ESA REFORM

According to the Center For Biological Diversity this summary was prepared by Pombo's staff and was leaked today.


POMBO'S OWN SECTION-BY-SECTION ANALYSIS
H.R. ___

SECTION 1- Short Title
This bill is to be cited as the “Threatened and Endangered Species Recovery Act of 2005.”

SECTION 2- Amendment References
In this bill, whenever an amendment or repeal is expressed, it refers to a provision of the Endangered Species Act of 1973.

SECTION 3- Definitions
“Best Available Scientific Data” is added to the list of definitions as “scientific data, regardless of source, that are available to the Secretary at the time of a decision or action in implementation of this act. Within one year of the enactment of the Act, the Secretary is to issue regulations to establish necessary criteria which determine the best available scientific data. In addition, the Secretary will undertake all necessary measures to comply with such criteria and guidance.

“Jeopardize the Continued Existence” means, “with respect to action, that the action reasonably would be expected to significantly impede, directly or indirectly, the conservation in the long-term of the species in the wild.”

SECTION 4- Determinations of Endangered Species and Threatened Species
The Secretary determines whether a species is an endangered species or threatened based on a series of factors. These include: destruction of habitat due to human activities or catastrophic natural causes; overutilization of the species for commercial, recreational, scientific or educational purposes. Also included: disease or predation; unable to maintain life with existing way or other natural or manmade factors which affect its existence.

Language clarifies that the determination of any distinct population of a species as endangered or threatened is only to be done sparingly.

In order to determine a species as threatened or endangered, the Secretary must use the “best available scientific data”.

The Secretary shall conduct a review of all species in the list every 5 years. The Secretary will consider whether a species should be removed from the list, be changed in status from and endangered to a threatened species or vice-versa.

SECTION 5- Repeal of Critical Habitat Requirements
This is a provision which repeals the critical habitat requirements currently under law.

SECTION 6- Petitions and Procedures for Determinations and Revisions
In order for a petitioned action to be warranted, the petitioner must provide a copy of all information cited in the petition, presenting substantial scientific or commercial information. The Secretary must make publicly accessible, on the internet, all information it has concerning species determination or revisions. This maintains emergency authority of the Secretary and includes the Governor in addition to the agency of the affected state in the consultation process.

SECTION 7- Reviews of Listings and Determinations
If no recovery plan is established or if none exists for the species, the factors for determination are set forth in previous subsections. A determination that the species is no longer an endangered species or in danger of extinction is based on an analysis of factors that are used to determine threatened or endangered status.

SECTION 8- Protective Regulations
When the Secretary lists a species as threatened, the Secretary may publish a rule outlining prohibited regulations with respect to that listing of a species. A regulation must be accompanied by a statement by the Secretary of the reason for applying any prohibition on a species. A regulation issued under this subsection may apply to more than one threatened species only if the specific threats to, and specific biological conditions and needs of, the species are identical, or sufficiently similar, to warrant the application of identical prohibitions.

SECTION 10- Secretarial Guidelines; State Comments
Amendments to this section add the Governor of a State to the provisions of the Act. This is an addition to state agencies included in current law.

SECTION 12- Recovery Plans
* Note: include species recovery agreements* (see in last paragraph)
The Secretary shall develop and implement a plan for the recovery of species determined to be an endangered species or threatened species, unless the Secretary dins that such a plan will not promote the conservation and survival of the species.

The Secretary must give priority to those endangered or threatened species, without regard to taxonomic classification, that are most likely to benefit from such plans. In particular, this includes species that are in conflict with construction or other development projects or other forms of economic activity.

Any species determined to be endangered or threatened after the date of the enactment of this Act, the Secretary shall publish a final recovery plan for a species within 2 years after the date the species is listed. In regard to the species currently listed as endangered or threatened, the Secretary shall publish in the Federal Register a priority ranking system for preparing or revising recovery plans within one year on the date of enactment of this Act. This must take the scientifically-based needs of the species.

A recovery plan is based on the best available scientific data and shall include “objective, measurable criteria that, when met, would result in determination, that the species to which the recovery plan applies be removed from the list published to be reclassified from endangered species to threatened species.” Also, should include a description of such site-specific or other measures that would achieve criteria established under the clause; and, estimates of the time required and the costs to carry out those measures. The recovery plan will also provide an identification of those specific areas that are of special value to the conservation of the species.

If a recovery plan does not contain the criteria and measures, the criteria team should review the plan at intervals of no greater than 5 years and determine if the plan can be revised to contain the criteria and measures required. A recovery plan must then be implemented within 2 years after the date of determination.

This section establishes species recovery agreements. The amendments provide for species conservation by creating a species recovery agreement. The Secretary and private landowners can make agreements that would protect and restore habitat for a species, contribute to the recovery for a species or implement a management plan for a species.

SECTION 13- Cooperation with States
Provides that the Secretary enters into a cooperation agreement with the States. Following a consultation of the agreement, “any incidental take statement issued on the agreement shall apply to any such species, and to the State and any landowners enrolled in ay program under the agreement, without further consultation if the species is subsequently determined to be an endangered or threatened species and the program remains adequate and active for the conservation of the said species.” Any cooperation agreement also may provide for monitoring or assistance in monitoring the status of the candidate species or recovered species. This also reaffirms that the cooperation agreement is voluntary of private land owners. Furthermore, the Secretary has the authority to suspend any cooperative agreement after consulting with the Governor of the affected State, if the Secretary finds that agreement no longer provides adequate conservation for endangered species and threatened species affected. The Secretary may then terminate any cooperative agreement.

SECTION 14- Interagency Cooperation and Consultation
Provides for a consultation requirement in which the Secretary may identify specific agency action or categories of agency actions that may be determined to meet the standards by alternative procedures other than procedures set forth in previous subsections. Procedures to implement this section will be promulgated by regulation.

The “Secretary shall consider any comment from the Federal agency and the permit or license applicant, if any, prior to the issuance of the final written statement of the Secretary’s opinion.” If jeopardy is found, the Secretary shall suggest reasonable and prudent alternatives in a final written statement that would not violate the Act in order to implement the agency action. The Secretary shall cooperate with the Federal agency and any permit or license applicant in the preparation of any suggested reasonable and prudent alternatives.

Biological Assessments are to be based on the “best available scientific data” to determine a species to be an endangered or a threatened species. Amendment terminates the Endangered Species Committee Process, aka “godsquad.”

SECTION 15- Exceptions to Prohibitions
Provides that Incidental Take Permits to be “objective, measurable biological goals to be achieved for species covered by the plan and specific measures for achieving such goals; measures the applicant will take to monitor impacts of the plan on covered species and the effectiveness of the plan’s measures in achieving the plan’s biological goals; and, adaptive management provisions necessary to respond to all reasonably foreseeable changes in circumstances that could appreciably reduce the likelihood of the survival and recovery of any species covered by the plan.” The term of the permit is reasonable, taking into consideration the period in which the applicant can be expected to diligently complete the principal actions covered by the plan, the extent to which the plan will enhance the conservation of covered species, the adequacy of information underlying the plan, the length of time necessary to implement the plan and the scope of the plan’s adaptive management strategy. Any terms and conditions offered by the Secretary are roughly proportional to the impact of the incidental taking specified in the conservation plan and are capable of successful implementation. If the holder of a permit issued under this subsection for other than scientific purposes is in compliance with the terms and conditions of the permit and any conservation plan or agreement incorporated by reference, the Secretary may not require the holder to adopt any new minimization, mitigation or other measure.

For any changed circumstance identified in the permit or incorporated document, the Secretary may require only such additional minimization, mitigation, or other measures, in the absence of consent of the permit holder.

For any changed circumstance not identified in the permit or incorporated document, the Secretary may, in the absence of the permit holder, require only such additional minimization, mitigation, or other measures to address such changed circumstance that do not involve the commitment of any additional land, water or financial compensation not other committed, or the imposition of additional restrictions on the use.

The Secretary shall have the burden of proof in demonstrating and documenting, with the “best available scientific data”, the occurrence of any changed circumstances.

Any permit issued before the date of enactment of this Act that contains provisions that do not materially differ in effect from the terms of this paragraph shall be governed by this paragraph. Any regulations promulgated prior to such date that do not materially differ in effect from the terms of this paragraph shall remain in effect unless and until they are amended. The Secretary shall revoke a permit issued if the Secretary finds that the permittee is not complying with the terms and conditions of the permit. Any permit may be revoked due to changed circumstances only if the Secretary determines that continuation of the activities to which the permit applies would be inconsistent, Secretary provides 60 days notice of revocation to the permittee and the Secretary is unable to remedy the condition causing such inconsistency. The Secretary is not required to identify of analyze the impacts and potential minimization and mitigation measures related to any alternative other than the alternative presented by the permit applicant in the conservation plan or other permit application document and the no-action alternative.

Public review is extended from 30 to 45 days.

Experimental population provides language amending using “scientific data” instead of “information.”

Written determination of compliance allows for a property to request a written determination by the Secretary that a proposed use on the owner’s property will comply with Section 9(a) prohibition against taking a species by submitting a written description of the proposed action to the Secretary. The written description is sufficient if the descriptions includes the “nature, the specific location, and the anticipated schedule and duration of the proposed action,” and any incidental take of a species that is included on the list that the requestor reasonably expects to occur as a result of the proposed action.

Within 90 days, the Secretary must provide to the requestor a written determination of whether the proposed action would comply. If the Secretary fails to provide a written determination by 90 days, the proposed use will be deemed to comply. Any action the property owner takes in reasonable reliance on a determination that the proposed use complies shall not be treated as a violation of Section 9(a).

SECTION 16- Private Property Conservation
Establishes conservation aid to reduce conservation burdens imposed on landowners and conservation grants to promote conservation of endangered and threatened species. Aid is to be provided to property owners who forgo use of their property following a written determination by the Secretary that a proposed use would not comply with Section 9’s take prohibition. The amount of the Aid is to be no less than the fair market value of the forgone use of the affected portion of the property. The property owner is to establish the fair market value and ambiguities regarding fair market value are to be resolved in favor of the property owner.

In cases where the fair market value is agreed upon, aid is to be provided with 180 days of the request. If an agreed upon fair market value cannot be arrived at within this timeframe, the Secretary has must within in 90 days make a best and final offer.

Grants to promote the voluntary conservation efforts to benefit endangered and threatened species by owners of private property that are supported by the property owner on whose lands the activities will occur, are designed to increase the distribution or numbers of the species and may not be used for the purchase of private property or leases or easements of more than 50 years.

Conservation grants are to be paid on the last day of the fiscal year after conservation aid has been awarded.

SECTION 17- Public Accessibility and Accountability
Requires that the Secretary maintain a publicly accessible website that includes endangered and threatened species lists, all final and proposed endangered and threatened species regulations, draft and final recovery plans, the results of five year reviews conducted pursuant to Section 4, the Report to Congress required under what would be Section 5 and the Annual Cost Analysis under Section 18. Requires the Secretary to provide the information in a format that it may be searched by the variables contained within the Report to Congress and Annual Cost Analysis reports.

Currently much of the information that would be required by this language to be included on a publicly accessible website is provided by the USFWS on its Threatened and Endangered Species System database, TESS. This language would codify the requirement to provide this information and require that selected information, much of which is already collected in database format, be presented in such a manner that it may be searched as a database rather than be provided only as a lengthy file. The requirement would substantially increase the value of the data the USFWS already collects and reports. For example, users would be easily able to determine expenditures made for a species, the agencies that reported expenditures on the species and what the current status of the species is increasing transparency and public knowledge about the program.

SECTION 18- Annual Cost Analyses
Requires the Secretary to produce an annual report detailing the expenditures made by Federal agencies and the States primary for the conservation of endangered and threatened species and those expenditures voluntarily reported by local government and requires the Secretary to provide a means whereby local governments may electronically submit such data. Requires that to be eligible for receipt of funds under Section 6 states submit endangered and threatened species expenditure data.

Current law requires the Secretary to produce an annual expenditure report on expenditures for the conservation of endangered species by Federal agencies and states that reports those funds that may be attributed to a specific endangered or threatened species. As a matter of practice, many expenditures by federal and states agencies for the purpose of conserving endangered and threatened species are directed to more than one species and therefore are difficult to attribute to kind of endangered or threatened species. As a result, the USFWS has included in its most recent reports expenditures that cannot be attributed to a particular species as “other” endangered species expenditures. To ensure consistent and comprehensive reporting from year to year the language will require that both expenditures attributable on a species by species basis and those that are not attributable to a specific species be reported.

Expenditures for the conservation of endangered and threatened species are also made by local governments by not trapped by existing expenditure reports. The language would require the Secretary to provide a mean whereby local governments could, electronically, voluntarily submit and attest to the accuracy of expenditures on endangered and threatened species. The language provides the means for more comprehensive reporting without burdening local governments with mandated reporting.

The language also requires that to be eligible to receive funds under Section 6, Cooperation with States, States must submit their reported expenditures on endangered and threatened species.

SECTION 19- Authorization of Appropriations
Authorizes sums as necessary for Fiscal Year 2006 to 2010 for Secretary of Interior. Authorizes sums as necessary for Fiscal Year 2006 and 2010 for Secretary of Agriculture to carry out functions and responsibility of the Department of Interior with respect to the enforcement of this Act and the convention which pertain the importation of plants.

SECTION 21- Clerical Amendment to Table of Contents
Establishes titles to Sections of the Act.

SECTION 22- Miscellaneous Technical Corrections
International Cooperation
Management Authority and Scientific Authority
Prohibited Acts
Hardship Exemptions
Permit and Exemption Policy
Pre-Act Parts and Scrimshaw
Burden of Proof of Seeking Exemption or Permit
Antique Articles
Penalties and Enforcements
Substitution of Gender-Neutral References

If you are interested in CBD's analysis, go here.

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