[House Report 115-1050]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-1050
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WEIGH HABITATS OFFSETTING LOCATIONAL EFFECTS ACT OF 2018
_______
November 27, 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. 6346]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 6346) to amend the Endangered Species Act of
1973 to provide for consideration of the totality of
conservation measures in determining the impact of proposed
Federal agency action, 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. 6346 is to amend the Endangered Species
Act of 1973 to provide for consideration of the totality of
conservation measures in determining the impact of proposed
Federal agency action.
Background and Need for Legislation
The Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et
seq.) sets out the broad goal of conserving and recovering
species facing extinction. The law authorizes federal agencies
to identify imperiled species and list them as either
threatened or endangered, as appropriate.\1\ The law further
requires agencies to take necessary actions to conserve those
species and their habitats.\2\ The Secretary of the Interior,
through the U.S. Fish and Wildlife Service (FWS), has
responsibility for plants, wildlife and inland fisheries. The
Secretary of Commerce, through the National Marine Fisheries
Service (NMFS) is responsible for implementing the ESA with
respect to ocean-going fish and some marine mammals.\3\
Congress made its most significant amendments to ESA in 1978,
1982, and 1988, although the overall framework has remained
essentially unchanged since its original enactment in 1973.\4\
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\1\16 U.S.C. 1533.
\2\Id.
\3\Cong. Research Serv., RL31654, The Endangered Species Act: A
Primer 15 (2016).
\4\A History of the Endangered Species Act of 1973, U.S. Fish and
Wildlife Service, U.S. Department of the Interior, https://www.fws.gov/
endangered/esa-library/pdf/history_ESA.pdf (last visited Sept. 18,
2018).
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Notwithstanding the worthy goal set out by the ESA to
conserve and protect species, in the 45 years since its
enactment, less than 2 percent of species have recovered enough
to warrant removal from the list of endangered and threatened
species.\5\ In fact, many of those species were delisted after
it was discovered that federal agencies used erroneous data in
the original listing.\6\ In total, to date there have been
2,421 listings\7\ under the ESA. In that time the Secretaries
have delisted 77 species, but only 47 distinct species have
been removed, either entirely or partially throughout their
range, due to population recovery.\8\
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\5\ECOS Environmental Conservation Online System, Listed Species
Summary (Boxscore), U.S. Fish and Wildlife Service, U.S. Department of
the Interior, https://ecos.fws.gov/ecp0/reports/box-score-report (last
visited Sept. 19, 2018).
\6\ECOS Environmental Conservation Online System, Delisted Species,
U.S. Fish and Wildlife Service, U.S. Department of the Interior,
https://ecos.fws.gov/ecp0/reports/delisting-report (last visited Sept.
19, 2018).
\7\Supra, note 5. This number was determined by adding the total
number of species listed as endangered or threatened under the ESA to
the total number delisted since the ESA's enactment.
\8\Supra, note 6.
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In addition to failing to achieve meaningful recovery for
species, implementation of the ESA disincentivizes conservation
and can lead to increased conflict between people and species
through unpredictable and expansive restrictions on land
use.\9\ Excessive litigation and a lack of transparency in
federal ESA decision-making has only exacerbated these problems
and reduced the ESA's effectiveness in recovering species.\10\
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\9\Committee on House Natural Resources, Endangered Species Act
Congressional Working Group, Report Findings and Recommendations,
(2014) available at https://naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_and_recommendations _02_04_14.pdf; See
also: Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603,
and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 115th
Cong, (2017) (testimony of Kent Holsinger, Manager and Founder,
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
\10\Hearing on Examining Policy Impacts of Excessive Litigation
Against the Department of the Interior, Before the Subcomm. on
Oversight & Investigations of the H. Comm. on Natural Resources, 115th
Cong. (2017), available at https://naturalresources.house.gov/
uploadedfiles/hearing_memo_--_ov_hrg_06.28.17.pdf.
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In many cases, implementation of the ESA has caused
increased burdens for those living in close proximity to the
protected species.\11\ Often States and local communities have
the most knowledge about the species located in their State and
can bring the greatest amount of resources to conservation
efforts.\12\ They are eager to stabilize species populations to
prevent listings that can have a major negative economic impact
on State and local communities through restrictions on land
use.\13\ Yet, too often, federal management of threatened and
endangered species fails to take advantage of the wealth of
knowledge of State and local officials and of the successful
conservation measures implemented by States.\14\
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\11\Supra, note 9.
\12\Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R.
2603, and H.R. 3131: Hearing before the H. Comm. on Natural Resources,
115th Cong, (2017) (testimony of Kent Holsinger, Manager and Founder,
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
\13\Id.
\14\See e.g., Letter from John Hickenlooper, Governor, State of
Colorado, and Matt Mead, Governor, State of Wyoming, to Steve Ellis,
Deputy Director, Bureau of Land Management, U.S. Dep't of the Interior,
and Leslie Weldon, Deputy Chief, National Forest System, U.S. Forest
Service, U.S. Dep't of Agriculture, Sept. 29, 2014, available at http:/
/westgov.org/images/editor/LTR_GSG_Rollup_Mtgs_FINAL.pdf.
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Despite these shortcomings in how the ESA has been
implemented since its enactment, the ESA and its overall goal
of conserving and recovering species remains widely popular and
accepted.\15\ ESA modernization should prioritize effective
species recovery while maintaining the core principles of the
Act.
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\15\See e.g., Memo from Ben Tulchin, Ben Krompack, and Kiel
Brunner, Tulchin Research, to Interested Parties, Jul. 6, 2015,
available at https://earthjustice.org/sites/default/files/files/
PollingMemoNationalESASurvey.pdf.
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The Weigh Habitats Offsetting Locational Effects Act of
2018, or the WHOLE Act, amends ESA to revise how the
Secretaries review an agency action to determine whether the
action is likely to jeopardize the continued existence of a
listed species or result in the destruction or adverse
modification of critical habitat. Specifically, the bill
requires the appropriate Secretary, when making such a
determination, to consider the offsetting effects of protection
or conservation measures that are already in place or proposed
to be implemented as part of the action.
Section 7 of the ESA requires federal agencies to ensure
that private projects they authorize or public development they
undertake are not likely to impact critical habitat of an
endangered or threatened species.\16\ As a consequence, federal
and private entities seeking to develop on or near critical
habitat may attempt to offset the effects of proposed actions
by acquiring and managing suitable habitat that can be
substituted for the critical habitat.\17\ The substituted
habitat must be of equivalent size and quality and must be
located within the species' habitat range.\18\ The substituted
habitat must also contain any characteristics deemed essential
to the critical habitat designation.\19\ In sum, the
substituted habitat is functionally equivalent to land
designated as critical habitat.
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\16\16 U.S.C. Sec. 1533.
\17\16 U.S.C. 1539(a)(2); see also 50 C.F.R. 17.22.
\18\See WildEarth Guardians v. United States Fish & Wildlife Serv.,
622 F. Supp. 2d 1155 (D. Utah 2009) (analysis of mitigation measures
taken by incidental take permit applicant).
\19\Id.
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Substitution is a proven, effective mitigation mechanism
that benefits listed species while facilitating economic and
public development. The unprecedented conservation efforts of
private landowners in support of the Lesser Prairie Chicken
resulted in approximately 5.8 million acres being dedicated to
habitat preservation.\20\ However, ambiguity in the relevant
ESA provisions and subsequent regulations have resulted in
uncertainty as to whether habitat substitution is explicitly
authorized.\21\ Promoting flexibility in habitat mitigation
practices is essential to the long-term success of the ESA.
Congress needs to clarify that allowing landowners to
substitute functionally equivalent habitat for critical habitat
is authorized under the ESA. This added certainty would
encourage and reward private conservation efforts and
facilitate economic growth.
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\20\What We Do, Lesser Prairie Chicken Initiative, http://
lpcinitiative.org/our-work/what-we-do/ (last visited Sept. 19, 2018);
see also: The Range-Wide Plan for Conserving the Lesser Prairie-
Chicken, Western Association of Fish and Wildlife Agencies, https://
wafwalpcrwp.
maps.arcgis.com/apps/MapJournal/
index.html?appid=291fa9716d44404eabfd69d73ddbc002 (last visited Sept.
19, 2018).
\21\50 CFR 402.14.
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Section-by-Section Analysis
Section 1. Short title
This act may be cited as the Weigh Habitats Offsetting
Locational Effects Act of 2018, or the WHOLE Act.
Section 2. Consideration of the totality of conservation measures
This section requires the relevant Secretary, when
determining whether a federal agency action is likely to
jeopardize a listed species or result in the destruction or
adverse modification of critical habitat, to consider the
offsetting effects of all avoidance, minimization, and other
species protection or conservation measures that are already in
place or proposed to be implemented as part of the action. This
includes the development, improvement, protection, or
management of species habitat whether or not it is designated
as critical habitat of the affected species.
Committee Action
H.R. 6346 was introduced on July 12, 2018, by Congressman
Mike Johnson (R-LA). The bill was referred to the Committee on
Natural Resources. On September 26, 2018, the Committee held a
hearing on the bill. On September 27, 2018, the Committee met
to consider the bill. No amendments were offered, and the bill
was ordered favorably reported to the House of Representatives
by a roll call vote of 20 yeas and 11 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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, November 15, 2018.
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. 6346, the WHOLE
Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 6346 WHOLE Act of 2018
Under the Endangered Species Act, the U.S. Fish and
Wildlife Service (USFWS) or the National Oceanic and
Atmospheric Administration (NOAA) may issue a biological
opinion on whether a federal agency action--such as the
permitting of a construction project--is likely to jeopardize
the continued existence of a species or result in habitat
modification or destruction. H.R. 6346 would require USFWS and
NOAA to consider in those opinions any offsetting effects of
protection and conservation measures already in place or that
are proposed as part of the agency action.
CBO expects that under the bill, the agencies would issue a
rule on how they would implement the new requirement. Based on
the costs of similar tasks, CBO estimates that those costs
would be less than $500,000 over the 2019-2023 period; such
spending would be subject to the availability of appropriated
funds.
H.R. 6346 would not affect direct spending or revenues;
therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 6346 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 6346 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was reviewed 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 amend the Endangered Species Act
of 1973 to provide for consideration of the totality of
conservation measures in determining the impact of proposed
Federal agency action.
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 contains no directed
rulemakings.
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 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 (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
* * * * * * *
interagency cooperation
Sec. 7. (a) Federal Agency Actions and Consultations.--(1)
The Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of
this Act. All other Federal agencies shall, in consultation
with and with the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of this Act by
carrying out programs for the conservation of endangered
species and threatened species listed pursuant to section 4 of
this Act.
(2) Each Federal agency shall, in consultation with and with
the assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency (hereinafter
in this section referred to as an ``agency action'') is not
likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or
adverse modification of habitat of such species which is
determined by the Secretary, after consultation as appropriate
with affected States, to be critical, unless such agency has
been granted an exemption for such action by the Committee
pursuant to subsection (h) of this section. In fulfilling the
requirements of this paragraph each agency shall use the best
scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may
establish, a Federal agency shall consult with the Secretary on
any prospective agency action at the request of, and in
cooperation with, the prospective permit or license applicant
if the applicant has reason to believe that an endangered
species or a threatened species may be present in the area
affected by his project and that implementation of such action
will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on
any agency action which is likely to jeopardize the continued
existence of any species proposed to be listed under section 4
or result in the destruction or adverse modification of
critical habitat proposed to be designated for such species.
This paragraph does not require a limitation on the commitment
of resources as described in subsection (d).
(b) Opinion of Secretary.--(1)(A) Consultation under
subsection (a)(2) with respect to any agency action shall be
concluded within the 90-day period beginning on the date on
which initiated or, subject to subparagraph (B), within such
other period of time as is mutually agreeable to the Secretary
and the Federal agency.
(B) In the case of an agency action involving a permit or
license applicant, the Secretary and the Federal agency may not
mutually agree to conclude consultation within a period
exceeding 90 days unless the Secretary, before the close of the
90th day referred to in subparagraph (A)--
(i) if the consultation period proposed to be agreed
to will end before the 150th day after the date on
which consultation was initiated, submits to the
applicant a written statement setting forth--
(I) the reasons why a longer period is
required;
(II) the information that is required to
complete the consultation; and
(III) the estimated date on which
consultation will be completed; or
(ii) if the consultation period proposed to be agreed
to will end 150 or more days after the date on which
consultation was initiated, obtains the consent of the
applicant to such period.
The Secretary and the Federal agency may mutually agree to
extend a consultation period established under the preceding
sentence if the Secretary, before the close of such period,
obtains the consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded
within such period as is agreeable to the Secretary, the
Federal agency, and the applicant concerned.
(3)(A) Promptly after conclusion of consultation under
paragraph (2) or (3) of subsection (a), the Secretary shall
provide to the Federal agency and the applicant, if any, a
written statement setting forth the Secretary's opinion, and a
summary of the information on which the opinion is based,
detailing how the agency action affects the species or its
critical habitat. If jeopardy or adverse modification is found,
the Secretary shall suggest those reasonable and prudent
alternatives which he believes would not violate subsection
(a)(2) and can be taken by the Federal agency or applicant in
implementing the agency action.
(B) Consultation under subsection (a)(3), and an opinion
based by the Secretary incident to such consultation, regarding
an agency action shall be treated respectively as a
consultation under subsection (a)(2), and as an opinion issued
after consultation under such subsection, regarding that action
if the Secretary reviews the action before it is commenced by
the Federal agency and finds, and notifies such agency, that no
significant changes have been made with respect to the action
and that no significant change has occurred regarding the
information used during the initial consultation.
(C) In determining whether a Federal agency action is likely
to jeopardize the continued existence of any endangered species
or threatened species or result in the destruction or adverse
modification of the critical habitat of a species, the
Secretary shall consider the offsetting effects of all
avoidance, minimization, and other species-protection or
conservation measures that are already in place or proposed to
be implemented as part of the action, including the
development, improvement, protection, or management of species
habitat whether or not it is designated as critical habitat of
such species.
(4) If after consultation under subsection (a)(2) of this
section, the Secretary concludes that--
(A) the agency action will not violate such
subsection, or offers reasonable and prudent
alternatives which the Secretary believes would not
violate such subsection;
(B) the taking of an endangered species or a
threatened species incidental to the agency action will
not violate such subsection; and
(C) if an endangered species or threatened species of
a marine mammal is involved, the taking is authorized
pursuant to section 101(a)(5) of the Marine Mammal
Protection Act of 1972;
the Secretary shall provide the Federal agency and the
applicant concerned, if any, with a written statement that--
(i) specifies the impact of such incidental taking on
the species,
(ii) specifies those reasonable and prudent measures
that the Secretary considers necessary or appropriate
to minimize such impact,
(iii) in the case of marine mammals, specifies those
measures that are necessary to comply with section
101(a)(5) of the Marine Mammal Protection Act of 1972
with regard to such taking, and
(iv) sets forth the terms and conditions (including,
but not limited to, reporting requirements) that must
be complied with by the Federal agency or applicant (if
any), or both, to implement the measures specified
under clauses (ii) and (iii).
(c) Biological Assessment.--(1) To facilitate compliance with
the requirements of subsection (a)(2) each Federal agency
shall, with respect to any agency action of such agency for
which no contract for construction has been entered into and
for which no construction has begun on the date of enactment of
the Endangered Species Act Amendments of 1978, request of the
Secretary information whether any species which is listed or
proposed to be listed may be present in the area of such
proposed action. If the Secretary advises, based on the best
scientific and commercial data available, that such species may
be present, such agency shall conduct a biological assessment
for the purpose of identifying any endangered species or
threatened species which is likely to be affected by such
action. Such assessment shall be completed within 180 days
after the date on which initiated (or within such other period
as in mutually agreed to by the Secretary and such agency,
except that if a permit or license applicant is involved, the
180-day period may not be extended unless such agency provides
the applicant, before the close of such period, with a written
statement setting forth the estimated length of the proposed
extension and the reasons therefor) and, before any contract
for construction is entered into and before construction is
begun with respect to such action. Such assessment may be
undertaken as part of a Federal agency's compliance with the
requirements of section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an exemption under
subsection (g) of this section for that action may conduct a
biological assessment to identify any endangered species or
threatened species which is likely to be affected by such
action. Any such biological assessment must, however, be
conducted in cooperation with the Secretary and under the
supervision of the appropriate Federal agency.
(d) Limitation on Commitment of Resources.--After initiation
of consultation required under subsection (a)(2), the Federal
agency and the permit or license applicant shall not make any
irreversible or irretrievable commitment of resources with
respect to the agency action which has the effect of
foreclosing the formulation or implementation of any reasonable
and prudent alternative measures which would not violate
subsection (a)(2).
(e)(1) Establishment of Committee.--There is established a
committee to be known as the Endangered Species Committee
(hereinafter in this section referred to as the ``Committee'').
(2) The Committee shall review any application submitted to
it pursuant to this section and determine in accordance with
subsection (h) of this section whether or not to grant an
exemption from the requirements of subsection (a)(2) of this
action for the action set forth in such application.
(3) The Committee shall be composed of seven members as
follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection
Agency. Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and
Atmospheric Administration.
(G) The President, after consideration of any
recommendations received pursuant to subsection
(g)(2)(B) shall appoint one individual from each
affected State, as determined by the Secretary, to be a
member of the Committee for the consideration of the
application for exemption for an agency action with
respect to which such recommendations are made, not
later than 30 days after an application is submitted
pursuant to this section.
(4)(A) Members of the Committee shall receive no additional
pay on account of their service on the Committee.
(B) While away from their homes or regular places of business
in the performance of services for the Committee, members of
the Committee shall be allowed travel expenses, including per
diem in lieu of subsistence, in the same manner as persons
employed intermittently in the Government service are allowed
expenses under section 5703 of title 5 of the United States
Code
(5)(A) Five members of the Committee or their representatives
shall constitute a quorum for the transaction of any function
of the Committee, except that, in no case shall any
representative be considered in determining the existence of a
quorum for the transaction of any function of the Committee if
that function involves a vote by the Committee on any matter
before the Committee.
(B) The Secretary of the Interior shall be the Chairman of
the Committee.
(C) The Committee shall meet at the call of the Chairman or
five of its members.
(D) All meetings and records of the Committee shall be open
to the public.
(6) Upon request of the Committee, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Committee to assist it
in carrying out its duties under this section.
(7)(A) The Committee may for the purpose of carrying out its
duties under this section hold such hearings, sit and act at
such times and places, take such testimony, and receive such
evidence, as the Committee deems advisable.
(B) When so authorized by the Committee, any member or agent
of the Committee may take any action which the Committee is
authorized to take by this paragraph.
(C) Subject to the Privacy Act, the Committee may secure
directly from any Federal agency information necessary to
enable it to carry out its duties under this section. Upon
request of the Chairman of the Committee, the head of such
Federal agency shall furnish such information to the Committee.
(D) The Committee may use the United States mails in the same
manner and upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to
the Committee on a reimbursable basis such administrative
support services as the Committee may request.
(8) In carrying out its duties under this section, the
Committee may promulgate and amend such rules, regulations, and
procedures, and issue and amend such orders as it deems
necessary.
(9) For the purpose of obtaining information necessary for
the consideration of an application for an exemption under this
section the Committee may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant
papers, books, and documents.
(10) In no case shall any representative, including a
representative of a member designated pursuant to paragraph
(3)(G) of this subsection, be eligible to cast a vote on behalf
of any member.
(f) Regulations.--Not later than 90 days after the date of
enactment of the Endangered Species Act Amendments of 1978, the
Secretary shall promulgate regulations which set forth the form
and manner in which applications for exemption shall be
submitted to the Secretary and the information to be contained
in such applications. Such regulations shall require that
information submitted in an application by the head of any
Federal agency with respect to any agency action include but
not be limited to--
(1) a description of the consultation process carried
out pursuant to subsection (a)(2) of this section
between the head of the Federal agency and the
Secretary; and
(2) a statement describing why such action cannot be
altered or modified to conform with the requirements of
subsection (a)(2) of this section.
(g) Application for Exemption and Report to the Committee.--
(1) A Federal agency, the Governor of the State in which an
agency action will occur, if any, or a permit or license
applicant may apply to the Secretary for an exemption for an
agency action of such agency if, after consultation under
subsection (a)(2), the Secretary's opinion under subsection (b)
indicates that the agency action would violate subsection
(a)(2). An application for an exemption shall be considered
initially by the Secretary in the manner provided for in this
subsection, and shall be considered by the Committee for a
final determination under subsection (h) after a report is made
pursuant to paragraph (5). The applicant for an exemption shall
be referred to as the ``exemption applicant'' in this section.
(2)(A) An exemption applicant shall submit a written
application to the Secretary, in a form prescribed under
subsection (f), not later than 90 days after the completion of
the consultation process; except that, in the case of any
agency action involving a permit or license applicant, such
application shall be submitted not later than 90 days after the
date on which the Federal agency concerned takes final agency
action with respect to the issuance of the permit or license.
For purposes of the preceding sentence, the term ``final agency
action'' means (i) a disposition by an agency with respect to
the issuance of a permit or license that is subject to
administrative review, whether or not such disposition is
subject to judicial review; or (ii) if administrative review is
sought with respect to such disposition, the decision resulting
after such review. Such application shall set forth the reasons
why the exemption applicant considers that the agency action
meets the requirements for an exemption under this subsection.
(B) Upon receipt of an application for exemption for an
agency action under paragraph (1), the Secretary shall promptly
(i) notify the Governor of each affected State, if any, as
determined by the Secretary, and request the Governors so
notified to recommend individuals to be appointed to the
Endangered Species Committee for consideration of such
application; and (ii) publish notice of receipt of the
application in the Federal Register, including a summary of the
information contained in the application and a description of
the agency action with respect to which the application for
exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of
an application for exemption, or within such other period of
time as is mutually agreeable to the exemption applicant and
the Secretary--
(A) determine that the Federal agency concerned and
the exemption applicant have--
(i) carried out the consultation
responsibilities described in subsection (a) in
good faith and made a reasonable and
responsible effort to develop and fairly
consider modifications or reasonable and
prudent alternatives to the proposed agency
action which would not violate subsection
(a)(2);
(ii) conducted any biological assessment
required by subsection (c); and
(iii) to the extent determinable within the
time provided herein, refrained from making any
irreversible or irretrievable commitment of
resources prohibited by subsection (d); or
(B) deny the application for exemption because the
Federal agency concerned or the exemption applicant
have not met the requirements set forth in subparagraph
(A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be
considered final agency action for purposes of chapter 7 of
title 5, United States Code.
(4) If the Secretary determines that the Federal agency
concerned and the exemption applicant have met the requirements
set forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in
consultation with the Members of the Committee, hold a hearing
on the application for exemption in accordance with sections
554, 555, and 556 (other than subsection (b) (1) and (2)
thereof) of title 5, United States Code, and prepare the report
to be submitted pursuant to paragraph (5).
(5) Within 140 days after making the determinations under
paragraph (3) or within such other period of time as is
mutually agreeable to the exemption applicant and the
Secretary, the Secretary shall submit to the Committee a report
discussing--
(A) the availability and reasonable and prudent
alternatives to the agency action, and the nature and
extent of the benefits of the agency action and of
alternative courses of action consistent with
conserving the species or the critical habitat;
(B) a summary of the evidence concerning whether or
not the agency action is in the public interest and is
of national or regional significance;
(C) appropriate reasonable mitigation and enhancement
measures which should be considered by the Committee;
and
(D) whether the Federal agency concerned and the
exemption applicant refrained from making any
irreversible or irretrievable commitment of resources
prohibited by subsection (d).
(6) To the extent practicable within the time required for
action under subsection (g) of this section, and except to the
extent inconsistent with the requirements of this section, the
consideration of any application for an exemption under this
section and the conduct of any hearing under this subsection
shall be in accordance with sections 554, 555, and 556 (other
than subsection (b)(3) of section 556) of title 5, United
States Code.
(7) Upon request of the Secretary, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Secretary to assist him
in carrying out his duties under this section.
(8) All meetings and records resulting from activities
pursuant to this subsection shall be open to the public.
(h) Exemption.--(1) The Committee shall make a final
determination whether or not to grant an exemption within 30
days after receiving the report of the Secretary pursuant to
subsection (g)(5). The Committee shall grant an exemption from
the requirements of subsection (a)(2) for an agency action if,
by a vote of not less than five of its members voting in
person--
(A) it determines on the record, based on the report
of the Secretary, the record of the hearing held under
subsection (g)(4), and on such other testimony or
evidence as it may receive, that--
(i) there are no reasonable and prudent
alternatives to the agency action;
(ii) the benefits of such action clearly
outweigh the benefits of alternative courses of
action consistent with conserving the species
or its critical habitat, and such action is in
the public interest;
(iii) the action is of regional or national
significance; and
(iv) neither the Federal agency concerned nor
the exemption applicant made any irreversible
or irretrievable commitment of resources
prohibited by subsection (d); and
(B) it establishes such reasonable mitigation and
enhancement measures, including, but not limited to,
live propagation, transplantation, and habitat
acquisition and improvement, as are necessary and
appropriate to minimize the adverse effects of the
agency action upon the endangered species, threatened
species, or critical habitat concerned.
Any final determination by Committee under this subsection
shall be considered final agency action for purposes of chapter
7 of title 5 of the United States Code.
(2)(A) Except as provided in subparagraph (B), an exemption
for an agency action granted under paragraph (1) shall
constitute a permanent exemption with respect to all endangered
or threatened species for the purposes of completing such
agency action--
(i) regardless whether the species was identified in
the biological assessment; and
(ii) only if a biological assessment has been
conducted under subsection (c) with respect to such
agency action.
(B) An exemption shall be permanent under subparagraph (A)
unless--
(i) the Secretary finds, based on the best scientific
and commercial data available, that such exemption
would result in the extinction of a species that was
not the subject of consultation under subsection (a)(2)
or was not identified in any biological assessment
conducted under subsection (c), and
(ii) the Committee determines within 60 days after
the date of the Secretary's finding that the exemption
should not be permanent.
If the Secretary makes a finding described in clause (i), the
Committee shall meet with respect to the matter within 30 days
after the date of the finding.
(i) Review by Secretary of State.--Notwithstanding any other
provision of this Act, the Committee shall be prohibited from
considering for exemption any application made to it, if the
Secretary of State, after a review of the proposed agency
action and its potential implications, and after hearing,
certifies, in writing, to the Committee within 60 days of any
application made under this section that the granting of any
such exemption and the carrying out of such action would be in
violation of an international treaty obligation or other
international obligation of the United States. The Secretary of
State shall, at the time of such certification, publish a copy
thereof in the Federal Register.
(j) Notwithstanding any other provision of this Act, the
Committee shall grant an exemption for any agency action if the
Secretary of Defense finds that such exemption is necessary for
reasons of national security.
(k) Special Provisions.--An exemption decision by the
Committee under this section shall not be a major Federal
action for purposes of the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental
impact statement which discusses the impacts upon endangered
species or threatened species or their critical habitats shall
have been previously prepared with respect to any agency action
exempted by such order.
(l) Committee Orders.--(1) If the Committee determines under
subsection (h) that an exemption should be granted with respect
to any agency action, the Committee shall issue an order
granting the exemption and specifying the mitigation and
enhancement measures established pursuant to subsection (h)
which shall be carried out and paid for by the exemption
applicant in implementing the agency action. All necessary
mitigation and enhancement measures shall be authorized prior
to the implementing of the agency action and funded
concurrently with all other project features.
(2) The applicant receiving such exemption shall include the
costs of such mitigation and enhancement measures within the
overall costs of continuing the proposed action.
Notwithstanding the preceding sentence the costs of such
measures shall not be treated as project costs for the purpose
of computing benefit-cost or other ratios for the proposed
action. Any applicant may request the Secretary to carry out
such mitigation and enhancement measures. The costs incurred by
the Secretary in carrying out any such measures shall be paid
by the applicant receiving the exemption. No later than one
year after the granting of an exemption, the exemption
applicant shall submit to the Council on Environmental Quality
a report describing its compliance with the mitigation and
enhancement measures prescribed by this section. Such report
shall be submitted annually until all such mitigation and
enhancement measures have been completed. Notice of the public
availability of such reports shall be published in the Federal
Register by the Council on Environmental Quality.
(m) Notice.--The 60-day notice requirement of section 11(g)
of this Act shall not apply with respect to review of any final
determination of the Committee under subsection (h) of this
section granting an exemption from the requirements of
subsection (a)(2) of this section.
(n) Judicial Review.--Any person, as defined by section 3(13)
of this Act, may obtain judicial review, under chapter 7 of
title 5 of the United States Code, of any decision of the
Endangered Species Committee under subsection (h) in the United
States Court of Appeals for (1) any circuit wherein the agency
action concerned will be, or is being, carried out, or (2) in
any case in which the agency action will be, or is being,
carried out outside of any circuit, the District of Columbia,
by filing in such court within 90 days after the date of
issuance of the decision, a written petition for review. A copy
of such petition shall be transmitted by the clerk of the court
to the Committee and the Committee shall file in the court the
record in the proceeding, as provided in section 2112, of title
28, United States Code. Attorneys designated by the Endangered
Species Committee may appear for, and represent the Committee
in any action for review under this subsection.
(o) Exemption as Providing Exception on Taking of Endangered
Species.--Notwithstanding sections 4(d) and 9(a)(1)(B) and (C)
of this Act, sections 101 and 102 of the Marine Mammal
Protection Act of 1972, or any regulation promulgated to
implement any such section--
(1) any action for which an exemption is granted
under subsection (h) of this section shall not be
considered to be a taking of any endangered species or
threatened species with respect to any activity which
is necessary to carry out such action; and
(2) any taking that is in compliance with the terms
and conditions specified in a written statement
provided under subsection (b)(4)(iv) of this section
shall not be considered to be a prohibited taking of
the species concerned.
(p) Exemptions in Presidentially Declared Disaster Areas.--In
any area which has been declared by the President to be a major
disaster area under the Disaster Relief and Emergency
Assistance Act, the President is authorized to make the
determinations required by subsections (g) and (h) of this
section for any project for the repair or replacement of a
public facility substantially as it existed prior to the
disaster under section 405 or 406 of the Disaster Relief and
Emergency Assistance Act, and which the President determines
(1) is necessary to prevent the recurrence of such a natural
disaster and to reduce the potential loss of human life, and
(2) to involve an emergency situation which does not allow the
ordinary procedures of this section to be followed.
Notwithstanding any other provision of this section, the
Committee shall accept the determinations of the President
under this subsection.
* * * * * * *
DISSENTING VIEWS
This legislation is part of a package of nine Republican
bills, spearheaded by the Western Caucus, introduced late in
the second session of this Congress, and designed to destroy
the Endangered Species Act. Each bill has its own, logic-
defying, acronym.
H.R. 6346 would fundamentally weaken the federal agency
consultation process under Section 7 of the Endangered Species
Act. The bill directs the Secretary to consider potential,
nonbinding avoidance, minimization, or other conservation
measures when determining whether a proposed action is likely
to jeopardize an imperiled species or their habitat. The bill
also allows the Secretary to consider any conservation
activities that occur outside critical habitat during the
consultation process, even those that have not been
implemented. Therefore, this bill would increase the
probability that a federal agency action would jeopardize the
continued existence of a listed species and cause harm to
critical habitats.
For these reasons, we oppose the bill as reported.
Raul M. Grijalva,
Ranking Member, Committee on
Natural Resources.
Jared Huffman.
A. Donald McEachin.
Wm. Lacy Clay.
Grace F. Napolitano.
Nanette Diaz Barragan
Niki Tsongas.
Donald S. Beyer, Jr.
[all]