act
(except to the extent that the taking of any such
species is contrary to the law of such State); or
(B) except for any time within the establishment
period when--
(i) the Secretary applies such prohibition to
such species at the request of the State, or
(ii) the Secretary applies such prohibition
after he finds, and publishes his finding, that
an emergency exists posing a significant risk
to the well-being of such species and that the
prohibition must be applied to protect such
species. The Secretary's finding and
publication may be made without regard to the
public hearing or comment provisions of section
553 of title 5, United States Code, or any
other provision of this Act; but such
prohibition shall expire 90 days after the date
of its imposition unless the Secretary further
extends such prohibition by publishing notice
and a statement of justification of such
extension.
(h) Regulations.--The Secretary is authorized to promulgate
such regulations as may be appropriate to carry out the
provisions of this section relating to financial assistance to
States.
(i) Appropriations.--(1) To carry out the provisions of this
section for fiscal years after September 30, 1988, there shall
be deposited into a special fund known as the cooperative
endangered species conservation fund, to be administered by the
Secretary, an amount equal to five percent of the combined
amounts covered each fiscal year into the Federal aid to
wildlife restoration fund under section 3 of the Act of
September 2, 1937, and paid, transferred, or otherwise credited
each fiscal year to the Sport Fishing Restoration Account
established under 1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are authorized to
be appropriated annually and allocated in accordance with
subsection (d) of this section.
interagency cooperation
Sec. 7. (a) Federal Agency Actions and Consultations.--(1)
The Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of
this Act. All other Federal agencies shall, in consultation
with and with the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of this Act by
carrying out programs for the conservation of endangered
species and threatened species listed pursuant to section 4 of
this Act.
(2) Each Federal agency shall, in consultation with and with
the assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency (hereinafter
in this section referred to as an ``agency action'') is not
likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or
adverse modification of habitat of such species which is
determined by the Secretary, after consultation as appropriate
with affected States, to be critical, unless such agency has
been granted an exemption for such action by the Committee
pursuant to subsection (h) of this section. In fulfilling the
requirements of this paragraph each agency shall use the best
scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may
establish, a Federal agency shall consult with the Secretary on
any prospective agency action at the request of, and in
cooperation with, the prospective permit or license applicant
if the applicant has reason to believe that an endangered
species or a threatened species may be present in the area
affected by his project and that implementation of such action
will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on
any agency action which is likely to jeopardize the continued
existence of any species proposed to be listed under section 4
or result in the destruction or adverse modification of
critical habitat proposed to be designated for such species.
This paragraph does not require a limitation on the commitment
of resources as described in subsection (d).
(5)(A) In carrying out a consultation under paragraph (2) or
a conference under paragraph (4), the Secretary--
(i) except as provided in clause (ii), may only
consider the effects of the action that is the subject
of such consultation or conference that the Secretary
determines, based on clear and substantial information,
using the best scientific and commercial data
available, and in accordance with subparagraphs (B) and
(C), respectively, are caused by the action itself and
are reasonably certain to occur; and
(ii) shall consider as a beneficial effect of the
action that is the subject of such consultation or
conference any avoidance, minimization, or mitigation
measure proposed by the applicable Federal agency or
the applicant, if any.
(B) In determining whether an effect of an action described
in subparagraph (A)(i) is caused by the action itself, the
Secretary shall consider whether--
(i) the effect is so remote in time from the action
under consultation that it is not reasonably certain to
occur;
(ii) the effect is so geographically remote from the
immediate area involved in the action that it is not
reasonably certain to occur;
(iii) the effect is only reached through a lengthy
causal chain such that the effect not reasonably
certain to occur;
(iv) the applicable Federal agency does not have the
ability to prevent the effect due to its limited
statutory authority; or
(v) would occur regardless of whether the action is
carried out.
(C) In determining whether an effect of an action described
in subparagraph (A)(i) is reasonably certain to occur, the
Secretary shall consider factors including the following:
(i) Experiences with other such actions that are
similar in scope, nature, and magnitude to the
applicable such action.
(ii) Plans for such action.
(iii) Any economic, administrative, or legal
requirement necessary for the action to be carried out
that has not been fulfilled.
(iv) Whether the effect has been observed previously
and to what extent.
(D) In carrying out a consultation under paragraph (2) or a
conference under paragraph (4), the Secretary may not consider
an effect of the action that is the subject of such
consultation or conference for which there is not clear and
substantial information for the Secretary to base a
determination on under subparagraph (A)(i) that the effect of
the action is reasonably certain to occur.
(E) In this paragraph, the terms ``effect of the action'' and
``effects of the action'' mean a consequence or all
consequences, respectively, to listed species or critical
habitat that is or are caused by the proposed action.
(b) Opinion of Secretary.--(1)(A) Consultation under
subsection (a)(2) with respect to any agency action shall be
concluded within the 90-day period beginning on the date on
which initiated or, subject to subparagraph (B), within such
other period of time as is mutually agreeable to the Secretary
and the Federal agency.
(B) In the case of an agency action involving a permit or
license applicant, the Secretary and the Federal agency may not
mutually agree to conclude consultation within a period
exceeding 90 days unless the Secretary, before the close of the
90th day referred to in subparagraph (A)--
(i) if the consultation period proposed to be agreed
to will end before the 150th day after the date on
which consultation was initiated, submits to the
applicant a written statement setting forth--
(I) the reasons why a longer period is
required;
(II) the information that is required to
complete the consultation; and
(III) the estimated date on which
consultation will be completed; or
(ii) if the consultation period proposed to be agreed
to will end 150 or more days after the date on which
consultation was initiated, obtains the consent of the
applicant to such period.
The Secretary and the Federal agency may mutually agree to
extend a consultation period established under the preceding
sentence if the Secretary, before the close of such period,
obtains the consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded
within such period as is agreeable to the Secretary, the
Federal agency, and the applicant concerned.
(3)[(A) Promptly after conclusion of consultation under
paragraph (2) or (3) of subsection (a), the Secretary shall
provide to the Federal agency and the applicant, if any, a
written statement setting forth the Secretary's opinion, and a
summary of the information on which the opinion is based,
detailing how the agency action affects the species or its
critical habitat. If jeopardy or adverse modification is found,
the Secretary shall suggest those reasonable and prudent
alternatives which he believes would not violate subsection
(a)(2) and can be taken by the Federal agency or applicant in
implementing the agency action.]
(A)(i) Promptly after conclusion of consultation under
paragraph (2) or (3) of subsection (a), the Secretary shall
provide to the Federal agency and the applicant, if any, a
written statement setting forth the Secretary's opinion, and a
summary of the information on which the opinion is based,
detailing how the agency action affects the species or its
critical habitat within the area directly affected by the
agency action, which such area may not be speculative or remote
in time or distance from the agency action. In so doing, the
Secretary shall differentiate the effects of the agency action
from the environmental baseline.
(ii) If jeopardy or adverse modification is found, the
Secretary, in cooperation and consultation with the Federal
agency and applicant, if any, shall consider a range of
reasonable and prudent alternatives and suggest from among that
range those reasonable and prudent alternatives which the
Secretary believes--
(I) would not violate subsection (a)(2);
(II) can be taken by the Federal agency or applicant,
if any, in implementing the agency action;
(III) are economically and technologically feasible
for the Federal agency and applicant, if any, to
implement; and
(IV) impose the fewest economic and other relevant
costs for the applicant, if any.
(B) Consultation under subsection (a)(3), and an opinion
based by the Secretary incident to such consultation, regarding
an agency action shall be treated respectively as a
consultation under subsection (a)(2), and as an opinion issued
after consultation under such subsection, regarding that action
if the Secretary reviews the action before it is commenced by
the Federal agency and finds, and notifies such agency, that no
significant changes have been made with respect to the action
and that no significant change has occurred regarding the
information used during the initial consultation.
(4) If after consultation under subsection (a)(2) of this
section, the Secretary concludes that--
(A) the agency action will not violate such
subsection, or offers reasonable and prudent
alternatives which the Secretary believes would not
violate such subsection; and
(B) the taking of an endangered species or a
threatened species incidental to the agency action will
not violate such subsection; [and]
[(C) if an endangered species or threatened species
of a marine mammal is involved, the taking is
authorized pursuant to section 101(a)(5) of the Marine
Mammal Protection Act of 1972;]
the Secretary shall provide the Federal agency and the
applicant concerned, if any, with a written statement that--
(i) specifies the impact of such incidental [taking
on the species,] taking on the species, including, as
necessary, through the use of a substitute used to
represent a listed species, habitat, or an ecological
function to express the amount or extent of such
incidental taking;
(ii) specifies those reasonable and prudent measures
that the Secretary considers necessary or appropriate
to [minimize such impact,] minimize such impact and
that do not propose, recommend, or require the Federal
agency or the applicant concerned, if any, to mitigate
or offset such impact; and
[(iii) in the case of marine mammals, specifies those
measures that are necessary to comply with section
101(a)(5) of the Marine Mammal Protection Act of 1972
with regard to such taking, and]
[(iv)] (iii) sets forth the terms and conditions
(including, but not limited to, reporting requirements)
that must be complied with by the Federal agency or
applicant (if any), or both, to implement the [measures
specified under clauses (ii) and (iii)] measures
specified under clause (ii).
(5)(A) With respect to an ongoing agency action for which the
applicable Federal agency has adopted a reasonable and prudent
alternative or a reasonable and prudent measure to comply with
subsection (a)(2), in any subsequent consultation for the
agency action that occurs 10 years or more after the date on
which the initial consultation for the agency action was
completed, the Secretary shall determine whether continuing to
implement the reasonable and prudent alternative or reasonable
and prudent measure will materially increase the likelihood of
and reduce the time for recovery of the applicable threatened
species or endangered species.
(B) If the Secretary determines under subparagraph (A) that
continued implementation of the reasonable and prudent
alternative or reasonable and prudent measure will not
materially increase the likelihood of and shorten the time for
the recovery of the applicable threatened species or endangered
species, the Federal agency shall discontinue implementation of
the reasonable and prudent alternative or reasonable and
prudent measure notwithstanding subsection (a)(2).
(c) Biological Assessment.--(1) To facilitate compliance with
the requirements of subsection (a)(2) each Federal agency
shall, with respect to any agency action of such agency for
which no contract for construction has been entered into and
for which no construction has begun on the date of enactment of
the Endangered Species Act Amendments of 1978, request of the
Secretary information whether any species which is listed or
proposed to be listed may be present in the area of such
proposed action. If the Secretary advises, based on the best
scientific and commercial data available, that such species may
be present, such agency shall conduct a biological assessment
for the purpose of identifying any endangered species or
threatened species which is likely to be affected by such
action. Such assessment shall be completed within 180 days
after the date on which initiated (or within such other period
as in mutually agreed to by the Secretary and such agency,
except that if a permit or license applicant is involved, the
180-day period may not be extended unless such agency provides
the applicant, before the close of such period, with a written
statement setting forth the estimated length of the proposed
extension and the reasons therefor) and, before any contract
for construction is entered into and before construction is
begun with respect to such action. Such assessment may be
undertaken as part of a Federal agency's compliance with the
requirements of section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an exemption under
subsection (g) of this section for that action may conduct a
biological assessment to identify any endangered species or
threatened species which is likely to be affected by such
action. Any such biological assessment must, however, be
conducted in cooperation with the Secretary and under the
supervision of the appropriate Federal agency.
(d) Limitation on Commitment of Resources.--After initiation
of consultation required under subsection (a)(2), the Federal
agency and the permit or license applicant shall not make any
irreversible or irretrievable commitment of resources with
respect to the agency action which has the effect of
foreclosing the formulation or implementation of any reasonable
and prudent alternative measures which would not violate
subsection (a)(2).
(e)(1) Establishment of Committee.--There is established a
committee to be known as the Endangered Species Committee
(hereinafter in this section referred to as the ``Committee'').
(2) The Committee shall review any application submitted to
it pursuant to this section and determine in accordance with
subsection (h) of this section whether or not to grant an
exemption from the requirements of subsection (a)(2) of this
action for the action set forth in such application.
(3) The Committee shall be composed of seven members as
follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection
Agency. Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and
Atmospheric Administration.
(G) The President, after consideration of any
recommendations received pursuant to subsection
(g)(2)(B) shall appoint one individual from each
affected State, as determined by the Secretary, to be a
member of the Committee for the consideration of the
application for exemption for an agency action with
respect to which such recommendations are made, not
later than 30 days after an application is submitted
pursuant to this section.
(4)(A) Members of the Committee shall receive no additional
pay on account of their service on the Committee.
(B) While away from their homes or regular places of business
in the performance of services for the Committee, members of
the Committee shall be allowed travel expenses, including per
diem in lieu of subsistence, in the same manner as persons
employed intermittently in the Government service are allowed
expenses under section 5703 of title 5 of the United States
Code
(5)(A) Five members of the Committee or their representatives
shall constitute a quorum for the transaction of any function
of the Committee, except that, in no case shall any
representative be considered in determining the existence of a
quorum for the transaction of any function of the Committee if
that function involves a vote by the Committee on any matter
before the Committee.
(B) The Secretary of the Interior shall be the Chairman of
the Committee.
(C) The Committee shall meet at the call of the Chairman or
five of its members.
(D) All meetings and records of the Committee shall be open
to the public.
(6) Upon request of the Committee, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Committee to assist it
in carrying out its duties under this section.
(7)(A) The Committee may for the purpose of carrying out its
duties under this section hold such hearings, sit and act at
such times and places, take such testimony, and receive such
evidence, as the Committee deems advisable.
(B) When so authorized by the Committee, any member or agent
of the Committee may take any action which the Committee is
authorized to take by this paragraph.
(C) Subject to the Privacy Act, the Committee may secure
directly from any Federal agency information necessary to
enable it to carry out its duties under this section. Upon
request of the Chairman of the Committee, the head of such
Federal agency shall furnish such information to the Committee.
(D) The Committee may use the United States mails in the same
manner and upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to
the Committee on a reimbursable basis such administrative
support services as the Committee may request.
(8) In carrying out its duties under this section, the
Committee may promulgate and amend such rules, regulations, and
procedures, and issue and amend such orders as it deems
necessary.
(9) For the purpose of obtaining information necessary for
the consideration of an application for an exemption under this
section the Committee may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant
papers, books, and documents.
(10) In no case shall any representative, including a
representative of a member designated pursuant to paragraph
(3)(G) of this subsection, be eligible to cast a vote on behalf
of any member.
(f) Regulations.--Not later than 90 days after the date of
enactment of the Endangered Species Act Amendments of 1978, the
Secretary shall promulgate regulations which set forth the form
and manner in which applications for exemption shall be
submitted to the Secretary and the information to be contained
in such applications. Such regulations shall require that
information submitted in an application by the head of any
Federal agency with respect to any agency action include but
not be limited to--
(1) a description of the consultation process carried
out pursuant to subsection (a)(2) of this section
between the head of the Federal agency and the
Secretary; and
(2) a statement describing why such action cannot be
altered or modified to conform with the requirements of
subsection (a)(2) of this section.
(g) Application for Exemption and Report to the Committee.--
[(1) A Federal agency, the Governor of the State in which an
agency action will occur, if any, or a permit or license
applicant may apply to the Secretary for an exemption for an
agency action of such agency if, after consultation under
subsection (a)(2), the Secretary's opinion under subsection (b)
indicates that the agency action would violate subsection
(a)(2). An application for an exemption shall be considered
initially by the Secretary in the manner provided for in this
subsection, and shall be considered by the Committee for a
final determination under subsection (h) after a report is made
pursuant to paragraph (5). The applicant for an exemption shall
be referred to as the ``exemption applicant'' in this section.]
(1)(A) A Federal agency, the Governor of the State in which
an agency action will occur, if any, or a permit or license
applicant may apply to the Secretary for an exemption for an
agency action of such agency if, after consultation under
subsection (a)(2), the Secretary's opinion under subsection (b)
indicates that--
(i) the agency action would violate subsection
(a)(2); or
(ii) a reasonable and prudent alternative necessary
for the agency action to comply with subsection (a)(2)
may--
(I) impair national security; or
(II) result in significant adverse national
or regional economic impacts.
(B) An application for an exemption shall be considered
initially by the Secretary in the manner provided for in this
subsection, and shall be considered by the Committee for a
final determination under subsection (h) after a report is made
pursuant to paragraph (5).
(C) The applicant for an exemption shall be referred to as
the ``exemption applicant'' in this section.
(2)(A) An exemption applicant shall submit a written
application to the Secretary, in a form prescribed under
subsection (f), not later than 90 days after the completion of
the consultation process; except that, in the case of any
agency action involving a permit or license applicant, such
application shall be submitted not later than 90 days after the
date on which the Federal agency concerned takes final agency
action with respect to the issuance of the permit or license.
For purposes of the preceding sentence, the term ``final agency
action'' means (i) a disposition by an agency with respect to
the issuance of a permit or license that is subject to
administrative review, whether or not such disposition is
subject to judicial review; or (ii) if administrative review is
sought with respect to such disposition, the decision resulting
after such review. Such application shall set forth the reasons
why the exemption applicant considers that the agency action
meets the requirements for an exemption under this subsection.
(B) Upon receipt of an application for exemption for an
agency action under paragraph (1), the Secretary shall promptly
(i) notify the Governor of each affected State, if any, as
determined by the Secretary, and request the Governors so
notified to recommend individuals to be appointed to the
Endangered Species Committee for consideration of such
application; and (ii) publish notice of receipt of the
application in the Federal Register, including a summary of the
information contained in the application and a description of
the agency action with respect to which the application for
exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of
an application for exemption, or within such other period of
time as is mutually agreeable to the exemption applicant and
the Secretary--
[(A) determine that the Federal agency concerned and
the exemption applicant have--
[(i) carried out the consultation
responsibilities described in subsection (a) in
good faith and made a reasonable and
responsible effort to develop and fairly
consider modifications or reasonable and
prudent alternatives to the proposed agency
action which would not violate subsection
(a)(2);
[(ii) conducted any biological assessment
required by subsection (c); and
[(iii) to the extent determinable within the
time provided herein, refrained from making any
irreversible or irretrievable commitment of
resources prohibited by subsection (d); or]
(A) determine--
(i) that the Federal agency concerned and the
exemption applicant have--
(I) carried out the consultation
responsibilities described in
subsection (a) in good faith and made a
reasonable and responsible effort to
develop and fairly consider reasonable
and prudent alternatives to the
proposed agency action which would not
violate subsection (a)(2);
(II) conducted any biological
assessment required by subsection (c);
and
(III) to the extent determinable
within the time provided herein,
refrained from making any irreversible
or irretrievable commitment of
resources prohibited by subsection (d);
and
(ii) if the exemption applicant submitted to
the Secretary the application for exemption
pursuant to paragraph (1)(A)(ii), whether a
reasonable and prudent alternative necessary
for the proposed agency action to comply with
subsection (a)(2) may--
(I) impair national security; or
(II) result in significant adverse
national or regional economic impacts;
or
(B) deny the application for exemption because the
Federal agency concerned or the exemption applicant
have not met the requirements set forth in subparagraph
(A)[(i), (ii), and (iii)].
The denial of an application under subparagraph (B) shall be
considered final agency action for purposes of chapter 7 of
title 5, United States Code.
(4) If the Secretary determines that the Federal agency
concerned and the exemption applicant have met the requirements
set forth in paragraph (3)(A) [(i), (ii) and (iii)] he shall,
in consultation with the Members of the Committee, hold a
hearing on the application for exemption in accordance with
sections 554, 555, and 556 (other than subsection (b) (1) and
(2) thereof) of title 5, United States Code, and prepare the
report to be submitted pursuant to paragraph (5).
(5) Within 140 days after making the determinations under
paragraph (3) or within such other period of time as is
mutually agreeable to the exemption applicant and the
Secretary, the Secretary shall submit to the Committee a report
discussing--
(A) the availability and reasonable and prudent
alternatives to the agency action, and the nature and
extent of the benefits of the agency action and of
alternative courses of action consistent with
conserving the species or the critical habitat;
(B) if the exemption applicant submitted to the
Secretary the application for exemption pursuant to
paragraph (1)(A)(ii), after consultation with the
National Security Council regarding potential impacts
to national security and the Director of the National
Economic Council regarding potential significant
adverse national and regional economic impacts, any
impairment to national security or significant adverse
national or regional economic impacts that would result
from a reasonable and prudent alternative necessary for
the agency action to comply with subsection (a)(2),
including a description of the analysis and conclusions
produced by the National Security Council and the
Director of the National Economic Council as a result
of each such consultation;
[(B)] (C) a summary of the evidence concerning
whether or not the agency action is in the public
interest and is of national or regional significance;
[(C)] (D) appropriate reasonable mitigation and
enhancement measures which should be considered by the
Committee; and
[(D)] (E) whether the Federal agency concerned and
the exemption applicant refrained from making any
irreversible or irretrievable commitment of resources
prohibited by subsection (d).
(6) To the extent practicable within the time required for
action under subsection (g) of this section, and except to the
extent inconsistent with the requirements of this section, the
consideration of any application for an exemption under this
section and the conduct of any hearing under this subsection
shall be in accordance with sections 554, 555, and 556 (other
than subsection (b)(3) of section 556) of title 5, United
States Code.
(7) Upon request of the Secretary, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Secretary to assist him
in carrying out his duties under this section.
(8) All meetings and records resulting from activities
pursuant to this subsection shall be open to the public.
(h) Exemption.--(1) The Committee shall make a final
determination whether or not to grant an exemption within 30
days after receiving the report of the Secretary pursuant to
subsection (g)(5). The Committee shall grant an exemption from
the requirements of subsection (a)(2) for an agency action if,
by a vote of not less than five of its members voting in
person--
(A) it determines on the record, based on the report
of the Secretary, the record of the hearing held under
subsection (g)(4), and on such other testimony or
evidence as it may receive, that--
[(i) there are no reasonable and prudent
alternatives to the agency action;]
(i)(I) there are no reasonable and prudent
alternatives to the agency action; or
(II) with respect to an agency action the
application for exemption of which was
submitted to the Secretary pursuant to
subsection (g)(1)(A)(ii), a reasonable and
prudent alternative necessary for the agency
action to comply with subsection (a)(2) may--
(aa) impair national security; or
(bb) result in significant adverse
national or regional economic impacts;
(ii) the benefits of such action clearly
outweigh the benefits of alternative courses of
action consistent with conserving the species
or its critical habitat, and such action is in
the public interest;
(iii) the action is of regional or national
significance; and
(iv) neither the Federal agency concerned nor
the exemption applicant made any irreversible
or irretrievable commitment of resources
prohibited by subsection (d); and
(B) it establishes such reasonable mitigation and
enhancement measures, including, but not limited to,
live propagation, transplantation, and habitat
acquisition and improvement, as are necessary and
appropriate to minimize the adverse effects of the
agency action upon the endangered species, threatened
species, or critical habitat concerned.
Any final determination by Committee under this subsection
shall be considered final agency action for purposes of chapter
7 of title 5 of the United States Code.
(2)(A) Except as provided in subparagraph (B), an exemption
for an agency action granted under paragraph (1) shall
constitute a permanent exemption with respect to all endangered
or threatened species for the purposes of completing such
agency action--
(i) regardless whether the species was identified in
the biological assessment; and
(ii) only if a biological assessment has been
conducted under subsection (c) with respect to such
agency action.
(B) An exemption shall be permanent under subparagraph (A)
unless--
(i) the Secretary finds, based on the best scientific
and commercial data available, that such exemption
would result in the extinction of a species that was
not the subject of consultation under subsection (a)(2)
or was not identified in any biological assessment
conducted under subsection (c), and
(ii) the Committee determines within 60 days after
the date of the Secretary's finding that the exemption
should not be permanent.
If the Secretary makes a finding described in clause (i), the
Committee shall meet with respect to the matter within 30 days
after the date of the finding.
(i) Review by Secretary of State.--Notwithstanding any other
provision of this Act, the Committee shall be prohibited from
considering for exemption any application made to it, if the
Secretary of State, after a review of the proposed agency
action and its potential implications, and after hearing,
certifies, in writing, to the Committee within 60 days of any
application made under this section that the granting of any
such exemption and the carrying out of such action would be in
violation of an international treaty obligation or other
international obligation of the United States. The Secretary of
State shall, at the time of such certification, publish a copy
thereof in the Federal Register.
(j) Notwithstanding any other provision of this Act, the
Committee shall grant an exemption for any agency action if the
Secretary of Defense finds that such exemption is necessary for
reasons of national security.
(k) Special Provisions.--An exemption decision by the
Committee under this section shall not be a major Federal
action for purposes of the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental
impact statement which discusses the impacts upon endangered
species or threatened species or their critical habitats shall
have been previously prepared with respect to any agency action
exempted by such order.
(l) Committee Orders.--(1) If the Committee determines under
subsection (h) that an exemption should be granted with respect
to any agency action, the Committee shall issue an order
granting the exemption and specifying the mitigation and
enhancement measures established pursuant to subsection (h)
which shall be carried out and paid for by the exemption
applicant in implementing the agency action. All necessary
mitigation and enhancement measures shall be authorized prior
to the implementing of the agency action and funded
concurrently with all other project features.
(2) The applicant receiving such exemption shall include the
costs of such mitigation and enhancement measures within the
overall costs of continuing the proposed action.
Notwithstanding the preceding sentence the costs of such
measures shall not be treated as project costs for the purpose
of computing benefit-cost or other ratios for the proposed
action. Any applicant may request the Secretary to carry out
such mitigation and enhancement measures. The costs incurred by
the Secretary in carrying out any such measures shall be paid
by the applicant receiving the exemption. No later than one
year after the granting of an exemption, the exemption
applicant shall submit to the Council on Environmental Quality
a report describing its compliance with the mitigation and
enhancement measures prescribed by this section. Such report
shall be submitted annually until all such mitigation and
enhancement measures have been completed. Notice of the public
availability of such reports shall be published in the Federal
Register by the Council on Environmental Quality.
(m) Notice.--The 60-day notice requirement of section 11(g)
of this Act shall not apply with respect to review of any final
determination of the Committee under subsection (h) of this
section granting an exemption from the requirements of
subsection (a)(2) of this section.
(n) Judicial Review.--[Any person, as defined by section
3(13) of this Act,] (1) Any person may obtain judicial review,
under chapter 7 of title 5 of the United States Code, of any
decision of the Endangered Species Committee under subsection
(h) in the United States Court of Appeals for [(1)] (A) any
circuit wherein the agency action concerned will be, or is
being, carried out, or [(2)] (B) in any case in which the
agency action will be, or is being, carried out outside of any
circuit, the District of Columbia, by filing in such court
within 90 days after the date of issuance of the decision, a
written petition for review. A copy of such petition shall be
transmitted by the clerk of the court to the Committee and the
Committee shall file in the court the record in the proceeding,
as provided in section 2112, of title 28, United States Code.
Attorneys designated by the Endangered Species Committee may
appear for, and represent the Committee in any action for
review under this subsection.
(2) Any person may obtain judicial review, under chapter 7 of
title 5 of the United States Code, of any opinion issued by the
Secretary under subsection (b) of this section in the United
States Court of Appeals for the District of Columbia by filing
in such court not later than 150 days after the date on which
the opinion is issued a written petition for review.
(o) Exemption as Providing Exception on Taking of Endangered
Species.--Notwithstanding sections 4(d) and 9(a)(1)(B) and (C)
of this Act, sections 101 and 102 of the Marine Mammal
Protection Act of 1972, or any regulation promulgated to
implement any such section--
(1) any action for which an exemption is granted
under subsection (h) of this section shall not be
considered to be a taking of any endangered species or
threatened species with respect to any activity which
is necessary to carry out such action; and
(2) any taking that is in compliance with the terms
and conditions specified in a written statement
provided under subsection (b)(4)(iv) of this section
shall not be considered to be a prohibited taking of
the species concerned.
(p) Exemptions in Presidentially Declared Disaster Areas.--In
any area which has been declared by the President to be a major
disaster area under the Disaster Relief and Emergency
Assistance Act, the President is authorized to make the
determinations required by subsections (g) and (h) of this
section for any project for the repair or replacement of a
public facility substantially as it existed prior to the
disaster under section 405 or 406 of the Disaster Relief and
Emergency Assistance Act, and which the President determines
(1) is necessary to prevent the recurrence of such a natural
disaster and to reduce the potential loss of human life, and
(2) to involve an emergency situation which does not allow the
ordinary procedures of this section to be followed.
Notwithstanding any other provision of this section, the
Committee shall accept the determinations of the President
under this subsection.
(q) Environmental Baseline Defined.--In this section, the
term ``environmental baseline''--
(1) means the condition of the species or the
critical habitat of the species in the area directly
affected by the agency action at the time of the
proposed agency action, without the consequences to the
species or the critical habitat of the species caused
by the proposed action; and
(2) includes--
(A) the past and present effects of all
Federal, State, local, and private actions and
other human activities in the area directly
affected by the agency action;
(B) the anticipated effects of each proposed
Federal project within the area directly
affected by the agency action for which a
consultation under this section has been
completed;
(C) the effects of State and private actions
that are contemporaneous with the consultation
in process;
(D) existing structures and facilities and
the past, present, and future effects of the
physical existence of such structures and
facilities on the species or the critical
habitat of the species; and
(E) the effects of Federal actions being
carried out at the time of the proposed agency
action and existing Federal facilities that are
not within the discretion of the Secretary to
modify.
* * * * * * *
prohibited acts
Sec. 9. (a) General.--(1) Except as provided in sections
6(g)(2) and 10 of this Act, with respect to any endangered
species of fish or wildlife listed pursuant to section 4 of
this Act it is unlawful for any person subject to the
jurisdiction of the United States to--
(A) import any such species into, or export any such
species from the United States;
(B) take any such species within the United States or
the territorial sea of the United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or
ship, by any means whatsoever, any such species taken
in violation of subparagraphs (B) and (C);
(E) deliver, receive, carry, transport, or ship in
interstate or foreign commerce, by any means whatsoever
and in the course of a commercial activity, any such
species;
(F) sell or offer for sale in interstate or foreign
commerce any such species; or
(G) violate any regulation pertaining to such species
or to any threatened species of fish or wildlife listed
pursuant to section 4 of this Act and promulgated by
the Secretary pursuant to authority provided by this
Act.
(2) Except as provided in sections 6(g)(2) and 10 of this
Act, with respect to any endangered species of plants listed
pursuant to section 4 of this Act, it is unlawful for any
person subject to the jurisdiction of the United States to--
(A) import any such species into, or export any such
species from, the United States;
(B) remove and reduce to possession any such species
from areas under Federal jurisdiction; maliciously
damage or destroy any such species on any such area; or
remove, cut, dig up, or damage or destroy any such
species on any other area in knowing violation of any
law or regulation of any state or in the course of any
violation of a state criminal trespass law;
(C) deliver, receive, carry, transport, or ship in
interstate or foreign commerce, by any means whatsoever
and in the course of a commercial activity, any such
species;
(D) sell or offer for sale in interstate or foreign
commerce any such species; or
(E) violate any regulation pertaining to such species
or to any threatened species of plants listed pursuant
to section 4 of this Act and promulgated by the
Secretary pursuant to authority provided by this Act.
(b)(1) Species Held in Captivity or Controlled Environment.--
The provisions of subsections (a)(1)(A) and (a)(1)(G) of this
section shall not apply to any fish or wildlife which was held
in captivity or in a controlled environment on (A) December 28,
1973, or (B) the date of the publication in the Federal
Register of a final regulation adding such fish or wildlife
species to any list published pursuant to subsection (c) of
section 4 of this Act: Provided, That such holding and any
subsequent holding or use of the fish or wildlife was not in
the course of a commercial activity. With respect to any act
prohibited by subsections (a)(1)(A) and (a)(1)(G) of this
section which occurs after a period of 180 days from (i)
December 28, 1973, or (ii) the date of publication in the
Federal Register of a final regulation adding such fish or
wildlife species to any list published pursuant to subsection
(c) of section 4 of this Act, there shall be a rebuttable
presumption that the fish or wildlife involved in such act is
not entitled to the exemption contained in this subsection.
(2)(A) The provisions of subsections (a)(1) shall not apply
to--
(i) any raptor legally held in captivity or in a
controlled environment on the effective date of the
Endangered Species Act Amendments of 1978; or
(ii) any progeny of any raptor described in clause
(i);
until such time as any such raptor or progeny is intentionally
returned to a wild state.
(B) Any person holding any raptor or progeny described in
subparagraph (A) must be able to demonstrate that the raptor or
progeny does, in fact, qualify under the provisions of this
paragraph, and shall maintain and submit to the Secretary, on
request, such inventories, documentation, and records as the
Secretary may by regulation require as being reasonably
appropriate to carry out the purposes of this paragraph. Such
requirements shall not unnecessarily duplicate the requirements
of other rules and regulations promulgated by the Secretary.
(c) Violation of Convention.--(1) It is unlawful for any
person subject to the jurisdiction of the United States to
engage in any trade in any specimens contrary to the provisions
of the Convention, or to possess any specimens traded contrary
to the provisions of the Convention, including the definitions
of terms in article I thereof.
[(2) Any importation into the United States of fish or
wildlife shall, if--
[(A) such fish or wildlife is not an endangered
species listed pursuant to section 4 of this Act but is
listed in Appendix II of the Convention;
[(B) the taking and exportation of such fish or
wildlife is not contrary to the provisions of the
Convention and all other applicable requirements of the
Convention have been satisfied;
[(C) the applicable requirements of subsection (d),
(e), and (f) of this section have been satisfied; and
[(D) such importation is not made in the course of a
commercial activity;
be presumed to be an importation not in violation of any
provision of this Act or any regulation issued pursuant to this
Act.]
(2) An export from or import into the United States of fish
or wildlife listed as a threatened species or an endangered
species pursuant to section 4 is lawful under this Act and not
subject to permit requirements or other regulations issued by
the Secretary with respect to exportation and importation
pursuant to this Act if--
(A) such fish or wildlife--
(i) is a species that is not native to the
United States; and
(ii) is listed in Appendix I or II of the
Convention; and
(B) with respect to the export or import, each
applicable requirement--
(i) of the Convention is satisfied; and
(ii) of subsections (d), (e), and (f) is
satisfied.
(d) Imports and Exports.--
(1) In general.--It is unlawful for any person,
without first having obtained permission from the
Secretary, to engage in business--
(A) as an importer or exporter of fish or
wildlife (other than shellfish and fishery
products which (i) are not listed pursuant to
section 4 of this Act as endangered species or
threatened species, and (ii) are imported for
purposes of human or animal consumption or
taken in waters under the jurisdiction of the
United States or on the high seas for
recreational purposes) or plants; or
(B) as an importer or exporter of any amount
of raw or worked African elephant ivory.
(2) Requirements.--Any person required to obtain
permission under paragraph (1) of this subsection
shall--
(A) keep such records as will fully and
correctly disclose each importation or
exportation of fish, wildlife, plants, or
African elephant ivory made by him and the
subsequent disposition, made by him with
respect to such fish, wildlife, plants, or
ivory;
(B) at all reasonable times upon notice by a
duly authorized representative of the
Secretary, afford such representative access to
his place of business, an opportunity to
examine his inventory of imported fish,
wildlife, plants, or African elephant ivory and
the records required to be kept under
subparagraph (A) of this paragraph, and to copy
such records; and
(C) file such reports as the Secretary may
require.
(3) Regulations.--The Secretary shall prescribe such
regulations as are necessary and appropriate to carry
out the purposes of this subsection.
(4) Restriction on consideration of value of amount
of african elephant ivory imported or exported.--In
granting permission under this subsection for
importation or exportation of African elephant ivory,
the Secretary shall not vary the requirements for
obtaining such permission on the basis of the value or
amount of ivory imported or exported under such
permission.
(e) Reports.--It is unlawful for any person importing or
exporting fish or wildlife (other than shellfish and fishery
products which (1) are not listed pursuant to section 4 of this
Act as endangered or threatened species, and (2) are imported
for purposes of human or animal consumption or taken in waters
under the jurisdiction of the United States or on the high seas
for recreational purposes) or plants to fail to file any
declaration or report as the Secretary deems necessary to
facilitate enforcement of this Act or to meet the obligations
of the Convention.
(f) Designation of Ports.--(1) It is unlawful for any person
subject to the jurisdiction of the United States to import into
or export from the United States any fish or wildlife (other
than shellfish and fishery products which (A) are not listed
pursuant to section 4 of this Act as endangered species or
threatened species, and (B) are imported for purposes of human
or animal consumption or taken in waters under the jurisdiction
of the United States or on the high seas for recreational
purposes) or plants, except at a port or ports designated by
the Secretary of the Interior. For the purposes of facilitating
enforcement of this Act and reducing the costs thereof, the
Secretary of the Interior, with approval of the Secretary of
the Treasury and after notice and opportunity for public
hearing, may, by regulation, designate ports and change such
designations. The Secretary of the Interior, under such terms
and conditions as he may prescribe, may permit the importation
or exportation at nondesignated ports in the interest of the
health or safety of the fish or wildlife or plants, or for
other reasons if, in his discretion, he deems it appropriate
and consistent with the purpose of this subsection.
(2) Any port designated by the Secretary of the Interior
under the authority of section 4(d) of the Act of December 5,
1969 (16 U.S.C. 666cc-4(d), shall, if such designation is in
effect on the day before the date of the enactment of this Act,
be deemed to be a port designated by the Secretary under
paragraph (1) of this subsection until such time as the
Secretary otherwise provides.
(g) Violations.--It is unlawful for any person subject to the
jurisdiction of the United States to attempt to commit, solicit
another to commit, or cause to be committed, any offense
defined in this section.
exceptions
Sec. 10. (a) Permits.--(1) The Secretary may permit, under
such terms and conditions as he shall prescribe--
[(A) any act otherwise prohibited by section 9 for
scientific purposes or to enhance the propagation or
survival of the affected species, including, but not
limited to, acts necessary for the establishment and
maintenance of experimental populations pursuant to
subsection (j); or]
(A)(i) with respect to a species that is native to
the United States, any act otherwise prohibited by
section 9 for scientific purposes or to enhance the
propagation or survival of the affected species,
including acts necessary for the establishment and
maintenance of experimental populations pursuant to
subsection (j); and
(ii) with respect to a species that is not native to
the United States, any act otherwise prohibited by
section 9 that the Secretary determines is not
detrimental to the survival of the species, including--
(I) the export or import, delivery, receipt,
carrying, transporting, or shipping in
interstate or foreign commerce; and
(II) buying or selling or offering for sale
in interstate or foreign commerce; or
(B) any taking otherwise prohibited by section
9(a)(1)(B) if such taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful
activity.
(C) In this subsection, the term ``is not detrimental
to the survival of the species'' means--
(i)(I) will not have a negative effect on the
status of the species in the wild;
(II) is not a use or removal from the wild
that will result in the loss or destruction of
critical habitat of the species; and
(III) will not directly interfere with
recovery efforts with respect to the species;
or
(ii) is an activity--
(I) involving wildlife described in
section 17.21(g)(1) of title 50, Code
of Federal Regulations; and
(II) that satisfies the conditions
for registration under clauses (iii)
through (v) of that section.
(2)(A) No permit may be issued by the Secretary authorizing
any taking referred to in paragraph (1)(B) unless the applicant
therefor submits to the Secretary a conservation plan that
specifies--
(i) the impact which will likely result from such
taking;
(ii) what steps the applicant will take to minimize
and mitigate such impacts, and the funding that will be
available to implement such steps;
(iii) what alternative actions to such taking the
applicant considered and the reasons why such
alternatives are not being utilized; and
(iv) such other measures that the Secretary may
require as being necessary or appropriate for purposes
of the plan.
(B) If the Secretary finds, after opportunity for public
comment, with respect to a permit application and the related
conservation plan that--
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent
practicable, minimize and mitigate the impacts of such
taking;
(iii) the applicant will ensure that adequate funding
for the plan will be provided;
(iv) the taking will not appreciably reduce the
likelihood of the survival and recovery of the species
in the wild; and
(v) the measures, if any, required under subparagraph
(A)(iv) will be met;
and he has received such other assurances as he may require
that the plan will be implemented, the Secretary shall issue
the permit. The permit shall contain such terms and conditions
as the Secretary deems necessary or appropriate to carry out
the purposes of this paragraph, including, but not limited to,
such reporting requirements as the Secretary deems necessary
for determining whether such terms and conditions are being
complied with, and shall include the terms and conditions of
the related conservation plan, which shall be legally binding
on all parties thereto.
(C) The Secretary shall revoke a permit issued under this
paragraph if he finds that the permittee is not complying with
the terms and conditions of the permit.
(D) Each Federal agency shall, as applicable and to the
maximum extent practicable, adopt the mitigation measures
contained in a permit issued under subparagraph (B) in any
authorization issued by such Federal agency with respect to the
action that is covered by such permit.
(E) With respect to an action that is covered by a permit
issued under subparagraph (B) and consistent with the
implementation of the related conservation plan, the Secretary
shall not seek any additional mitigation measures through any
other Federal or State or local process from the permittee.
(3) Section 7(a)(2) does not apply to the issuance by the
Secretary of a permit under this subsection.
(4) The issuance of a permit under paragraph (2) shall not be
considered a major Federal action under section 102(2)(C) of
the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)).
(b) Hardship Exemptions.--(1) If any person enters into a
contract with respect to a species of fish or wildlife or plant
before the date of the publication in the Federal Register of
notice of consideration of that species as an endangered
species and the subsequent listing of that species as an
endangered species pursuant to section 4 of this Act will cause
undue hardship to such person under the contract, the
Secretary, in order to minimize such hardship, may exempt such
person from the application of section 9(a) of this Act to the
extent the Secretary deems appropriate if such person applies
to him for such exemption and includes with such application
such information as the Secretary may require to prove such
hardship; except that (A) no such exemption shall be for a
duration of more than one year from the date of publication in
the Federal Register of notice of consideration of the species
concerned, or shall apply to a quantity of fish or wildlife or
plants in excess of that specified by the Secretary; (B) the
one-year period for those species of fish or wildlife listed by
the Secretary as endangered prior to the effective date of this
Act shall expire in accordance with the terms of section 3 of
the Act of December 5, 1969 (83 Stat. 275); and (C) no such
exemption may be granted for the importation or exportation of
a specimen listed in Appendix I of the Convention which is to
be used in a commercial activity.
(2) As used in this subsection, the term ``undue economic
hardship'' shall include, but not be limited to:
(A) substantial economic loss resulting from
inability caused by this Act to perform contracts with
respect to species of fish and wildlife entered into
prior to the date of publication in the Federal
Register of a notice of consideration of such species
as an endangered species;
(B) substantial economic loss to persons who, for the
year prior to the notice of consideration of such
species as an endangered species, derived a substantial
portion of their income from the lawful taking of any
listed species, which taking would be made unlawful
under this Act; or
(C) curtailment of subsistence taking made unlawful
under this Act by persons (i) not reasonably able to
secure other sources of subsistence; and (ii) dependent
to a substantial extent upon hunting and fishing for
subsistence; and (iii) who must engage in such
curtailed taking for subsistence purposes.
(3) The Secretary may make further requirements for a showing
of undue economic hardship as he deems fit. Exceptions granted
under this section may be limited by the Secretary in his
discretion as to time, area, or other factor of applicability.
(c) Notice and Review.--The Secretary shall publish notice in
the Federal Register of each application for an exemption or
permit which is made under this section. Each notice shall
invite the submission from interested parties, within thirty
days after the date of the notice, of written data, views, or
arguments with respect to the application; except that such
thirty-day period may be waived by the Secretary in an
emergency situation where the health or life of an endangered
animal is threatened and no reasonable alternative is available
to the applicant, but notice of any such waiver shall be
published by the Secretary in the Federal Register within ten
days following the issuance of the exemption or permit.
Information received by the Secretary as part of any
application shall be available to the public as a matter of
public record at every stage of the proceeding.
(d) Permit and Exemption Policy.--The Secretary may grant
exceptions under subsections (a)(1)(A) and (b) of this section
only if he finds and publishes his finding in the Federal
Register that (1) such exceptions were applied for in good
faith, (2) if granted and exercised will not operate to the
disadvantage of such endangered species, and (3) will be
consistent with the purposes and policy set forth in section 2
of this Act.
(e) Alaska Natives.--(1) Except as provided in paragraph (4)
of this subsection the provisions of this Act shall not apply
with respect to the taking of any endangered species or
threatened species, or the importation of any such species
taken pursuant to this section, by--
(A) any Indian, Aleut, or Eskimo who is an Alaskan
Native who resides in Alaska; or
(B) any non-native permanent resident of an Alaska
native village;
if such taking is primarily for subsistence purposes. Non-
edible by-products of species taken pursuant to this section
may be sold in interstate commerce when made into authentic
native articles of handicrafts and clothing; except that the
provisions of this subsection shall not apply to any non-native
resident of an Alaskan native village found by the Secretary to
be not primarily dependent upon the taking of fish and wildlife
for consumption or for the creation and sale of authentic
native articles of handicrafts and clothing.
(2) Any taking under this subsection may not be accomplished
in a wasteful manner.
(3) As used in this subsection--
(i) The term ``subsistence'' includes selling any
edible portion of fish or wildlife in native villages
and towns in Alaska for native consumption within
native villages or towns; and
(ii) The term ``authentic native articles of handicrafts and
clothing'' means items composed wholly or in some significant
respect to natural materials, and which are produced, decorated
or fashioned in the exercise of traditional native handicrafts
without the use of pantographs, multiple carvers, or other mass
copying devices. Traditional native handicrafts include, but
are not limited to, weaving, carving, stitching, sewing,
lacing, beading, drawing, and painting.
(4) Notwithstanding the provisions of paragraph (l) of this
subsection, whenever the Secretary determines that any species
of fish or wildlife which is subject to taking under the
provisions of this subsection is an endangered species or
threatened species, and that such taking materially and
negatively affects the threatened or endangered species, he may
prescribe regulations upon the taking of such species by any
such Indian, Aleut, Eskimo, or non-native Alaskan resident of
an Alaskan native village. Such regulations may be established
with reference to species, geographical description of the area
included, the season for taking, or any other factors related
to the reason for establishing such regulations and consistent
with the policy of this Act. Such regulations shall be
prescribed after a notice and hearings in the affected judicial
districts of Alaska and as otherwise required by section 103 of
the Marine Mammal Protection Act of 1972, and shall be removed
as soon as the Secretary determines that the need for their
impositions has disappeared.
(f)(1) As used in this subsection--
(A) The term ``pre-Act endangered species part''
means--
(i) any sperm whale oil, including
derivatives thereof, which was lawfully held
within the United States on December 28, 1973,
in the course of a commercial activity; or
(ii) any finished scrimshaw product, if such
product or the raw material for such product
was lawfully held within the United States on
December 28, 1973, in the course of a
commercial activity.
(B) The term ``scrimshaw product'' means any art form
which involves the substantial etching or engraving of
designs upon, or the substantial carving of figures,
patterns, or designs from, any bone or tooth of any
marine mammal of the order Cetacea. For purposes of
this subsection, polishing or the adding of minor
superficial markings does not constitute substantial
etching, engraving, or carving.
(2) The Secretary, pursuant to the provisions of this
subsection, may exempt, if such exemption is not in violation
of the Convention, any pre-Act endangered species part from one
or more of the following prohibitions.
(A) The prohibition on exportation from the United
States set forth in section 9(a)(1)(A) of this Act.
(B) Any prohibition set forth in section 9(a)(1) (E)
or (F) of this Act.
(3) Any person seeking an exemption described in paragraph
(2) of this subsection shall make application therefor to the
Secretary in such form and manner as he shall prescribe, but no
such application may be considered by the Secretary unless the
application--
(A) is received by the Secretary before the close of
the one-year period beginning on the date on which
regulations promulgated by the Secretary to carry out
this subsection first take effect;
(B) contains a complete and detailed inventory of all
pre-Act endangered species parts for which the
applicant seeks exemption;
(C) is accompanied by such documentation as the
Secretary may require to prove that any endangered
species part or product claimed by the applicant to be
a pre-Act endangered species part is in fact such a
part; and
(D) contains such other information as the Secretary
deems necessary and appropriate to carry out the
purposes of this subsection.
(4) If the Secretary approves any application for exemption
made under this subsection, he shall issue to the applicant a
certificate of exemption which shall specify--
(A) any prohibition in section 9(a) of this Act which
is exempted;
(B) the pre-Act endangered species parts to which the
exemption applies;
(C) the period of time during which the exemption is
in effect, but no exemption made under this subsection
shall have force and effect after the close of the
three-year period beginning on the date of issuance of
the certificate unless such exemption is renewed under
paragraph (8); and
(D) any term or condition prescribed pursuant to
paragraph (5) (A) or (B), or both, which the Secretary
deems necessary or appropriate.
(5) The Secretary shall prescribe such regulations as he
deems necessary and appropriate to carry out the purposes of
this subsection. Such regulations may set forth--
(A) terms and conditions which may be imposed on
applicants for exemptions under this subsection
(including, but not limited to, requirements that
applicants register inventories, keep complete sales
records, permit duly authorized agents of the Secretary
to inspect such inventories and records, and
periodically file appropriate reports with the
Secretary); and
(B) terms and conditions which may be imposed on any
subsequent purchaser of any pre-Act endangered species
part covered by an exemption granted under this
subsection;
to insure that any such part so exempted is adequately
accounted for and not disposed of contrary to the provisions of
this Act. No regulation prescribed by the Secretary to carry
out the purposes of this subsection shall be subject to section
4(f)(2)(A)(i) of this Act.
(6)(A) Any contract for the sale of pre-Act endangered
species parts which is entered into by the Administrator of
General Services prior to the effective date of this subsection
and pursuant to the notice published in the Federal Register on
January 9, 1973, shall not be rendered invalid by virtue of the
fact that fulfillment of such contract may be prohibited under
section 9(a)(1)(F).
(B) In the event that this paragraph is held invalid, the
validity of the remainder of the Act, including the remainder
of this subsection, shall not be affected.
(7) Nothing in this subsection shall be construed to--
(A) exonerate any person from any act committed in
violation of paragraphs (1)(A), (1)(E), or (1)(F) of
section 9(a) prior to the date of enactment of this
subsection; or
(B) immunize any person from prosecution for any such
act.
(8)(A)(i) Any valid certificate of exemption which was
renewed after October 13, 1982, and was in effect on March 31,
1988, shall be deemed to be renewed for a 6-month period
beginning on the date of enactment of the Endangered Species
Act Amendments of 1988. Any person holding such a certificate
may apply to the Secretary for one additional renewal of such
certificate for a period not to exceed 5 years beginning on the
date of such enactment.
(B) If the Secretary approves any application for renewal of
an exemption under this paragraph, he shall issue to the
applicant a certificate of renewal of such exemption which
shall provide that all terms, conditions, prohibitions, and
other regulations made applicable by the previous certificate
shall remain in effect during the period of the renewal.
(C) No exemption or renewal of such exemption made under this
subsection shall have force and effect after the expiration
date of the certificate of renewal of such exemption issued
under this paragraph.
(D) No person may, after January 31, 1984, sell or offer for
sale in interstate or foreign commerce, any pre-Act finished
scrimshaw product unless such person holds a valid certificate
of exemption issued by the Secretary under this subsection, and
unless such product or the raw material for such product was
held by such person on October 13, 1982.
(g) In connection with any action alleging a violation of
section 9, any person claiming the benefit of any exemption or
permit under this Act shall have the burden of proving that the
exemption or permit is applicable, has been granted, and was
valid and in force at the time of the alleged violation.
(h) Certain Antique Articles.--(1) Sections 4(d), 9(a), and
9(c) do not apply to any article which--
(A) is not less than 100 years of age;
(B) is composed in whole or in part of any endangered
species or threatened species listed under section 4;
(C) has not been repaired or modified with any part
of any such species on or after the date of the
enactment of this Act; and
(D) is entered at a port designated under paragraph
(3).
(2) Any person who wishes to import an article under the
exception provided by this subsection shall submit to the
customs officer concerned at the time of entry of the article
such documentation as the Secretary of the Treasury, after
consultation with the Secretary of the Interior, shall by
regulation require as being necessary to establish that the
article meets the requirements set forth in paragraph (1) (A),
(B), and (C).
(3) The Secretary of the Treasury, after consultation with
the Secretary of the Interior, shall designate one port within
each customs region at which articles described in paragraph
(1) (A), (B), and (C) must be entered into the customs
territory of the United States.
(4) Any person who imported, after December 27, 1973, and on
or before the date of the enactment of the Endangered Species
Act Amendments of 1978, any article described in paragraph (1)
which--
(A) was not repaired or modified after the date of
importation with any part of any endangered species or
threatened species listed under section 4;
(B) was forfeited to the United States before such
date of the enactment, or is subject to forfeiture to
the United States on such date of enactment, pursuant
to the assessment of a civil penalty under section 11;
and
(C) is in the custody of the United States on such
date of enactment;
may, before the close of the one-year period beginning on such
date of enactment make application to the Secretary for return
of the article. Application shall be made in such form and
manner, and contain such documentation, as the Secretary
prescribes. If on the basis of any such application which is
timely filed, the Secretary is satisfied that the requirements
of this paragraph are met with respect to the article
concerned, the Secretary shall return the article to the
applicant and the importation of such article shall, on and
after the date of return, be deemed to be a lawful importation
under this Act.
(i) Noncommercial Transshipments.--Any importation into the
United States of fish or wildlife shall, if--
(1) such fish or wildlife was lawfully taken and
exported from the country of origin and country of
reexport, if any;
(2) such fish or wildlife is in transit or
transshipment through any place subject to the
jurisdiction of the United States en route to a country
where such fish or wildlife may be lawfully imported
and received;
(3) the exporter or owner of such fish or wildlife
gave explicit instructions not to ship such fish or
wildlife through any place subject to the jurisdiction
of the United States, or did all that could have
reasonably been done to prevent transshipment, and the
circumstances leading to the transshipment were beyond
the exporter's or owner's control;
(4) the applicable requirements of the Convention
have been satisfied; and
(5) such importation is not made in the course of a
commercial activity,
be an importation not in violation of any provision of this Act
or any regulation issued pursuant to this Act while such fish
or wildlife remains in the control of the United States Customs
Service.
(j) Experimental Populations.--(1) For purposes of this
subsection, the term ``experimental population'' means any
population (including any offspring arising solely therefrom)
authorized by the Secretary for release under paragraph (2),
but only when, and at such times as, the population is wholly
separate geographically from nonexperimental populations of the
same species.
(2)(A) The Secretary may authorize the release (and the
related transportation) of any population (including eggs,
propagules, or individuals) of an endangered species or a
threatened species outside the current range of such species if
the Secretary determines that such release will further the
conservation of such species.
(B) Before authorizing the release of any population under
subparagraph (A), the Secretary shall by regulation identify
the population and determine, on the basis of the best
available information, whether or not such population is
essential to the continued existence of an endangered species
or a threatened species.
(C) For the purposes of this Act, each member of an
experimental population shall be treated as a threatened
species; except that--
(i) solely for purposes of section 7 (other than
subsection (a)(1) thereof), an experimental population
determined under subparagraph (B) to be not essential
to the continued existence of a species shall be
treated, except when it occurs in an area within the
National Wildlife Refuge System or the National Park
System, as a species proposed to be listed under
section 4; and
(ii) critical habitat shall not be designated under
this Act for any experimental population determined
under subparagraph (B) to be not essential to the
continued existence of a species.
(3) The Secretary, with respect to populations of endangered
species or threatened species that the Secretary authorized,
before the date of the enactment of this subsection, for
release in geographical areas separate from the other
populations of such species, shall determine by regulation
which of such populations are an experimental population for
the purposes of this subsection and whether or not each is
essential to the continued existence of an endangered species
or a threatened species.
(4)(A) The Secretary shall submit to the Committee on Natural
Resources of the House of Representatives and the Committee on
Environment and Public Works of the Senate a notification of
any proposed release under this subsection that covers an area
greater than 50,000 acres.
(B) A notification submitted under subparagraph (A) shall
include--
(i) a description of the area covered by the proposed
release;
(ii) an inventory and evaluation of the natural
resource uses and values of the area and adjacent
public and nonpublic land and the economic impact of
the proposed release on individuals, local communities,
and the United States;
(iii) an identification of users of the area, and how
such users will be affected by the proposed release;
(iv) an analysis of the manner in which existing and
potential natural resource uses are incompatible with
or in conflict with the proposed release and a
statement of the provisions to be made for continuation
or termination of existing such uses, including an
economic analysis of such continuation or termination;
(v) a statement of the consultation which has been or
will be had with other Federal departments and
agencies, regional, State, and local government bodies,
and other appropriate individuals and groups with
respect to the proposed release; and
(vi) a statement indicating the effect of the
proposed release, if any, on State and local government
interests and the regional economy.
(k) Conservation Benefit Agreements.--
(1) Proposed agreement.--
(A) In general.--A covered party may submit a
proposed Agreement to the Secretary.
(B) Determination of completeness.--Not later
than 30 days after the date on which the
Secretary receives a proposed Agreement, the
Secretary shall--
(i) determine whether the proposed
Agreement is complete; and
(ii) if the Secretary determines the
proposed Agreement is incomplete under
clause (i), provide the covered party
with a written explanation of such
determination, including any specific
adjustment required for the Secretary
to determine the proposed Agreement is
complete.
(C) Approval; rejection.--Not later than 120
days after the date on which the Secretary
receives a proposed Agreement that the
Secretary determines under subparagraph (B)(i)
is complete, the Secretary shall--
(i) approve the proposed Agreement if
the Secretary determines that the
proposed Agreement--
(I) is in compliance with, as
applicable, section 17.22(c)(1)
or 17.32(c)(1) of title 50,
Code of Federal Regulations (or
a successor regulation); and
(II) provides assurances to
the covered party that, if the
covered species becomes listed
after the effective date of
such Agreement--
(aa) no additional
conservation measures
will be required; and
(bb) additional land,
water, or resource use
restrictions will not
be imposed on the
covered party;
(ii) reject the proposed Agreement if
the Secretary determines that the
proposed Agreement does not meet the
requirements described in subclauses
(I) and (II) of clause (i); and
(iii) if the Secretary rejects the
proposed Agreement under clause (ii),
provide the submitting covered party a
written explanation for such rejection,
including any specific adjustment
required, as of the date on which the
Secretary rejects the proposed
Agreement, for the Secretary to approve
the proposed Agreement.
(2) Programmatic conservation benefit agreements.--
The Secretary may enter into a Conservation Benefit
Agreement with a covered party that authorizes such
covered party--
(A) to administer such Conservation Benefit
Agreement;
(B) to hold any permit issued under this
section with regard to such Conservation
Benefit Agreement;
(C) to enroll other covered parties within
the area covered by such Conservation Benefit
Agreement in such Conservation Benefit
Agreement; and
(D) to convey any permit authorization held
by such covered party under clause (ii) to each
covered party enrolled under clause (iii).
(3) Take authorization.--If a covered species is
listed as a threatened species or an endangered species
under section 4, the Secretary, consistent with the
applicable Agreement, shall issue to the relevant
covered party a permit under this section for the
incidental take of and modification to the habitat of
such covered species by such covered party.
(4) Technical assistance.--The Secretary shall, upon
the request of a covered party, provide the covered
party with technical assistance in developing a
proposed Agreement.
(5) Applicability to federal land.--An Agreement may
apply with respect to a covered party that conducts
activities on land administered by any Federal agency
pursuant to a permit or lease issued to the covered
party by that Federal agency.
(6) Exemptions.--
(A) Consultation.--Section 7(a)(2) does not
apply to the approval by the Secretary of a
proposed Agreement under this subsection.
(B) Disclosure.--Information submitted by a
private party to the Secretary pursuant to this
subsection shall be exempt from disclosure
under section 552(b)(3)(B) of title 5, United
States Code.
(C) National environmental policy act of
1969.--The approval by the Secretary of a
proposed Agreement under this subsection shall
not be considered a major Federal action under
section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)(C)).
(7) Definitions.--In this subsection:
(A) Affected species.--The term ``affected
species'' means a species--
(i) designated by the Secretary as a
candidate species under this Act;
(ii) proposed to be listed pursuant
to section 4; or
(iii) that is declining and at risk
of being designated by the Secretary as
a candidate species under this Act.
(B) Agreement.--The term ``Agreement''
means--
(i) a Conservation Benefit Agreement;
or
(ii) a programmatic Conservation
Benefit Agreement.
(C) Conservation benefit agreement.--The term
``Conservation Benefit Agreement'' means the
supporting document required for the issuance
of a permit under subsection (a)(1)(A) to
enhance the propagation or survival of an
affected species, as described in the final
rule issued by the United States Fish and
Wildlife Service titled ``Endangered and
Threatened Wildlife and Plants; Enhancement of
Survival and Incidental Take Permits'' (89 Fed.
Reg. 26070; published April 12, 2024).
(D) Covered party.--The term ``covered
party'' means a--
(i) party that conducts activities on
land administered by a Federal agency
pursuant to a permit or lease issued to
the party;
(ii) private property owner;
(iii) county;
(iv) State or State agency; or
(v) Tribal government.
(E) Covered species.--The term ``covered
species'' means, with respect to an Agreement,
the affected species that is the subject of
such Agreement.
(F) Net conservation benefit.--The term ``net
conservation benefit'' means the net effect of
an Agreement on the covered species, determined
by comparing the existing situation of the
covered species without the Agreement in effect
and a situation in which the Agreement is in
effect, including the net effect on--
(i) the effects of the factors
described in subparagraphs (A) through
(E) of subsection (a)(1) on the covered
species;
(ii) the number of individuals of the
covered species; or
(iii) the habitat of the covered
species.
(G) Programmatic conservation benefit
agreement.--The term ``programmatic
Conservation Benefit Agreement'' means a
Conservation Benefit Agreement described in
paragraph (4).
penalties and enforcement
Sec. 11. (a) Civil Penalties.--(1) Any person who knowingly
violates, and any person engaged in business as an importer or
exporter of fish, wildlife, or plants who violates, any
provision of this Act, or any provision of any permit or
certificate issued hereunder, or of any regulation issued in
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or
(F), (a)(2(A), (B), (C), or (D), (c), (d), (other than
regulation relating to recordkeeping or filing of reports),
(f), or (g) of section 9 of this Act, may be assessed a civil
penalty by the Secretary of not more than $25,000 for each
violation. Any person who knowingly violates, and any person
engaged in business as an importer or exporter of fish,
wildlife, or plants who violates, any provision of any other
regulation issued under this Act may be assessed a civil
penalty by the Secretary of not more than $12,000 for each such
violation. Any person who otherwise violates any provision of
this Act, or any regulation, permit, or certificate issued
hereunder, may be assessed a civil penalty by the Secretary of
not more than $500 for each such violation. No penalty may be
assessed under this subsection unless such person is given
notice and opportunity for a hearing with respect to such
violation. Each violation shall be a separate offense. Any such
civil penalty may be remitted or mitigated by the Secretary.
Upon any failure to pay a penalty assessed under this
subsection, the Secretary may request the Attorney General to
institute a civil action in a district court of the United
States for any district in which such person is found, resides,
or transacts business to collect the penalty and such court
shall have jurisdiction to hear and decide any such action. The
court shall hear such action on the record made before the
Secretary and shall sustain his action if it is supported by
substantial evidence on the record considered as a whole.
(2) Hearings held during proceedings for the assessment of
civil penalties by paragraph (1) of this subsection shall be
conducted in accordance with section 554 of title 5, United
States Code. The Secretary may issue subpoenas for the
attendance and testimony of witnesses and the production of
relevant papers, books, and documents, and administer oaths.
Witnesses summoned shall be paid the same fees and mileage that
are paid to witnesses in the courts of the United States. In
case of contumacy or refusal to obey a subpoena served upon any
person pursuant to this paragraph, the district court of the
United States for any district in which such person is found or
resides or transacts business, upon application by the United
States and after notice to such person, shall have jurisdiction
to issue an order requiring such person to appear and give
testimony before the Secretary or to appear and produce
documents before the Secretary, or both, and any failure to
obey such order of the court may be punished by such court as a
contempt thereof.
(3) Notwithstanding any other provision of this Act, no civil
penalty shall be imposed if it can be shown by a preponderance
of the evidence that the defendant committed an act based on a
good faith belief that he was acting to protect himself or
herself, a member of his or her family, or any other individual
from bodily harm, from any endangered or threatened species.
(b) Criminal Violations.--(1) Any person who knowingly
violates any provision of this Act, of any permit or
certificate issued hereunder, or of any regulation issued in
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or
(F); (a)(2)(A), (B), (C), or (D), (c), (d) (other than a
regulation relating to recordkeeping, or filing of reports),
(f), or (g) of section 9 of this Act shall, upon conviction, be
fined not more than $50,000 or imprisoned for not more than one
year, or both. Any person who knowingly violates any provision
of any other regulation issued under this Act shall, upon
conviction, be fined not more than $25,000 or imprisoned for
not more than six months, or both.
(2) The head of any Federal agency which has issued a lease,
license, permit, or other agreement authorizing a person to
import or export fish, wildlife, or plants, or to operate a
quarantine station for imported wildlife, or authorizing the
use of Federal lands, including grazing of domestic livestock,
to any person who is convicted of a criminal violation of this
Act or any regulation, permit, or certificate issued hereunder
may immediately modify, suspend, or revoke each lease, license,
permit, or other agreement. The Secretary shall also suspend
for a period of up to one year, or cancel, any Federal hunting
or fishing permits or stamps issued to any person who is
convicted of a criminal violation of any provision of this Act
or any regulation, permit, or certificate issued hereunder. The
United States shall not be liable for the payments of any
compensation, reimbursement, or damages in connection with the
modification, suspension, or revocation of any leases,
licenses, permits, stamps, or other agreements pursuant to this
section.
(3) Notwithstanding any other provision of this Act, it shall
be a defense to prosecution under this subsection if the
defendant committed the offense based on a good faith belief
that he was acting to protect himself or herself, a member of
his or her family, or any other individual, from bodily harm
from any endangered or threatened species.
(c) District Court Jurisdiction.--The several district courts
of the United States; including the courts enumerated in
section 460 of title 28, United States Code, shall have
jurisdiction over any actions arising under this Act. For the
purpose of this Act, American Samoa shall be included within
the judicial district of the District Court of the United
States for the District of Hawaii.
(d) Rewards and Certain Incidental Expenses.--The Secretary
or the Secretary of the Treasury shall pay, from sums received
as penalties, fines, or forfeitures of property for any
violations of this chapter or any regulation issued hereunder
(1) a reward to any person who furnishes information which
leads to an arrest, a criminal conviction, civil penalty
assessment, or forfeiture of property for any violation of this
chapter or any regulation issued hereunder, and (2) the
reasonable and necessary costs incurred by any person in
providing temporary care for any fish, wildlife, or plant
pending the disposition of any civil or criminal proceeding
alleging a violation of this chapter with respect to that fish,
wildlife, or plant. The amount of the reward, if any, is to be
designated by the Secretary or the Secretary of the Treasury,
as appropriate. Any officer or employee of the United States or
any State or local government who furnishes information or
renders service in the performance of his official duties is
ineligible for payment under this subsection. Whenever the
balance of sums received under this section and section 6(d) of
the Act of November 16, 1981 (16 U.S.C. 3375(d)) as penalties
or fines, or from forfeitures of property, exceed $500,000, the
Secretary of the Treasury shall deposit an amount equal to such
excess balance in the cooperative endangered species
conservation fund established under section 6(i) of this Act.
(e) Enforcement.--(1) The provisions of this Act and any
regulations or permits issued pursuant thereto shall be
enforced by the Secretary, the Secretary of the Treasury, or
the Secretary of the Department in which the Coast Guard is
operating, or all such Secretaries. Each such Secretary may
utilize by agreement, with or without reimbursement, the
personnel, services, and facilities of any other Federal agency
or any State agency for purposes of enforcing this Act.
(2) The judges of the district courts of the United States
and the United States magistrates may within their respective
jurisdictions, upon proper oath or affirmation showing probable
cause, issue such warrants or other process as may be required
for enforcement of this Act and any regulation issued
thereunder.
(3) Any person authorized by the Secretary, the Secretary of
the Treasury, or the Secretary of the Department in which the
Coast Guard is operating, to enforce this Act may detain for
inspection and inspect any package, crate, or other container,
including its contents, and all accompanying documents, upon
importation or exportation. Such persons may make arrests
without a warrant for any violation of this Act if he has
reasonable grounds to believe that the person to be arrested is
committing the violation in his presence or view and may
execute and serve any arrest warrant, search warrant, or other
warrant or civil or criminal process issued by any officer or
court of competent jurisdiction for enforcement of this Act.
Such person so authorized may search and seize, with or without
a warrant, as authorized by law. Any fish, wildlife, property,
or item so seized shall be held by any person authorized by the
Secretary, the Secretary of the Treasury, or the Secretary of
the Department in which the Coast Guard is operating pending
disposition of civil or criminal proceedings, or the
institution of an action in rem for forfeiture of such fish,
wildlife, property, or item pursuant to paragraph (4) of the
subsection; except that the Secretary may, in lieu of holding
such fish, wildlife, property, or item, permit the owner or
consignee to post a bond or other surety satisfactory to the
Secretary, but upon forfeiture of any such property to the
United States, or the abandonment or waiver of any claim to any
such property, it shall be disposed of (other than by sale to
the general public) by the Secretary in such a manner,
consistent with the purposes of this Act, as the Secretary
shall by regulation prescribe.
(4)(A) All fish or wildlife or plants taken, possessed, sold,
purchased, offered for sale or purchase, transported,
delivered, received, carried, shipped, exported, or imported
contrary to the provisions of this Act, any regulation made
pursuant thereto, or any permit or certificate issued hereunder
shall be subject to forfeiture to the United States.
(B) All guns, traps, nets, and other equipment, vessels,
vehicles, aircraft, and other means of transportation used to
aid the taking, possessing, selling, purchasing, offering for
sale or purchase, transporting, delivering, receiving,
carrying, shipping, exporting, or importing of any fish or
wildlife or plants in violation of this Act, any regulation
made pursuant thereto, or any permit or certificate issued
thereunder shall be subject to forfeiture to the United States
upon conviction of a criminal violation pursuant to section
11(b)(1) of this Act.
(5) All provisions of law relating to the seizure,
forfeiture, and condemnation of a vessel for violation of the
customs laws, the disposition of such vessel or the proceeds
from the sale thereof, and the remission or mitigation of such
forfeiture, shall apply to the seizures and forfeitures
incurred, or alleged to have been incurred, under the
provisions of this Act, insofar as such provisions of law are
applicable and not inconsistent with the provisions of this
Act; except that all powers, rights, and duties conferred or
imposed by the customs laws upon any officer or employee of the
Treasury Department shall, for the purposes of this Act, be
exercised or performed by the Secretary or by such persons as
he may designate.
(6) The Attorney General of the United States may seek to
enjoin any person who is alleged to be in violation of any
provision of this Act or regulation issued under authority
thereof.
(f) Regulations.--[The Secretary,]
(1) In general._The Secretary, the Secretary of the
Treasury, and the Secretary of the Department in which
the Coast Guard is operating, are authorized to
promulgate such regulations as may be appropriate [to
enforce this Act] to enforce this section and section
8A, and charge reasonable fees for expenses to the
Government connected with permits or certificates
authorized by this Act including processing
applications and reasonable inspections, and with the
transfer, board, handling, or storage of fish or
wildlife or plants and evidentiary items seized and
forfeited under this Act. All such fees collected
pursuant to this subsection shall be deposited in the
Treasury to the credit of the appropriation which is
current and chargeable for the cost of furnishing the
services. Appropriated funds may be expended pending
reimbursement from parties in interest.
(2) Rule of construction.--This subsection may not be
construed to be an independent source of authority to
promulgate regulations to enforce the provisions of
this Act other than those included in this section and
section 8A.
(g) Citizen Suits.--(1) Except as provided in paragraph (2)
of this subsection any person may commence a civil suit on his
own behalf--
(A) to enjoin any person, including the United States
and any other governmental instrumentality or agency
(to the extent permitted by the eleventh amendment to
the Constitution), who is alleged to be in violation of
any provision of this Act or regulation issued under
the authority thereof; or
(B) to compel the Secretary to apply, pursuant to
section 6(g)(2)(B)(ii) of this Act, the prohibitions
set forth in or authorized pursuant to section 4(d) or
section 9(a)(1)(B) of this Act with respect to the
taking of any resident endangered species or threatened
species within any State; or
(C) against the Secretary where there is alleged a
failure of the Secretary to perform any act or duty
under section 4 which is not discretionary with the
Secretary.
The district courts shall have jurisdiction, without regard to
the amount in controversy or the citizenship of the parties, to
enforce any such provision or regulation or to order the
Secretary to perform such act or duty, as the case may be. In
any civil suit commenced under subparagraph (B) the district
court shall compel the Secretary to apply the prohibition
sought if the court finds that the allegation that an emergency
exists is supported by substantial evidence.
(2)(A) No action may be commenced under subparagraph (1)(A)
of this section--
(i) prior to sixty days after written notice of the
violation has been given to the Secretary, and to any
alleged violator of any such provision or regulation;
(ii) if the Secretary has commenced action to impose
a penalty pursuant to subsection (a) of this section;
or
(iii) if the United States has commenced and is
diligently prosecuting a criminal action in a court of
the United States or a State to redress a violation of
any such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of
this section--
(i) prior to sixty days after written notice has been
given to the Secretary setting forth the reasons why an
emergency is thought to exist with respect to an
endangered species or a threatened species in the State
concerned; or
(ii) if the Secretary has commenced and is diligently
prosecuting action under section 6(g)(2)(B)(ii) of this
Act to determine whether any such emergency exists.
(C) No action may be commenced under subparagraph (1)(C) of
this section prior to sixty days after written notice has been
given to the Secretary; except that such action may be brought
immediately after such notification in the case of an action
under this section respecting an emergency posing a significant
risk to the well-being of any species of fish or wildlife or
plants.
(3)(A) Any suit under this subsection may be brought in the
judicial district in which the violation occurs.
(B) In any such suit under this subsection in which the
United States is not a party, the Attorney General, at the
request of the Secretary, may intervene on behalf of the United
States as a matter of right.
[(4) The court, in issuing any final order in any suit
brought pursuant to paragraph (1) of this subsection, may award
costs of litigation (including reasonable attorney and expert
witness fees) to any party, whenever the court determines such
award is appropriate.]
(4)(A) The court, in issuing any final order in any suit
brought pursuant to paragraph (1), may award costs of
litigation (including reasonable attorney and expert witness
fees) to an eligible party, whenever the court determines such
award is appropriate.
(B) In awarding reasonable attorney and expert witness fees
under subparagraph (A) in a suit brought pursuant to paragraph
(1), the court--
(i) shall base such fees on the prevailing market
rates for the kind and quality of services furnished;
and
(ii) may not award--
(I) such fees at a rate that exceeds $125 per
hour unless the court determines a higher rate
is justified because of cost of living or a
special factor, such as the limited
availability of qualified attorneys for such
suit; or
(II) more than $200,000 total in such fees in
a single such suit.
(C)(i) In this paragraph, the term ``eligible party''--
(I) means a party to a suit brought pursuant to
paragraph (1) that is, as of the date on which the suit
was initiated--
(aa) an individual who has a net worth of not
more than $2,000,000;
(bb) an owner of an unincorporated business
or a partnership, corporation, association,
unit of local government, or organization,
including an organization that is described in
section 501(c)(3) of the Internal Revenue Code
and exempt from taxation under section 501(a)
of such Code, that has--
(AA) a net worth of not more than
$7,000,000, including both personal and
business interests; and
(BB) not more than 500 employees; or
(cc) a cooperative association (as that term
is defined in section 15(a) of the Agriculture
Marketing Act (12 U.S.C. 1141j(a))); and
(II) does not include a party to a suit brought
pursuant to paragraph (1) otherwise described in clause
(i) of this subparagraph that has sought to recover
attorney or expert witness fees under this subsection
in 3 or more instances in the 12-month period preceding
the date on which the final order in such suit is
issued, including in such suit.
(ii) Where 2 or more parties to a suit brought pursuant to
paragraph (1) are co-plaintiffs and each such party
individually is an eligible party, clause (i)(I) shall be
applied to such parties collectively.
(5) The injunctive relief provided by this subsection shall
not restrict any right which any person (or class of persons)
may have under any statute or common law to seek enforcement of
any standard or limitation or to seek any other relief
(including relief against the Secretary or a State agency).
(h) Coordination With Other Laws.--The Secretary of
Agriculture and the Secretary shall provide for appropriate
coordination of the administration of this Act with the
administration of the animal quarantine laws (as defined in
section 2509(f) of the Food, Agriculture, Conservation, and
Trade Act of 1990 (21 U.S.C. 136a(f)) and section 306 of the
Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this Act or any
amendment made by this Act shall be construed as superseding or
limiting in any manner the functions of the Secretary of
Agriculture under any other law relating to prohibited or
restricted importations or possession of animals and other
articles and no proceeding or determination under this Act
shall preclude any proceeding or be considered determinative of
any issue of fact or law in any proceeding under any Act
administered by the Secretary of Agriculture. Nothing in this
Act shall be construed as superseding or limiting in any manner
the functions and responsibilities of the Secretary of the
Treasury under the Tariff Act of 1930, including, without
limitation, section 527 of that Act (19 U.S.C. 1527), relating
to the importation of wildlife taken, killed, possessed, or
exported to the United States in violation of the laws or
regulations of a foreign country.
* * * * * * *
[conforming amendments
[Sec. 13. (a) Subsection 4(c) of the Act of October 15,1966
(80 Stat. 928, 16 U.S.C. 668dd(c)), is further amended by
revising the second sentence thereof to read as follows: ``With
the exception of endangered species and threatened species
listed by the Secretary pursuant to section 4 of the Endangered
Species Act of 1973 in States wherein a cooperative agreement
does not exist pursuant to section 6(c) of that Act, nothing in
this Act shall be construed to authorize the Secretary to
control or regulate hunting or fishing of resident fish and
wildlife on lands not within the system.''
[(b) Subsection 10(a) of the Migratory Bird Conservation Act
(45 Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of the
Act of June 15, 1935 (49 Stat. 383,16 U.S.C. 715s(a)), are each
amended by Striking out ``threatened with extinction,'' and
inserting in lieu thereof the following: ``listed pursuant to
section 4 of the Endangered Species Act of 1973 as endangered
species or threatened species,''.
[(c) Section 7(a)(1) of the Land and Water Conservation Fund
Act of 1965 (16 U.S.C. 4601--9(a) (1)) is amended by striking
out:
`` Threatened Species.--For any national area which may be
authorized for the preservation of species of fish or wildlife
that are threatened with extinction.and inserting in lieu
thereof the following:
`` Endangered Species and Threatened Species.--For lands,
waters, or interests therein, the acquisition of which is
authorized under section 5 (a) of the Endangered Species Act of
1973, needed for the purpose of conserving endangered or
threatened species of fish or wildlife or plants.
[(d) The first sentence of section 2 of the Act of September
28,1962, as amended (76 Stat. 653, 16 U.S.C. 460k-l), is
amended to read as follow:
``The Secretary is authorized to acquire areas of land, or
interests therein, which are suitable for--
[``(1) incidental fish and wildlife-oriented
recreational development,
[``(2) the protection of natural resources,
[``(3) the conservation of endangered species or
threatened species listed by the Secretary pursuant to
section 4 of the Endangered Species Act of 1973, or
[``(4) carrying out two or more of the purposes set
forth in paragraphs (1) through (3) of this section,
and are adjacent to, or within, the said conservation
areas, except that the acquisition of any land or
interest therein pursuant to this section shall be
accomplished only with such funds as may be
appropriated therefor by the Congress or donated for
such purposes, but such property shall not be acquired
with funds obtained from the sale of Federal migratory
bird hunting stamps.
[(e) The Marine Mammal Protection Act of 1972 (16 U.S.C.
1361-1407) is amended--
[(1) by striking out ``Endangered Species
Conservation Act of 1969'' in section 3(1)(B) thereof
and inserting in lieu thereof the following:
``Endangered Species Act of 1973'';
[(2) by striking out ``pursuant to the Endangered
Species Conservation Act of 1969'' in section
101(a)(3)(B) thereof and inserting in lieu thereof the
following: ``or threatened species pursuant to the
Endangered Species Act of 1973'';
[(3) by striking out ``endangered under the
Endangered Species Conservation Act of 1969'' in
section 102(b)(3) thereof and inserting in lieu thereof
the following: ``an endangered species or threatened
species pursuant to the Endangered Species Act of
1973''; and
[(4) by striking out ``of the Interior such revisions
of the Endangered Species List, authorized by the
Endangered Species Conservation Act of 1969,'' in
section 202(a)(6) thereof and inserting in lieu thereof
the following: ``such revisions of the endangered
species list and threatened species list published
pursuant to section 4(c)(1) of the Endangered Species
Act of 1973''.
[(f) Section 2(l) of the Federal Environmental Pesticide
Control Act of 1972 (Public Law 92-516) is amended by striking
out the words ``by the Secretary of the Interior under Public
Law 91- 135'' and inserting in lieu thereof the words ``or
threatened by the Secretary pursuant to the Endangered Species
Act of 1973''. ]
SEC. 13. DISCLOSURE OF EXPENDITURES.
(a) Requirement.--The Chair of the Council on Environmental
Quality, in consultation with the Secretary of the Interior and
Secretary of Commerce, shall--
(1) not later than 90 days after the end of each
fiscal year, submit to the Committee on Natural
Resources of the House of Representatives and the
Committee on Environment and Public Works of the Senate
an annual report detailing Federal Government
expenditures for covered suits during the preceding
fiscal year; and
(2) make publicly available through the Internet a
searchable database, updated monthly, of the
information described in subsection (b).
(b) Included Information.--Each report submitted under
subsection (a) shall include--
(1) the case name and number of each covered suit,
and, with respect to each covered suit, a hyperlink to
each settlement decision, final decision, consent
decree, stipulation of dismissal, release, interim
decision, motion to dismiss, partial motion for summary
judgement, or related final document;
(2) a description of each claim or cause of action in
each covered suit;
(3) the name of each covered agency the actions of
which give rise to any claim in a covered suit and each
plaintiff in such covered suit;
(4) funds expended by each covered agency
(disaggregated by agency account) to receive and
respond to notices referred to in section 11(g)(2) or
to prepare for litigation of, litigate, negotiate a
settlement agreement or consent decree in, or provide
material, technical, or other assistance in relation
to, a covered suit;
(5) the number of full-time equivalent employees that
participated in the activities described in paragraph
(4);
(6) any information required to be published under
section 1304 of title 31, United States Code, with
respect to a covered suit; and
(7) attorneys fees and other expenses (disaggregated
by agency account) awarded in covered suits, including
any consent decrees or settlement agreements
(regardless of whether a decree or settlement agreement
is sealed or otherwise subject to nondisclosure
provisions), including the basis for such awards.
(c) Requirement to Provide Information.--The head of each
covered agency shall provide to the Chair of the Council on
Environmental Quality in a timely manner all information
requested by the Chair to comply with the requirements of this
section.
(d) Limitation on Disclosure.--Notwithstanding any other
provision of this section, this section shall not affect any
restriction in a consent decree or settlement agreement on the
disclosure of information that is not described in subsection
(b).
(e) Definitions.--In this section:
(1) Covered agency.--The term ``covered agency''
means any agency of the--
(A) Department of the Interior;
(B) Forest Service;
(C) Environmental Protection Agency;
(D) National Marine Fisheries Service;
(E) Bonneville Power Administration;
(F) Western Area Power Administration;
(G) Southwestern Power Administration; or
(H) Southeastern Power Administration.
(2) Covered suit.--The term ``covered suit'' means--
(A) any civil action containing any claim
arising under this Act against the Federal
Government and based on the action of a covered
agency; and
(B) any administrative proceeding under which
the Federal Government awards fees and other
expenses to a third party under section 504 of
title 5, United States Code.
* * * * * * *
authorization of appropriations
Sec. 15. (a) In General.--Except as provided in [subsection
(b), (c), and (d)] subsections (b) and (c), there are
authorized to be appropriated--
(1) not to exceed $35,000,000 for fiscal year 1988,
$36,500,000 for fiscal year 1989, $38,000,000 for
fiscal year 1990, $39,500,000 for fiscal year 1991,
[and] $41,500,000 for fiscal year 1992, and
$287,978,000 for each of fiscal years 2026 through 2031
to enable the Department of the Interior to carry out
such functions and responsibilities as it may have been
given under this Act;
(2) not to exceed $5,750,000 for fiscal year 1988,
$6,250,000 for each of fiscal years 1989 and 1990,
[and] $6,750,000 for each of fiscal years 1991 and
1992, and $105,400,000 for each of fiscal years 2026
through 2031 to enable the Department of Commerce to
carry out such functions and responsibilities as it may
have been given under this Act; and
(3) not to exceed $2,200,000 for fiscal year 1988,
$2,400,000 for each of fiscal years 1989 and 1990,
[and] $2,600,000 for each of fiscal years 1991 and
1992, and $2,600,000 for each of fiscal years 2026
through 2031 to enable the Department of Agriculture to
carry out its functions and responsibilities with
respect to the enforcement of this Act and the
Convention which pertain to the importation or
exportation of plants.
(b) Exemptions From Act.--There are authorized to be
appropriated to the Secretary to assist him and the Endangered
Species Committee in carrying out their functions under
[sections 7 (e), (g), and (h)] subsections (e), (g), and (h) of
section 7 not to exceed $600,000 for each of fiscal years 1988,
1989, 1990, 1991, and 1992 and $600,000 for each of fiscal
years 2026 through 2031.
(c) Convention Implementation.--There are authorized to be
appropriated to the Department of the Interior for purposes of
carrying out section 8A(e) not to exceed $400,000 for each of
fiscal years 1988, 1989, and 1990, [and] $500,000 for each of
fiscal years 1991 and 1992, and $9,900,000 for each of fiscal
years 2026 through 2031, and such sums shall remain available
until expended.
* * * * * * *
annual cost analysis by the fish and wildlife service
Sec. 18. Notwithstanding section 3003 of Public Law 104-66
(31 U.S.C. 1113 note; 109 Stat. 734), on or before January 15,
1990, and each January 15 thereafter, the Secretary of the
Interior, acting through the Fish and Wildlife Service, shall
submit to the Congress, and make publicly available on the
website data.gov, an annual report covering the preceding
fiscal year which shall contain--
(1) an accounting on a species by species basis of
all reasonably unidentifiable Federal expenditures made
primarily for the conservation of endangered or
threatened species pursuant to this Act, including any
such expenditures made with respect to an experimental
population (as that term is defined in section 10(j));
and
(2) an accounting on a species by species basis for
all reasonably identifiable expenditures made primarily
for the conservation of endangered or threatened
species pursuant to this Act by States receiving grants
under section 6.
DISSENTING VIEWS
H.R. 1897, as amended, would fundamentally weaken the
authority and effectiveness of the Endangered Species Act
(ESA). This bill would codify and expand upon the harmful 2019
Trump administration ESA rules\1\ that weakened protections for
threatened and endangered species and their critical habitat.
It would extend the timeframe for listing species through a new
five-tier priority system while fast-tracking delisting and
barring judicial review of delisting decisions. It would
narrowly redefine key terms--including ``foreseeable future,''
``habitat,'' ``best scientific and commercial data available,''
and ``environmental baseline''--to limit the scope of the ESA
and interfere with science-based decision-making by prohibiting
``precautionary assumptions in favor of a species.'' The bill
would eliminate blanket protections for threatened species,
prohibit mitigation in reasonable and prudent measures, exempt
Conservation Benefit Agreements and incidental take permits
from the National Environmental Policy Act (NEPA) and ESA
Section 7 consultation, dramatically expand the ``God Squad''
exemption process to allow economic considerations to override
project-specific species protections, cap attorney fees to
discourage citizen enforcement, and restrict agency regulatory
authority. Additional amendments would impose burdensome
congressional notification requirements for critical habitat
designations and experimental population releases, thereby
disincentivizing the use of conservation tools such as species
reintroduction programs and science-based critical habitat
designations. These changes would hinder federal agencies'
ability to protect species from extinction, regardless of how
imperiled a species may be or what the best available science
indicates.
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\1\Congressional Research Service (CRS), Final Rules Changing
Endangered Species Act Regulations, (Updated August 27, 2019), Report
IF10944.
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Human-related impacts, including habitat destruction,
invasive species, disease, pollution, overexploitation, and
climate change, threaten many species of wildlife and plants.
One million species globally are threatened with extinction.\2\
In the United States, 34% of plants and 40% of animals are at
risk of extinction, and 41% of our ecosystems are at risk of
range-wide collapse.\3\ The loss of biodiversity and ecosystems
worldwide could cost the global economy $2.7 trillion annually
by 2030.\4\ In light of this extinction crisis, the ESA is a
critical tool for preventing extinction and putting imperiled
species on the road to recovery. It is ``the most comprehensive
legislation for the preservation of endangered species enacted
by any nation.''\5\ Over 99% of species listed under the ESA
have avoided extinction, and the law has been responsible for
the recovery of iconic species such as the Bald Eagle, Gray
Whale, Steller Sea Lion, Brown Pelican, and American
Alligator.\6\
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\2\IPBES (2019): Global assessment report on biodiversity and
ecosystem services of the Intergovernmental Science-Policy Platform on
Biodiversity and Ecosystem Services. E. S. Brondizio, J. Settele, S. D,
and H. T. Ngo (editors). IPBES secretariat, Bonn, Germany. 1148 pages.
https://doi.org/10.5281/zenodo.3831673.
\3\NatureServe, Biodiversity in Focus: United States Edition
(2023). https://www.natureserve.org/biodiversity-in-focus.
\4\Johnson, Justin Andrew, et al. (2021). The Economic Case for
Nature: A Global Earth-Economy Model to Assess Development Policy
Pathways. World Bank, Washington, DC. http://hdl.handle.net/10986/
35882.
\5\Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).
\6\Defenders of Wildlife analysis; see also Center for Biological
Diversity, ``On Time, On Target: How the Endangered Species Act Is
Saving America's Wildlife'' (2016). Also see: ``Species Delisted.''
USFWS. https://ecos.fws.gov/ecp/report/species-delisted Last Visited on
January 14, 2026.
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Delays Listings and Fast-Tracks Delisting: This bill would
create a new National Listing Work Plan with a 5-tier priority
classification system that could extend the timeframe for
listing some species from the mandatory 12-month deadline to up
to 10 years. Species classified as Priority 3, 4, or 5 may be
retained on the work plan for up to five additional years
beyond regular deadlines--with Priority 5 species potentially
languishing indefinitely if the Secretary determines they would
receive ``limited conservation benefit'' from listing. The bill
provides no recourse if the Secretary misclassifies a species
as a lower-priority species, allowing administrative misconduct
to delay listing decisions legally. Meanwhile, the bill would
fast-track delisting by requiring a rulemaking to be initiated
within 30 days of a five-year review determination and then
barring any judicial review of delisting decisions during the
entire post-delisting monitoring period, which can last five
years or more. These changes would make it harder for species
to be listed and easier for them to be delisted prematurely,
with little recourse to challenge either action. Research
demonstrates that species listed earlier, before populations
reach crisis levels, recover faster and at lower cost.\7\ This
bill would move in the opposite direction.
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\7\U.S. Fish and Wildlife Service, ``Report to Congress on the
Recovery of Threatened and Endangered Species, Fiscal Years 2019-
2020.''
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Establishes Harmful Definitions: This bill is filled with
harmful definitions that depart from decades of established,
working legal standards. It would redefine ``best scientific
and commercial data available'' to prohibit ``precautionary
assumptions in favor of a species or other assumptions or
policy prescriptions that bias the application.'' This
provision would weaponize scientific uncertainty to prevent
protective action. The bill would redefine ``foreseeable
future'' to limit it to periods in which threats can be
demonstrated to be ``likely to occur,'' undermining the
Services' ability to address long-term threats like climate
change. It would redefine ``habitat'' to exclude areas outside
the current or historic range or visited by ``only vagrant
individual members,'' preventing designation of habitat that
could serve as climate refugia or corridors for species
movement. It would codify a narrow ``environmental baseline''
definition that includes ``existing structures and facilities''
and their ``past, present, and future effects,'' treating
ongoing harm as the baseline against which new impacts are
measured.
Guts Critical Habitat Protections: The bill would exclude
unoccupied habitat from critical habitat designation--
regardless of whether species historically occupied these areas
or whether such habitat is essential for species recovery. It
would substantially expand the circumstances under which the
Secretary may determine critical habitat designation is ``not
prudent,'' including when species are threatened by factors
other than habitat destruction or when species ``primarily
occur'' outside U.S. jurisdiction. Most significantly, the bill
would prohibit critical habitat designation on ``any privately
owned or controlled land'' that is subject to a land management
plan the Secretary determines will maintain species
populations. Private land supports approximately two-thirds of
threatened and endangered species,\8\ so excluding these lands
from critical habitat designation puts these species at serious
risk. Yet the bill would exclude such lands if the Secretary
declares the relevant land management plan as ``similar in
nature'' to an Integrated Natural Resources Management Plan--a
standard far weaker than the current critical habitat
framework.
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\8\U.S. Fish and Wildlife Service, ``Report to Congress on the
Recovery of Threatened and Endangered Species, Fiscal Years 2019-
2020.''
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Sets Burdensome Congressional Notification Requirements: An
amendment accepted in markup (Sections 406-408) would impose
extensive new bureaucratic requirements on critical habitat
designations and experimental population releases covering
areas greater than 50,000 acres. For each such action, the
Secretary would be required to submit detailed notifications to
Congress including inventories and evaluations of natural
resources uses, economic impact analyses on individuals, local
communities, and the United States, identification of all users
and how they would be affected, analyses of conflicts with
existing uses, documentation of all consultations with federal,
state, and local entities, and statements on effects to state
and local government interests and regional economies. These
requirements duplicate analyses already conducted under NEPA
and existing ESA procedures, adding delay and administrative
burden without improving conservation outcomes. The 50,000-acre
threshold appears specifically designed to disincentivize
large-scale recovery efforts such as the Mexican gray wolf
experimental population in Arizona and New Mexico. The
amendment would also require annual cost analyses of all ESA
expenditures, including those for experimental populations, to
be published on data.gov--further evidence of an intent to
build a political case against successful recovery programs
rather than improve species conservation.
Leaves Threatened Species in Uncertainty: This bill would
put threatened species in peril by effectively eliminating the
blanket 4(d) rule, which currently guarantees the same
comprehensive and immediate protection afforded to endangered
species. The bill would rewrite Section 4(d) to require
species-specific protective regulations that consider
``conservation and economic effects'' and include ``objective,
incremental recovery goals'' with protections that ``decrease
as such recovery goals are met.'' Without the blanket rule as a
default, an already under-resourced Fish and Wildlife Service
(FWS) would need to draft special rules for every threatened
species--or newly listed threatened species could have zero
protections until a rule is finalized. The bill further pushes
threatened species management onto states through a new
process, without requiring clear, objective, science-based
recovery goals at the state level. States already have the
authority to manage ESA-listed species under Section 6(c), but
have not used it. This change would create a confusing
patchwork of inconsistent state regulations.
Weakens Interagency Consultation: The bill would undermine
the Section 7 consultation process in multiple ways. It would
explicitly prohibit mitigation and offsets from reasonable and
prudent measures (RPMs), eliminating a critical tool for
minimizing the impact of federal actions on listed species. It
would create an automatic sunset provision requiring agencies
to discontinue RPMs and reasonable and prudent alternatives
(RPAs) after 10 years if they do not ``materially increase the
likelihood of and reduce the time for recovery''--even if those
measures are successfully maintaining species populations. It
would narrow the ``effects of the action'' that may be
considered to only those that are ``caused by the action itself
and are reasonably certain to occur,'' excluding effects that
are ``remote in time,'' ``geographically remote,'' or reached
through a ``lengthy causal chain.'' It similarly would limit
the ``action area'' to areas ``directly affected'' that are not
``speculative or remote.'' Together, these provisions would
prevent the Services from considering cumulative, indirect, or
downstream effects and would eliminate conservation measures
that are working.
Dramatically Expands ``God Squad'' Exemptions: An amendment
accepted in markup (Section 506) would dramatically expand the
Endangered Species Committee process--commonly known as the
``God Squad''--to sidestep the ESA and allow projects to cause
jeopardy to a species (push a species closer to extinction)
based on economic considerations. Currently, the Committee may
grant an exemption only if it determines that there are no
reasonable and prudent alternatives to the agency action, and
it has been used only twice since the ESA was enacted. The
amendment would allow applicants to seek exemptions whenever a
reasonable and prudent alternative ``may impair national
security'' or ``result in significant adverse national or
regional economic impacts.'' This would fundamentally transform
the exemption process from a last resort for truly
irreconcilable conflicts into a routine escape valve for any
project facing conservation requirements deemed economically
inconvenient.\9\ The amendment would require consultation with
the National Security Council and National Economic Council,
inserting political considerations into what should be science-
based wildlife management decisions. Congress deliberately set
a high bar for exemptions because extinction is irreversible--
this amendment would allow economic calculations to override
species survival, contrary to the ESA's fundamental purpose.
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\9\The Endangered Species Committee, commonly known as the ``God
Squad'', has only been convened a handful of times in the ESA's 50-year
history, reflecting Congress's intent that exemptions be reserved for
truly extraordinary circumstances. Also see: Greenwire. ``Trump
resurrects `God Squad' to bend the ESA''. January 23, 2025. Last
accessed on January 14, 2026.
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Undermines Voluntary Conservation: The bill would codify
Conservation Benefit Agreements (CBAs) but exempt them from
both Section 7 consultation and NEPA review and would make CBA
information exempt from FOIA disclosure. It would impose strict
timelines that will burden agency resources--30 days for
completeness determinations and 120 days for approval or
rejection. The bill would also exempt incidental take permits
under this CBA process from Section 7 consultation and NEPA
review, removing essential environmental review safeguards from
decisions that directly affect imperiled species.
Increases Barriers to Citizen Enforcement: The bill would
create extensive new reporting requirements for ESA-related
agency litigation while simultaneously making it harder for
citizens to enforce the law. It would cap attorney fees at $125
per hour--well below market rates--and limit total per-case
fees to $200,000. It would restrict fee recovery to ``eligible
parties'' meeting net worth thresholds ($2 million for
individuals, $7 million for organizations with 500 or fewer
employees) and bar parties that have sought fee recovery in
three or more cases in the preceding 12 months. These
restrictions would make it economically unviable for
conservation organizations to bring meritorious cases enforcing
the ESA, while well-funded industry groups face no such
barriers when challenging protective decisions. The bill
further would limit judicial review by routing all challenges
to biological opinions exclusively to the U.S. Court of Appeals
for the D.C. Circuit, with a 150-day filing deadline--
increasing costs and barriers for parties outside Washington,
D.C. and eliminating traditional venue options.
Strips Agency Authority: The bill would limit the
Secretary's regulatory authority to only Section 11
(enforcement) and Section 8A (the Convention), adding a rule of
construction that this authority ``may not be construed to be
an independent source of authority to promulgate regulations''
to enforce other provisions of the ESA. This would threaten
existing species-specific regulations, including ship strike
rules protecting North Atlantic right whales, turtle excluder
device requirements, and other critical safeguards developed
over decades to address specific threats to imperiled species.
Provides Inadequate Funding: The bill would authorize
approximately $288 million per year for FWS and $105 million
per year for the National Marine Fisheries Service (NMFS) for
fiscal years 2026-2031 (Section 3). These authorization levels
are inadequate to implement the ESA effectively, let alone to
carry out the extensive new requirements the amended bill would
impose, including species-specific 4(d) rules for all
threatened species, new work plans, expanded economic analyses,
and litigation reporting.
Weakens International Protections: The bill would exempt
non-native species listed under both the ESA and CITES Appendix
I or II from ESA permit requirements and create a weaker ``not
detrimental'' standard for non-native species permits. These
changes would complicate efforts to combat wildlife trafficking
and undermine U.S. leadership in international species
conservation at a time when global cooperation is essential to
address the extinction crisis.
Symbolically Renames the ESA: The Hageman amendment
(Section 5) would rename the Endangered Species Act of 1973 to
the ``Endangered Species Recovery Act.'' While seemingly
innocuous, this change signals the bill's intent to reframe the
ESA away from its core purpose of preventing extinction and
protecting imperiled species toward a narrower focus on
``recovery''--even as other provisions in the bill make actual
recovery more complicated to achieve by delaying listings,
weakening protections, and eliminating conservation tools. The
renaming is ironic given that the legislation would gut the
very mechanisms that have enabled species recovery over the
past 50 years.
At a time of accelerating biodiversity loss, H.R. 1897, as
amended, would roll back the ESA's core protections, restrict
agency authority, and codify harmful Trump policies. The bill's
proponents claim it will provide regulatory relief and
incentivize conservation, but in practice, it would delay
protections for at-risk species, make recovery more difficult
and costly, create new legal uncertainties for all
stakeholders, and undermine the citizen enforcement that has
been essential to the ESA's success. The Republican attempts to
undermine the ESA\10\ would hinder federal agencies' ability to
protect species from extinction, no matter how close to
extinction a species may be or what the best available science
says about its status, recovery, or management. Members of the
House should strongly oppose this legislation.
\10\For additional information on the recurring arguments,
misconceptions, and attacks on the ESA--please refer to the memoranda
from hearings during both of the 118th and 119th Congress: July 18,
2023, Oversight hearing on ESA at 50: The Destructive Cost of the ESA;
April 18, 2023, Legislative hearing on ESA Congressional Review Act
resolutions; March 23, 2023, Legislative hearing on bills to
legislatively de-list wolves and grizzly bears from the ESA; and July
9, 2024, Legislative hearing on the ESA Amendments Act of 2024;
February 26, 2025, Oversight Hearing Evaluating the Implementation of
the MMPA and the ESA; March 4, 2025, Oversight hearing understanding
the consequences of experimental populations under the ESA; March 25,
2025, Legislative hearing on ESA Amendments Act of 2025; July 22, 2025,
Legislative hearing on bills to amend the ESA; September 3, 2025,
Legislative hearing on bills to legislatively de-list Mexican wolves
and grizzly bears from the ESA.
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Jared Huffman,
Ranking Member.
[all]