[House Report 115-560]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-560
======================================================================
LISTING REFORM ACT
_______
February 15, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 717]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 717) to amend the Endangered Species Act of 1973
to require review of the economic cost of adding a species to
the list of endangered species or threatened species, and for
other purposes, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 717 is to amend the Endangered Species
Act of 1973 to require review of the economic cost of adding a
species to the list of endangered species or threatened
species.
Background and Need for Legislation
Pursuant to the Endangered Species Act of 1973 (ESA, 16
U.S.C. 1531 et seq.), the Secretary of the Interior or
Secretary of Commerce does not consider economic factors when
listing a species as endangered or threatened. Species
listings, however, impact our national economy and can restrict
the ability of State and local entities to provide for the
public health and safety. Species listings also can curtail the
right of industry and private landowners to utilize property
and resources to generate income or to increase local
development. The ESA's prohibition of economic considerations
in listing decisions of endangered or threatened species should
therefore be addressed.
H.R. 717 authorizes the Secretary of the Interior to
consider economic impacts in listing decisions for threatened
species, and allow preclusion of the listing if the likelihood
of significant, cumulative economic effects would result from
the listing, or from the resulting designation of critical
habitat for that species. The bill also prohibits
reconsideration of the decision unless the Secretary finds
there is danger of species extinction, or receives a new
petition that includes possible alternative actions to avoid
the economic impact of the listing.
The ESA also requires the federal government to make an
initial decision concerning listing or delisting of a species
within 90 days of receiving a petition. The agencies then have
up to 12 months to issue a final determination whether a
listing or delisting is warranted, not warranted, or warranted
but precluded from listing at that time, in which case species
are then placed on a candidate list. However, when the federal
government does not meet these deadlines, it becomes vulnerable
to litigation.
Environmental lawsuits serve as a fundraising and revenue-
generating tool for non-governmental organizations, and the
number of petitions agencies receive each year from these
groups has generally increased since the ESA's enactment.
According to a February 2017 Government Accountability Office
report, the U.S. Fish and Wildlife Service (FWS) at the
Department of the Interior received 170 petitions to list 1,446
species between fiscal years 2005 and 2010 alone, some of which
called for listing of hundreds of species at one time.
As nongovernmental organizations overwhelm agencies with
large numbers of petitions for listings, the agencies have not
been able to meet their statutory deadlines to properly review
the data and science supporting a petition to list. Instead,
they have settled with the groups, leading to multi-species
mega-listings conducted under non-transparent circumstances.
Such listings are to the detriment of many State and local
communities that have no opportunity to submit comments or
otherwise provide stakeholder input.
H.R. 717 authorizes FWS and National Marine Fisheries
Service (NMFS) of the Department of Commerce to prioritize
petitions to list a species as endangered or threatened under
ESA at their discretion, as opposed to the current order in
which a petition was received. Such discretion will allow the
agencies increased flexibility to process petitions. The bill
also removes the current 12-month deadline for FWS and NMFS to
process petitions and instead requires listing petitions be
processed as expeditiously as practicable. This will reduce the
number of lawsuits that can be filed based on lapsed deadlines.
The bill also requires FWS and NMFS to refrain from
prioritizing listing petitions over delisting petitions.
Section-by-Section Analysis
Section 1. Short title
The Act may be referred to as the Listing Reform Act.
Section 2. Consideration of economic cost in review of Listing
Petitions Under Endangered Species Act of 1973
Subsection (a) removes the current ESA statutory deadlines
by which the relevant Secretary is required to make a decision
and take action on a listing petition. Instead the bill
authorizes the Secretary to prioritize consideration of
petitions other than in the order they are received and as
expeditiously as practicable. However, the Secretary must not
give general priority to petitions to add a species to the
endangered or threatened list over a petition to remove a
species from such list. This ensures one category of listing
petitions is not significantly prioritized over others.
Subsection (b) amends ESA to allow for the consideration of
significant, cumulative economic effects that would result from
the listing of a species as `threatened' or subsequent
designation of critical habitat for the species. This
subsection also outlines the conditions under which the
relevant Secretary may reconsider a decision to preclude a
species from the threatened list based on significant economic
effects. These conditions include a determination that there is
endangerment of extinction of the species or if the Secretary
receives a new petition for the species. This petition must: 1)
contain an analysis of the areas affected by potential actions
resulting from the ESA listing; and 2) identify alternative
actions that avoid the significant, cumulative economic
effects.
Committee Action
H.R. 717 was introduced on January 27, 2017, by Congressman
Pete Olson (R-TX). The bill was referred to the Committee on
Natural Resources. On July 19, 2017, the Committee held a
hearing on the bill. On October 3, 2017, the Natural Resources
Committee met to consider the bill. Congressman Garret Graves
(R-LA) offered and withdrew an amendment designated 063. No
further amendments were offered and the bill was ordered
favorably reported to the House of Representatives on October
4, 2017, by a bipartisan roll call vote of 22 ayes and 13 noes,
as follows:
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 8, 2017.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 717, the Listing
Reform Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 717--Listing Reform Act
Summary: H.R. 717 would authorize the Secretary of the
Interior to make a determination under the Endangered Species
Act (ESA) that placing species on the endangered or threatened
list would be warranted but precluded because the action would
have significant effects on the economy.
Using information from the U.S. Fish and Wildlife Service
(USFWS) and assuming appropriation of the necessary amounts,
CBO estimates that implementing the bill would cost $16 million
over the 2018-2022 period. Enacting the bill would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
CBO estimates that enacting H.R. 717 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 717 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated cost to the Federal Government: The estimated
budgetary effect of H.R. 717 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------
2018 2019 2020 2021 2022 2018-2022
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................ 4 4 4 3 3 18
Estimated Outlays............................................ 2 4 4 3 3 16
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted early in calendar year 2018 and that the
necessary amounts will be appropriated for each fiscal year.
Estimated outlays are based on historical spending patterns for
similar activities.
H.R. 717 would authorize the Secretary to prevent the
listing of species under the ESA if the action would have
significant effects on the economy, including effects on
property values, employment, or state and local revenue
collections. CBO expects that the agency will determine that,
on average, about 20 new species each year warrant listing
under the ESA over the 2018-2022 period. CBO estimates that the
economic analyses necessary to determine whether those species
should be listed under ESA would cost $150,000 each. In
addition, CBO expects that the agency would complete 25
additional analyses over the 2018-2020 period for listing
determinations in progress at the time the bill is enacted. On
that basis CBO estimates that implementing the bill would cost
$16 million over the 2018-2022 period.
Pay-As-You-Go considerations: None.
Increase in long-term direct spending and deficits: CBO
estimates that enacting H.R. 717 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
Mandates: H.R. 717 contains no intergovernmental or
private-sector mandates as defined in UMRA.
Estimate prepared by: Federal Costs: Jeff LaFave; Mandates:
Zach Byrum.
Estimate approved by: H. Samuel Papenfuss; Deputy Assistant
Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to require review of the economic
cost of adding a species to the list of endangered species or
threatened species.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
* * * * * * *
determination of endangered species and threatened species
Sec. 4. (a) General.--(1) The Secretary shall by regulation
promulgated in accordance with subsection (b) determine whether
any species is an endangered species or a threatened species
because of any of the following factors:
(A) the present or threatened destruction,
modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational,
scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;
or
(E) other natural or manmade factors affecting its
continued existence.
(2) With respect to any species over which program
responsibilities have been vested in the Secretary of Commerce
pursuant to Reorganization Plan Numbered 4 of 1970--
(A) in any case in which the Secretary of Commerce
determines that such species should--
(i) be listed as an endangered species or a
threatened species, or
(ii) be changed in status from a threatened
species to an endangered species, he shall so
inform the Secretary of the Interior, who shall
list such species in accordance with this
section;
(B) in any case in which the Secretary of Commerce
determines that such species should--
(i) be removed from any list published
pursuant to subsection (c) of this section, or
(ii) be changed in status from an endangered
species to a threatened species, he shall
recommend such action to the Secretary of the
Interior, and the Secretary of the Interior, if
he concurs in the recommendation, shall
implement such action; and
(C) the Secretary of the Interior may not list or
remove from any list any such species, and may not
change the status of any such species which are listed,
without a prior favorable determination made pursuant
to this section by the Secretary of Commerce.
(3)(A) The Secretary, by regulation promulgated in accordance
with subsection (b) and to the maximum extent prudent and
determinable--
(i) shall, concurrently with making a determination
under paragraph (1) that a species is an endangered
species or a threatened species, designate any habitat
of such species which is then considered to be critical
habitat; and
(ii) may, from time-to-time thereafter as
appropriate, revise such designation.
(B)(i) The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are
subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides
a benefit to the species for which critical habitat is proposed
for designation.
(ii) Nothing in this paragraph affects the requirement to
consult under section 7(a)(2) with respect to an agency action
(as that term is defined in that section).
(iii) Nothing in this paragraph affects the obligation of the
Department of Defense to comply with section 9, including the
prohibition preventing extinction and taking of endangered
species and threatened species.
(b) Basis for Determinations.--(1)(A) The Secretary shall
make determinations required by subsection (a)(1) solely
(except as provided in clause (iv) of paragraph (3)(B)) on the
basis of the best scientific and commercial data available to
him after conducting a review of the status of the species and
after taking into account those efforts, if any, being made by
any State or foreign nation, or any political subdivision of a
State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or
other conservation practices, within any area under its
jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give
consideration to species which have been--
(i) designated as requiring protection from
unrestricted commerce by any foreign nation, or
pursuant to any international agreement; or
(ii) identified as in danger of extinction, or likely
to become so within the foreseeable future, by any
State agency or by any agency of a foreign nation that
is responsible for the conservation of fish or wildlife
or plants.
(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) on the basis of the
best scientific data available and after taking into
consideration the economic impact, the impact on national
security, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude
any area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he
determines, based on the best scientific and commercial data
available, that the failure to designate such area as critical
habitat will result in the extinction of the species concerned.
(3)(A) [To the maximum extent practicable, within 90 days
after] (i) After receiving the petition of an interested
person under section 553(e) of title 5, United States Code, to
add a species to, or to remove a species from, either of the
lists published under subsection (c), the Secretary shall make
a finding as to whether the petition presents substantial
scientific or commercial information indicating that the
petitioned action may be warranted. If such a petition is found
to present such information, the Secretary shall promptly
commence a review of the status of the species concerned. The
Secretary shall promptly publish each finding made under this
subparagraph in the Federal Register.
(ii) The Secretary may prioritize the consideration of
petitions under this subparagraph other than in the order in
which the petitions are received, except the Secretary may not
give general priority to petitions to add species to such a
list over petitions to remove a species from such a list.
(B) [Within 12 months] As expeditiously as practicable after
receiving a petition that is found under subparagraph (A) to
present substantial information indicating that the petitioned
action may be warranted, the Secretary shall make one of the
following findings:
(i) The petitioned action is not warranted, in which
case the Secretary shall promptly publish such finding
in the Federal Register.
(ii) The petitioned action is warranted in which case
the Secretary shall promptly publish in the Federal
Register a general notice and the complete text of a
proposed regulation to implement such action in
accordance with paragraph (5).
(iii) The petitioned action is warranted but that--
(I) the immediate proposal and timely
promulgation of a final regulation implementing
the petitioned action in accordance with
paragraphs (5) and (6) is precluded by pending
proposals to determine whether any species is
an endangered species or a threatened species,
and
(II) expeditious progress is being made to
add qualified species to either of the lists
published under subsection (c) and to remove
from such lists species for which the
protections of the Act are no longer necessary,
in which case the Secretary shall promptly publish such
finding in the Federal Register, together with a
description and evaluation of the reasons and data on
which the finding is based.
(iv)(I) In the case of a petition to add a species to
a list of threatened species, the petitioned action may
be warranted but is precluded due to the likelihood of
significant, cumulative economic effects that would
result from listing or, to the extent it can be
determined, from the likely resulting designation of
critical habitat of the species.
(II) The Secretary may not reconsider such finding
unless--
(aa) the Secretary determines there is
endangerment of extinction of the species; or
(bb) the Secretary receives a new petition to
add such species to such list that includes a
written qualitative and quantitative analyses
reexamining the incremental and significant,
cumulative economic effects of likely actions
to protect the petitioned species and its
potential habitat upon each State and locality
that is affected by the petitioned species
listing and that, in the opinion of the
Secretary, credibly concludes that alternative
actions are possible other than those resulting
in significant, cumulative economic effects.
(III) In this clause the term ``significant,
cumulative economic effects'' includes economic effects
on--
(aa) public land and, to the maximum extent
practicable, private land and property values;
(bb) the provision of water, power, or other
public services;
(cc) employment; and
(dd) revenues available for State and local
governments.
(C)(i) A petition with respect to which a finding is made
under subparagraph (B)(iii) shall be treated as a petition that
is resubmitted to the Secretary under subparagraph (A) on the
date of such finding and that presents substantial scientific
or commercial information that the petitioned action may be
warranted.
(ii) Any negative finding described in subparagraph (A) and
any finding described in subparagraph (B)(i) or (iii) shall be
subject to judicial review.
(iii) The Secretary shall implement a system to monitor
effectively the status of all species with respect to which a
finding is made under subparagraph (B)(iii) and shall make
prompt use of the authority under paragraph 7 to prevent a
significant risk to the well being of any such species.
(D)(i) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to revise a
critical habitat designation, the Secretary shall make a
finding as to whether the petition presents substantial
scientific information indicating that the revision may be
warranted. The Secretary shall promptly publish such finding in
the Federal Register.
(ii) Within 12 months after receiving a petition that is
found under clause (i) to present substantial information
indicating that the requested revision may be warranted, the
Secretary shall determine how he intends to proceed with the
requested revision, and shall promptly publish notice of such
intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this
subsection, the provisions of section 553 of title 5, United
States Code (relating to rulemaking procedures), shall apply to
any regulation promulgated to carry out the purposes of this
Act.
(5) With respect to any regulation proposed by the Secretary
to implement a determination, designation, or revision referred
to in subsection (a)(1) or (3), the Secretary shall--
(A) not less than 90 days before the effective date
of the regulation--
(i) publish a general notice and the complete
text of the proposed regulation in the Federal
Register, and
(ii) give actual notice of the proposed
regulation (including the complete text of the
regulation) to the State agency in each State
in which the species is believed to occur, and
to each county or equivalent jurisdiction in
which the species is believed to occur, and
invite the comment of such agency, and each
such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the
Secretary of State, give notice of the proposed
regulation to each foreign nation in which the species
is believed to occur or whose citizens harvest the
species on the high seas, and invite the comment of
such nation thereon;
(C) give notice of the proposed regulation to such
professional scientific organizations as he deems
appropriate;
(D) publish a summary of the proposed regulation in a
newspaper of general circulation in each area of the
United States in which the species is believed to
occur; and
(E) promptly hold one public hearing on the proposed
regulation if any person files a request for such a
hearing within 45 days after the date of publication of
general notice.
(6)(A) Within the one-year period beginning on the date on
which general notice is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the Secretary shall
publish in the Federal Register--
(i) if a determination as to whether a species is an
endangered species or a threatened species, or a
revision of critical habitat, is involved, either--
(I) a final regulation to implement such
determination,
(II) a final regulation to implement such
revision or a finding that such revision should
not be made,
(III) notice that such one-year period is
being extended under subparagraph (B)(i), or
(IV) notice that the proposed regulation is
being withdrawn under subparagraph (B)(ii),
together with the finding on which such
withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of
critical habitat is involved, either--
(I) a final regulation to implement such
designation, or
(II) notice that such one-year period is
being extended under such subparagraph.
(B)(i) If the Secretary finds with respect to a proposed
regulation referred to in subparagraph (A)(i) that there is
substantial disagreement regarding the sufficiency or accuracy
of the available data relevant to the determination or revision
concerned, the Secretary may extend the one-year period
specified in subparagraph (A) for not more than six months for
purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph
(A)(i) is not promulgated as a final regulation within such
one-year period (or longer period if extension under clause (i)
applies) because the Secretary finds that there is not
sufficient evidence to justify the action proposed by the
regulation, the Secretary shall immediately withdraw the
regulation. The finding on which a withdrawal is based shall be
subject to judicial review. The Secretary may not propose a
regulation that has previously been withdrawn under this clause
unless he determines that sufficient new information is
available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is
extended under clause (i) with respect to a proposed
regulation, then before the close of such extended period the
Secretary shall publish in the Federal Register either a final
regulation to implement the determination or revision
concerned, a finding that the revision should not be made, or a
notice of withdrawal of the regulation under clause (ii),
together with the finding on which the withdrawal is based.
(C) A final regulation designating critical habitat of an
endangered species or a threatened species shall be published
concurrently with the final regulation implementing the
determination that such species is endangered or threatened,
unless the Secretary deems that--
(i) it is essential to the conservation of such
species that the regulation implementing such
determination be promptly published; or
(ii) critical habitat of such species is not then
determinable, in which case the Secretary, with respect
to the proposed regulation to designate such habitat,
may extend the one-year period specified in
subparagraph (A) by not more than one additional year,
but not later than the close of such additional year
the Secretary must publish a final regulation, based on
such data as may be available at that time,
designating, to the maximum extent prudent, such
habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor
section 553 of title 5, United States Code, shall apply to any
regulation issued by the Secretary in regard to any emergency
posing a significant risk to the well-being of any species of
fish and wildlife or plants, but only if--
(A) at the time of publication of the regulation in
the Federal Register the Secretary publishes therein
detailed reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident
species of fish or wildlife, or plants, the Secretary
gives actual notice of such regulation to the State
agency in each State in which such species is believed
to occur.
Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in
the Federal Register. Any regulation promulgated under the
authority of this paragraph shall cease to have force and
effect at the close of the 240-day period following the date of
publication unless, during such 240-day period, the rulemaking
procedures which would apply to such regulation without regard
to this paragraph are complied with. If at any time after
issuing an emergency regulation the Secretary determines, on
the basis of the best appropriate data available to him, that
substantial evidence does not exist to warrant such regulation,
he shall withdraw it.
(8) The publication in the Federal Register of any proposed
or final regulation which is necessary or appropriate to carry
out the purposes of this Act shall include a summary by the
Secretary of the data on which such regulation is based and
shall show the relationship of such data to such regulation;
and if such regulation designates or revises critical habitat,
such summary shall, to the maximum extent practicable, also
include a brief description and evaluation of those activities
(whether public or private) which, in the opinion of the
Secretary, if undertaken may adversely modify such habitat, or
may be affected by such designation.
(c) Lists.--(1) The Secretary of the Interior shall publish
in the Federal Register a list of all species determined by him
or the Secretary of Commerce to be endangered species and a
list of all species determined by him or the Secretary of
Commerce to be threatened species. Each list shall refer to the
species contained therein by scientific and common name or
names, if any, specify with respect to such species over what
portion of its range it is endangered or threatened, and
specify any critical habitat within such range. The Secretary
shall from time to time revise each list published under the
authority of this subsection to reflect recent determinations,
designations, and revisions made in accordance with subsections
(a) and (b).
(2) The Secretary shall--
(A) conduct, at least once every five years, a review
of all species included in a list which is published
pursuant to paragraph (1) and which is in effect at the
time of such review; and
(B) determine on the basis of such review whether any
such species should--
(i) be removed from such list;
(ii) be changed in status from an endangered
species to a threatened species; or
(iii) be changed in status from a threatened
species to an endangered species.
Each determination under subparagraph (B) shall be made in
accordance with the provisions of subsection (a) and (b).
(d) Protective Regulations.--Whenever any species is listed
as a threatened species pursuant to subsection (c) of this
section, the Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation of such
species. The Secretary may by regulation prohibit with respect
to any threatened species any act prohibited under section
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in
the case of plants, with respect to endangered species; except
that with respect to the taking of resident species of fish or
wildlife, such, regulations shall apply in any State which has
entered into a cooperative agreement pursuant to section 6(c)
of this Act only to the extent that such regulations have also
been adopted by such State.
(e) Similarity of Appearance Cases.--The Secretary may, by
regulation of commerce or taking, and to the extent he deems
advisable, treat any species as an endangered species or
threatened species even through it is not listed pursuant to
section 4 of this Act if he finds that--
(A) such species so closely resembles in appearance,
at the point in question, a species which has been
listed pursuant to such section that enforcement
personnel would have substantial difficulty in
attempting to differentiate between the listed and
unlisted species;
(B) the effect of this substantial difficulty is an
additional threat to an endangered or threatened
species; and
(C) such treatment of an unlisted species will
substantially facilitate the enforcement and further
the policy of this Act.
(f)(1) Recovery Plans.--The Secretary shall develop and
implement plans (hereinafter in this subsection referred to as
``recovery plans'') for the conservation and survival of
endangered species and threatened species listed pursuant to
this section, unless he finds that such a plan will not promote
the conservation of the species. The Secretary, in developing
and implementing recovery plans, shall, to the maximum extent
practicable--
(A) give priority to those endangered species or
threatened species, without regard to taxonomic
classification, that are most likely to benefit from
such plans, particularly those species that are, or may
be, in conflict with construction or other development
projects or other forms of economic activity;
(B) incorporate in each plan--
(i) a description of such site-specific
management actions as may be necessary to
achieve the plan's goal for the conservation
and survival of the species;
(ii) objective, measurable criteria which,
when met, would result in a determination, in
accordance with the provisions of this section,
that the species be removed from the list; and
(iii) estimates of the time required and the
cost to carry out those measures needed to
achieve the plan's goal and to achieve
intermediate steps toward that goal.
(2) The Secretary, in developing and implementing recovery
plans, may procure the services of appropriate public and
private agencies and institutions and other qualified persons.
Recovery teams appointed pursuant to this subsection shall not
be subject to the Federal Advisory Committee Act.
(3) The Secretary shall report every two years to the
Committee on Environment and Public Works of the Senate and the
Committee on Merchant Marine and Fisheries of the House of
Representatives on the status of efforts to develop and
implement recovery plans for all species listed pursuant to
this section and on the status of all species for which such
plans have been developed.
(4) The Secretary shall, prior to final approval of a new or
revised recovery plan, provide public notice and an opportunity
for public review and comment on such plan. The Secretary shall
consider all information presented during the public comment
period prior to approval of the plan.
(5) Each Federal agency shall, prior to implementation of a
new or revised recovery plan, consider all information
presented during the public comment period under paragraph (4).
(g) Monitoring.--(1) The Secretary shall implement a system
in cooperation with the States to monitor effectively for not
less than five years the status of all species which have
recovered to the point at which the measures provided pursuant
to this Act are no longer necessary and which, in accordance
with the provisions of this section, have been removed from
either of the lists published under subsection (c).
(2) The Secretary shall make prompt use of the authority
under paragraph 7 of subsection (b) of this section to prevent
a significant risk to the well being of any such recovered
species.
(h) Agency Guidelines.--The Secretary shall establish, and
publish in the Federal Register, agency guidelines to insure
that the purposes of this section are achieved efficiently and
effectively. Such guidelines shall include, but are not limited
to--
(1) procedures for recording the receipt and the
disposition of petitions submitted under subsection
(b)(3) of this section;
(2) criteria for making the findings required under
such subsection with respect to petitions;
(3) a ranking system to assist in the identification
of species that should receive priority review under
subsection (a)(1) of the section; and
(4) a system for developing and implementing, on a
priority basis, recovery plans under subsection (f) of
this section.
The Secretary shall provide to the public notice of, and
opportunity to submit written comments on, any guideline
(including any amendment thereto) proposed to be established
under this subsection.
(i) If, in the case of any regulation proposed by the
Secretary under the authority of this section, a State agency
to which notice thereof was given in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of
the proposed regulation, and the Secretary issues a final
regulation which is in conflict with such comments, or if the
Secretary fails to adopt a regulation pursuant to an action
petitioned by a State agency under subsection (b)(3), the
Secretary shall submit to the State agency a written
justification for his failure to adopt regulations consistent
with the agency's comments or petition.
* * * * * * *
DISSENTING VIEWS
H.R. 717 would eliminate important deadlines in the
Endangered Species Act (ESA) for federal agencies to determine
the status of species that may need the Act's protections. The
bill also allows the Interior and Commerce Secretaries to
ignore science and delay action to protect imperiled species
based on economic concerns. Finally, H.R. 717 prohibits
agencies from prioritizing protection of vulnerable species
over removing protections for recovered ones, even if the best
available science shows that listing should take priority.
The ESA's 90-day deadline to consider a listing petition
and the 12-month deadline to make a listing decision are
critically important to ensuring timely protection of species
that are teetering on the brink of extinction. Federal agencies
rarely make these determinations without judicial enforcement
of the deadlines. Removing these deadlines would make it much
more difficult to protect imperiled species.
Further, allowing for the consideration of economic
concerns as opposed to the current ESA standard of the ``best
scientific and commercial data available'' would severely
undermine conservation efforts. The ESA already gives the Fish
and Wildlife Service and the National Marine Fisheries Service
the discretion to designate species as ``warranted but
precluded'' from being listed by higher conservation
priorities, meaning that species can wait years to receive the
protections they need and begin the path to recovery. Inserting
a second loophole solely for economic concerns would exacerbate
this problem and is not consistent with the intent of the ESA.
Finally, the agencies made significant changes to their
listing regulations just last year to slow down incoming
petitions and give themselves more flexibility in responding.
We have yet to see how the agencies will perform given these
updates and H.R. 717 would override the new regulations. For
these reasons, we oppose H.R. 717 as reported.
Raul M. Grijalva,
Ranking Member, Committee on
Natural Resources.
Darren Soto.
Jared Huffman.
Alan Lowenthal.
Nanette Diaz Barragan.
Grace F. Napolitano.
Donald S. Beyer, Jr.
A. Donald McEachin.
Colleen Hanabusa.
[all]