Threatened and Endangered Species Recovery Act of 2005

        [Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3824 Referred in Senate (RFS)]

109th CONGRESS
1st Session
H. R. 3824

_______________________________________________________________________

IN THE SENATE OF THE UNITED STATES

September 30, 2005

Received; read twice and referred to the Committee on Environment and
Public Works

_______________________________________________________________________

AN ACT

To amend and reauthorize the Endangered Species Act of 1973 to provide
greater results conserving and recovering listed species, and for other
purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

Sec. 1.  Short title; table of contents.
Sec. 2.  Amendment references.
Sec. 3.  Definitions.
Sec. 4.  Determinations of endangered species and threatened species.
Sec. 5.  Repeal of critical habitat requirements.
Sec. 6.  Petitions and procedures for determinations and revisions.
Sec. 7.  Reviews of listings and determinations.
Sec. 8.  Secretarial guidelines; State comments.
Sec. 9.  Recovery plans and land acquisitions.
Sec. 10. Cooperation with States and Indian tribes.
Sec. 11. Interagency cooperation and consultation.
Sec. 12. Exceptions to prohibitions.
Sec. 13. Private property conservation.
Sec. 14. Public accessibility and accountability.
Sec. 15. Annual cost analyses.
Sec. 16. Reimbursement for depredation of livestock by reintroduced
species.
Sec. 17. Authorization of appropriations.
Sec. 18. Miscellaneous technical corrections.
Sec. 19. Clerical amendment to table of contents.
Sec. 20. Certain actions deemed in compliance.
Sec. 21. Consolidation of programs.
Sec. 22. Review of protective regulations.
Sec. 23. Provision of information regarding compliance costs of Federal
power administrations.
Sec. 24. Survey of BLM lands and Forest Service lands for management
for recovery of listed species.
Sec. 25. Relationship between section 7 consultation and incident take
authorization under Marine Mammal
Protection Act of 1972.

SEC. 2. AMENDMENT REFERENCES.

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

SEC. 3. DEFINITIONS.

(a) Best Available Scientific Data.--Section 3 (16 U.S.C. 1532) is
amended by redesignating paragraphs (2) through (21) in order as
paragraphs (3), (4), (5), (6), (7), (8), (9), (10), (11), (13), (14),
(15), (16), (17), (18), (19), (20), (21), and (22), respectively, and
by inserting before paragraph (3), as so redesignated, the following:
``(2)(A) The term `best available scientific data' means scientific
data, regardless of source, that are available to the Secretary at the
time of a decision or action for which such data are required by this
Act and that the Secretary determines are the most accurate, reliable,
and relevant for use in that decision or action.
``(B) Not later than one year after the date of the enactment of
the Threatened and Endangered Species Recovery Act of 2005, the
Secretary shall issue regulations that establish criteria that must be
met to determine which data constitute the best available scientific
data for purposes of subparagraph (A).
``(C) In carrying out subparagraph (B), the Secretary shall
undertake necessary measures to assure--
``(i) compliance with guidance issued under section 515 of
the Treasury and General Government Appropriations Act of 2001
(Public Law 106-554; 114 Stat. 2763A-171) by the Director of
the Office of Management and Budget and the Secretary;
``(ii) data consists of empirical data; or
``(iii) data is found in sources that have been subject to
peer review by qualified individuals recommended by the
National Academy of Sciences to serve as independent reviewers
for a covered action in a generally acceptable manner.''.
(b) Permit or License Applicant.--Section 3 (16 U.S.C. 1532) is
further amended by amending paragraph (13), as so redesignated, to read
as follows:
``(13) The term `permit or license applicant' means, when used with
respect to an action of a Federal agency that is subject to section
7(a) or (b), any person that has applied to such agency for a permit or
license or for formal legal approval to perform an act.''.
(c) Conforming Amendment.--Section 7(n) (16 U.S.C. 1536(n)) is
amended by striking ``section 3(13)'' and inserting ``section 3(14)''.
(d) Conforming Amendment.--Section 3 (16 U.S.C. 1532) is further
amended in paragraph (18), as redesignated by subsection (a) of this
section, by striking ``Trust Territory of the Pacific Islands'' and
inserting ``Commonwealth of the Northern Mariana Islands''.

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

(a) Requirement to Make Determinations.--Section 4 (16 U.S.C. 1533)
is amended by striking so much as precedes subsection (a)(3) and
inserting the following:

``determination of endangered species and threatened species

``Sec. 4. (a) In General.--(1) The Secretary shall by regulation
promulgated in accordance with subsection (b) determine whether any
species is an endangered species or a threatened species because of any
of the following factors:
``(A) The present or threatened destruction, modification,
or curtailment of its habitat or range by human activities,
competition from other species, drought, fire, or other
catastrophic natural causes.
``(B) Overutilization for commercial, recreational,
scientific, or educational purposes.
``(C) Disease or predation.
``(D) The inadequacy of existing regulatory mechanisms,
including any efforts identified pursuant to subsection (b)(1).
``(E) Other natural or manmade factors affecting its
continued existence.
``(2) The Secretary shall use the authority provided by paragraph
(1) to determine any distinct population of any species of vertebrate
fish or wildlife to be an endangered species or a threatened species
only sparingly.''.
(b) Basis for Determination.--Section 4(b)(1)(A) (16 U.S.C.
1533(b)(1)(A)) is amended--
(1) by striking ``best scientific and commercial data
available to him'' and inserting ``best available scientific
data''; and
(2) by inserting ``Federal agency, any'' after ``being made
by any''.
(c) Lists.--Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to
read as follows:
``(2)(A) The Secretary shall--
``(i) conduct, at least once every 5 years, based
on the information collected for the biennial reports
to the Congress required by paragraph (3) of subsection
(f), a review of all species included in a list that is
published pursuant to paragraph (1) and that is in
effect at the time of such review; and
``(ii) determine on the basis of such review and
any other information the Secretary considers relevant
whether any such species should--
``(I) be removed from such list;
``(II) be changed in status from an
endangered species to a threatened species; or
``(III) be changed in status from a
threatened species to an endangered species.
``(B) Each determination under subparagraph (A)(ii) shall
be made in accordance with subsections (a) and (b).''.
(d) Analysis of Impacts and Benefits.--Section 4(a) (16 U.S.C.
1533(a)), as amended by section 4(a) of this Act, is further amended by
striking paragraph (3) and inserting the following:
``(4)(A) The Secretary shall, concurrently with making a
determination under paragraph (1) that a species is an endangered
species or a threatened species, prepare an analysis of--
``(i) the economic impact and benefit of that
determination;
``(ii) the impact and benefit on national security of that
determination; and
``(iii) any other relevant impact and benefit of that
determination.
``(B) Nothing in this paragraph shall delay the Secretary's
decision or change the criteria used in making determinations under
paragraph (1).''.

SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS.

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

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

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

SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS.

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

SEC. 8. SECRETARIAL GUIDELINES; STATE COMMENTS.

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

SEC. 9. RECOVERY PLANS AND LAND ACQUISITIONS.

(a) In General.--Section 5 (16 U.S.C. 1534) is amended--
(1) by redesignating subsections (a) and (b) as subsections
(k) and (l), respectively;
(2) in subsection (l), as redesignated by paragraph (1) of
this section, by striking ``subsection (a) of this section''
and inserting ``subsection (k)''; and
(3) by striking so much as precedes subsection (k), as
redesignated by paragraph (1) of this section, and inserting
the following:

``recovery plans and land acquisition

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

SEC. 10. COOPERATION WITH STATES AND INDIAN TRIBES.

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

SEC. 11. INTERAGENCY COOPERATION AND CONSULTATION.

(a) Consultation Requirement.--Section 7(a) (16 U.S.C. 1536(a)) is
amended--
(1) in paragraph (1) in the second sentence, by striking
``endangered species'' and all that follows through the end of
the sentence and inserting ``species determined to be
endangered species and threatened species under section 4.'';
(2) in paragraph (2)--
(A) in the first sentence by striking ``action''
the first place it appears and all that follows through
``is not'' and inserting ``agency action authorized,
funded, or carried out by such agency is not'';
(B) in the first sentence by striking ``, unless''
and all that follows through the end of the sentence
and inserting a period;
(C) in the second sentence, by striking ``best
scientific and commercial data available'' and
inserting ``best available scientific data''; and
(D) by inserting ``(A)'' before the first sentence,
and by adding at the end the following:
``(B) The Secretary may identify specific agency actions or
categories of agency actions that may be determined to meet the
standards of this paragraph by alternative procedures to the procedures
set forth in this subsection and subsections (b) through (d), except
that subsections (b)(4) and (e) may apply only to an action that the
Secretary finds, or concurs, does meet such standards, and the
Secretary shall suggest, or concur in any suggested, reasonable and
prudent alternatives described in subsection (b)(3) for any action
determined not to meet such standards. Any such agency action or
category of agency actions shall be identified, and any such
alternative procedures shall be established, by regulation promulgated
prior or subsequent to the date of the enactment of this Act.'';
(3) in paragraph (4)--
(A) by striking ``listed under section 4'' and
inserting ``an endangered species or a threatened
species''; and
(B) by inserting ``determined'' after ``such
species''; and
(4) by adding at the end the following:
``(5) Any Federal agency or the Secretary, in conducting any
analysis pursuant to paragraph (2), shall consider only the effects of
any agency action that are distinct from a baseline of all effects upon
the relevant species that have occurred or are occurring prior to the
action.
``(6) This subsection shall not apply to any agency action that may
affect any species for which a permit is issued under section 10 for
other than scientific purposes, if the action implements or is
consistent with any conservation plan or agreement incorporated by
reference in the permit.''.
(b) Opinion of Secretary.--Section 7(b) (16 U.S.C. 1536(b)) is
amended--
(1) in paragraph (1)(B)(i) by inserting ``permit or
license'' before ``applicant'';
(2) in paragraph (2) by inserting ``permit or license''
before ``applicant'';
(3) in paragraph (3)(A)--
(A) in the first sentence--
(i) by striking ``Promptly after'' and
inserting ``Before'';
(ii) by inserting ``permit or license''
before ``applicant''; and
(iii) by inserting ``proposed'' before
``written statement''; and
(B) by striking all after the first sentence and
inserting the following: ``The Secretary shall consider
any comment from the Federal agency and the permit or
license applicant, if any, prior to issuance of the
final written statement of the Secretary's opinion. The
Secretary shall issue the final written statement of
the Secretary's opinion by providing the written
statement to the Federal agency and the permit or
license applicant, if any, and publishing notice of the
written statement in the Federal Register. If jeopardy
is found, the Secretary shall suggest in the final
written statement those reasonable and prudent
alternatives, if any, that the Secretary believes would
not violate subsection (a)(2) and can be taken by the
Federal agency or applicant in implementing the agency
action. The Secretary shall cooperate with the Federal
agency and any permit or license applicant in the
preparation of any suggested reasonable and prudent
alternatives.'';
(4) in paragraph (4)--
(A) by redesignating subparagraphs (A), (B), and
(C) as clauses (i), (ii), and (iii), respectively;
(B) by inserting ``(A)'' after ``(4)'';
(C) by striking ``the Secretary shall provide'' and
all that follows through ``with a written statement
that--'' and inserting the following: ``the Secretary
shall include in the written statement under paragraph
(3), a statement described in subparagraph (B) of this
paragraph.
``(B) A statement described in this subparagraph--''; and
(5) by adding at the end the following:
``(5)(A) Any terms and conditions set forth pursuant to paragraph
(4)(B)(iv) shall be roughly proportional to the impact of the
incidental taking identified pursuant to paragraph (4) in the written
statement prepared under paragraph (3).
``(B) If various terms and conditions are available to comply with
paragraph (4)(B)(iv), the terms and conditions set forth pursuant to
that paragraph--
``(i) must be capable of successful implementation; and
``(ii) must be consistent with the objectives of the
Federal agency and the permit or license applicant, if any, to
the greatest extent possible.''.
(c) Biological Assessments.--Section 7(c) (16 U.S.C. 1536(c)) is
amended--
(1) by striking ``(1)'';
(2) by striking paragraph (2);
(3) in the first sentence, by striking ``which is listed''
and all that follows through the end of the sentence and
inserting ``that is determined to be an endangered species or a
threatened species, or for which such a determination is
proposed pursuant to section 4, may be present in the area of
such proposed action.''; and
(4) in the second sentence, by striking ``best scientific
and commercial data available'' and inserting ``best available
scientific data''.
(d) Elimination of Endangered Species Committee Process.--Section 7
(16 U.S.C. 1536) is amended--
(1) by repealing subsections (e), (f), (g), (h), (i), (j),
(k), (l), (m), and (n);
(2) by redesignating subsections (o) and (p) as subsections
(e) and (f), respectively;
(3) in subsection (e), as redesignated by paragraph (2) of
this subsection--
(A) in the heading, by striking ``Exemption as
Providing''; and
(B) by striking ``such section'' and all that
follows through ``(2)'' and inserting ``such
section,''; and
(4) in subsection (f), as redesignated by paragraph (2) of
this subsection--
(A) in the first sentence, by striking ``is
authorized'' and all that follows through ``of this
section'' and inserting ``may exempt an agency action
from compliance with the requirements of subsections
(a) through (d) of this section before the initiation
of such agency action,''; and
(B) by striking the second sentence.

SEC. 12. EXCEPTIONS TO PROHIBITIONS.

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

SEC. 13. PRIVATE PROPERTY CONSERVATION.

Section 13 (consisting of amendments to other laws, which have
executed) is amended to read as follows:

``private property conservation

``Sec. 13. (a) In General.--The Secretary may provide conservation
grants (in this section referred to as `grants') to promote the
voluntary conservation of endangered species and threatened species by
owners of private property and shall provide financial conservation aid
(in this section referred to as `aid') to alleviate the burden of
conservation measures imposed upon private property owners by this Act.
The Secretary may provide technical assistance when requested to
enhance the conservation effects of grants or aid.
``(b) Awarding of Grants and Aid.--Grants to promote conservation
of endangered species and threatened species on private property--
``(1) may not be used to fund litigation, general
education, general outreach, lobbying, or solicitation;
``(2) may not be used to acquire leases or easements of
more than 50 years duration or fee title to private property;
``(3) must be designed to directly contribute to the
conservation of an endangered species or threatened species by
increasing the species' numbers or distribution; and
``(4) must be supported by any private property owners on
whose property any grant funded activities are carried out.
``(c) Priority.--Priority shall be accorded among grant requests in
the following order:
``(1) Grants that promote conservation of endangered
species or threatened species on private property while making
economically beneficial and productive use of the private
property on which the conservation activities are conducted.
``(2) Grants that develop, promote, or use techniques to
increase the distribution or population of an endangered
species or threatened species on private property.
``(3) Other grants that promote voluntary conservation of
endangered species or threatened species on private property.
``(d) Eligibility for Aid.--(1) The Secretary shall award aid to
private property owners who--
``(A) received a written determination under section 10(k)
finding that the proposed use of private property would not
comply with section 9(a); or
``(B) receive notice under section 10(k)(10) that a written
determination has been withdrawn.
``(2) Aid shall be in an amount no less than the fair market value
of the use that was proposed by the property owner if--
``(A) the owner has foregone the proposed use;
``(B) the owner has requested financial aid--
``(i) within 180 days of the Secretary's issuance
of a written determination that the proposed use would
not comply with section 9(a); or
``(ii) within 180 days after the property owner is
notified of a withdrawal under section 10(k)(10); and
``(C) the foregone use would be lawful under State and
local law and the property owner has demonstrated that the
property owner has the means to undertake the proposed use.
``(e) Distribution of Grants and Aid.--(1) The Secretary shall pay
eligible aid--
``(A) within 270 days after receipt of a request for aid
unless there are unresolved questions regarding the fair market
value; or
``(B) at the resolution of any questions concerning the
fair market value established under subsection (g).
``(2) All grants provided under this section shall be paid on the
last day of the fiscal year. Aid shall be paid based on the date of the
initial request.
``(f) Documentation of the Foregone Use.--Within 30 days of the
request for aid, the Secretary shall enter into negotiations with the
property owner regarding the documentation of the foregone proposed use
through such mechanisms that would benefit the species such as contract
terms, lease terms, deed restrictions, easement terms, or transfer of
title. If the Secretary and the property owner are unable to reach an
agreement, then, within 60 days of the request for aid, the Secretary
shall determine how the property owner's foregone use shall be
documented to benefit the species with the least impact on the
ownership interests of the property owner necessary to document the
foregone use, which shall not include transfer of title.
``(g) Fair Market Value.--For purposes of this section, the fair
market value of the foregone use of the affected portion of the private
property, including business losses, is what a willing buyer would pay
to a willing seller in an open market. Fair market value shall take
into account the likelihood that the foregone use would be approved
under State and local law. The fair market value shall be determined
within 180 days of the documentation of the foregone use. The fair
market value shall be determined jointly by 2 licensed independent
appraisers, one selected by the Secretary and one selected by the
property owner. If the 2 appraisers fail to agree on fair market value,
the Secretary and the property owner shall jointly select a third
licensed appraiser whose appraisal within an additional 90 days shall
be the best and final offer by the Secretary. Within one year after the
date of enactment of the Threatened and Endangered Species Recovery Act
of 2005, the Secretary shall promulgate regulations regarding selection
of the jointly selected appraisers under this subsection.
``(h) Limitation on Aid Availability.--Any person receiving aid
under this section may not receive additional aid under this section
for essentially the same foregone use of the same property and for the
same period of time.
``(i) Annual Reporting.--The Secretary shall by January 15 of each
year provide a report of all aid and grants awarded under this section
to the Committee on Resources of the House of Representatives and the
Environment and Public Works Committee of the Senate and make such
report electronically available to the general public on the website
required under section 14.''.

SEC. 14. PUBLIC ACCESSIBILITY AND ACCOUNTABILITY.

Section 14 (relating to repeals of other laws, which have executed)
is amended to read as follows:

``public accessibility and accountability

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

SEC. 15. ANNUAL COST ANALYSES.

(a) Annual Cost Analyses.--Section 18 (16 U.S.C. 1544) is amended
to read as follows:

``annual cost analysis by united states fish and wildlife service

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

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

The Endangered Species Act of 1973 is further amended--
(1) by striking sections 15 and 16;
(2) by redesignating sections 17 and 18 as sections 15 and
16, respectively; and
(3) by adding after section 16, as so redesignated, the
following:

``reimbursement for depredation of livestock by reintroduced species

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

SEC. 17. AUTHORIZATION OF APPROPRIATIONS.

(a) Authorization.--The Endangered Species Act of 1973 is further
amended by adding at the end the following:

``authorization of appropriations

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

SEC. 18. MISCELLANEOUS TECHNICAL CORRECTIONS.

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

SEC. 19. CLERICAL AMENDMENT TO TABLE OF CONTENTS.

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

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

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

SEC. 20. CERTAIN ACTIONS DEEMED IN COMPLIANCE.

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

SEC. 21. CONSOLIDATION OF PROGRAMS.

(a) Transfer.--The President shall, by not later than one year
after the date of enactment of this Act, transfer to the Secretary of
the Interior all duties, resources, and responsibilities of the
Secretary of Commerce under the Endangered Species Act of 1973 existing
immediately before the enactment of this Act.
(b) Conforming Amendment.--
(1) Amendment.--Section 3 (16 U.S.C. 1532) is further
amended in paragraph (15) (relating to the definition of
``Secretary'') by striking ``or the Secretary of Commerce as
program responsibilities are vested pursuant to the provisions
of Reorganization Plan Numbered 4 of 1970''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect one year after the date of the enactment of
this Act.
(c) Report.--No later than 180 days after the date of enactment of
this Act, the Secretary of the Interior and the Secretary of Commerce
shall jointly submit to the Committee on Resources and the Committee on
Appropriations of the House of Representatives, and the Committee on
Environment and Public Works and the Committee on Appropriations of the
Senate, a detailed description of the process by which the transfer of
functions under the amendment made by subsection (a) shall be
implemented.
(d) Prior Determinations and Actions not Affected.--This section
shall not affect any determination or action by the Secretary of
Commerce made or taken, respectively, under the Endangered Species Act
of 1973 before the date of the enactment of this Act, except that such
determinations and actions shall be treated as determinations and
actions, respectively, of the Secretary of the Interior.

SEC. 22. REVIEW OF PROTECTIVE REGULATIONS.

The Secretary of the Interior shall--
(1) review regulations issued before the date of the
enactment of this Act pursuant to section 4(d) of the
Endangered Species Act of 1973, in order to determine whether
revision of such regulations would be desirable in order to
facilitate and improve cooperation with the States pursuant to
section 6 of such Act; and
(2) report to the Committee on Resources of the House of
Representatives and the Committee on Environment and Public
Works of the Senate regarding the findings of such review.

SEC. 23. PROVISION OF INFORMATION REGARDING COMPLIANCE COSTS OF FEDERAL
POWER ADMINISTRATIONS.

(a) Customer Billings.--The Administrator of the Bonneville Power
Administration, the Western Area Power Administration, the Southwestern
Power Administration, and the Southeastern Power Administration shall
each include in monthly firm power customer billings sent to each
customer information identifying and reporting such customer's share of
the Federal power marketing and generating agencies' direct and
indirect costs incurred by such administration related to compliance
with the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) and
activities related to such Act.
(b) Direct Costs.--In identifying and reporting direct costs, each
Administrator shall include Federal agency obligations related to
study-related costs, capital, operation, maintenance, and replacement
costs, and staffing costs.
(c) Indirect Costs.--In identifying and reporting indirect costs,
each Administrator shall include foregone generation and replacement
power costs.
(d) Coordination.--Each Administrator shall coordinate
identification of costs under this subsection with the appropriate
Federal power generating agencies.

SEC. 24. SURVEY OF BLM LANDS AND FOREST SERVICE LANDS FOR MANAGEMENT
FOR RECOVERY OF LISTED SPECIES.

(a) In General.--Not later than 2 years after the date of the
enactment of this Act, the Secretary of the Interior shall--
(1) survey all lands under the administrative jurisdiction
of the Bureau of Land Management and all lands under the
administrative jurisdiction Forest Service immediately before
the enactment of this Act, for the purpose of assessing the
value of such lands for management for the recovery of any
species included in a list published under section 4(c) of the
Endangered Species Act of 1973 and for addition to the National
Wildlife Refuge System; and
(2) make recommendations to the Congress for managing any
such lands as are appropriate as part of the National Wildlife
Refuge System.
(b) Limitation on Transfers.--The Secretary of the Interior may not
transfer administrative jurisdiction pursuant to any recommendation
under subsection (a)(2) except as authorized by a statute enacted after
the date of the enactment of this Act.

SEC. 25. RELATIONSHIP BETWEEN SECTION 7 CONSULTATION AND INCIDENT TAKE
AUTHORIZATION UNDER MARINE MAMMAL PROTECTION ACT OF 1972.

Consultation under section 7 of the Endangered Species Act of 1973
(16 U.S.C. 1536) is equivalent to a section 101 incidental take
authorization required under the Marine Mammal Protection Act of 1972
(16 U.S.C. 1631 et seq.) for receiving dock building permits.

Passed the House of Representatives September 29, 2005.

Attest:

JEFF TRANDAHL,

Clerk.

By Gerasimos C. Vans,

Deputy Clerk.