For other versions of this document, see http://wikileaks.org/wiki/CRS-RL33309 ------------------------------------------------------------------------------ Order Code RL33309 CRS Report for Congress Received through the CRS Web Reauthorization of the Endangered Species Act (ESA): A Comparison of Pending Bills and a Proposed Amendment with Current Law March 13, 2006 Pervaze A. Sheikh, Coordinator Analyst in Environmental and Natural Resources Policy Resources, Science, and Industry Division Pamela Baldwin and Erika Lunder Legislative Attorneys American Law Division M. Lynne Corn and Eugene H. Buck Specialists in Natural Resources Policy Resources, Science, and Industry Division Congressional Research Service ~ The Library of Congress Reauthorization of the Endangered Species Act (ESA): A Comparison of Pending Bills and a Proposed Amendment with Current Law Summary The Endangered Species Act (ESA) protects species that are determined to be either endangered or threatened according to assessments of their risk of extinction. The ESA has not been reauthorized since September 30, 1992, and efforts to do so have been controversial and complex. Some observers assert that the current ESA is a failure because few species have recovered, and that it unduly and unevenly restricts the use of private lands. Others assert that since the act's passage, few species have become extinct, many have improved, and that restrictions to preserve species do not place a greater burden on landowners than many other federal, state, and local laws. This report provides a side-by-side analysis of two bills and a proposed amendment that would amend the ESA. This analysis compares H.R. 3824, the Threatened and Endangered Species Recovery Act of 2005, as passed by the House; proposed House Amendment 588 to H.R. 3824 (Miller/Boehlert Amendment); and S. 2110, the Collaboration for the Recovery of Endangered Species Act. Proponents of each proposal indicate that it is designed to make the ESA more effective by redefining the relationship between private and public property uses and species protection, implementing new incentives for species conservation, and removing what some see as undue land use restrictions. Thus, all three proposals contain provisions meant to encourage greater voluntary conservation of species by states and private landowners, a concept that has been supported by many observers. Further, all three proposals would modify or eliminate certain procedural or other elements of the current ESA that some have viewed as significant protections and prohibitions, including eliminating or changing the role of "critical habitat" (CH) (which would eliminate one aspect of the current consultation process); making the listing of all threatened and endangered species more difficult or less likely; expanding §10 permits allowing incidental take (which could incur a greater need for agency oversight and enforcement); and expanding state rather than federal implementation of ESA programs (which might make oversight more difficult). Proponents of these changes assert that tighter listing standards would enable a better focus on species with the most dire needs, and that other measures would achieve recovery of more species. Critics argue that proposed changes create gaps in the ESA safety net of protections and prohibitions. It is difficult to assess whether, on balance, the proposals would be likely to achieve greater protection and recovery of species, or to what extent the controversies over land use constraints would diminish. However, replacing some of the protections of the current ESA with new incentives, rather than adding the new incentives to the current protections, arguably makes adequate funding of the new programs more critical to determining the outcome of the ESA. This report will be updated as events warrant. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Overview of the Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 H.R. 3824 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Miller/Boehlert Amendment to H.R. 3824 . . . . . . . . . . . . . . . . . . . . . . 3 S. 2110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Comparison of H.R. 3824, the Miller/Boehlert Amendment, and S. 2110 . . 5 Section 3 -- Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Section 4 -- Determinations/Listings . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 4 -- Designation of Critical Habitat (CH) . . . . . . . . . . . . . . . . 7 Section 4 -- Recovery Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 6 -- Cooperative Agreements with States . . . . . . . . . . . . . . . . 9 Section 7 -- Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 10 -- Exemptions from Take Prohibitions and Property Owner Incentives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 15 -- Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 List of Tables Table 1. Side-by-Side Comparison of The Endangered Species Act (H.R. 3824), Miller/Boehlert Amendment to H.R. 3824, and S. 2110 . . . . 15 Best Available Science Definition . . . . . . . . . . . . . . . . . . . . 15 Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Role of the Secretary of Commerce . . . . . . . . . . . . . . . . . . . 16 Endangered and Threatened Determinations . . . . . . . . . . . . 18 Use of Scientific and Commercial Data . . . . . . . . . . . . . . . . 19 Science Advisory Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Critical Habitat -- General . . . . . . . . . . . . . . . . . . . . . . . . . 23 Critical Habitat -- Designation . . . . . . . . . . . . . . . . . . . . . . 25 Critical Habitat -- Location . . . . . . . . . . . . . . . . . . . . . . . . . 26 Critical Habitat -- Economic Impact and Benefit Analyses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Review of Listed Species . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Notice to States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Special Rules for Threatened Species . . . . . . . . . . . . . . . . . 29 Recovery Plans -- Overview . . . . . . . . . . . . . . . . . . . . . . . . 30 Recovery Plans -- Development . . . . . . . . . . . . . . . . . . . . . 31 Recovery Plans -- Team . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Recovery Plans -- Coordination with Government Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Recovery Plans -- Contents . . . . . . . . . . . . . . . . . . . . . . . . 34 Recovery Plans -- Consultation and Comment . . . . . . . . . . 37 Recovery Plans -- Status . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Establishing Priority of Species . . . . . . . . . . . . . . . . . . . . . . 39 Establishing Priorities of Species -- Schedule . . . . . . . . . . 43 Cooperative Agreements With States . . . . . . . . . . . . . . . . . 45 Cooperative Agreements -- Consultation . . . . . . . . . . . . . . 46 Cooperative Agreements -- Incidental take and Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Cooperative Agreements -- Monitoring, Voluntary Enrollments, and Review . . . . . . . . . . . . . . . . . . . . . . . 47 Cooperative Agreements -- Termination . . . . . . . . . . . . . . 48 Indian Tribes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Consultations -- Alternative Procedures . . . . . . . . . . . . . . . 50 Exemption Changes: Repeal of the Endangered Species Committee; National Security; and Emergencies . . . . 54 Takings -- Written Determination . . . . . . . . . . . . . . . . . . . 56 Incidental Take -- Habitat Conservation Plans (HCPs) . . . 60 Incidental Take -- Recovery Plan Actions . . . . . . . . . . . . . 61 Incidental Take -- No Surprises . . . . . . . . . . . . . . . . . . . . . 63 Incidental Take -- Provisional Permits . . . . . . . . . . . . . . . . 64 Incidental Take -- Protection from Liability for Site Specific Plans Under the Healthy Forests Restoration Act of 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Property Owner Incentives -- Compensation to Landowners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Property Owner Incentives -- Conservation Agreements . . 72 Property Owner Incentives -- Priorities for the Selection of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Property Owner Incentives -- Species Recovery Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Property Owner Incentives -- Conservation Grants . . . . . . 77 Tax Incentives -- Deduction for Cost of Credits Purchased from Conservation Banks . . . . . . . . . . . . . . 77 Tax Incentives -- Credit for Conservation and Recovery Costs; See Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Annual Cost Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Compensation -- Livestock . . . . . . . . . . . . . . . . . . . . . . . . . 79 Authorization of Appropriations . . . . . . . . . . . . . . . . . . . . . 80 ESA and Farm Conservation Programs . . . . . . . . . . . . . . . . 81 Miscellaneous Provisions -- ESA and Pesticides . . . . . . . . 84 Miscellaneous Provisions -- Compliance Costs of Federal Power Administrations . . . . . . . . . . . . . . . . . . 86 Miscellaneous Provisions -- Survey of Bureau of Land Management and Forest Service Lands . . . . . . . . . . . . 86 Miscellaneous Provisions -- Consultation and the Marine Mammal Protection Act . . . . . . . . . . . . . . . . . . . . . . . . 87 Costs of Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Conservation Banks Under S. 2110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Tax Incentives Under S. 2110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Reauthorization of the Endangered Species Act (ESA): A Comparison of Pending Bills and a Proposed Amendment with Current Law Introduction The Endangered Species Act (ESA)1 protects species that are determined to be either endangered or threatened according to assessments of their risk of extinction. The act can be controversial because it can affect the use of both federal and non- federal lands and resources, and because dwindling species can be harbingers of broader ecosystem decline. The ESA has not been reauthorized since September 30, 1992, and efforts to do so have been controversial and complex. Some observers assert that the current ESA is a failure because few species have recovered, and that it restricts the use of private lands unduly and unevenly. Others assert that since the act's passage few species have become extinct, while many have improved, and that some restrictions are a reasonable burden to preserve species, including some that may directly affect human well-being. The conservation of habitat was seen as crucial when the ESA was enacted in 1973, reduced habitat still is widely recognized by scientists as a major cause of species loss, and habitat preservation is a focus of debate today. Whether to retain the current system of designating habitat critical for the conservation of species, or to eliminate that system in favor of other options has been discussed widely. There appears to be consensus on the desirability of creating incentives for property owners to preserve habitat, but there is disagreement as to whether such incentives should replace enforceable protections or supplement them. Other issues are the role of science in ESA decision-making, reducing conflicts with other activities (such as those of the Department of Defense), and possibly enacting some of the approaches taken in current regulations as provisions of the act. This report provides a side-by-side analysis of two bills and a proposed amendment that would amend the ESA. This analysis includes H.R. 3824, the Threatened and Endangered Species Recovery Act of 2005, as passed by the House, which would reauthorize and amend the ESA;2 proposed House Amendment 588 to H.R. 3824 (Miller/Boehlert Amendment), which would also reauthorize and amend 1 P.L. 93-205, 87 Stat. 884, 16 U.S.C. §§1531 et seq. 2 Introduced Sept. 19, 2005, by Rep. Richard Pombo and passed the House Sept. 29, 2005. Page numbers in text refer to House-passed version. CRS-2 the ESA;3 and S. 2110, the Collaboration for the Recovery of Endangered Species Act, which would amend but not reauthorize the ESA.4 Proponents of the individual proposals have indicated they are intended to make ESA more effective by encouraging greater voluntary conservation of species by states and private landowners, modifying or eliminating critical habitat, and expanding state rather than federal implementation of ESA programs, among other things. Of the three proposals, H.R. 3824 proposes the most extensive changes to current law. The Miller/Boehlert Amendment is similar to H.R. 3824 in several respects, but omits some of the provisions of H.R. 3824 and modifies others. S. 2110 would make some significant changes to current law and establish a system of tax incentives and credits for property owners. This report presents a summary and comparison of current law, the two bills, and the Miller/Boehlert Amendment. It does not attempt to analyze the current law's history and implementation in detail. For a comprehensive discussion of the ESA, its features, and history, see CRS Report RL31654, The Endangered Species Act: A Primer, by Pamela Baldwin, Eugene H. Buck, and M. Lynn Corn; and CRS Report RL32992, The Endangered Species Act and Sound Science, by Eugene H. Buck, M. Lynne Corn, and Pamela Baldwin. In the attached chart, the three measures are compared with each other and with current law. Current law is the baseline against which the changes of the various proposals can be identified or explained, with emphasis on the extent of changes to current law and the contents of the provisions. The columns present the legislation in the order the bills were introduced. The comparison is based on topics covered in the bill and does not analyze all language. Topics generally follow the section-by-section structure of the ESA. Current law and the provisions from the bills and the Miller/Boehlert Amendment are paraphrased for brevity. In the chart, CRS analyses and comments addressing specific provisions are written in italics below the provision discussed. Page numbers in the chart refer to the PDF version of the bill or the Miller/Boehlert Amendment as formatted by the U.S. Government Printing Office. Because S. 2110 is the only bill that contains extensive provisions on conservation banks and tax incentives for property owners, those provisions are discussed separately in the Appendix.5 3 House Amendment 588 in the nature of a substitute to H.R. 3824, offered on Sept. 29, 2005, by Rep. George Miller; it was rejected (206 yeas to 216 nays). 4 Introduced Dec. 15, 2005, by Sen. Mike Crapo. 5 For information on current issues regarding the ESA, and status of legislation, see CRS Report RL33468, The Endangered Species Act (ESA) in the 109th Congress: Conflicting Values and Difficult Choices, by Eugene H. Buck, M. Lynne Corn, Pervaze A. Sheikh, and Robert Meltz. CRS-3 Overview of the Bills H.R. 3824.6 This bill would include a definition of best available science that sets out several limitations and requirements, and applies to listing and species status determinations. Further, H.R. 3824 would require an analysis of the economic, national security, and other relevant impacts of making a listing determination. The ESA-related role of the National Marine Fisheries Service (Secretary of Commerce) would be eliminated and those duties transferred to the Fish and Wildlife Service (FWS). The bill would repeal the designation of critical habitat (CH) and label current areas of CH as areas of special value for recovery planning purposes. The elimination of CH would also eliminate one aspect of consultation under §7. The bill would set deadlines for the completion of many recovery plans, and require biological criteria in habitat conservation plans to assist in evaluating results. Further, it would require that recovery plan teams include various constituencies, and that satisfaction of the criteria specified in a recovery plan be considered in decisions to change the status of species. The bill would expand cooperative agreements with states to include candidate and certain other species that the Secretary and a state agree are at risk, yet are not federally listed as threatened or endangered, and specify conditions for suspending or terminating these agreements. Further, the bill would establish recovery and conservation agreements with private property owners; provide grants to property owners who voluntarily undertake conservation measures; provide for written determinations of whether a proposed private action would violate the ESA; and, when requested, pay aid or compensation to qualifying property owners who forego a proposed use of their property to avoid violating the ESA. Compensation would also be available for livestock losses due to reintroduced species. The bill would specify additional requirements for §10 permits and codify a No Surprises approach similar to that in current regulations to afford greater certainty to landowners. It would clarify exemption authorities in times of emergencies or disasters, or for national security. Further, the bill would allow action-agencies to determine types of actions as well as particular actions that could be granted categorical exclusions from jeopardy determinations or exempted from consultation requirements for a period of time for many actions involving the use of pesticides. Miller/Boehlert Amendment to H.R. 3824. The Miller/Boehlert Amendment would define best available science, emphasize the inclusion of data obtained by scientifically-accepted methods and procedures, and establish a science advisory board to evaluate the use of science in implementing the ESA. Jeopardy would be defined with broader language than found in agency regulations, likely making it easier to find jeopardy than under current law. Conditions applicable to consultation on cooperative agreements and agency actions would be provided. 6 See CRS Congressional Distribution Memorandum: Summary and Analysis of H.R. 3824, the Threatened and Endangered Species Recovery Act of 2005 (TESRA), as passed by the House, Oct. 13, 2005, by Pamela Baldwin (available from the author). CRS-4 The definition of CH would be retained and under §3(5)(B), CH apparently could still be designated for listed species without recovery plans. However, the Miller/Boehlert Amendment also states that CH designated before enactment would be treated as "areas necessary for recovery" until a new recovery plan or recovery plan revision is completed, and no more CH would be designated. Areas important to species recovery would be designated in recovery plans. The bill would also address the status of each listed species every five years; require notices to states for proposed determinations; and require a Secretarial justification for any prohibitions on threatened species. The Miller/Boehlert Amendment would require recovery plans for listed species; a priority system for developing plans; and recovery teams to develop plans and coordinate with federal agencies. Contents of recovery plans are specified, including the identification of publicly owned lands needed for recovery, or private lands, only if also necessary for recovery. Opportunities for public comment and access to recovery plans would be provided. The Miller/Boehlert Amendment would expand cooperative agreements with states so that listed and candidate species, as well as species of special concern, could be included. There would be provisions related to monitoring and changing the status of agreements. Exemptions for national security and disasters would be provided. Conditions for obtaining written determinations of the lawfulness under ESA of a proposed action would be specified. A conservation program for landowners to improve habitat and promote conservation on private lands would be established. Agreements between the Secretary and landowners would be authorized, and include management plans and criteria for evaluation. Conservation grants and compensation for livestock loss due to reintroduced species would also be available. S. 2110. The bill would not change any existing definitions under current law, but would establish a priority system for determining the status and habitat of species. The priority system would consider risk of extinction, likelihood of recovery, and conflicts with human activities, among other things. Critical habitat designation would be retained; however, designation would occur later than under current law. Recovery plans would include input from an executive committee, a recovery coordinator would be required, and a recovery team of experts could be appointed, but would not be required. Additional requirements for recovery plans would be set out. S. 2110 would provide for cooperative agreements with states on listed and candidate species, and species that are likely to be threatened or endangered. Agreements would be subject to consultation with the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) when entered into, amended, or renewed, but consultation would not be required for species in an area covered by a cooperative agreement that became listed after an agreement is finalized. Incidental take statements could be issued based on cooperative agreements. S. 2110 would also provide for the monitoring, enrollment, termination, and review of cooperative agreements. This bill would create a system of conservation banks for improving recovery of listed and candidate species, and species of concern. The bill contains criteria to be included in regulations on managing conservation banks; mechanisms for transferring and pricing credits; and provisions for out-of-kind mitigation. A system CRS-5 of tax credits would be provided for landowners who participate in the recovery of certain species. Landowners could also receive tax credits for conservation and recovery costs. Specifications for entering into an agreement, eligibility requirements for credits, and value of credits under different tax conditions are provided. S. 2110 would modify requirements for habitat conservation plans (HCP), and a No Surprises approach similar to the current administrative regulation would be codified. Provisional permits for incidental take would be available for voluntary implementation of the terms of a proposed HCP. Participants in farm bill conservation programs7 who conduct site-specific recovery activities with a net benefit for listed or candidate species would receive §10 incidental take permits. Comparison of H.R. 3824, the Miller/Boehlert Amendment, and S. 2110 This portion of the memorandum compares and discusses briefly some of the principal topics in the legislation in a format that loosely follows the section-by- section structure of the ESA. (Please refer to the chart for more detail.) Section 3 -- Definitions. S. 2110 makes no changes to the definitions under current law. The House bill and Miller/Boehlert Amendment would replace the current phrase best scientific and commercial data available with best available scientific data. Both would elaborate on what is the best available science. Under H.R. 3824, the Secretary is to develop regulations that ensure compliance with the Data Quality Act, and that data be empirical or found in sources reviewed by qualified individuals recommended by the National Academy of Sciences (NAS). The Miller/Boehlert Amendment would rely less on Secretarial determination of what data can be used in decision-making, and would establish criteria for scientifically accepted data, including those data that meet scientific standards and are widely used within the relevant fields of science. Some contend that the specification of empirical data in H.R. 3824 would exclude estimates derived from models and limit the type of data available for use compared to the provisions of the Miller/Boehlert Amendment and current law. However, estimates derived from modeling could be allowed under H.R. 3824, if it meets the NAS peer-review conditions set forth in the bill. Currently, Secretary refers to either the Secretary of the Interior or the Secretary of Commerce, depending on the species involved.8 H.R. 3824 would eliminate the role of the Secretary of Commerce and transfer those duties to the Secretary of the Interior. The Miller/Boehlert Amendment would retain the definition of Secretary as in current law, but would delete several specific references to the Secretary of Commerce, and would not authorize appropriations for the Department of Commerce. Some contend that eliminating the Secretary of Commerce would reduce 7 Food and Security Act of 1985 (16 U.S.C. §3831). 8 The Secretary of Agriculture also has duties with respect to the importation or exportation of terrestrial plants. CRS-6 duplication of efforts and increase resources for recovery, others contend that the Fish and Wildlife Service might not have the expertise to manage ocean species. The Miller/Boehlert Amendment would define jeopardy to include any action that lessens the likelihood a species will recover. This definition is broader than the way jeopardy has been interpreted by the courts to date. It is not clear how this broader definition would affect other sections of the statute, but it could make it easier to find jeopardy during §7 consultations on federal actions or private actions with a federal nexus. Several sections relating to critical habitat would be eliminated, thereby eliminating the other current test for reviewing actions under current §7 processes. Section 4 -- Determinations/Listings. Under current law, there is a duty to list species that either are threatened with extinction or in danger of becoming extinct. The bills and the Miller/Boehlert Amendment contain many provisions relating to determinations of species status. The type of data used to make determinations under H.R. 3824 could be more limited than under current law, due to the definition of best available scientific data (i.e., data must be empirical or found in sources reviewed by NAS). The Miller/Boehlert Amendment does not appear to limit the type of data and analyses used as long as it meets scientifically accepted standards, a condition that appears to embody current legal interpretations. The Miller/Boehlert Amendment would mandate peer review through a Scientific Advisory Board (SAB) composed of appointed nominees recommended by the NAS. The SAB would have a broader mandate than peer review panels proposed in H.R. 3824, because it would evaluate the use of science in implementing the act and develop policies on the use of scientific information. H.R. 3824 and the Miller/Boehlert Amendment would expressly make all information used to make a determination on a species publicly accessible; S. 2110 would make no changes to current law. (However, the Data Quality Act requires that information relied on by agencies be made available.) The Miller/Boehlert Amendment would address threatened species by requiring the Secretary to publish justification for any prohibitions regarding threatened species, and to restrict the circumstances under which prohibitions may be applied to more than one threatened species. H.R. 3824 would address distinct population segments9 by directing the Secretary to determine them as endangered or threatened only sparingly, language taken from H.Rept. 96-151 (p. 7). H.R. 3824 would require the Secretary to prepare an analysis of the economic, national security, and other impacts and benefits of species status determinations concurrently with making a determination. This analysis however, would not change criteria in making a 9 A distinct population segment is a population segment of a vertebrate species that is discrete (e.g., geographically separate) from the remainder of the species, considered significant to the species, and has endangered or threatened status. Invertebrates and plants are not afforded protection at the population level under current law. See U.S. Department of Interior and Commerce, "Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act," Federal Register, vol. 61, no. 26 (Feb. 7, 1996), p. 4722. CRS-7 determination. Similar analyses would be used under S. 2110 to determine a priority system for ranking species for consideration. (See discussion below.) Current law authorizes the Secretary to establish a ranking system to identify species that should receive priority review, and FWS and NMFS have established such priorities. This current system relates to the commitment of agency personnel and funds, but may be overridden by court orders because the statutory duties of the ESA agencies to list species and CH remain. S. 2110 would elaborate statutorily on how to establish a priority ranking system and a related schedule for agency actions. It appears that courts could only consider whether agency actions are consistent with that schedule and may only order compliance with it. S. 2110 could modify or eliminate the duty to list, depending on how its judicial review provision is interpreted. Some of the criteria in S. 2110 for ranking species could be seen as contradictory and no guidance is given as to the weight to be given the various factors. For example, is a species with unusually narrow geographic distribution and habitat needs, but with various other subspecies still extant, to be considered a higher or lower priority than a species that is the only living representative of its genus, but is widely distributed? Several of the factors seem aimed at ascertaining which species are in grave difficulty, yet another factor is the likelihood of achieving recovery of the species. How to determine which is more important? The latter criterion might be used to suggest that those species listed at the earliest sign of depletion would be given a higher priority than those species listed after considerable delay, at a time when species numbers point unequivocally to endangerment. For species so depleted that their recovery is in doubt, another remaining question is whether they should be allowed to slide to extinction, or could such species be maintained? Under H.R. 3824 and the Miller/Boehlert Amendment, the five-year reviews of species status required by current law would be based on biennial reports sent to Congress and any other information the Secretary considers relevant. The relationship of this last language to the best available science requirements is not clear. Section 4 -- Designation of Critical Habitat (CH). Current law requires the designation of CH for a species at the time of listing, and makes destruction or adverse modification of CH a trigger for consultation procedures. Critical habitat is currently defined as habitat that is essential for the conservation of a species. FWS and others have asserted that the designation of CH provides no additional benefit beyond that which is accomplished through the duty to avoid jeopardizing species. However, several courts have held that this conclusion rests on an erroneous agency regulation, and that based on the definition of conserve, CH should include habitat necessary to accomplish recovery, not merely to avoid jeopardy. Conserve is defined in the current law as bringing a species to the point where it no longer needs the protections of the act, wording that courts have held includes recovery. See, for example, Sierra Club v. U.S. Fish and Wildlife Service, 245 F. 3d 434 (5th Cir. 2001). H.R. 3824 would eliminate CH altogether, and rely on landowner incentives to secure adequate habitat. The Miller/Boehlert Amendment would retain the current CRS-8 definition of CH, but would repeal several references to it and also treat current CH as areas necessary for recovery until a recovery plan is developed or revised, similar to H.R. 3824. CH under the Miller/Boehlert Amendment apparently would also be eliminated for future designations, although the current definition of CH would allow for some future designations. The bills and Miller/Boehlert Amendment would delay the time at which CH (or its substitute) is designated from listing to a later time. Already designated CH would be treated under H.R. 3824 as areas of special value. These areas may or may not be retained when areas of special value are determined in a new or revised recovery plan. The Miller/Boehlert Amendment would call for identifying publicly owned areas or other areas of land or water necessary to achieve the purposes of a recovery plan, and impacts on these areas that shall be considered when evaluating whether a proposed action might jeopardize a species. This provision requires the location of CH (or equivalent areas) on public lands first, and only if that is insufficient, looking to private lands. The elimination of CH in the House bill and in several instances under the Miller/Boehlert Amendment would reduce the §7 consultation process to only an evaluation of whether a proposed federal action would jeopardize the continued existence of a listed species. Under current law, since CH is defined as that area necessary to conserve (i.e., usually interpreted as recovery) a species, the elimination of CH could significantly change the §7 protections. However, the Miller/Boehlert Amendment would define jeopardy more broadly than under current interpretations, so the net effect on §7 protections of eliminating several provisions on CH is not clear. CH would be largely retained under S. 2110 and designated either three years after a recovery plan is commissioned, or in accordance with the priority system, but not later than five years after a species is listed. This may mean that designation must appear on the schedule and hence be part of an enforceable timetable, or possibly that CH would not be enforceable in the case of a low-priority species that is never listed and for which no recovery plan is developed. Section 4 -- Recovery Plans. Under current law, the Secretary must develop recovery plans for all listed species unless the Secretary finds that a plan will not promote the conservation (recovery) of the species. Plans are to the maximum extent practicable to give priority to species that are most likely to benefit from them, or which are in conflict with construction or other economic activities. Plans are to include both site-specific actions necessary to achieve the plan's goal and objective, measurable criteria which, when met, would result in species being removed from lists. Plans also are to include estimates of the time and costs required. All the bills elaborate on the development of recovery plans. H.R. 3824 and the Miller/Boehlert Amendment would impose deadlines for recovery plans. S. 2110 would require the Secretary to publish provisional recovery goals at the time of listing that remain in effect, unless replaced by an approved recovery plan. H.R. 3824 and the Miller/Boehlert Amendment would require the Secretary to promulgate regulations for establishing recovery teams. H.R. 3824 would require stakeholders to be on recovery teams, but would not expressly require that scientists be on teams; this might be offset by a requirement that team members with relevant scientific expertise would establish objective, measurable criteria for CRS-9 recovery based solely on the best available scientific data. Under all three measures, appointment of a team would not be required, and if one is not appointed, the Secretary could develop the plan. Although a recovery team might not be appointed, under S. 2110 the Secretary would appoint an executive committee comprised of stakeholders, and a recovery coordinator to staff and coordinate implementation of a plan. If a group of stakeholders forms a committee that qualifies as an executive committee, the species in which the group is interested would receive priority for development of a recovery plan. Although there are requirements in S. 2110 for recovery plans, there are none for the recovery programs created by the Secretary. Under H.R. 3824, a recovery plan may provide for the interim improvement of the status of a species, rather than its recovery, if there are insufficient best available scientific data, as determined by the recovery team (or by the Secretary if no recovery team is appointed). This provision may provide a mechanism for assisting species until sufficient scientific data are available to measure when recovery has been achieved and delisting is appropriate. On the other hand, the fact that the recovery team itself determines the adequacy of best available scientific data, both initially and upon review, may permit the interim plans that are tied to improvement rather than recovery to continue. The recovery team reviews these interim plans at intervals no greater than five years. Under the Miller/Boehlert Amendment, a plan would have to include an estimate of land acquisition costs from willing sellers, and identify publicly owned lands that will assist in recovery and any other necessary additional lands. Under S. 2110, the Secretary would have to acknowledge "appropriate existing conservation programs" and coordinate with all governmental agencies when creating recovery plans. The bills and the Miller/Boehlert Amendment all would include more express requirements on notice and opportunities for public review of recovery plans than in current law, including notice to states and tribes. Section 6 -- Cooperative Agreements with States. Current law authorizes the Secretary to enter into cooperative agreements with any state that has an adequate and active program for the conservation of endangered and threatened species. The relationship of these cooperative agreements to the enforcement of the prohibitions under the ESA is somewhat ambiguous. All three proposals would expand the agreements to cover candidate species or other species that the state and the Secretary agree are likely to be determined to be endangered or threatened. Most agree that authorizing earlier conservation efforts will result in more options and a wider distribution of any burdens of remedial actions. The bills and the Miller/Boehlert Amendment state that §7 consultation requirements would apply to these agreements -- language that appears to direct the Secretary to consult with FWS, as appropriate, regarding the agreements. H.R. 3824 and S. 2110 state that the consultation requirement would apply at the time the agreements are entered into, renewed, or amended; the Miller/Boehlert Amendment simply states that the agreements would be subject to consultation requirements and regulations. Consultation would not be required for species that are listed as threatened or endangered after an agreement is approved, a point that some contend does not provide adequate protection. H.R. 3824 addresses the relationship of cooperative agreements with take prohibitions of the ESA in two ways: 1) by allowing incidental take statements CRS-10 (allowing take of listed species) to be issued on approved cooperative agreements, and 2) by providing that the relevant state and landowners enrolled in the program would be exempt from ESA liability for authorized take as long as the agreement and the program are adequate for conserving the species. S. 2110 is worded similarly, but appears to apply only to candidate species. S. 2110 requires actions of the Secretary to be reviewed every three years. Current law does not expressly address cancellation of cooperative agreements, although cancellation authority arguably is implied by the fact that the Secretary's annual review of state programs for adequacy. (Adequacy is a necessary condition for entering into a cooperative agreement.) If a review concludes that the program is inadequate, then the program arguably could not be authorized. All three proposals contain provisions for suspending or terminating agreements after consultation with the Governor of the relevant state. Termination may occur only if continuation of the agreement is likely to jeopardize the continued existence of species -- or, for S. 2110, result in destruction or adverse modification of CH. Neither H.R. 3824 nor the Miller/Boehlert Amendment would allow termination of an agreement for destruction or adverse modification of CH, since that concept would be eliminated or changed. Whether termination should be available only if species are likely to be jeopardized by the continuation of the agreement could be a point of controversy -- some might urge that termination should be available if a cooperative agreement is not contributing to the conservation/recovery of species subject to the cooperative agreement. The Miller/Boehlert Amendment defines jeopardy as lessening the likelihood of recovery. (See section 3 above.) Section 7 -- Consultation. Current law requires federal agencies to consult with the Secretary (in practice FWS or NMFS) "to insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an `agency action')" is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of its CH. The reference to "any action" authorized, funded, or carried out by a federal agency encompasses private actions with a federal nexus, such as actions under a federal permit (e.g., § 404 dredge and fill permits or oil and gas drilling permits), or those receiving federal funding. Page 43 of H.R. 3824 would change the reference from "any action" to "any agency action" (emphasis added), a change that arguably eliminates the consultation requirements for private actions with a federal nexus. However, other references to consultations involving permit or license applicants are retained, so the net effect is ambiguous. In addition, H.R. 3824 would authorize the Secretary to identify certain actions or types of actions that do not jeopardize species through procedures other than the §7 consultation processes. Alternative procedures could replace agency biological assessments, the preparation of biological opinions by FWS or NMFS, and the limitation on agency commitments of resources. However, the authority for issuing an incidental take statement and the provision exempting from the penalties of the act any takes of a species pursuant to an incidental take statement would only apply if the Secretary finds or concurs that the agency action meets the standards of §7(a)(2) -- i.e., "will not jeopardize." Further, the Secretary shall suggest, or concur in any suggested, reasonable and prudent alternatives developed for any action determined not to meet the no-jeopardy standard. These changes could be seen as CRS-11 expediting the consultation process along the lines of current administrative practices, see H.Rept. 109-237, pp. 44-45. On the other hand, allowing the action agencies to make the initial determination as to jeopardy, and reducing the role of the Secretary to one of concurrence, arguably could reduce the independent role of the FWS and NMFS. The extent to which action agency processes replacing biological opinions from FWS or NMFS could be reviewed by the courts is not clear. Although authority for counterpart regulations has existed in regulations for years, it has only recently been used and is being challenged in court. The process is somewhat similar to categorical exclusions regarding types of actions for which no environmental analyses under the National Environmental Policy Act (NEPA) need be prepared, but the NEPA exemption applies to an essentially procedural process, and these alternative consultation processes would apply to substantive determinations. H.R. 3824 would eliminate the Endangered Species Committee (the God Squad) that currently can exempt proposed actions from prohibitions of the ESA. Section 10 -- Exemptions from Take Prohibitions and Property Owner Incentives. All of the proposals would increase incentives for landowners to conserve listed species and to conserve or increase habitat. All three would make statutory a No Surprises approach similar to the current regulation at 50 C.F.R. §17.22(b). Under the No Surprises concept, agreements can be negotiated that impose limitations on the additional measures that can be required of a landowner in the case of either changed circumstances that are contemplated in the agreement, or circumstances that are not contemplated in the agreement. These agreements are seen by some as providing landowners with greater certainty and stability, thereby facilitating investment and economic development, while aiding the conservation of listed species. None would codify the Safe Harbor concept, whereby a landowner can create habitat and later return to the original baseline as set out in agreements. Current regulations specify that an agreement under the No Surprises approach can be revoked for several causes, or if continuation of the activities under the agreement would be inconsistent with the survival and recovery of a species in the wild. All three proposals would change the current regulatory stance regarding revocation of §10 permits. All would allow revocation if a permittee is not in compliance with the permit. H.R. 3824 and the Miller/Boehlert Amendment would allow revocation if there are changed circumstances and continuation would be inconsistent with §10(a)(2)(B)(iv) -- that is, if continuation would reduce the likelihood of survival and recovery of the species. S. 2110 is similar, but would amend paragraph (2) so that it is difficult to discern what circumstances would justify revocation. Under the current regulation, revocation related to jeopardy is not limited to changed circumstances, as appears to be true under the bills and the Miller/Boehlert Amendment. In addition, H.R. 3824 has several varieties of agreements. First, species conservation contract agreements would authorize persons to carry out conservation practices for endangered or threatened species, candidate species, or other species subject to comparable designations under state law. These agreements would specify the conservation practices the person would undertake and describe economic CRS-12 activities that would be compatible with those practices. Landowners would be compensated for their costs in implementing the conservation practices at the rate of 60% for a 10-year agreement, 80% for a 20-year agreement, and 100% for a 30-year agreement. The Secretary would establish priorities for entering these agreements, after considering statutory criteria. Second, species recovery agreements would cover landowners who would protect and restore habitat for listed species. Priority for these agreements would go to areas identified in recovery plans as areas of special value to the species. Third, landowners could also request a written determination from the Secretary as to whether a proposed action on their lands would violate the ESA. If so, a landowner could request aid/compensation for foregoing the proposed use. The Secretary shall award aid if the proposed use meets the qualifying criteria -- that the proposed use would be lawful under state and local law and that the property owner has demonstrated the means to undertake the proposed use. The criteria are worded generally, and eligibility for aid would be broader than under current interpretations of the Takings Clause of the 5th Amendment. Aid might be triggered for example, by a curtailment of any proposed use of any part of an owner's land or water. Several aspects of this aid program are unclear, and the cost of compensation is difficult to determine, but could be high. If appropriated funds (whether regular, supplemental, or reprogrammed) appear to be insufficient to satisfy anticipated demands for aid, the Secretary could face a conflict between paying aid which "shall" be provided but for which funds are not sufficient, and permitting actions which might otherwise violate the ESA to go forward. H.R. 3824 does not specify how the conflict is to be resolved. In the face of inadequate funding, the Secretary could be forced to permit landowners to proceed with violative proposed actions. If a written determination has been sought and the action permitted to go forward, any use or action taken by a property owner in reasonable reliance on either a written determination or a default permission to proceed cannot be treated as a violation of the prohibitions of ESA. Fourth, conservation grants would be available to landowners who voluntarily seek to conserve threatened and endangered species. Grants may not be used to fund several specific activities: litigation, lobbying, the acquisition of leases or easements of more than 50 years, among other things. Priorities are set out for awarding grants, and preference is given to grants that would promote conservation while making economically beneficial use of the property. Under the Miller/Boehlert Amendment, a landowner may request a written determination as to whether a proposed action could violate the prohibitions of the act, and hence whether an incidental take permit may be necessary to proceed. There is no obligation to pay aid or compensation, and there is no presumption of approval if the Secretary does not render a timely decision. The Miller/Boehlert Amendment states that the process does not apply to agency actions that are subject to consultation under §7. The Miller/Boehlert Amendment would authorize agreements with property owners to provide technical assistance and financial assistance up to 70% of the costs of implementation. The Secretary would be required to give priority to agreements that apply to private lands necessary to achieve recovery. These agreements could be seen as serving similar purposes to the species conservation CRS-13 agreements, recovery agreements, and conservation grants set out separately in H.R. 3824. Some of the new agreements in the Miller/Boehlert Amendment and H.R. 3824 resemble the Candidate Conservation Agreements with Assurances promulgated under 50 C.F.R. § 17.22(d)(1) for species that are candidates for listing, or other unspecified unlisted species. These agreements provide regulatory guarantees to landowners who voluntarily agree to protect habitat for wildlife and plant species before they are listed for protection under the ESA. S. 2110 authorizes conservation banking agreements that would be somewhat similar to the conservation banking system for protecting wetlands. Conservation banks could be established by private landowners who demonstrate that the affected area would be managed under an enforceable legal instrument and contribute to the conservation of a listed species, a candidate species, or a species of special concern. There is no requirement that the conservation banks be consistent with approved recovery plans. The habitat that is protected would not need to be contiguous, and the agreement is to run in perpetuity or for an appropriate period. The Secretary is to promulgate regulations on managing conservation banks, and is to determine the value and credits for each bank. The service area to which the conservation bank credits would apply is to be defined in the conservation agreement, and biological data would determine how many credits a bank can sell. S. 2110 would also establish tax incentives for private conservation efforts. These include tax credits for certain federal or state approved conservation and recovery agreements. The amount of the credit would vary depending on the length of the agreement. Details on qualifying costs and other limitations are provided. S. 2110 would also add broad additional protections for landowners participating in the Healthy Forest Recovery Act program. S. 2110 does not contain provisions on individual conservation agreements and financial aid similar to the two House proposals. Section 15 -- Authorization. Although the authorization for appropriations under the ESA expired in FY1992, activities under the ESA have continued to be funded. H.R. 3824 and the Miller/Boelhert Amendment would reauthorize the ESA from FY2006 to FY2010. Both proposals would authorize "such sums as are necessary" for the Secretary of the Interior to carry out the functions and responsibilities of the DOI; and for the Secretary of Agriculture to carry out functions and responsibilities of the DOI (emphasis added) with respect to the enforcement of the act and pertaining to imports of plants under the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES). The intent of the language authorizing the Secretary of Agriculture to carry out enforcement functions of the DOI is unclear. S. 2110 does not reauthorize appropriations for the ESA. Costs. The administrative cost of implementing the ESA could be reduced by some provisions of the three ESA proposals and increased by others. Reductions to federal expenditures could result from state administration of ESA programs under cooperative agreements, repeal of CH designations, and possibly fewer listings under a priority schedule. Federal administrative costs could be increased in the short term as a result of new data and information accessibility requirements; increased species recovery agreements; increased monitoring, execution, and oversight of various types of agreements with landowners; management of conservation banks; and processing CRS-14 of written compliance determinations. In addition to administrative costs, there may be increased costs to the federal government due to aid/compensation resulting from the written determinations process, tax incentives, and tax credits. (See bill comparison table for specific details.) Two bills would add new provisions on cost analyses: H.R. 3824 and the Miller/Boehlert Amendment would require the Secretary of the Interior to submit an annual report containing reasonably identifiable expenditures made for the conservation of listed species on a species-by-species basis and expenditures not attributable to particular species (e.g., conservation activities on a river that may benefit several species). Expenditures would include federal and state funds, and funds voluntarily reported by local government entities. S. 2110 does not amend the annual cost analysis in current law. Conclusion All three proposals contain incentives that proponents indicate would encourage greater voluntary conservation of species by states and private landowners, a concept that is supported by many observers in the past and present. All three proposals would modify or eliminate parts of what some have seen as the current ESA safety net of protections and prohibitions, including eliminating or changing the role of critical habitat (which would eliminate one aspect of the current consultation process), making the listing of all threatened and endangered species more difficult or less likely, expanding §10 permits allowing incidental take (which could incur a greater need for agency oversight and enforcement), and expanding state rather than federal implementation of ESA programs (which might make oversight more difficult). Proponents of these changes assert that improved standards would enable a better focus on species with the most dire needs, and that other measures would recover more species. It is difficult to predict whether, on balance, the proposals would be likely to achieve greater protection and recovery of species. However, replacing some of the protections of the current ESA with new incentives, rather than adding the new incentives to the current protections, arguably makes adequate funding of the new programs more critical to determining that outcome. CRS-15 Table 1. Side-by-Side Comparison of The Endangered Species Act (H.R. 3824), Miller/Boehlert Amendment to H.R. 3824, and S. 2110 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Best Available Science Definition. Currently there is no definition of best Defines best available scientific data Defines best available scientific data No similar provision. available scientific and commercial to mean "scientific data, regardless of as data and analyses, regardless of data. The best scientific and source, that are available to the source, produced by scientifically commercial data available is to be Secretary at the time of a decision or accepted methods and procedures at the sole basis of listing decisions action for which such data are required the time of a decision or action (p. 2). (§4(b)(1)(A)). by this act and that the Secretary determines are the most accurate, Commercial data are considered to be reliable, and relevant for use in that such information as records of tonnage decision or action" (p. 3). or pelts taken. Jeopardy. Under current law, jeopardy or No similar provision. Defines jeopardy in terms of effects on No similar provision. jeopardize the continued existence of, recovery: "to engage in an action that, is not defined. In regulations, it has directly or indirectly, makes it less been defined as meaning: "to engage likely that a threatened species or an in an action that reasonably would be endangered species will be brought to expected, directly or indirectly, to the point at which measures provided reduce appreciably the likelihood of pursuant to this Act are no longer both the survival and recovery of a necessary, is likely to significantly CRS-16 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 listed species in the wild by reducing delay doing so, or is likely to the reproduction, numbers, or significantly increase the cost of doing distribution of that species." (50 so." C.F.R. §402.02. Emphasis added.) This definition changes the The FWS has interpreted "jeopardize interpretation of the FWS definition of the continued existence of" as actually jeopardy as meaning survival. The meaning survival. effects of the broader interpretation on other parts of the Act are unclear. Arguably for example, more actions could trigger the duty to consult under §7. Role of the Secretary of Commerce. The Secretary of the Interior The role of the Secretary of Commerce The definition in ESA §3(15) for No similar provision. administers the ESA (through the Fish is eliminated (p. 82). The President is Secretary is not modified to delete and Wildlife Service [FWS]) for directed to transfer to the Secretary of reference to the Secretary of terrestrial species, and the Secretary of the Interior all duties, resources, and Commerce. Commerce (through the National responsibilities of the Secretary of Marine Fisheries Service [NMFS]) has Commerce under the ESA, and the The new §18 does not authorize various duties for marine and reference in the definition of appropriations for the Department of anadromous species. Secretary in current §3 to the Commerce (p. 54-55). In addition, responsibilities of the Secretary of §19(j)(6)((A) deletes several specific The Secretary of Agriculture has Commerce under the provisions of references to the Secretary of enforcement duties with respect to the Reorganization Plan Number 4 of 1970 Commerce (p. 56). CRS-17 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 provisions of the ESA and the is stricken. The Secretary of Convention (The Convention on Commerce retains responsibilities International Trade in Endangered under the Marine Mammal Protection Species of Wild Fauna and Flora Act (pp. 70-71). (CITES) which pertain to the importation or exportation of According to some, the change reduces terrestrial plants. duplication and focuses federal resources to the FWS on recovering threatened and endangered fish. However, others have expressed concern about the transfer, noting that management of ocean species would be given to an agency without ocean expertise, and that dividing the management of anadromous fish between NMFS and FWS on the basis of whether a species is protected under the ESA or not would be unworkable and contrary to the recommendations of two recent reports on management of ocean resources. CRS-18 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Endangered and Threatened Determinations. The Secretary shall determine whether Adds "including by human activities, Same as H.R. 3824 (p. 4). No similar provision. any species is endangered or competition from other species, threatened because of any of several drought, fire, or other catastrophic As in H.R. 3824, the addition of factors (§4(a)(1)). natural causes" to the list of factors "competition from other species" may under current law (p. 5). give new emphasis to protection of species imperiled by invasive species. The Secretary is directed to use the current authority to list a distinct population segment "only sparingly" (p. 6). The reference to"only sparingly" was derived from H.Rept. 96-151( p. 7). This approach has been criticized based on concerns it could increase the likelihood that a vertebrate species would be protected only when all populations of the species face potential extinction, and that it could also mean that the United States would rely more on other countries to maintain cross-boundary species if they are dwindling only within our borders. CRS-19 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 The Secretary may take into account W hen considering a s t a t u s Similar to H.R. 3824 (p. 5). No similar provision. efforts being made by any state or determination, the Secretary could take foreign nation to protect such species, into account efforts to protect species whether by predator control, protection made by any federal agency in of habitat and food supply, or other addition to other efforts the Secretary conservation practices, within any area may consider under current law (p. 6). under its jurisdiction, or on the high seas (§4(b)(1)(A)). Use of Scientific and Commercial Data. Under §4(b), the Secretary must base Replaces best scientific and Replaces best scientific and No similar provision. listing determinations and CH commercial data available with best commercial data available with best designations solely on the best available scientific data. available scientific data. available scientific and commercial data. No specific definitions of these The Secretary is to adopt regulations Data must meet scientifically accepted types of data are given. that establish criteria for which data standards of objectivity, accuracy, constitute the best available scientific reliability, and relevance (p. 2). Under the Data Quality Act, the FWS data. The regulations are to assure Scientifically accepted means those and NMFS must address the quality of compliance with guidance issued methods, procedures, and standards information they use. Both agencies under the Data Quality Act (44 U.S.C. that are widely used within the have administrative guidance on this §3516) by the Director of the Office of relevant fields of science, including subject that predates the Data Quality Management and Budget and by the wildlife biology and management. No Act. Secretary. The regulations are also to specific reference to Secretarial assure that data consist of empirical determination of best available science data or are found in sources that have or to the Data Quality Act. Provides CRS-20 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 been subject to peer review by guidelines to federal agencies to qualified individuals recommended by include criteria for determining best the National Academy of Sciences to available scientific data (p. 15). serve as independent reviewers (p. 4). Like current law, the amendment does The emphasis on empirical data not give the Secretary the sole appears to change the current authority to determine what constitutes understanding of best available best available scientific data and science, which commonly uses both therefore continues to allow the courts empirical data and mathematical, the opportunity to review whether the physical, and other models to explain science used in a particular instance natural phenomena. However, the bill was actually the best available. does provide for the consideration of Further, the amendment does not data from peer reviewed sources, restrict or give priority to one which may include estimates from scientific method (e.g., empirical data) modeling. over others (e.g., population modeling). The Secretary is to issue regulations that establish criteria that must be met to determine which data constitute the best available scientific data. This could create consistency among the data considered to be the best available scientific data. CRS-21 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 It is not clear to what extent defining best available science as that determined to be so by the Secretary may restrict judicial review of whether the science used in a particular instance was in fact the best available. Information on which decisions would be based is currently subject to the Data Quality Act, under which the agency is required to respond to any corrections proposed by the public. No similar provision. The Secretary is required to make Identical (pp. 50-51). No similar provision. available, on a publicly accessible website and in a searchable format, all See comments on H.R. 3824. i n f o r ma t i o n concer ned wi t h determining that species should be listed, or with changing the status of listed species. The Secretary must also post all information submitted to the Secretary by third parties. Similarly, in §14 there is a requirement that the Secretary must also maintain a substantial body of other data, publications, and documents and make CRS-22 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 them accessible over the internet (pp. 65-66). Volumes of information about species currently exist on the internet. The requirement for providing data through the internet could be a significant and possibly costly task, particularly if the database is to be maintained and kept current. Science Advisory Board. Under current law there is no scientific No similar provision. Secretary would establish a Science No similar provision. advisory board; the Secretary receives Advisory Board (SAB) to evaluate input through comments submitted (upon request) the use of science in during comment periods on proposed implementing the act, including rules and other actions as published in development of policies and the Federal Register. procedures on use of scientific information (p. 66). Scientific weight might be limited because the SAB is restricted only to review issues requested by the Secretary. CRS-23 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 The SAB would have 9 members, appointed from list of nominees recommended by National Academy of Sciences (NAS). Members would be selected on qualifications in specified sciences; not be federal employees; and would have their names and professional affiliations published in the Federal Register. The SAB would elect its chair and the Secretary would make employees available to assist the SAB (pp. 66-67). Some question whether the SAB could act quickly enough to avoid slowing implementation of ESA decisions. Critical Habitat -- General. The ESA is designed to protect Section 5 of the bill repeals all current The definition for CH is retained as it CH provisions are retained and individual species that are determined requirements related to the designation is stated in current law (§3(5)), yet modified. The Secretary shall to be in danger of extinction or of CH (pp. 8-10). Areas that are other references to the designation of designate any habitat of an endangered threatened with extinction. Further, currently designated as CH would be CH have been deleted, similar to H.R. species or a threatened species that is the stated purposes of the ESA are "to considered areas of special value until 3824 (p. 6-8). considered to be CH in accordance provide a means whereby the a recovery plan is developed for that with the priority system (p. 9). ecosystems upon which endangered species, and recovery plans would be The current definition of CH in CRS-24 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 species and threatened species depend required to identify areas of special §3(5)(A)(ii) provides for designation of See comments on priority systems may be conserved, to provide a value for the species (p. 22-23). CH areas essential for the below. program for the conservation of such conservation of species. The retention endangered species and threatened Under H.R. 3824, recovery plans of this language despite the repeal of species, and to take such steps as may would not be required to retain CH other CH provisions is ambiguous. be appropriate to achieve the purposes areas, and there are no requirements of the treaties and conventions as to what areas will qualify as areas Recovery plans are to identify areas on (§2(b))." of special value. Special value areas publicly owned lands or waters or will receive consideration in the other areas of land or water necessary The current ESA also provides for the implementation of certain other to achieve the purposes of the recovery determination of "critical habitat" provisions (e.g., the priority given to plan (p. 21), and currently designated (CH), which triggers special duties for such areas in completing species CH is to be treated as such an area (p. federal agencies or for private actions recovery agreements), and would 22) until a recovery plan is developed with a federal nexus. Federal agencies provide guidance in the development or revised (p. 22). must consult with FWS or NMFS with of recovery plans, but the phrase respect to agency actions and private "special value areas" is not defined actions that are authorized, funded, or and there are no binding requirements. carried out by a federal agency to There would be no explicit duty for ensure not only that those actions do federal agencies or others to consult not jeopardize the continued existence regarding special value areas and no of species, but also that they do not express duty to avoid destroying or result in the destruction or adverse adversely modifying them. There is no modification of CH (§3(5) and requirement in the bill that moneys §4(b)(2)). spent on recovery plans be used to secure the areas of special value as a CRS-25 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 priority. Critical Habitat -- Designation. A final regulation designating CH of CH is eliminated (pp. 8-10). Current CH designations become areas CH would be designated either three an endangered or threatened species necessary for recovery until recovery years after the date on which a shall be published concurrently with Repeal of CH eliminates one aspect of plans are completed or revised. recovery plan is commissioned, or in the final regulation implementing the the current §7 consultation process. Species listed after enactment would accordance with the priority system, determination that the species is Without CH, §7 consultations are only not have CH designated (p. 6-8), as in but not later than five years after a endangered or threatened, unless the required when federal actions might H.R. 3824. species is listed (p. 14). The Secretary Secretary deems that -- jeopardize the continued existence of a must determine whether a petition to 1) It is essential for the species that the species. (For more explanation see The designation of areas necessary for revise CH may be warranted in determination is promptly published; Consultations -- Alternative recovery is to substitute for CHs. accordance with the schedule, but not 2) CH cannot be determined or that it Procedures.) However, compliance with recovery later than one year after receipt of a is not prudent to establish CH. If CH plans is voluntary. The elimination of petition, and the response time for cannot be determined, the one-year FWS and NMFS have maintained that CH would eliminate one aspect of decision on how to proceed with period specified may be extended for CH adds almost no benefit not already consultation, but effects on areas warranted petitions would be in an additional year (§4(b)(5)(C)). encompassed by the no-jeopardy identified as part of recovery planning accordance with the schedule or not standard. Court cases have held that are to be considered in evaluating later than three years from the date of this agency conclusion rests on an jeopardy during §7 consultations and receipt of a petition (pp. 12 and 14). unlawful interpretation and regulation. a new definition of jeopardy that is See Sierra Club v. U.S. FWS, 245 F. broader than the current definition in Under the bill, the time for designating 3d 434 (5th Cir. 2001), cited with regulations is added. CH would be moved to being later approval in New Mexico Cattle than at listing. CH is not be Growers Ass'n v. USFWS, 248 F. 3d designated for species that are not 1277, 1283 (10th Cir. 2001); Gifford listed. While this is also true under CRS-26 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Pinchot Task Force v. USFWS, 378 F. current law, the limitation on judicial 3d 1059, 1069-1070 (9th Cir. 2004) review (p. 21) could preclude listings amended 387 F. 3d 968 (2004). that might be ordered by a court under current law. Critical Habitat -- Location. Under §4(c)(1), the Secretary shall CH is eliminated (pp. 8-10). Similar to H.R. 3824 (pp. 6-8). Wi t h r es pect t o a r e gu l at i on t o publish a list of all threatened and designate or revise CH (p.13), maps endangered species, including the and coordinates that describe in detail portion of their ranges where they are the specific areas and all field survey endangered or threatened, and specify data upon which the designation is any CH within their ranges. CH can based must be published. The current be in areas occupied by the species, or requirement to designate CH only unoccupied areas if essential for the when prudent is retained in the bill. conservation of the species (§3(5)(A). There is no indication of how the requirements for publishing the exact location of CH are to relate to the discretion under current §4 (a)(3)(A) of the ESA to refrain from indicating where CH is if doing so would not be prudent. Mapping CH may be difficult and, precision or detail may not be possible for many species, either for lack of knowledge, variability of the CRS-27 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 species, or other factors. Critical Habitat -- Economic Impact and Benefit Analyses. When designating CH, the Secretary Concurrently with making a listing No similar provision. No similar provision. shall take into consideration the determination, the Secretary will economic or any other relevant prepare an analysis of the impacts and S. 2110 would allow for the impacts of specifying an area as CH benefits of the listing determination, consideration of economic and (§4(b)(2)). See discussion on CH relating to economic, national security, national security factors when below. and any other relevant factors (p.7). determining the priority for species. (This does not apply to CH since it is eliminated under this bill.) Review of Listed Species. The Secretary shall conduct a review In changes to §4(c) of the act, the Similar to H.R. 3824 (pp. 5-6). No similar provision. of all listed species every five years Secretary would base the five-year and determine whether the status of reviews of species status on biennial See comments for H.R. 3824. any species should be changed (i.e., reports sent to Congress and would be removed, threatened to endangered, or allowed to consider "any other endangered to threatened) (§4(c)(2)). information the Secretary considers relevant" in determining whether to change the status of a species listed as threatened or endangered (pp. 6-7). How this phrase would be construed in light of the Secretary's obligation to CRS-28 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 consider the best available scientific data is unclear. Notice to States. The Secretary shall cooperate with Section 6(b) would require notice to Would require notice to the governor No similar provision. states, including consultation with the governor of a state and state of a state and state agencies of appropriate state agencies, before agencies of proposed endangered or proposed endangered or threatened acquiring any land or water, or interest threatened determinations (p.11). determinations (p. 10). therein, for conserving any endangered species or threatened species (§6(a)). Section 8 would require that any Major actions (e.g., listing) are through comments of a governor, state agency rule-making with publication in the or local government on proposed Federal Register. regulations finalizing such determinations be considered (p.16). The Secretary must give notice of proposed listing on CH designation or Under current law, there are no revisions to state agencies in the state express requirements for notices or where species is thought to exist consideration of comments as specified (§4(b)(5)) and consider their in H.R. 3824, although major actions comments; similar for foreign nations. are done through rulemaking with notice and comment. Local governments are not specifically involved under current law, though they may comment on all proposed actions. CRS-29 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Special Rules for Threatened Species. Whenever any species is listed as The Secretary shall review regulations Section 8 amends ESA §4(d) to No change to this provision of ESA. threatened, the Secretary shall issue under §4(d) of ESA to determine if specifically require consultation with regulations to provide for its their revision would facilitate and states before species are designated as conservation. For threatened species, improve cooperation with states under threatened (p. 13). It also requires the Secretary may prohibit acts §6 of ESA (p. 83). published Secretarial justification for prohibited for endangered species any prohibitions on threatened species, under §9(a)(1) and (2); except for A review of §4(d) rules for threatened and restricts conditions under which taking resident species of fish or species could result in the removal of such prohibitions may be applied to wildlife. federal penalties for threatened more than one species (pp. 13-14). species covered by state law and a The extent to which §4(d) rules are cooperative agreement. This could result in the removal of enforceable in states with cooperative prohibitions on the take of threatened agreements is not clear. species in the absence of special rules and remove the current FWS Current law states that §4(d) presumption of the full protection of regulations apply to states with the ESA for such species unless special cooperative agreements only to the rules provide other options. While extent that regulations are also adopted offering potential additional flexibility, by the state (§4(d)), yet other this change may be an incentive to list provisions indicate that the ESA species as endangered rather than prohibitions do apply (§§6(c)(E)(ii) threatened. and (f)). By regulation, the FWS has afforded CRS-30 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 most threatened species the same protections as endangered species unless a special rule is adopted for a particular species, while NMFS has generally adopted special rules for all threatened species. Recovery Plans -- Overview. The Secretary shall develop and The Secretary shall develop and Similar to H.R. 3824 (p. 17), but A recovery plan is to be non-binding implement recovery plans for the implement recovery plans for specifies that recovery plans are "for and advisory (p. 27), as in current law. conservation and survival of threatened and endangered species, the conservation" of listed species. The recovery plan may be amended by threatened and endangered species, unless the Secretary feels the plan will the Secretary or by recommendation of unless the Secretary feels that such a not promote the conservation and the executive committee and approval plan will not promote the conservation survival of the species (p. 17). by the Secretary (p. 27). of the species. Priority is given to species most likely to benefit from Although the Secretary and an recovery plans and plans for species executive committee can initiate with economic conflicts (§4(f)(1)). A revisions of a recovery program, a recovery plan need not be created for scientific recovery team can not. It is all listed species. not clear what roles the public may play in these amendments to recovery plans. CRS-31 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Recovery Plans -- Development. The Secretary shall develop and The Secretary will give priority to Recovery plan goals must be At the time of listing, the Secretary implement recovery plans for the plans for species that are most likely to considered in changing the status of a must publish provisional recovery conservation and survival of benefit, particularly those that are, or listed species (p. 13); recovery plan goals which may include standards for threatened and endangered species that may be, in conflict with economic priority continues to go to species most delisting (p. 15). These remain in would benefit from such a plan. activities. The Secretary will publish likely to benefit, and most likely to effect unless replaced by an approved Priority is given to those species most a recovery plan within two years for conflict with economic activity (p. 17). recovery plan. When a species is likely to benefit from such plans. species listed after enactment (pp. 17- Recovery plan deadline for newly scheduled for recovery on the priority Recovery plans might not be prepared 18). For species listed at the time of listed species is three years (p. 19). schedule, or upon petition by a for all species. enactment, a priority system will be qualifying collaborative group, the created, and within 10 years, recovery For previously listed species without Secretary shall establish a recovery To the maximum extent practicable, plans will be completed for species recovery plans, the new deadline is program for that species (and others if recovery plans must incorporate a without recovery plans or species within 10 years (pp. 18-19), and practicable) by assigning a recovery description of management actions to whose recovery plans need to be Secretary must publish reasons for coordinator and possibly forming a achieve the plan's goals, objective and revised (pp. 18-19). deviation from schedule for meeting recovery team or executive committee, measurable criteria for determining the deadlines (p. 19). or both (pp. 21-22). No deadlines are removal of species from ESA lists; and set for recovery plans. estimates of time required and cost to A recovery plan must identify publicly carry out the recovery plan (§4(f)(1)). owned areas necessary to achieve The provisional recovery goals, recovery, and if a species cannot be including standards for delisting, recovered on those areas, other might not be replaced with a recovery necessary areas (p. 21). plan, but rather be set by the Secretary alone. The use of public lands for achieving The absence of a deadline for recovery the recovery of listed species through plans in combination with limitation of CRS-32 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 recovery plans is required before use judicial review could result in of private lands. recovery plans not being prepared for some species. Under current law, not The Secretary may, before plan all species need to have a recovery approval, identify activities or areas plan. Under S. 2110 a qualifying where those or other activities may collaborative group could force impede conservation (p. 21). preparation of a plan. Recovery Plans -- Team. In developing and implementing The Secretary shall promulgate The Secretary is to issue regulations The Secretary may establish a recovery recovery plans, the Secretary may regulations for establishing recovery for recovery teams; teams must ensure team (pp. 22-23), composed of procure the services of appropriate teams (pp. 22-23). Criteria will be that plans are scientifically and members with expertise and technical public and private agencies and established for selecting members of economically rigorous (p. 22). and academic experience relating to institutions, and other qualified the team to ensure that teams are able Regulations must ensure that team is the species or ecosystem, who are to persons. Recovery teams appointed to complete the recovery plan and of a size and composition to enable act in good faith and not express the pursuant to this subsection shall not be i n c l u d e r ep r esen tatio n f r o m timely completion, includes expert views or representations of any subject to FACA (§4(f)(2). stakeholders who have interest in the scientists and those with a organization. The recovery team species or in the economic or social demonstrated direct interest in the would propose a recovery plan to the impacts of a plan. A recovery team is species' conservation or in economic executive committee. not required for creating a recovery and social impacts of the plan (pp. 22- plan and the Secretary is to provide 23). Teams are exempt from FACA. For every recovery program, the guidelines specifiying when a team is Secretary shall establish an executive not necessary (p. 23). If a team is not These provisions increase the role of committee (pp. 23-25) to reflect a appointed, the Secretary may prepare a economic analysis and consideration, balance of viewpoints and knowledge plan. Teams are not subject to FACA. while continuing to give scientific and, to the maximum extent criteria a larger role than economic practicable, be from nearby CRS-33 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Although there are references to factors. However, the presence of communities and have an economic, recovery team members with relevant non-scientists on recovery teams may social, or professional interest in the scientific expertise, there is no express have an indeterminable effect on the recovery of the species (pp. 23-24). requirement that such members be goals of resulting plans. The recovery team and executive appointed, or how many there should committee are exempt from FACA. A be. However, the bill does specify that recovery coordinator also is assigned constituencies affected by conservation to staff and coordinate implementation of a species must be represented (p. of a recovery plan (p. 25). 23). This may allow stakeholders with diverse perspectives and experiences The recovery team seems to be the to create recovery plans with scientific more scientific body, but is optional. and socio-economic considerations. The executive committee is composed of stakeholders and is mandatory. A recovery team cannot initiate a revision of a recovery plan, but an executive committee may. Although there are requirements for recovery plans, there are no requirements for recovery programs. Thus recovery efforts might not have the benefit of a scientific team to establish the needs of a species. Recovery Plans -- Coordination with Government Agencies. The Secretary may procure the Federal agencies may enter into Similar to H.R. 3824 (p. 25), except in Would authorize the Secretary to services of appropriate private and agreements with the Secretary omitting a provision to clarify that coordinate with all government CRS-34 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 public agencies in developing and specifying the measures the agency recovery plans are not mandatory. agencies to incorporate other implementing a recovery plan will carry out to implement a recovery conservation programs into the (§4(f)(1)(2)). Recovery plans are not plan (p. 26). recovery program for listed species (p. mandatory. 27). This language does not impose a duty on federal agencies to take actions to support recovery. Federal agencies must consider best available scientific data from recovery plans in any NEPA analysis (pp. 25- 26). Recovery Plans -- Contents. To the maximum extent practicable, The criteria set out in a recovery plan Recovery plans shall be based on the Recovery plans must be approved by recovery plans must incorporate a are among the things that may be best available scientific data and the Secretary, and must include a description of management actions to considered when deciding whether to include objective, measurable criteria description of site-specific recovery achieve the plan's goals, objective and delist or downlist a species (p. 14). for determining that a species could be actions including financial assistance measurable criteria for determining the delisted or reclassified from an and incentive programs for removal of species from ESA lists, and Recovery plans shall be based on the endangered to a threatened species. landowners; guidance on how the estimates of time required and cost to best available scientific data and geographic distribution of site-specific carry out the recovery plan (§4(f)(1)). include objective, measurable criteria Provisions regarding relative costs of recovery actions can enhance for determining that a species could be alternatives, estimated time and costs recovery; and objective, measurable There is no provision that requires delisted or reclassified from an required to implement plans, and least criteria that can indicate that the status recovery plans to be based on the best endangered to a threatened species (p. costly alternatives are similar to H.R. of a species should be changed, or that available science. 19). Recovery team members with 3824 (p. 20). the species should be removed from CRS-35 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 "relevant scientific expertise" will Requires the identification of publicly the list (pp. 26-27). establish objective, measurable criteria owned lands needed for recovery, and based solely on the best available other lands that may be necessary to In planning recovery, the Secretary scientific data (pp. 21-22). Site- achieve recovery (p. 21). must acknowledge "appropriate specific measures would be required existing conservation programs," and that would achieve the criteria of the The Secretary may issue guidance that coordinate with all governmental recovery plan (pp. 19-20). Recovery identifies particular activities or areas agencies (p. 27). teams are to consider the relative costs of lands or water that may impede the of alternatives that are of comparable conservation of species (p. 21). expected efficacy (p. 22). Estimates of the time and costs required and the identification of the least costly alternatives expressly would not be required to be based on the best available scientific data (p. 22). A recovery plan may provide for only interim improvement of the status of a species if there are insufficient best available scientific data, as determined by the recovery team, to ascertain the criteria or measures that indicate when a species may be delisted (p. 21). If a recovery plan does not contain specified criteria provided in the bill, CRS-36 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 the recovery team shall review the plan at least every five years and determine if the plan can be revised to adopt the criteria (p. 21). The interim recovery plan provision may provide a mechanism for assisting species until sufficient scientific data are available to measure when recovery has been achieved and delisting is appropriate. On the other hand, the fact that the recovery team itself determines the adequacy of best available scientific data, both initially and upon review, may permit interim plans aimed at improvement rather than recovery to continue. Recovery provisions under a heading relating only to federal agencies state that recovery plans would continue to be non-binding and recommendatory, as in current law. It is not clear whether this provision on plans being non-binding is meant to have general applicability. CRS-37 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Recovery Plans -- Consultation and Comment. The Secretary shall, prior to final Prior to final approval of a recovery Before approving of new or revised Proposed recovery plans are reviewed approval of a new or revised recovery plan or revision, the Secretary shall plans, the Secretary is to provide for by an executive committee that is to plan, provide public notice and an provide for public review and state public notice and comment, and consult with a recovery team opportunity for public review and review of the plan (pp. 24-25). consider resulting information before (previously established); state, local, comment on such plan (§4(f)(4)). Further, the Governor, or any state final approval (p.24). and tribal governments, and States and other governments may agency in any state in which a landowners on opportunities for submit comments. FACA does not recovery plan would apply will be Affected Governors, state agencies, implementing the plan (p. 24). apply to recovery teams. provided a draft of the plan to and Indian tribes would receive a draft comment on (p. 25). In the final plan plan and have opportunity to comment; the Secretary must respond to the and the Secretary must respond to comments of the Governor and the comments of the Governor, state state agency. The Secretary shall also agencies, or local and regional use consult with any pertinent state, tribal, agencies (pp. 24-25). All final or regional land use agency prior to recovery plans, and draft plans after approval of the plan (p. 25). FACA the enactment date, would be available does not apply to recovery teams (p. on the Internet (pp. 50-51). FACA 24). does not apply to recovery teams (p. 23). See comments from the Amendment. The requirement to respond in a recovery plan to any comments from the Governor and state may increase cooperation between the state and federal governments. Public access to CRS-38 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 recovery plan information is increased. Recovery Plans -- Status. The Secretary shall report every two Every two years the Secretary shall No similar provision regarding review The Secretary shall periodically review years to the Senate Committee on report to the House Resources and at least every five years if a plan does recovery programs; if a recovery Environment and Public Works and Senate Environment and Public Works not contain the required criteria. program is not making progress the House Committee on Resources on Committees on the specified criteria Similar to H.R. 3824. towards recovery or "is not acting the status of efforts to develop and concerning the status of threatened and within the guidance of the recovery implement recovery plans for all endangered species and efforts to plan" (p. 28), the Secretary shall species listed pursuant to this section develop recovery plans (pp. 23-24). submit to the relevant executive and on the status of all species for committee a written inquiry for an which such plans have been developed explanation and specific remedial (§4(f)(3)). actions. The executive committee would have 180 days to respond. A process is provided for resolving disputes between an executive committee and the Secretary regarding recovery program progress and whether remedial actions are necessary (pp. 28-29). CRS-39 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Establishing Priority of Species. Under §4(b)(3)(B)(iii), a petitioned No new priority system for species Petitioned actions could only be The Secretaries of Interior and action may be precluded by other determinations is proposed. (But see precluded in a fiscal year by proposals Commerce would each be required to pending listing proposals. recovery plans above.) involving species at greater risk (pp. 9- establish priority systems for making 10). decisions in the "most efficient and Courts can review assertions by an effective manner practicable" (p. 16). agency that a listing is "warranted but This could facilitate consideration of The priority systems would apply to all precluded" to determine if the particular petitions of at-risk species. decisions which relate to status/listing postponement is legitimate or the determinations, designation of CH, and agency is delinquent. California recovery plans. Priorities are to be Native Plant Society v. Norton, 2005 based on five criteria (pp.16-18). U.S. Dist. LEXIS 4634 (2005). Courts would lack the power to Under §4(h), the Secretary shall require the Secretary "to complete an establish agency guidelines to carry action inconsistent with" the priority out activities such as listings, CH schedule. designations, and recovery plans. The guidelines should include (1) Currently, there is a duty to list all procedures for recording the receipt species that are threatened or and the disposition of petitions; (2) endangered. No species legally may criteria for making the findings from be consigned to extinction. It appears petitions; (3) a ranking system to assist that the new priority system and in the identification of species that schedule -- combined with the should receive priority review under references to: 1) considering whether §4(a)(1) of the section; and (4) a a species is likely to be able to CRS-40 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 s ys t e m f o r d e vel o p i n g a n d recover; 2) making listing and other implementing, on a priority basis, decisions in a "practicable" manner; recovery plans. Agency guidelines and 3) the possible limitation on also provide additional details on these judicial review -- could result in some priorities. species never being afforded enforceable protections under the Act. This system relates to the commitment of agency personnel and funds, but may be overridden by court orders because the statutory duties of the ESA agencies to list species and CH remain. No similar provision. No similar provision. No similar provision. 1) The first criterion is the magnitude and immediacy of the risk of extinction (including the factors considered at the time of listing, the species' geographic distribution, its habitat specificity, and its taxonomic distinctiveness) (p. 16). No similar provision. No similar provision. No similar provision. 2) The priority system is to be based on the likelihood of achieving recovery (p. 17). No similar provision. No similar provision. No similar provision. 3) The quality and quantity of available information would be a CRS-41 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 criterion. Within that, four factors are to be considered. In "increasing order of importance" they are: known distribution; occupied habitat data; rates of reproduction, survival, or population growth; and the habitat types that correlate with these rates. These four factors together represent the basic demographic data which would be used to assess the health of a species (p. 17). Where the information is available, these factors would undoubtedly be considered by the agencies, whether required in law or not, and may not represent a substantial change from current practice. Such data may not be available for many rare species likely to be listed under ESA, and might be especially difficult to obtain for foreign species. CRS-42 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 No similar provision. No similar provision. No similar provision. 4) The degree to which recovering the species helps to recover other species is to be considered (p. 18). Explicit inclusion of this criterion may aid FWS and NMFS considerably since many species may be rare in the same diminishing habitat, but a few species may be better understood than others and conservation of the "primary" species would benefit the others as well. Under the current §4(f)(1), the No similar provision. No similar provision. 5) Another criterion is the degree to Secretary is to give priority to which recovery would minimize minimizing conflicts with conflicts with specified economic "construction or other development activities, military needs, or other projects or other forms of economic undefined human activities (p. 18). activity." The major change here is the inclusion of military needs and other human activities. For recovery plans, the Secretary will The Secretary shall publish a priority Similar to H.R. 3824 (p. 17). The priority systems would apply to all give priority to those species that are ranking system for preparing or decisions which relate to status/listing most likely to benefit, particularly revising recovery plans. Priority will determinations, designation of CH, and those species that are or may be in be given to endangered and threatened recovery plans (p. 16). CRS-43 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 conflict with construction or other species that will benefit most from development projects or other forms of such plans, especially those that may economic activity (§4(f)(1)(A)). be or are in conflict with forms of economic activity (p.17). Establishing Priorities of Species -- Schedule. The Secretary shall establish agency The Secretary is to implement agency Similar to H.R. 3824 (p. 15). The Secretary is to establish a schedule guidelines to carry out activities in §4. guidelines similar to current law, but of actions based on the priority ranking The guidelines should include (1) with the addition of criteria for system (pp. 18-22). The Secretary also procedures for recording the receipt determining best available scientific is to submit to relevant congressional and the disposition of petitions; (2) data (p. 15). committees, information on listing criteria for making findings from status petitions in review (based on the petitions; (3) a ranking system to assist priority ranking system), together with in identifying species that should information on all findings, decisions, receive priority review under and designations that are pending (pp. subsection (a)(1); and 19-20). Determinations remanded to (4) a system for developing and the Secretary by a court before the date implementing, on a priority basis, of enactment are to be entered on the recovery plans (§4(h)). schedule, and no court is to have the power to require the Secretary to complete action inconsistent with the priority schedule. The Secretary has authority to revise the priority schedule (p. 21). There are no provisions related to the CRS-44 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 establishment of the schedule other than the criteria for priorities discussed above; nor are there provisions relating to public participation in or appeal of priority schedule decisions. It appears that no listings, etc., could be ordered contrary to the priority schedule. If so, this could eliminate the possibility of injunctive court relief to compel the Secretary to complete species status determinations (listings) or to designate CH, and judicial review could be limited only to the question of whether the Secretaries' actions were consistent with the schedule. Various proposals have circulated that include making (or failing to make) CH designations beyond judicial review, but this bill provision could be interpreted as applying to species status/listing determinations as well, such that some species may be allowed to go extinct with no recourse for judicial intervention to give higher priority to a species ahead of other, CRS-45 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 less urgent actions. On the other hand, requests by qualified collaborative groups are to receive highest priority, which provides a means to get species onto the schedule. Cooperative Agreements With States. The Secretary is authorized to enter The Secretary may enter into Similar to H.R. 3824 (pp. 27-30). Cooperative agreements would allow into a cooperative agreement with any cooperative agreements with states not cooperative efforts to address state which establishes and maintains only for listed species, but also for candidate species or any other species an adequate and active program for candidate species or any other species that the state and the Secretary agree conserving endangered and threatened that the state and the Secretary agree is are likely to be determined to be an species (§6(c)(1)). Separate at risk of being determined to be an endangered species or threatened cooperative agreements are authorized endangered or threatened species. A species (p. 3). for animals and plants (§6(c)(2)). cooperative agreement may be entered between the Secretary and an Indian tribe in substantially the same manner as with a state (pp. 38-43). CRS-46 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Cooperative Agreements -- Consultation. No express provisions as to when Agreements would be subject to Generally agreements would be Consultation on a cooperative actions relating to cooperative consultation requirements before they subject to consultation requirements agreement under §7 of the ESA would agreements are subject to consultation. are entered into and upon renewal or and regulations implementing such only occur at the time the cooperative amendment (pp. 41-42). However, if provisions. Specific times for agreement is entered into or when the a species not listed as threatened or consultation are not identified (p. 29). Secretary approves a renewal or endangered at the time of the amendment of the cooperative agreement is listed later, no new agreement to accomplish certain stated consultation on the agreement would things. Consultation would not recur be required (pp. 38-39). in connection with incidental take statements allowing take (pp. 3-4). It appears that the Secretary would consult with FWS on agreements, a process somewhat analogous to the intra-service consultations on §10 permits. CRS-47 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Cooperative Agreements -- Incidental take and Consultation . The relationship of cooperative Any incidental take statement issued No provisions regarding the Any incidental take statement issued agreements with states to the on the agreement would apply to the relationship of agreements to on a cooperative agreement appears to applicability of ESA prohibitions and state and to any landowners enrolled in incidental take. apply to candidate or species to incidental take permits is not always any program under the agreement. If determined likely to be endangered or clear. the agreement is for candidate species threatened species addressed in the or species of special concern, no agreement, and to the state and further consultation would be needed if landowner enrolled in a program under those species became endangered or the agreement without further threatened if the current agreement is consultation if additional species are adequate for conserving those species subsequently determined to be (pp. 38-39). endangered or threatened. However, the cooperative agreement and its program must be adequate for the conservation of the species (pp. 3-4). Cooperative Agreements -- Monitoring, Voluntary Enrollments, and Review. Actions taken by the Secretary under A cooperative agreement may provide Similar to H.R. 3824 (pp. 27-29). A cooperative agreement may provide §6 must be reviewed annually (§6(e)). for monitoring or assistance in for monitoring or assistance in monitoring the status of candidate monitoring the status of candidate species or species that are determined species or species that are determined to be recovered and are delisted (p. to be recovered and are delisted. The 39). Secretaries are directed to ensure that any enrollment of land or water rights The Secretary may review cooperative Similar to H.R. 3824. under an agreement is voluntary (pp. CRS-48 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 agreements and "seek to make changes 4-5). the Secretary considers necessary" to conserve species (p. 39). Actions taken by the Secretary under §6 would be subject to review by the The Secretary is to ensure that the Similar to H.R. 3824. Secretary at least every three years (p. enrollment of private lands or water 5). The Secretary may suspend a rights in a program established by an c o o p e r a t i ve a gr e e me n t a f t e r agreement is voluntary (p. 39). consultation with the Governor of the affected state if the Secretary finds The Secretary may suspend a Similar to H.R. 3824. during the periodic review that the c o o p e r a t i ve a gr e e me n t a f t e r cooperative agreement no longer consultation with the Governor of the constitutes an adequate and active affected state if the Secretary finds program (p. 7). during the periodic review that the cooperative agreement no longer constitutes an adequate and active program (p. 42). Cooperative Agreements -- Termination. There are no specific provisions The Secretary may terminate a Similar to H.R. 3824 (pp. 29-30). Similar to H.R. 3824, except that stating the requirements for c o o p e r a t i ve a gr e e me n t a f t e r destruction or adverse modification of terminating a cooperative agreement consultation with the Governor if the CH may also result in termination (pp. with a state. However, for the program Secretary finds that continued 7-8). to be deemed an adequate and active implementation of the cooperative program for the conservation of listed agreement is likely to jeopardize the species, the Secretary is required to continued existence of an endangered CRS-49 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 review a list of conditions under each or threatened species. To terminate an agreement annually (§6(c)(2)(A)). agreement, the Secretary must also find that either: (1) the cooperative If a program is not adequate and agreement has not been amended or active for the conservation of listed revised to incorporate a reasonable and species, then it appears the prudent alternative offered by the cooperative agreement would not be Secretary; or (2) if the Secretary had authorized (§6(c)(1). suspended the agreement, the agreement has not been revised or the problems remedied within 180 days after the date of suspension (pp. 42- 43). Indian Tribes. The Secretary shall, prior to final "Pertinent" Indian tribes may consult The amendment specifies Recovery plans are to be reviewed by approval of a new or revised recovery on recovery plans prior to their final opportunities for recognized Indian an executive committee, which has plan, provide public notice and an approval and or revision (p. 25). tribes to comment on draft recovery broad guidelines for membership, and opportunity for public review and plans (pp. 24-25); allows tribes to therefore could include representatives comment (§4(f)(4)). Tribes may Indian tribes may enter into participate in cooperative agreements from Indian tribes (pp. 23-24). The participate to the same extent as other cooperative agreements in a manner in a manner similar to states (p. 28); executive committee is to consult with entities, but are not expressly similar to states, and may provide allows tribes to offer expertise to tribal governments on opportunities for mentioned or afforded any special assistance to persons entering into private property owners engaged in implementation of the plan (p. 24). treatment. management plans (pp. 35-36). cooperative species management plans (p. 47). (See also Public Input, below.) Similar comments as the Amendment. Provisions tend to put tribes on a CRS-50 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 footing similar to states, especially in enhanced opportunities to comment on draft recovery plans. Consultations -- Alternative Procedures. Federal agencies must consult on "any Critical habitat is eliminated. Would eliminate references to CH No similar provision. action" that is authorized, funded, or under §7, but would add a definition of carried out by an agency to insure that Without CH, §7 consultations are only jeopardy different from what is now the action won't jeopardize the required when federal actions might used in regulations. "Jeopardize the continued existence of an endangered jeopardize the continued existence of a continued existence" is defined to or threatened species or result in the species. mean acting so as to make it less likely destruction or adverse modification of that, or to delay the time when, a CH. The reference to "any action" Would change "any action" to "any species will no longer need the includes non-federal actions with a agency action." (Emphasis added.) protections of the act, or to federal nexus. significantly increase the cost of doing This change arguably eliminates the so (i.e., be recovered) (p. 3). For federal activities, FWS or NMFS consultation requirements for private issues biological opinions as to actions with a federal nexus. Jeopardy is not defined in current law; whether a proposed agency action However, other references to provision specifies that recovery is the would jeopardize a species or destroy consultations involving permit or standard by which jeopardy is judged, or adversely modify CH, and, if so, license applicants are retained, so the and adds increased costs as a factor in suggests reasonable and prudent net effect is ambiguous. determining whether an agency is alternatives to avoid or mitigate the Authorizes the Secretary to identify jeopardizing a listed species. The harm (§§7(a) -- (c)). certain agency actions or types of language is broad -- in finding action through alternative procedures jeopardy for any action that makes other than the §7 consultation process recovery less likely. The consequences CRS-51 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 under current law (p. 44). of the definition for consultation and throughout the ESA are not clear. Alternative procedures could substitute for agency biological In determining whether an agency assessments, the preparation of action is likely to jeopardize the biological opinions by FWS or NMFS, continued existence of a species, the and the limitation on agency Secretary must consider any special commitments of resources. However, areas identified in recovery plans (p. the authority for issuing an incidental 22). take statement and the provision that exempts from the penalties of the Act Cooperative agreements with a state or any takes of a species pursuant to an tribe may be ended if continued incidental take statement, would only implementation of an agreement apply if the Secretary finds or concurs threatens to jeopardize the continued that the agency action meets the existence of listed species, and the standards of §7(a)(2) -- i.e., will not agreement is not amended to include a jeopardize. reasonable and prudent alternative offered by the Secretary. An The Secretary shall suggest, or concur agreement may also be terminated if it with, any suggested, reasonable and has been suspended and the Secretary prudent alternatives developed for any finds it does not constitute an adequate action determined not to meet the and active program (pp. 29-30). no-jeopardy standard (p. 44). These changes could be seen as expediting the consultation process CRS-52 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 along the lines of current administrative practices (see H.Rept. 109-237, pp. 44-45). On the other hand, allowing the action agencies to make the initial determinations as to jeopardy, and reducing the role of the Secretary to one of concurrence, arguably could reduce the independent role of the FWS under this bill. The extent to which agency processes replacing biological opinions could be reviewed by the courts is not clear. Although authority for "counterpart regulations" has existed in regulations for years, it has only recently been used and is being challenged in court. The process is somewhat similar to "categorical exclusions" re types of actions for which no environmental analyses under the National Environmental Policy Act need be prepared, but the NEPA exclusion applies to an essentially procedural process, and these alternative consultation processes would apply to CRS-53 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 substantive determinations. No similar provision. A new §7(a)(5) would direct a federal No similar provision. No similar provision. agency or the Secretary in conducting a jeopardy analysis to "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" (p. 45). A jeopardy analysis would not look at the proposed action's effect as part of the aggregate of all other impacts on that species; rather the jeopardy analysis would be limited to the most recent action, which considered alone, might not harm a species, but which taken together with other prior actions or conditions might result in jeopardy. Administratively taking the approach of new §7(a)(5) was recently enjoined in National Wildlife Federation v. National Marine Fisheries Service, 2004 U.S. Dist. LEXIS 15239, aff'd 418 F. 3d 871 (9th Cir. 2005) as not CRS-54 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 providing an adequate analysis of the true impacts of an agency action. Some contend that a jeopardy analysis should be based on the incremental effects of agency actions and that pre- existing conditions or past activities should not be included. Exemption Changes: Repeal of the Endangered Species Committee; National Security; and Emergencies. Subsection §§7(e) -- (p) of the ESA Section 11(d) of the bill would repeal No similar provision. No similar provision. requires the Endangered Species the Endangered Species Committee Committee (the "God Squad") to grant provisions and the current exemption or deny an exemption for a federal process (pp. 48-49). action after completing a little-used and cumbersome process. Several new exemptions under Presidential authority would be Since its creation 33 years ago, the established, but no general system for Endangered Species Committee has exemptions would replace the current rendered three decisions (on the Endangered Species Committee Tellico Dam, a water project on the procedure. This might necessitate Platte River, and timber sales in special legislation to permit particular Oregon). The committee rejected the projects to go forward despite dam and approved the water project jeopardy to species. and some of the Oregon timber sales. (The approved timber sales were later CRS-55 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 withdrawn.) In addition, three exemption applications were begun, but later withdrawn before the committee was convened. Under current §7(j), the Endangered Section 12(e) would replace §7(j) with President may exempt any act from No similar provision. Species Committee must grant an new §10(l) giving authority to the ESA provisions if necessary for exemption if the Secretary of Defense President, after consultation with the national security (p. 43). finds the exemption is necessary for appropriate federal agency, to exempt national security, and under §7(p), the any act or omission from the act if President may exempt projects to necessary for national security (pp. 58- repair or replace public facilities in 59). declared disaster areas, subject to Under certain circumstances, President certain conditions. The bill would expand the authority may exempt federal agencies from for the President to make exemption requirements for consultation, decisions from any provision in ESA biological opinions, biological in declared disaster areas (p. 59). The assessments, and limitation on Secretary is to promulgate regulations committing resources, to repair or regarding application of the ESA in the replace public facilities in federal event of an emergency, including disaster areas (p. 35). circumstances other than a major disaster, involving a threat to human Exemption is available not only for health or safety or property. These federal but also non-federal actions; regulations may address immediate no need for approval of Endangered CRS-56 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 threats through expedited Species Committee; no limit on consideration under or waiver of any President's authority other than provision of the ESA (p. 59). consultation with the appropriate federal agency (undefined); and no Some current authority exists in § 7(p) public disclosure process specified. for the President to make exception determinations in disaster areas. Takings -- Written Determination. The "take" prohibitions of §9 of the Under a new procedure, landowners For uses that are lawful under state and No similar provision. current law include actions that could request a written determination local laws, landowner may request directly kill and prohibit "harming" a from the Secretary as to whether a written determination from Secretary species, a term defined in regulations proposed action on their private lands on whether a proposed use, as as including habitat destruction that would violate the ESA. If so, a described, requires an incidental take actually injures or kills a species by landowner could request permit under §10(a) (p. 41-42). significantly impairing essential aid/compensation for foregoing the Description is to include specified behavioral patterns, including proposed use. The Secretary "shall information; if written determination is breeding, feeding or sheltering. (50 award" aid if the proposed use meets denied due to omission of specified C.F.R. § 17.3 (2004)) the qualifying criteria -- that the information, applicant may resubmit, proposed use would be lawful under with new information. Determination Private landowners can obtain state and local law and that the is to be made within 180 days of permission to take species through §7 property owner has demonstrated the submission, unless requestor agrees to incidental take statements or §10 means to undertake the proposed use more time; there is no presumption CRS-57 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 incidental take statements (both (pp. 55-56). that an action may proceed without a processes involve public review). permit if Secretarial response is There is no current statutory procedure Several aspects of this aid are unclear, delayed, nor is aid provided to for obtaining a written determination and the costs of compensation are applicants for a determination that a of compliance with §9 prohibitions. difficult to determine, but could be permit is necessary. Secretary is to high. (See "Property Owner report to Congress on determinations Incentives -- Compensation to that were not timely (pp. 42-43). Landowners" for further explanation.) Provision does not apply to agency actions subject to §7 consultations (p. The landowner would submit a written 43). description of the proposed action to the Secretary. The Secretary may The determinations might quickly request additional information which eliminate concerns of some the applicant "may" provide (p. 56). If landowners about whether a §10 the Secretary determines, based on the permit is necessary, but only if the applicant's information, that the Secretary responds in a timely way. proposed use would comply with the take prohibitions of §9(a), the use may proceed (pp. 57-58). If the Secretary determines that the proposed use would not comply with §9(a), then a property owner who requests "aid" for foregoing the use must be paid if qualifying criteria are met (pp. 60-65). It appears that the Secretary's CRS-58 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 determination is to be made based only on information submitted by the applicant, and that information "is deemed to be sufficient for consideration by the Secretary" if it includes certain elements. The written determination process appears to provide an alternative to the current requirements of §10 that allow a landowner who submits a habitat conservation plan to obtain an "incidental take permit" allowing excused takes of listed species, and is an alternative process that lacks the public input of the §§7 and 10 processes. In addition, it may allow a landowner who is uncertain that a take will occur at all to obtain a written determination that it will not. No similar provision. If a written determination is not No similar provision. No similar provision. received within 180 days of application (subject to some possible extensions), uses are deemed acceptable and may proceed free of CRS-59 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 penalties under the act (p. 57). A deemed determination is effective for five years, and a written determination is effective for 10 years (pp. 57-58). The Secretary may withdraw any deter mi n a t i o n if unforeseen circumstances would preclude conservation measures essential to the survival of a species, but compensation could also be owed if a previous determination of compliance were withdrawn (p. 58). If the Secretary does not make a There is no presumption that an action decision within the time limit, the is approved if Secretarial response is proposed action is deemed approved. delayed, nor is aid provided to If appropriated funds (whether applicants for determinations that a regular, supplemental, or permit is necessary. reprogrammed) appear to be insufficient to satisfy anticipated demands for aid, the Secretary could face a conflict between paying aid which "shall" be provided but for which funds are not sufficient, and permitting actions which might CRS-60 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 otherwise violate the ESA to go forward. H.R. 3824 does not specify how the conflict is to be resolved. Incidental Take -- Habitat Conservation Plans (HCPs). Under §10(a)(2)(A), an incidental take Amends §10(a)(2) to require that an Similar to H.R. 3824, except that the Applicants must provide an HCP with permit must specify the steps the applicant's HCP include 1) measurable terms imposed can be no more than measurable biological goals for applicant will take to minimize and biological goals and how they will be necessary to offset impacts (pp. 35- species, as well as measures to achieve mitigate impacts and any other achieved; 2) how impacts will be 37). these goals, and a description of how measures the Secretary may require as monitored; and 3) adaptive impacts of the HCP will be monitored necessary or appropriate. management provisions to responds to The amendment lacks provisions on (pp. 44-45). The current requirement changes in circumstance. acre-for-acre mitigation, capability of that an HCP include "measures that the successful implementation and Secretary may require as being The Secretary is required to evaluate a consistency with applicant's necessary or appropriate for purposes permit for how reasonable its length objectives. of the plan" would be repealed, but a might be, the extent to which the plan similar authority for the Secretary to will enhance conservation of covered specify terms and conditions in §10 species, the scope of the plan's permits would be retained. adaptive management, and other factors. The Secretary will impose See H.R. 3824 comments on biological terms that are roughly proportional to goals. The modified requirements for impacts (pp. 50-52). HCP applicants generally add clarity and require additional information as The addition of measurable biological part of HCPs. Although the authority goals may add certainty to an of the Secretary to impose "other applicant's own planning, as well as measures that the Secretary may CRS-61 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 provide clearer markers to indicate require as being necessary or whether the plan is succeeding. appropriate"is repealed, the authority in §10(a)(1) to require terms and The Secretary may require greater than conditions in §10 permits is retained. acre-for-acre mitigation if necessary. All terms and conditions must be capable of successful implementation and consistent with the objective of the applicant to the greatest extent possible. Incidental Take -- Recovery Plan Actions. No similar provision. No similar provision. No similar provision. The Secretary is required to specify terms and conditions necessary to offset or reduce impacts of incidental takings if a proposed HCP implements an action from an approved recovery plan (pp. 46-47); such terms and conditions are to be: (1) proportional to the effect of the incidental take; and (2) feasible and consistent with HCP goals (p. 46). If the Secretary also finds that the contribution to recovery is at least proportional to the potential for, and degree of, incidental take, CRS-62 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 approval of the HCP would constitute compliance with the consultation requirements of §7(a) of ESA and with NEPA (p. 47). This language appears to balance the rights and responsibilities of both applicant and permitting agency in providing assurances of what may be reasonable. However, the restructuring of §10 may leave the Secretary with basically a yes-or-no role in approving an applicant's HCP in actions implementing recovery plans, because the bill language would eliminate consultation under the ESA and the consideration of alternatives under NEPA for significant HCPs. As a result, the flexibility to consider other alternatives could be curtailed. P. 45 refers to reducing the likelihood of "survival and recovery" of any species covered by the plan -- language that has been subject to repeated litigation and has been CRS-63 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 interpreted by the agencies as meaning only survival rather than recovery. Incidental Take -- No Surprises. Section 10 provides that the Secretary New language would codify a No Same as H.R. 3824 (pp. 37-40), except Similar to H.R. 3824, except may issue permits to allow incidental Surprises concept similar to that in that as for revocation, the Secretary is provisions regarding the revocation or take of species for otherwise lawful current regulations. This provides required to fund remedial conservation termination of permits. actions. The applicant for an permit holders with more management measures if plan goals are likely to fail incidental take permit must submit a certainty during the life of a permit, by (p. 39). Other revocation provisions A permit shall be terminated if the habitat conservation plan (HCP) that assuring permittees that no additional are the same holder is not in compliance, but new shows: the likely impact of the requirements will be imposed without §10(a)(7) limits the circumstances activities to the species; the steps to the consent of the permittee for when the Secretary may revoke a minimize and mitigate the impact; the changes of circumstance identified in permit due to changed circumstances funding for the mitigation; the the permit (pp. 52-54). For changes of to those in which continuing the alternatives that were considered and circumstance not identified in the activities under the permit would be rejected; and any other measures that permit, the additional actions the inconsistent with §10(a)(2) (p. 53). the Secretary may require. Through Secretary may require are limited (p. administrative regulations No 52). The Secretary bears the burden of Because paragraph (2) would be surprises provisions provide proof for changed circumstances (p. expanded, it is not clear what would landowners greater certainty that 53). Transition provisions are justify revocation. Overall, this changes to the terms of the agreement provided (p. 53). language may clarify the rights and would be limited (50 C.F.R. responsibilities of both parties. §§17.22(b) and 17.32(b)). Streamlined The Secretary may revoke a permit if However, the word "additional" procedures for activities with minimal the permittee is in violation of the appears to be missing from p. 50, line impacts were also administratively permit, or under changed 19, which states that a permit holder provided. A permit can be revoked for circumstances if continuation would be who is in compliance cannot be CRS-64 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 several causes or if continuation would inconsistent with survival and recovery required to adopt any minimization, decrease the survival and recovery of of the species, and if the Secretary and mitigation, or other measures; it may the species in the wild (50 C.F.R. the permittee cannot remedy the have been intended that requirements §17.22(b)(8)). inconsistency (pp. 53-54). in addition to those set out in the agreement and permit cannot be Under current No Surprises required. regulations, a permit may be revoked if the continuation of its prescribed activities would decrease the survival and recovery of the species in the wild (50 C.F.R. §17.22(b)(8)). The revocation authority in current regulations is not limited to "changed circumstances" as is true in the two bills and the amendment. Incidental Take -- Provisional Permits. No similar provision. No similar provision. No similar provision. New §10(a)(3) provides for provisional permits for incidental take if an applicant voluntarily implements the terms of a proposed HCP during review and has completed a survey to determine the area occupied by the species (pp. 47-48). Provisional permits would authorize management activities (other than ground clearing) CRS-65 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 until a §10 permit is issued (p. 48). Information submitted for a provisional permit cannot be used as evidence for prosecuting prohibited acts. Provisional permits appear to provide more certainty for applicants while permits are under consideration. The cost of administering a provisional permit program may be a concern. The fact that information submitted for provisional permits is not admissible in prosecutions of offenses might provide an opportunity to circumvent enforcement. CRS-66 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Incidental Take -- Protection from Liability for Site Specific Plans Under the Healthy Forests Restoration Act of 2003. No specific provision in ESA, but No similar provision. No similar provision. Section 401 adds additional ESA another law (Healthy Forests protections for landowners in the Restoration Act of 2003; HFRA, 16 healthy forests reserve program (pp. U.S.C. §6576(a)) allows a forest 62-63). If there is an approved landowner to enroll private land in a recovery plan under ESA, and a healthy forests reserve program, one landowner agrees to engage in requirement of which is that site-specific recovery actions from that enrollment of the private land will plan, then the landowner is not liable restore, enhance, or otherwise under §9 of ESA for incidental take of measurably increase the likelihood of species covered by the restoration recovery of a listed species, with plan. Liability would be waived for priority given to lands that will provide the duration of the landowner's the greatest conservation benefit to agreement (which under HFRA can be listed species. If a landowner's 99 years), and the waiver would be for conservation activities result in a net take proportional to the area in which conservation benefit for listed, net conservation benefits would candidate, or other species, the accrue. Secretary of Agriculture must make available safe harbor agreements, or The exemption for a landowner from similar agreements, and protection §9 take liability could be sweeping. It from penalties for incidental take, is not conditioned on the landowner either under §7(b)(4) of ESA complying with either an incidental (regarding incidental take statements take statement or a §10 permit and after consultation with FWS or NMFS) contains no provision to review the CRS-67 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 or §10(a)(1) of ESA (regarding landowner's actions if obligations are incidental take permits obtained by not met, or if recovery plan goals are nonfederal parties). not being met. In addition, the provision appears to apply to areas not covered by the landowner's agreement under the HFRA, as long as the exempted takes are proportional to the area of net conservation benefits. For forested areas containing wide- ranging species (e.g., Northern spotted owls or Florida panthers), the exemption from the take prohibition in one area might negate the anticipated benefit in another area, possibly too rapidly to be reversed or adapted to, even when or if it were detected. Property Owner Incentives -- Compensation to Landowners. Any compensation to landowners for In addition to possibly providing No similar provision. No similar provision. property takings for ESA-related optional conservation grants under actions is limited to that required under new §13 (pp. 60-62), the Secretary the Takings Clause of the 5th shall provide financial compensation, Amendment of the United States "aid," for conservation measures Constitution. imposed on private property owners by the ESA (pp. 62-65). CRS-68 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Compensation for property owners under §13 would be broader than the compensation available under the current interpretation of the 5th Amendment of the Constitution, in that less impact to property interests need be shown than under 5th Amendment "regulatory takings" analysis, and the impact to a part of the property rather than to the property as a whole is the measure of compensation under the bill. This fact could be relevant, for example, to assertions that failure to deliver full amounts of Bureau of Reclamation water would be compensable. The relationship of §13 compensation to 5th Amendment compensation is not totally clear; also not clear is whether §13 compensation would be limited to those obtaining a written determination or might be available more broadly. CRS-69 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 No similar provision. If a written determination is made No similar provision. No similar provision under new §10(k) that a proposed use of private property would not comply with the take prohibitions of §9(a) of the ESA, or if the Secretary withdraws a determination of compliance, then, upon receiving a request from a property owner, the Secretary shall pay the qualifying property owner aid to not proceed with the proposed use. The aid to private property owners is to be equal to the fair market value of the foregone use, if the use is lawful under state and local law and the property owner demonstrates the means to undertake the proposed use (pp. 62-63). It is unclear how compliance with state and local law is to be determined, and the bill does not require the property owner to obtain state permits or take other specific actions to demonstrate that the use is concrete and lawful. The availability of compensation may CRS-70 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 affect whether a landowner chooses to seek a written determination or proceed under full §10 processes and go forward with a project. If appropriated funds appear to be insufficient to satisfy anticipated demands for aid, the Secretary could face a conflict between paying aid which "shall" be provided but for which funds are not sufficient, and permitting actions which might otherwise violate the ESA to go forward. (See "Takings -- Written Determination" for more information.) No similar provision. The Secretary and the property owner No similar provision. No similar provision. would each conduct an appraisal of the fair market value of the proposed use and if they cannot reach an agreement, a third appraiser is appointed whose determination shall be the final offer by the Secretary (p. 64). No similar provision. The Secretary must negotiate with the No similar provision. No similar provision. property owner to document the foregone use through various mechanisms "such as contract terms, CRS-71 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 lease terms, deed restrictions, easement terms, or transfer of title" (pp. 63-64). Such documentation is to be negotiated between 30 and 60 days after the request for aid. If agreement is not reached within 60 days, the Secretary determines how the foregone use will be documented. The documentation must have "the least impact on the ownership interests of the property owner necessary to document the foregone use, which shall not include transfer of title." How this last reference to not transferring title relates to the previous references to easements, deed restrictions, or transfer of title is not clear. Compensation generally must be paid within 270 days of receipt of a request for payment, unless questions regarding the fair market value need to be resolved (p. 63). CRS-72 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 No similar provision. The property owner may not receive No similar provision. No similar provision. "additional aid for the same foregone use of the same property and for the same period of time" (p. 65). It is not clear whether the owner could receive compensation for various uses involving the same period of time, or how a "period of time" would be calculated for each use. Arguably, payment for one foregone use would not preclude payment for not pursuing others. No similar provision. New §10(k)(7) states that the written No similar provision. No similar provision. determination process is only available to those whose actions are not subject to consultation under §7 (p. 57). Property Owner Incentives -- Conservation Agreements. An incidental take permit may be Under species conservation contract The Secretary is authorized to enter No similar provision, but see issued to an applicant who submits a agreements, running for 10, 20, or 30 into agreements with property owners Appendix. habitat conservation plan (HCP). An years, persons would carry out to improve habitat and promote HCP may address listed and certain conservation practices to meet conservation for listed and candidate unlisted species, and contain elements statutory goals for endangered and species, with payments to property specified in §10(a)(2)(A). threatened species, candidate species, owners to implement these agreements CRS-73 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 For an HCP to be approved, the plan or species subject to comparable of as much as 70% of costs (pp. 44- must contain the elements under designations under state law (pp. 30- 50). §10(a)(2). With an approved HCP, the 32). Secretary may authorize the take of The agreement will include a protected species consistent with the This provision would expand species management plan for species and plan. In addition, under regulations at assistance to a point earlier in time -- habitat, a finding by the Secretary that 50 C.F.R. §17.22(d) and 17.32(d), an before a species is on the brink of the land is appropriate for the applicant may seek a "candidate extinction -- which could provide conservation of the species, a conservation agreement with greater flexibility and potentially fewer description of activities to be used for assurances" covering proposed, restrictions. conserving the species and restoring candidate, or other species not yet habitat, a description of future listed. The agreements specify the activities compatible with the conservation practices the person will agreement, and terms and conditions undertake, and describe other for modifying or terminating the economic activities on the land that agreement (pp. 44-45). would be compatible with the conservation practices (pp. 30-31). The terms of the agreement would specify the acts or omissions that would be considered violations, provide for an opportunity to remedy any violations, and provide for early termination of the agreement if a violation is not remedied (pp. 31-32). There are no other provisions CRS-74 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 regarding termination, and it is not clear whether the Secretary could terminate these agreements if a species later proved to be in jeopardy on the landowner's property or elsewhere. Property Owner Incentives -- Priorities for the Selection of Agreements. There are no statutory priorities for The Secretary would establish The Secretary shall give priority to No similar provision. selecting conservation agreements priorities for the selection of those agreements that apply to areas under ESA. agreements or groups of agreements other than public lands that are that address the potential of land, necessary for recovery under among other things, to contribute §5(c)(1)(A)(iv) (p. 21), and areas that significantly to the conservation or would yield the greatest benefit for improvement of species (pp. 32-33). conservation of the species in relation to the cost of implementation (pp. 46- Financial compensation would be an 47). amount equal to 100% of the person's actual costs to implement the If the best plan for the species is not conservation practices if the agreement the one that has the best benefit-cost is for 30 years; 80% if 20 years; and ratio, conservation goals may not be 60% if a 10-year agreement (p. 34). achieved. The agreement would be deemed to be a permit under §10(a)(1) for incidental The Secretary may provide up to 70% take of species free of penalties under of the cost to implement the the act (p. 37). management plan (p. 46). CRS-75 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Both types of agreements must be with parties other than federal agencies or departments, or state governments. The agreements would obligate the Secretary to provide payments or other compensation for the implementation of the agreements, subject to the availability of funds. Property Owner Incentives -- Species Recovery Agreements. Under current regulations, FWS offers Species recovery agreements are made See Conservation Program A system of conservation banks of landowners an incentive to assist in the with landowners who will protect and summarized above. undefined scope would be authorized recovery of a protected species by restore habitat for endangered and in a new §4(A) (pp. 30-43). A providing regulatory assurances to threatened species pursuant to a conservation bank is an area of land, landowners who agree to improve management plan with specified water, or other habitat to be managed habitat conditions for species listed features (pp. 28-30). in a specified manner and subject to under the ESA. These safe harbor conditions (p. 31). agreements (50 C.F.R. §§17.22(c) and 17.32(c)) allow a landowner to provide a net conservation benefit that will contribute to recovery of a listed species in exchange for the assurance that a return to the baseline habitat condition at the time of permit inception will not result in liability for unlawful take. CRS-76 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 No similar provision. New species recovery agreements (pp. See Private Property Conservation See Conservation Banks in Appendix. 28-30) are to be for not less than five Program summarized above. years and must meet certain criteria, including that the person with whom the agreement is made will protect and restore habitat for endangered or threatened species pursuant to a management plan. Priority in entering into the agreements would go to areas identified in recovery plans as areas of special value to species (p. 30). The agreement also would set out the compensation to be paid to the landowner and the circumstances under which the parties could mutually agree to modification or termination, and the acts that would constitute violations. There is no explicit language authorizing unilateral modification or termination of an agreement by the Secretary if a species later is in jeopardy of extinction. CRS-77 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Property Owner Incentives -- Conservation Grants. The Private Stewardship Program The Secretary may provide The Private Property Conservation No similar provision, but see provides grants on a competitive basis conservation grants to promote Program is essentially a grant program Appendix. to individuals and groups engaged in voluntary conservation of species by for private property owners who enter local, private, and voluntary private property owners (p. 60). into a conservation agreement (pp. 44- conservation efforts that benefit Priorities are set out for awarding 50). (See above for more explanation.) federally listed, proposed, or candidate grants, and giving preference to grants species, or other at-risk species. This that promote conservation while program is authorized generally by making economically beneficial use of ESA and other wildlife statutes. (See the property (pp. 61-62). annual FWS Budget Justification.) Tax Incentives -- Deduction for Cost of Credits Purchased from Conservation Banks. Under current law, it appears the IRS No similar provision. No similar provision. Taxpayers may deduct the cost of treats the costs of credits purchased credits purchased from conservation from conservation banks as capital banks in the taxable year in which the expenditures (See IRS PLR 9612009.) credit is purchased (pp. 55-56). This means that the costs are added to The deduction may be claimed in the taxpayer's basis in the credit or the taxable years ending after the act's project's property, and the taxpayer enactment. may only recover the costs in a future taxable year (i.e., the year of sale) or, if the property is depreciable, over a period of years. CRS-78 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Tax Incentives -- Credit for Conservation and Recovery Costs; See Appendix . Annual Cost Analysis. Under current law, the Secretary of the Requires the Secretary to submit an Identical to H.R. 3824 (pp. 51-53). No similar provision. Interior shall submit an annual report annual report of all reasonably to Congress containing an accounting identifiable expenditures made See comments under H.R. 3824. on a species-by-species basis from the primarily for conservation of preceding fiscal year of: 1) reasonably threatened and endangered species identifiable federal expenditures made covering the preceding fiscal year (p. for the conservation of listed species; 66). This report is to contain 2) reasonably identifiable expenditures expenditures from the previous fiscal made for the conservation of listed year of federal and state funds, and species by states receiving grants funds voluntarily reported by local under §6 of ESA (§18). government entities on a species-by- species basis, and funds not attributable to specific species (p. 67). This provision will expand reporting requirements of current law to include expendi t u r e s m a d e f o r t he conservation of listed species that cannot be attributed to one species. This may include expenditures for refuges or rivers where several listed species may benefit. By providing for local governments to report, this CRS-79 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 provision appears to capture the universe of government spending on listed species. Note that tribal and non-governmental spending are not included in these reports. The Secretary will provide means for local government entities to voluntarily report expenditures electronically and to attest to the accuracy of such data (p. 67). States will not be eligible for financial assistance unless they provide information on expenditures made for the conservation of listed species as described in §16(b)(2) (p. 68). Compensation -- Livestock. No similar provision. Authorizes compensation to Similar to H.R. 3824, except No similar provision. landowners for loss of livestock to provisions on presentation of animal reintroduced species (pp. 68-69). carcasses not included and the Livestock owner is not required to Secretary is authorized to accept present, and Secretary may not donations for compensation. demand, the body of individual livestock as a condition for CRS-80 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 reimbursement. Authorization of Appropriations. Under current law, appropriations of Authorizes such sums as may be Identical to H.R. 3824 (p. 54). No similar provision. definite amounts were authorized from necessary from FY2006 to FY2010 for FY1988 to FY1992 for the Department the Secretary of the Interior to carry S. 2110 does not reauthorize the ESA. of the Interior to carry out its out functions and responsibilities of responsibilities and functions under the the Department of the Interior under act; to the Department of Agriculture this act; and for the Secretary of to carry out its functions and Agriculture to carry out functions and responsibilities with respect to responsibilities of the Department of enforcement of this act and the the Interior with respect to the Convention which pertains to the enforcement of this act and the exports and imports of plants convention which pertains to the (referring to the Convention on the importation of plants. These International Trade in Endangered provisions do not apply to activities Species of Wild Fauna and Flora; and under §8A(e) (p. 69). to the Department of Commerce to carry out its functions and There are no set limits on the responsibilities under this act (§15). authorization of funds to implement this bill. Funding for the Secretary of ESA functions have been funded from Commerce is not included, which Under the amendment, there are no set FY1993 to present, even though the reflects the elimination of functions limits on the authorization of funds to underlying authorization lapsed at the and responsibilities of the Secretary of carry out the provisions under this bill, end of FY1992. Commerce under this bill. and funds for the Secretary of Commerce are not provided. The CRS-81 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Reference to the Secretary of definition of the Secretary of Agriculture to receive funds for Commerce is still retained. carrying out the functions of the Department of the Interior is not clear. See comments under H.R. 3824, Also, the provision refers to duties regarding the authorization of under the Convention with respect to appropriations for the Secretary of the importation of plants, but omits the Agriculture. current reference to exports of plants. Under current law, the Secretary of the Authorizes such sums as may be Identical to H.R. 3824 (p. 55). No similar provision. Interior is authorized to receive funds necessary from FY2006 to FY2010 for not to exceed a certain limit for the Secretary of the Interior to carry carrying out §8A(e) for FY1988 to out functions of §8A(e) (p. 70). FY1992. §8A(e) authorizes the Secretary of the Interior to implement the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (56 Stat. 1354, T.S. 982) ESA and Farm Conservation Programs. No similar provision. No similar provision. No similar provision. Participants in Farm Bill conservation programs that conduct activities resulting in a net conservation benefit for a listed, candidate, or other species CRS-82 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 may receive a permit for incidental take for the duration of the agreement if it allows take within the area where net conservation benefits will accrue (p. 49). Incidental take will be allowed if the takes occur as a result of implementing a site-specific recovery action of an approved recovery plan and is at least proportional to the contribution to recovery (pp. 49-50). This change appears to improve coordination of the conservation reserve and ESA programs. Further, this provides certainty for landowners that incidental consequences of certain actions taken to promote species recovery will not be prosecuted. NEPA analysis is limited for any permit to either the applicant's alternative or a no-action alternative. The Secretary would be required to reimburse an applicant for any reasonable costs in meeting any NEPA documentation or requirements related CRS-83 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 to an incidental take permit (pp. 53- 54). The possible costs for implementing this reimbursement program are uncertain, but could be substantial. Further, the avoidance of costs might bias against requiring comprehensive NEPA compliance in situations where such compliance might otherwise be applicable. No similar provision. No similar provision. No similar provision. ESA §7(a) consultation will not be applicable to species covered by incidental take permits or to agency actions related to HCPs or other agreements under incidental take permits (p. 47). This language would reduce the burden on landowners by foregoing any potential §7 consultation that might otherwise be required, but presumes that the modified procedures for incidental take permits are sufficiently stringent to provide species CRS-84 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 protection. Comments made above also relate to this additional elimination of consideration of alternatives . No similar provision. No similar provision. No similar provision. Publication of a notice of decision is required 15 days before the effective date of any action to approve, disapprove, or amend an incidental take permit (p. 55). This language requires notification in the Federal Register of actions taken on incidental take permits. It is not clear whether this notice provision is meant to eliminate a public comment period. Miscellaneous Provisions -- ESA and Pesticides. No similar provision. Section 20 would add a new exemption No similar provision. No similar provision. for using pesticides. Any action taken by a federal agency, state agency, or person that complies with the Federal I n s e c t i c i d e , F u n gi c i d e , a n d CRS-85 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Rodenticide Act (FIFRA) would be deemed to comply with the consultation and take requirements of the ESA for a period that is the earlier of either five years from the date of enactment or the date of completion of any procedure required under 50 C.F.R. Subpart D, Part 402 (on consultation) (pp. 81-82). This last date may mean the time when the EPA reaches a determination under their "counterpart" regulations regarding the need for consultation on a proposed action. Compliance with FIFRA relates to registration of pesticides and to compliance with requirements as to how, where, and in what amounts pesticides may be used. This waiver is controversial because of litigation over current counterpart pesticide regulations and the effects of pesticides on fish. CRS-86 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Miscellaneous Provisions -- Compliance Costs of Federal Power Administrations. No similar provision. Several power marketing No similar provision. No similar provision. administrations would be required to show in each customer's monthly bill a report of that customer's share of the direct and indirect generating and marketing costs related to compliance with the ESA (p. 84). Miscellaneous Provisions -- Survey of Bureau of Land Management and Forest Service Lands. No similar provision. Not later than two years after No similar provision. No similar provision. enactment, the Secretary of the Interior shall survey all BLM and FS lands to assess their value for management for the recovery of listed species and for addition to the National Wildlife Refuge System and make recommendations to Congress for managing such lands as part of the Refuge System (p. 85). The Secretary of the Interior is to conduct the survey, even though lands managed by the Forest Service are in the Department of Agriculture. The CRS-87 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 survey provision appears to be based on the premise that all lands that could be of value to recovering listed species might be managed as a part of the National Wildlife Refuge System. Miscellaneous Provisions -- Consultation and the Marine Mammal Protection Act. If ESA consultation involves a listed Section 25 states that an ESA No similar provision. No similar provision. marine mammal species, taking is consultation is equivalent to a §101 authorized pursuant to §101(a)(5) of incidental take authorization under the the Marine Mammal Protection Act of MMPA for receiving dock building 1972 (MMPA; 16 U.S.C. §§1361, et. permits (p. 86). seq.). CRS-88 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 Costs of Implementation. Section 18 of the ESA requires the Costs will probably be reduced by the Costs will likely be reduced by the Costs will probably be reduced as a FWS to submit to Congress an annual repeal of CH designations and repeal of CH requirements (p. 6) and result of state administration of ESA report of a cost analysis of federal and increased state administration of ESA increased state administration of ESA pr ogr ams under cooperative state expenditures for conserving programs under cooper at i ve programs under cooperative agreements, and possibly a reduction threatened and endangered species. agreements (pp. 40-43). Short-term agreements. Increases might be of federal ESA actions identified on the The latest report was available Feb. 9, cost increases may result from expected from revisions to various priorities schedule. Increases might 2006 at [http://www.fws. information and data collection and regulatory requirements, including be anticipated from increased gov/endangered/expenditures/reports/ new systems for making data more listing (p. 3), information and data oversight activities, tax incentives, and FWS%20Endangered%20Species%2 available, recovery plans, species availability systems (p. 50), recovery tax credits. 02004%20Expenditures%20Report.p recovery agreements, species plans, monitoring (p. 16), increased df]. conservation contract agreements and incidental take permits, negotiation associated financial assistance (p. 34), and administration of agreements oversight of expanded cooperative under the Private Property agreements (pp. 40-43), increased Conservation Program, technical incidental take permits, written assistance (p. 44), cost analysis report compliance determinations (pp. 55-57) (p. 51), the Science Advisory Board (p. and payment of "aid" to landowners 66), and any dis cr et i onary (p. 62), and any discretionary compensation for livestock lost to compensation for livestock lost to reintroduced species (p. 53). reintroduced species. Because the "aid" to be paid to property owners can be triggered by limits on any proposed use of even a CRS-89 Miller/Boehlert Amendment to Topic and Current Law H.R. 3824 H.R. 3824 S. 2110 part of an owner's land and water, the potential costs of such aid could be high. See also Congressional Budget Office, Cost Estimate for H.R. 3824, available at [http://www.cbo.gov/ showdoc.cfm?index=6663&sequence =0], Feb. 9, 2006. CRS-90 Appendix Since conservation banks and tax incentives are addressed only in S. 2110, they will be discussed outside the table to conserve space. Provisions related to conservation banks will be paraphrased and CRS comments are in italics. Page numbers refer to the PDF version of S. 2110 as introduced. Conservation Banks Under S. 2110 Under S. 2110, a conservation bank is defined as an area of land, water, or other habitat (not necessarily contiguous) that is managed in perpetuity or for an "appropriate period" under an enforceable legal instrument and for the purpose of conserving and recovering habitat, or an endangered, threatened, or candidate species, or a species of special concern (p. 31). The conservation bank definition includes habitat "not necessarily contiguous," which suggests that a bank could consist of segments of habitat rather than a block. Given the importance and benefits of habitat continuity for species survival, some might argue that banks consisting of fragmented portions would have less value than banks with contiguous habitats. This definition also mentions an "appropriate period" as an alternative to in perpetuity when referring to the lifetime of the bank. The bill does not identify who will make the determination of an appropriate period or what criteria will be used. Credit is defined as the "unit of currency" of a conservation bank generated by preserving or restoring habitat in an agreement, and quantified through the conservation values of a species or habitat. Conservation values are to be determined by the Secretary for each bank and converted into a fixed number of credits (pp. 31- 32). The definition of credit is written in a way that appears to allow alternatives to money that could be exchanged to pay for the values being purchased out of the bank. There is no indication what those alternatives might be. There is little guidance on how the Secretary will determine or measure conservation value, and how much "value" will equal a credit. Due to the changing nature of habitat and the potential for habitat improvement or degradation, conservation values may change within banks. There do not appear to be any provisions that allow the Secretary to reassign values to conservation banks. On the other hand, allowing the Secretary to determine the value and credits for each bank, has the potential to insure that there will be consistency among banks. This may be helpful, since a credit program for species could involve a wide range of habitat values. A service area is an area identified in a conservation bank agreement. It includes a soil type, watershed, habitat type, political boundary, or an area in a federally recognized conservation plan, among others, in which a credit may be used to offset the effects of a project (p. 32). The scope of a service area may vary broadly under this definition, which could allow the Secretary to create areas that fit desired biological criteria. Because CRS-91 person under the ESA includes federal agencies, and page 32 includes a reference to federally recognized conservation plans, the provisions on conservation banking may apply to federal agencies; it is unclear if this was intended. Conservation banks may be established by any private landowner who applies and demonstrates that the affected area is managed under an enforceable legal instrument and contributes to the conservation of a listed species, a candidate species, or a species of special concern (pp. 32-33). Secretary shall approve or disapprove a bank within 180 days after the application is submitted (p. 33). A bank can be managed by a state, a holder of the bank, another party specified in the agreement, or a party that acquires property rights related to the conservation bank (p. 34). While conservation banks would require an enforceable legal instrument, the bill does not specify any contents for that instrument. There may be certain minimal contents that all such instruments or banking agreements should contain to ensure that protection of species and habitat will be effective and consistent from site to site. The time limit for a decision will allow approved banks to enter into the program and gain credits within six months, which some feel would encourage participation, but it is unclear whether this period will be sufficient for the Secretary to render a decision with adequate justification. Management of the bank is not restricted, which may relieve the burden of management from the landowner and allow other entities (e.g., state agencies or non-governmental organizations) to manage the bank. However, no criteria for holders are stated. The holder of a conservation bank is required to establish an agreement that describes the proposed management of the bank (p. 34). The agreement is submitted to the Secretary, who shall approve or disapprove it "as soon as practicable" (p. 35). Conditions for amending and nullifying the agreement are given (pp. 35-36). The Secretary shall consider the use of banks for implementing recovery plans and must adopt regulations on managing banks that balance the biological conditions of the target species and habitat with "economic free market principles" to ensure value to landowners through a tradeable credit program (p. 36). A bank management agreement undergoes a separate approval process from establishing a conservation bank, and the deadline for approving or disapproving bank management agreements is uncertain. No standards for acceptable agreements are provided. An approved agreement does not seem to be required to transfer credits or to maintain a conservation bank. The bill does specify that the bank must contribute to the conservation of qualified species, but there is no requirement that banks be consistent with approved recovery plans, and it is not clear that bank managers must comply with the relevant agreement. The Secretary is to promulgate regulations on managing conservation banks (p. 37). The regulations are to relate to 11 subjects, including conservation and recovery goals, activities that may be carried out in any conservation bank, measures that ensure the viability of conservation banks, "the demonstration of an adequate legal control of property proposed to be included in the conservation bank" (p. 37), criteria for determining credits and an accounting system for them, and the applicability of and compliance with §7 and §10 of ESA. Monitoring and reporting requirements are also to be addressed in the regulations (pp. 37-38). CRS-92 The regulations are to include provisions "relating to" how the consultation requirements of §7 of the ESA and the incidental take provisions apply in the context of conservation banks. It is not clear whether the authority given the Secretary to develop these regulations could be broad enough to eliminate consultation, or to authorize the issuance of general incidental take permits for activities in conservation bank areas. The requirement that banks be financially viable (pp. 37- 38) appears to refer to both biological and financial viability. As to the latter, some contend that financial viability should be determined by market forces rather than the federal government, which should ensure the biological viability of the species or habitat should a bank fail. Biological data would determine how many credits a bank can sell (p. 38), and the Secretary is to establish a standard process by which credits could be transferred. Credit transfers can be used to comply with court injunctions, to meet requirements of §§7(a), 7(b) or 10(a)(1) of the ESA, and to provide out-of-kind mitigation (p. 39). "Out-of-kind mitigation" is defined as mitigation involving the same species or habitat, but in a different service area. Additional requirements must be met for approval of out-of-kind mitigation, and the Secretary is to give preference to in-kind mitigation to the maximum extent practicable (pp. 39-40). The Secretary is not to regulate the price of credit transfers or to limit participation by any party in the credit transfer process (p. 40). In some circumstances, credits may be transferred before the Secretary approves a bank (p. 41). The criteria for transferring credits do not include habitat or species requirements for the area being mitigated by the purchase of credits. Habitat for different species may not be interchangeable; therefore, if the area being mitigated contained habitat for an endangered species of salamander, there are no requirements that credits purchased will be from a conservation bank with similar habitat. Out-of-kind mitigation is allowed when both ecological desirability and economic practicability can be met. The bill allows transfer of credits before the bank is approved if specified conditions can be met, which would seem to be a risk to the federal interest in species protection should the Secretary ultimately reject the application for establishing the bank. If the Secretary rejects a bank proposal, how would that rejection affect any prior purchase of credits? Creation of conservation banks can be integrated with conservation plans developed under §10 of the ESA if certain criteria are met (pp. 41-42). Any party to an agreement, including the United States, may sue for breach of the agreement, and sovereign immunity is waived for participating federal, state, tribal, and local governments (pp. 42-43). Subsection (g) (pp. 41-42) requires, to the maximum extent practicable, that a bank be integrated with habitat conservation plans developed under §10 of the ESA if the bank meets the ecological criteria of the habitat conservation plan and provides greater economic benefits compared with other forms of mitigation of habitat destruction. Only a party to the agreement (not interested outsiders with standing) may sue for breach of the agreement. How this restriction could affect enforcement actions under §10 is not clear. Since a party violating an agreement is CRS-93 not likely to sue to enforce the agreement, this really means that only the Secretary can enforce the agreement. "Equitable relief" is specifically allowed, despite the wording that judicial review is allowed for a breach of an agreement -- which usually connotes a suit for damages. It is not clear in what circumstances states, local governments, or tribes would be defendants. Tax Incentives Under S. 2110 Taxpayers may claim a tax credit based on the taxpayer's qualified conservation and recovery costs for the taxable year (pp. 56-62). Qualified costs are those paid or incurred by the taxpayer in carrying out approved site-specific recovery actions under §4(f) of ESA or other federal- or state-approved conservation and recovery agreements that involve an endangered, threatened, or candidate species (p. 57). The project must be undertaken according to a binding agreement, and the credit is subject to recapture if the agreement is breached or terminated (pp. 57-58 and 61). The amount of tax credit gained depends on the length of the agreement: 1) if it is for at least 99 years, the credit equals the reduction in the land's fair market value due to the recovery action or agreement plus the property owner's actual costs; 2) if it is for at least 30 years but less than 99 years, the credit equals 75% of the above amounts; 3) if it is for at least 10 years but less than 30 years, the credit equals 75% of the actual costs (pp. 57-58). The qualifications or standards for the binding agreement are unclear. Depending on the specifics of the agreement, the requirements for claiming the tax credit may be more or less stringent than those for tax incentives that currently exist for similar conservation activities (e.g., the charitable deduction for conservation easements under IRC §170). The taxpayer must submit to the IRS evidence of the binding agreement and a written verification from a biologist that the conservation and recovery practice is described in the agreement and implemented during the taxable year in accordance with the agreement's schedule (pp. 58-59). The credit may not be claimed if the taxpayer received cost-share assistance from the federal or state government under any credit-eligible recovery action or agreement for that year (p. 59). There is an exception for individuals whose adjusted gross income is less than the limitations in IRC §32, the earned income tax credit (p. 59). Also, the taxpayer's qualified costs are reduced by any non-taxable governmental assistance for qualified conservation and recovery costs received in the year the credit was claimed or in any prior year (p. 61). With respect to the second limitation regarding cost-share assistance, it is unclear as to whether the assistance must have been received for the specific project for which the credit is claimed. There are no requirements regarding the qualifications of the biologist who can verify the agreement. The basis of the property for which any credit is allowable must be reduced by the amount of the taxpayer's qualified costs, regardless of whether those costs were greater than the amount that the taxpayer's tax liability exceeded the sum of the specified credits (p. 60). CRS-94 This could be interpreted to require that the taxpayer reduce the basis by the total qualified costs in the first taxable year even if the taxpayer did not claim the full credit in that year. Thus, the taxpayer would experience the negative consequences from reducing the basis to account for the total costs without necessarily receiving the positive benefits from claiming the full credit. The amount of any deduction or other tax credit must be reduced by the taxpayer's qualified costs, limited to the taxpayer's tax liability (pp. 60-61). This appears to require that the taxpayer reduce all deductions and other credits by the amount of the credit allowed, regardless of whether they are based on the same expenses used for this credit. The credit is limited to the taxpayer's tax liability (including alternative minimum tax liability) after applying certain credits (p. 57). Any portion of the credit that cannot be claimed because of this limitation may be carried back for one year and carried forward for 20 years (pp. 59-60). The new credit may be transferred through sale and repurchase agreements (p. 60). The tax consequences of such sale are unclear. This provision is unusual as no other tax credit is allowed to be sold. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL33309