Reauthorization of the Endangered Species Act: A Comparison of Pending Bills and a Proposed Amendment with Current Law

CRS Report for Congress
Reauthorization of the Endangered Species
Act (ESA): A Comparison of Pending Bills and
a Proposed Amendment with Current Law
March 13, 2006
Pervaze A. Sheikh, Coordinator
Analyst in Environmental and Natural Resources Policy
Resources, Science, and Industry Division
Pamela Baldwin and Erika Lunder
Legislative Attorneys
American Law Division
M. Lynne Corn and Eugene H. Buck
Specialists in Natural Resources Policy
Resources, Science, and Industry Division


Congressional Research Service ˜ The Library of Congress

Reauthorization of the Endangered Species Act (ESA):
A Comparison of Pending Bills and a Proposed
Amendment with Current Law
Summary
The Endangered Species Act (ESA) protects species that are determined to be
either endangered or threatened according to assessments of their risk of extinction.
The ESA has not been reauthorized since September 30, 1992, and efforts to do so
have been controversial and complex. Some observers assert that the current ESA
is a failure because few species have recovered, and that it unduly and unevenly
restricts the use of private lands. Others assert that since the act’s passage, few
species have become extinct, many have improved, and that restrictions to preserve
species do not place a greater burden on landowners than many other federal, state,
and local laws.
This report provides a side-by-side analysis of two bills and a proposed
amendment that would amend the ESA. This analysis compares H.R. 3824, the
Threatened and Endangered Species Recovery Act of 2005, as passed by the House;
proposed House Amendment 588 to H.R. 3824 (Miller/Boehlert Amendment); and
S. 2110, the Collaboration for the Recovery of Endangered Species Act.
Proponents of each proposal indicate that it is designed to make the ESA more
effective by redefining the relationship between private and public property uses and
species protection, implementing new incentives for species conservation, and
removing what some see as undue land use restrictions. Thus, all three proposals
contain provisions meant to encourage greater voluntary conservation of species by
states and private landowners, a concept that has been supported by many observers.
Further, all three proposals would modify or eliminate certain procedural or other
elements of the current ESA that some have viewed as significant protections and
prohibitions, including eliminating or changing the role of “critical habitat” (CH)
(which would eliminate one aspect of the current consultation process); making the
listing of all threatened and endangered species more difficult or less likely;
expanding §10 permits allowing incidental take (which could incur a greater need for
agency oversight and enforcement); and expanding state rather than federal
implementation of ESA programs (which might make oversight more difficult).
Proponents of these changes assert that tighter listing standards would enable a better
focus on species with the most dire needs, and that other measures would achieve
recovery of more species. Critics argue that proposed changes create gaps in the ESA
safety net of protections and prohibitions.
It is difficult to assess whether, on balance, the proposals would be likely to
achieve greater protection and recovery of species, or to what extent the controversies
over land use constraints would diminish. However, replacing some of the
protections of the current ESA with new incentives, rather than adding the new
incentives to the current protections, arguably makes adequate funding of the new
programs more critical to determining the outcome of the ESA.
This report will be updated as events warrant.



Contents
In troduction ..................................................1
Overview of the Bills...........................................3
H.R. 3824................................................3
Miller/Boehlert Amendment to H.R. 3824......................3
S. 2110..................................................4
Comparison of H.R. 3824, the Miller/Boehlert Amendment, and S. 2110..5
Section 3 — Definitions....................................5
Section 4 — Determinations/Listings..........................6
Section 4 — Designation of Critical Habitat (CH)................7
Section 4 — Recovery Plans.................................8
Section 6 — Cooperative Agreements with States................9
Section 7 — Consultation..................................10
Section 10 — Exemptions from Take Prohibitions and Property
Owner Incentives.....................................11
Section 15 — Authorization................................13
Costs ...................................................13
Conclusion ..................................................14
List of Tables
Table 1. Side-by-Side Comparison of The Endangered Species Act
(H.R. 3824), Miller/Boehlert Amendment to H.R. 3824, and S. 2110....15
Best Available Science Definition....................15
Jeopardy ........................................15
Role of the Secretary of Commerce...................16
Endangered and Threatened Determinations............18
Use of Scientific and Commercial Data................19
Science Advisory Board............................22
Critical Habitat — General.........................23
Critical Habitat — Designation......................25
Critical Habitat — Location.........................26
Critical Habitat — Economic Impact and Benefit
Analyses ....................................27
Review of Listed Species...........................27
Notice to States..................................28
Special Rules for Threatened Species.................29
Recovery Plans — Overview........................30
Recovery Plans — Development.....................31
Recovery Plans — Team...........................32
Recovery Plans — Coordination with Government
Agencies ....................................33
Recovery Plans — Contents........................34
Recovery Plans — Consultation and Comment..........37
Recovery Plans — Status...........................38
Establishing Priority of Species......................39
Establishing Priorities of Species — Schedule..........43
Cooperative Agreements With States.................45



Cooperative Agreements — Incidental take and
Consultation ................................47
Cooperative Agreements — Monitoring, Voluntary
Enrollments, and Review.......................47
Cooperative Agreements — Termination..............48
Indian Tribes....................................49
Consultations — Alternative Procedures...............50
Exemption Changes: Repeal of the Endangered Species
Committee; National Security; and Emergencies....54
Takings — Written Determination...................56
Incidental Take — Habitat Conservation Plans (HCPs)...60
Incidental Take — Recovery Plan Actions.............61
Incidental Take — No Surprises.....................63
Incidental Take — Provisional Permits................64
Incidental Take — Protection from Liability for Site
Specific Plans Under the Healthy Forests Restoration
Act of 2003.................................66
Property Owner Incentives — Compensation to
Landowners .................................67
Property Owner Incentives — Conservation Agreements..72
Property Owner Incentives — Priorities for the Selection
of Agreements...............................74
Property Owner Incentives — Species Recovery
Agreements .................................75
Property Owner Incentives — Conservation Grants......77
Tax Incentives — Deduction for Cost of Credits
Purchased from Conservation Banks..............77
Tax Incentives — Credit for Conservation and Recovery
Costs; See Appendix ..........................78
Annual Cost Analysis.............................78
Compensation — Livestock.........................79
Authorization of Appropriations.....................80
ESA and Farm Conservation Programs................81
Miscellaneous Provisions — ESA and Pesticides........84
Miscellaneous Provisions — Compliance Costs of
Federal Power Administrations..................86
Miscellaneous Provisions — Survey of Bureau of Land
Management and Forest Service Lands............86
Miscellaneous Provisions — Consultation and the Marine
Mammal Protection Act........................87
Costs of Implementation...........................88
Appendix .......................................................90
Conservation Banks Under S. 2110...............................90
Tax Incentives Under S. 2110...................................93



Reauthorization of the Endangered
Species Act (ESA): A Comparison of
Pending Bills and a Proposed Amendment
with Current Law
Introduction
The Endangered Species Act (ESA)1 protects species that are determined to be
either endangered or threatened according to assessments of their risk of extinction.
The act can be controversial because it can affect the use of both federal and non-
federal lands and resources, and because dwindling species can be harbingers of
broader ecosystem decline. The ESA has not been reauthorized since September 30,

1992, and efforts to do so have been controversial and complex.


Some observers assert that the current ESA is a failure because few species have
recovered, and that it restricts the use of private lands unduly and unevenly. Others
assert that since the act’s passage few species have become extinct, while many have
improved, and that some restrictions are a reasonable burden to preserve species,
including some that may directly affect human well-being. The conservation of
habitat was seen as crucial when the ESA was enacted in 1973, reduced habitat still
is widely recognized by scientists as a major cause of species loss, and habitat
preservation is a focus of debate today. Whether to retain the current system of
designating habitat critical for the conservation of species, or to eliminate that
system in favor of other options has been discussed widely. There appears to be
consensus on the desirability of creating incentives for property owners to preserve
habitat, but there is disagreement as to whether such incentives should replace
enforceable protections or supplement them. Other issues are the role of science in
ESA decision-making, reducing conflicts with other activities (such as those of the
Department of Defense), and possibly enacting some of the approaches taken in
current regulations as provisions of the act.
This report provides a side-by-side analysis of two bills and a proposed
amendment that would amend the ESA. This analysis includes H.R. 3824, the
Threatened and Endangered Species Recovery Act of 2005, as passed by the House,2
which would reauthorize and amend the ESA; proposed House Amendment 588 to
H.R. 3824 (Miller/Boehlert Amendment), which would also reauthorize and amend


1 P.L. 93-205, 87 Stat. 884, 16 U.S.C. §§1531 et seq.
2 Introduced Sept. 19, 2005, by Rep. Richard Pombo and passed the House Sept. 29, 2005.
Page numbers in text refer to House-passed version.

the ESA;3 and S. 2110, the Collaboration for the Recovery of Endangered Species
Act, which would amend but not reauthorize the ESA.4
Proponents of the individual proposals have indicated they are intended to make
ESA more effective by encouraging greater voluntary conservation of species by
states and private landowners, modifying or eliminating critical habitat, and
expanding state rather than federal implementation of ESA programs, among other
things. Of the three proposals, H.R. 3824 proposes the most extensive changes to
current law. The Miller/Boehlert Amendment is similar to H.R. 3824 in several
respects, but omits some of the provisions of H.R. 3824 and modifies others. S. 2110
would make some significant changes to current law and establish a system of tax
incentives and credits for property owners.
This report presents a summary and comparison of current law, the two bills,
and the Miller/Boehlert Amendment. It does not attempt to analyze the current law’s
history and implementation in detail. For a comprehensive discussion of the ESA,
its features, and history, see CRS Report RL31654, The Endangered Species Act: A
Primer, by Pamela Baldwin, Eugene H. Buck, and M. Lynn Corn; and CRS Report
RL32992, The Endangered Species Act and Sound Science, by Eugene H. Buck, M.
Lynne Corn, and Pamela Baldwin. In the attached chart, the three measures are
compared with each other and with current law. Current law is the baseline against
which the changes of the various proposals can be identified or explained, with
emphasis on the extent of changes to current law and the contents of the provisions.
The columns present the legislation in the order the bills were introduced. The
comparison is based on topics covered in the bill and does not analyze all language.
Topics generally follow the section-by-section structure of the ESA. Current law and
the provisions from the bills and the Miller/Boehlert Amendment are paraphrased for
brevity. In the chart, CRS analyses and comments addressing specific provisions are
written in italics below the provision discussed. Page numbers in the chart refer to
the PDF version of the bill or the Miller/Boehlert Amendment as formatted by the
U.S. Government Printing Office. Because S. 2110 is the only bill that contains
extensive provisions on conservation banks and tax incentives for property owners,
those provisions are discussed separately in the Appendix.5


3 House Amendment 588 in the nature of a substitute to H.R. 3824, offered on Sept. 29,

2005, by Rep. George Miller; it was rejected (206 yeas to 216 nays).


4 Introduced Dec. 15, 2005, by Sen. Mike Crapo.
5 For information on current issues regarding the ESA, and status of legislation, see CRS
Report RL33468, The Endangered Species Act (ESA) in the 109th Congress: Conflicting
Values and Difficult Choices, by Eugene H. Buck, M. Lynne Corn, Pervaze A. Sheikh, and
Robert Meltz.

Overview of the Bills
H.R. 3824.6 This bill would include a definition of best available science that
sets out several limitations and requirements, and applies to listing and species status
determinations. Further, H.R. 3824 would require an analysis of the economic,
national security, and other relevant impacts of making a listing determination. The
ESA-related role of the National Marine Fisheries Service (Secretary of Commerce)
would be eliminated and those duties transferred to the Fish and Wildlife Service
(FWS). The bill would repeal the designation of critical habitat (CH) and label
current areas of CH as areas of special value for recovery planning purposes. The
elimination of CH would also eliminate one aspect of consultation under §7. The bill
would set deadlines for the completion of many recovery plans, and require
biological criteria in habitat conservation plans to assist in evaluating results.
Further, it would require that recovery plan teams include various constituencies, and
that satisfaction of the criteria specified in a recovery plan be considered in decisions
to change the status of species.
The bill would expand cooperative agreements with states to include candidate
and certain other species that the Secretary and a state agree are at risk, yet are not
federally listed as threatened or endangered, and specify conditions for suspending
or terminating these agreements. Further, the bill would establish recovery and
conservation agreements with private property owners; provide grants to property
owners who voluntarily undertake conservation measures; provide for written
determinations of whether a proposed private action would violate the ESA; and,
when requested, pay aid or compensation to qualifying property owners who forego
a proposed use of their property to avoid violating the ESA. Compensation would
also be available for livestock losses due to reintroduced species.
The bill would specify additional requirements for §10 permits and codify a No
Surprises approach similar to that in current regulations to afford greater certainty to
landowners. It would clarify exemption authorities in times of emergencies or
disasters, or for national security. Further, the bill would allow action-agencies to
determine types of actions as well as particular actions that could be granted
categorical exclusions from jeopardy determinations or exempted from consultation
requirements for a period of time for many actions involving the use of pesticides.
Miller/Boehlert Amendment to H.R. 3824. The Miller/Boehlert
Amendment would define best available science, emphasize the inclusion of data
obtained by scientifically-accepted methods and procedures, and establish a science
advisory board to evaluate the use of science in implementing the ESA. Jeopardy
would be defined with broader language than found in agency regulations, likely
making it easier to find jeopardy than under current law. Conditions applicable to
consultation on cooperative agreements and agency actions would be provided.


6 See CRS Congressional Distribution Memorandum: Summary and Analysis of H.R. 3824,
the Threatened and Endangered Species Recovery Act of 2005 (TESRA), as passed by the
House, Oct. 13, 2005, by Pamela Baldwin (available from the author).

The definition of CH would be retained and under §3(5)(B), CH apparently
could still be designated for listed species without recovery plans. However, the
Miller/Boehlert Amendment also states that CH designated before enactment would
be treated as “areas necessary for recovery” until a new recovery plan or recovery
plan revision is completed, and no more CH would be designated. Areas important
to species recovery would be designated in recovery plans. The bill would also
address the status of each listed species every five years; require notices to states for
proposed determinations; and require a Secretarial justification for any prohibitions
on threatened species. The Miller/Boehlert Amendment would require recovery
plans for listed species; a priority system for developing plans; and recovery teams
to develop plans and coordinate with federal agencies. Contents of recovery plans
are specified, including the identification of publicly owned lands needed for
recovery, or private lands, only if also necessary for recovery. Opportunities for
public comment and access to recovery plans would be provided.
The Miller/Boehlert Amendment would expand cooperative agreements with
states so that listed and candidate species, as well as species of special concern, could
be included. There would be provisions related to monitoring and changing the
status of agreements. Exemptions for national security and disasters would be
provided. Conditions for obtaining written determinations of the lawfulness under
ESA of a proposed action would be specified. A conservation program for
landowners to improve habitat and promote conservation on private lands would be
established. Agreements between the Secretary and landowners would be authorized,
and include management plans and criteria for evaluation. Conservation grants and
compensation for livestock loss due to reintroduced species would also be available.
S. 2110. The bill would not change any existing definitions under current law,
but would establish a priority system for determining the status and habitat of
species. The priority system would consider risk of extinction, likelihood of
recovery, and conflicts with human activities, among other things. Critical habitat
designation would be retained; however, designation would occur later than under
current law. Recovery plans would include input from an executive committee, a
recovery coordinator would be required, and a recovery team of experts could be
appointed, but would not be required. Additional requirements for recovery plans
would be set out.
S. 2110 would provide for cooperative agreements with states on listed and
candidate species, and species that are likely to be threatened or endangered.
Agreements would be subject to consultation with the Fish and Wildlife Service
(FWS) and National Marine Fisheries Service (NMFS) when entered into, amended,
or renewed, but consultation would not be required for species in an area covered by
a cooperative agreement that became listed after an agreement is finalized. Incidental
take statements could be issued based on cooperative agreements. S. 2110 would
also provide for the monitoring, enrollment, termination, and review of cooperative
agreements.
This bill would create a system of conservation banks for improving recovery
of listed and candidate species, and species of concern. The bill contains criteria to
be included in regulations on managing conservation banks; mechanisms for
transferring and pricing credits; and provisions for out-of-kind mitigation. A system



of tax credits would be provided for landowners who participate in the recovery of
certain species. Landowners could also receive tax credits for conservation and
recovery costs. Specifications for entering into an agreement, eligibility requirements
for credits, and value of credits under different tax conditions are provided.
S. 2110 would modify requirements for habitat conservation plans (HCP), and
a No Surprises approach similar to the current administrative regulation would be
codified. Provisional permits for incidental take would be available for voluntary
implementation of the terms of a proposed HCP. Participants in farm bill
conservation programs7 who conduct site-specific recovery activities with a net
benefit for listed or candidate species would receive §10 incidental take permits.
Comparison of H.R. 3824, the Miller/Boehlert Amendment,
and S. 2110
This portion of the memorandum compares and discusses briefly some of the
principal topics in the legislation in a format that loosely follows the section-by-
section structure of the ESA. (Please refer to the chart for more detail.)
Section 3 — Definitions. S. 2110 makes no changes to the definitions under
current law. The House bill and Miller/Boehlert Amendment would replace the
current phrase best scientific and commercial data available with best available
scientific data. Both would elaborate on what is the best available science. Under
H.R. 3824, the Secretary is to develop regulations that ensure compliance with the
Data Quality Act, and that data be empirical or found in sources reviewed by
qualified individuals recommended by the National Academy of Sciences (NAS).
The Miller/Boehlert Amendment would rely less on Secretarial determination of
what data can be used in decision-making, and would establish criteria for
scientifically accepted data, including those data that meet scientific standards and
are widely used within the relevant fields of science. Some contend that the
specification of empirical data in H.R. 3824 would exclude estimates derived from
models and limit the type of data available for use compared to the provisions of the
Miller/Boehlert Amendment and current law. However, estimates derived from
modeling could be allowed under H.R. 3824, if it meets the NAS peer-review
conditions set forth in the bill.
Currently, Secretary refers to either the Secretary of the Interior or the Secretary
of Commerce, depending on the species involved.8 H.R. 3824 would eliminate the
role of the Secretary of Commerce and transfer those duties to the Secretary of the
Interior. The Miller/Boehlert Amendment would retain the definition of Secretary
as in current law, but would delete several specific references to the Secretary of
Commerce, and would not authorize appropriations for the Department of
Commerce. Some contend that eliminating the Secretary of Commerce would reduce


7 Food and Security Act of 1985 (16 U.S.C. §3831).
8 The Secretary of Agriculture also has duties with respect to the importation or exportation
of terrestrial plants.

duplication of efforts and increase resources for recovery, others contend that the
Fish and Wildlife Service might not have the expertise to manage ocean species.
The Miller/Boehlert Amendment would define jeopardy to include any action
that lessens the likelihood a species will recover. This definition is broader than the
way jeopardy has been interpreted by the courts to date. It is not clear how this
broader definition would affect other sections of the statute, but it could make it
easier to find jeopardy during §7 consultations on federal actions or private actions
with a federal nexus. Several sections relating to critical habitat would be eliminated,
thereby eliminating the other current test for reviewing actions under current §7
processes.
Section 4 — Determinations/Listings. Under current law, there is a duty
to list species that either are threatened with extinction or in danger of becoming
extinct. The bills and the Miller/Boehlert Amendment contain many provisions
relating to determinations of species status. The type of data used to make
determinations under H.R. 3824 could be more limited than under current law, due
to the definition of best available scientific data (i.e., data must be empirical or found
in sources reviewed by NAS). The Miller/Boehlert Amendment does not appear to
limit the type of data and analyses used as long as it meets scientifically accepted
standards, a condition that appears to embody current legal interpretations. The
Miller/Boehlert Amendment would mandate peer review through a Scientific
Advisory Board (SAB) composed of appointed nominees recommended by the NAS.
The SAB would have a broader mandate than peer review panels proposed in H.R.
3824, because it would evaluate the use of science in implementing the act and
develop policies on the use of scientific information. H.R. 3824 and the
Miller/Boehlert Amendment would expressly make all information used to make a
determination on a species publicly accessible; S. 2110 would make no changes to
current law. (However, the Data Quality Act requires that information relied on by
agencies be made available.)
The Miller/Boehlert Amendment would address threatened species by requiring
the Secretary to publish justification for any prohibitions regarding threatened
species, and to restrict the circumstances under which prohibitions may be applied
to more than one threatened species. H.R. 3824 would address distinct population
segments9 by directing the Secretary to determine them as endangered or threatened
only sparingly, language taken from H.Rept. 96-151 (p. 7). H.R. 3824 would require
the Secretary to prepare an analysis of the economic, national security, and other
impacts and benefits of species status determinations concurrently with making a
determination. This analysis however, would not change criteria in making a


9 A distinct population segment is a population segment of a vertebrate species that is
discrete (e.g., geographically separate) from the remainder of the species, considered
significant to the species, and has endangered or threatened status. Invertebrates and plants
are not afforded protection at the population level under current law. See U.S. Department
of Interior and Commerce, “Policy Regarding the Recognition of Distinct Vertebrate
Population Segments Under the Endangered Species Act,” Federal Register, vol. 61, no. 26
(Feb. 7, 1996), p. 4722.

determination. Similar analyses would be used under S. 2110 to determine a priority
system for ranking species for consideration. (See discussion below.)
Current law authorizes the Secretary to establish a ranking system to identify
species that should receive priority review, and FWS and NMFS have established
such priorities. This current system relates to the commitment of agency personnel
and funds, but may be overridden by court orders because the statutory duties of the
ESA agencies to list species and CH remain. S. 2110 would elaborate statutorily on
how to establish a priority ranking system and a related schedule for agency actions.
It appears that courts could only consider whether agency actions are consistent with
that schedule and may only order compliance with it. S. 2110 could modify or
eliminate the duty to list, depending on how its judicial review provision is
interpreted.
Some of the criteria in S. 2110 for ranking species could be seen as
contradictory and no guidance is given as to the weight to be given the various
factors. For example, is a species with unusually narrow geographic distribution and
habitat needs, but with various other subspecies still extant, to be considered a higher
or lower priority than a species that is the only living representative of its genus, but
is widely distributed? Several of the factors seem aimed at ascertaining which
species are in grave difficulty, yet another factor is the likelihood of achieving
recovery of the species. How to determine which is more important? The latter
criterion might be used to suggest that those species listed at the earliest sign of
depletion would be given a higher priority than those species listed after considerable
delay, at a time when species numbers point unequivocally to endangerment. For
species so depleted that their recovery is in doubt, another remaining question is
whether they should be allowed to slide to extinction, or could such species be
maintained?
Under H.R. 3824 and the Miller/Boehlert Amendment, the five-year reviews of
species status required by current law would be based on biennial reports sent to
Congress and any other information the Secretary considers relevant. The
relationship of this last language to the best available science requirements is not
clear.
Section 4 — Designation of Critical Habitat (CH). Current law requires
the designation of CH for a species at the time of listing, and makes destruction or
adverse modification of CH a trigger for consultation procedures. Critical habitat is
currently defined as habitat that is essential for the conservation of a species. FWS
and others have asserted that the designation of CH provides no additional benefit
beyond that which is accomplished through the duty to avoid jeopardizing species.
However, several courts have held that this conclusion rests on an erroneous agency
regulation, and that based on the definition of conserve, CH should include habitat
necessary to accomplish recovery, not merely to avoid jeopardy. Conserve is defined
in the current law as bringing a species to the point where it no longer needs the
protections of the act, wording that courts have held includes recovery. See, forth
example, Sierra Club v. U.S. Fish and Wildlife Service, 245 F. 3d 434 (5 Cir. 2001).
H.R. 3824 would eliminate CH altogether, and rely on landowner incentives to
secure adequate habitat. The Miller/Boehlert Amendment would retain the current



definition of CH, but would repeal several references to it and also treat current CH
as areas necessary for recovery until a recovery plan is developed or revised, similar
to H.R. 3824. CH under the Miller/Boehlert Amendment apparently would also be
eliminated for future designations, although the current definition of CH would allow
for some future designations. The bills and Miller/Boehlert Amendment would delay
the time at which CH (or its substitute) is designated from listing to a later time.
Already designated CH would be treated under H.R. 3824 as areas of special value.
These areas may or may not be retained when areas of special value are determined
in a new or revised recovery plan.
The Miller/Boehlert Amendment would call for identifying publicly owned
areas or other areas of land or water necessary to achieve the purposes of a recovery
plan, and impacts on these areas that shall be considered when evaluating whether
a proposed action might jeopardize a species. This provision requires the location
of CH (or equivalent areas) on public lands first, and only if that is insufficient,
looking to private lands. The elimination of CH in the House bill and in several
instances under the Miller/Boehlert Amendment would reduce the §7 consultation
process to only an evaluation of whether a proposed federal action would jeopardize
the continued existence of a listed species. Under current law, since CH is defined
as that area necessary to conserve (i.e., usually interpreted as recovery) a species, the
elimination of CH could significantly change the §7 protections. However, the
Miller/Boehlert Amendment would define jeopardy more broadly than under current
interpretations, so the net effect on §7 protections of eliminating several provisions
on CH is not clear.
CH would be largely retained under S. 2110 and designated either three years
after a recovery plan is commissioned, or in accordance with the priority system, but
not later than five years after a species is listed. This may mean that designation
must appear on the schedule and hence be part of an enforceable timetable, or
possibly that CH would not be enforceable in the case of a low-priority species that
is never listed and for which no recovery plan is developed.
Section 4 — Recovery Plans. Under current law, the Secretary must
develop recovery plans for all listed species unless the Secretary finds that a plan will
not promote the conservation (recovery) of the species. Plans are to the maximum
extent practicable to give priority to species that are most likely to benefit from them,
or which are in conflict with construction or other economic activities. Plans are to
include both site-specific actions necessary to achieve the plan’s goal and objective,
measurable criteria which, when met, would result in species being removed from
lists. Plans also are to include estimates of the time and costs required. All the bills
elaborate on the development of recovery plans.
H.R. 3824 and the Miller/Boehlert Amendment would impose deadlines for
recovery plans. S. 2110 would require the Secretary to publish provisional recovery
goals at the time of listing that remain in effect, unless replaced by an approved
recovery plan. H.R. 3824 and the Miller/Boehlert Amendment would require the
Secretary to promulgate regulations for establishing recovery teams. H.R. 3824
would require stakeholders to be on recovery teams, but would not expressly require
that scientists be on teams; this might be offset by a requirement that team members
with relevant scientific expertise would establish objective, measurable criteria for



recovery based solely on the best available scientific data. Under all three measures,
appointment of a team would not be required, and if one is not appointed, the
Secretary could develop the plan. Although a recovery team might not be appointed,
under S. 2110 the Secretary would appoint an executive committee comprised of
stakeholders, and a recovery coordinator to staff and coordinate implementation of
a plan. If a group of stakeholders forms a committee that qualifies as an executive
committee, the species in which the group is interested would receive priority for
development of a recovery plan. Although there are requirements in S. 2110 for
recovery plans, there are none for the recovery programs created by the Secretary.
Under H.R. 3824, a recovery plan may provide for the interim improvement of
the status of a species, rather than its recovery, if there are insufficient best available
scientific data, as determined by the recovery team (or by the Secretary if no recovery
team is appointed). This provision may provide a mechanism for assisting species
until sufficient scientific data are available to measure when recovery has been
achieved and delisting is appropriate. On the other hand, the fact that the recovery
team itself determines the adequacy of best available scientific data, both initially and
upon review, may permit the interim plans that are tied to improvement rather than
recovery to continue. The recovery team reviews these interim plans at intervals no
greater than five years. Under the Miller/Boehlert Amendment, a plan would have
to include an estimate of land acquisition costs from willing sellers, and identify
publicly owned lands that will assist in recovery and any other necessary additional
lands. Under S. 2110, the Secretary would have to acknowledge “appropriate
existing conservation programs” and coordinate with all governmental agencies when
creating recovery plans. The bills and the Miller/Boehlert Amendment all would
include more express requirements on notice and opportunities for public review of
recovery plans than in current law, including notice to states and tribes.
Section 6 — Cooperative Agreements with States. Current law
authorizes the Secretary to enter into cooperative agreements with any state that has
an adequate and active program for the conservation of endangered and threatened
species. The relationship of these cooperative agreements to the enforcement of the
prohibitions under the ESA is somewhat ambiguous. All three proposals would
expand the agreements to cover candidate species or other species that the state and
the Secretary agree are likely to be determined to be endangered or threatened. Most
agree that authorizing earlier conservation efforts will result in more options and a
wider distribution of any burdens of remedial actions.
The bills and the Miller/Boehlert Amendment state that §7 consultation
requirements would apply to these agreements — language that appears to direct the
Secretary to consult with FWS, as appropriate, regarding the agreements. H.R. 3824
and S. 2110 state that the consultation requirement would apply at the time the
agreements are entered into, renewed, or amended; the Miller/Boehlert Amendment
simply states that the agreements would be subject to consultation requirements and
regulations. Consultation would not be required for species that are listed as
threatened or endangered after an agreement is approved, a point that some contend
does not provide adequate protection.
H.R. 3824 addresses the relationship of cooperative agreements with take
prohibitions of the ESA in two ways: 1) by allowing incidental take statements



(allowing take of listed species) to be issued on approved cooperative agreements,
and 2) by providing that the relevant state and landowners enrolled in the program
would be exempt from ESA liability for authorized take as long as the agreement and
the program are adequate for conserving the species. S. 2110 is worded similarly, but
appears to apply only to candidate species. S. 2110 requires actions of the Secretary
to be reviewed every three years. Current law does not expressly address cancellation
of cooperative agreements, although cancellation authority arguably is implied by the
fact that the Secretary’s annual review of state programs for adequacy. (Adequacy
is a necessary condition for entering into a cooperative agreement.) If a review
concludes that the program is inadequate, then the program arguably could not be
authorized.
All three proposals contain provisions for suspending or terminating agreements
after consultation with the Governor of the relevant state. Termination may occur
only if continuation of the agreement is likely to jeopardize the continued existence
of species — or, for S. 2110, result in destruction or adverse modification of CH.
Neither H.R. 3824 nor the Miller/Boehlert Amendment would allow termination of
an agreement for destruction or adverse modification of CH, since that concept would
be eliminated or changed. Whether termination should be available only if species
are likely to be jeopardized by the continuation of the agreement could be a point of
controversy — some might urge that termination should be available if a cooperative
agreement is not contributing to the conservation/recovery of species subject to the
cooperative agreement. The Miller/Boehlert Amendment defines jeopardy as
lessening the likelihood of recovery. (See section 3 above.)
Section 7 — Consultation. Current law requires federal agencies to consult
with the Secretary (in practice FWS or NMFS) “to insure that any action authorized,
funded, or carried out by such agency (hereinafter in this section referred to as an
‘agency action’)” is not likely to jeopardize the continued existence of any
endangered or threatened species or result in the destruction or adverse modification
of its CH. The reference to “any action” authorized, funded, or carried out by a
federal agency encompasses private actions with a federal nexus, such as actions
under a federal permit (e.g., § 404 dredge and fill permits or oil and gas drilling
permits), or those receiving federal funding. Page 43 of H.R. 3824 would change the
reference from “any action” to “any agency action” (emphasis added), a change that
arguably eliminates the consultation requirements for private actions with a federal
nexus. However, other references to consultations involving permit or license
applicants are retained, so the net effect is ambiguous.
In addition, H.R. 3824 would authorize the Secretary to identify certain actions
or types of actions that do not jeopardize species through procedures other than the
§7 consultation processes. Alternative procedures could replace agency biological
assessments, the preparation of biological opinions by FWS or NMFS, and the
limitation on agency commitments of resources. However, the authority for issuing
an incidental take statement and the provision exempting from the penalties of the
act any takes of a species pursuant to an incidental take statement would only apply
if the Secretary finds or concurs that the agency action meets the standards of
§7(a)(2) — i.e., “will not jeopardize.” Further, the Secretary shall suggest, or concur
in any suggested, reasonable and prudent alternatives developed for any action
determined not to meet the no-jeopardy standard. These changes could be seen as



expediting the consultation process along the lines of current administrative
practices, see H.Rept. 109-237, pp. 44-45. On the other hand, allowing the action
agencies to make the initial determination as to jeopardy, and reducing the role of the
Secretary to one of concurrence, arguably could reduce the independent role of the
FWS and NMFS. The extent to which action agency processes replacing biological
opinions from FWS or NMFS could be reviewed by the courts is not clear.
Although authority for counterpart regulations has existed in regulations for
years, it has only recently been used and is being challenged in court. The process
is somewhat similar to categorical exclusions regarding types of actions for which
no environmental analyses under the National Environmental Policy Act (NEPA)
need be prepared, but the NEPA exemption applies to an essentially procedural
process, and these alternative consultation processes would apply to substantive
determinations.
H.R. 3824 would eliminate the Endangered Species Committee (the God Squad)
that currently can exempt proposed actions from prohibitions of the ESA.
Section 10 — Exemptions from Take Prohibitions and Property
Owner Incentives. All of the proposals would increase incentives for landowners
to conserve listed species and to conserve or increase habitat. All three would make
statutory a No Surprises approach similar to the current regulation at 50 C.F.R.
§17.22(b). Under the No Surprises concept, agreements can be negotiated that
impose limitations on the additional measures that can be required of a landowner in
the case of either changed circumstances that are contemplated in the agreement, or
circumstances that are not contemplated in the agreement. These agreements are
seen by some as providing landowners with greater certainty and stability, thereby
facilitating investment and economic development, while aiding the conservation of
listed species. None would codify the Safe Harbor concept, whereby a landowner
can create habitat and later return to the original baseline as set out in agreements.
Current regulations specify that an agreement under the No Surprises approach
can be revoked for several causes, or if continuation of the activities under the
agreement would be inconsistent with the survival and recovery of a species in the
wild. All three proposals would change the current regulatory stance regarding
revocation of §10 permits. All would allow revocation if a permittee is not in
compliance with the permit. H.R. 3824 and the Miller/Boehlert Amendment would
allow revocation if there are changed circumstances and continuation would be
inconsistent with §10(a)(2)(B)(iv) — that is, if continuation would reduce the
likelihood of survival and recovery of the species. S. 2110 is similar, but would
amend paragraph (2) so that it is difficult to discern what circumstances would justify
revocation. Under the current regulation, revocation related to jeopardy is not limited
to changed circumstances, as appears to be true under the bills and the
Miller/Boehlert Amendment.
In addition, H.R. 3824 has several varieties of agreements. First, species
conservation contract agreements would authorize persons to carry out conservation
practices for endangered or threatened species, candidate species, or other species
subject to comparable designations under state law. These agreements would specify
the conservation practices the person would undertake and describe economic



activities that would be compatible with those practices. Landowners would be
compensated for their costs in implementing the conservation practices at the rate of
60% for a 10-year agreement, 80% for a 20-year agreement, and 100% for a 30-year
agreement. The Secretary would establish priorities for entering these agreements,
after considering statutory criteria.
Second, species recovery agreements would cover landowners who would
protect and restore habitat for listed species. Priority for these agreements would go
to areas identified in recovery plans as areas of special value to the species.
Third, landowners could also request a written determination from the Secretary
as to whether a proposed action on their lands would violate the ESA. If so, a
landowner could request aid/compensation for foregoing the proposed use. The
Secretary shall award aid if the proposed use meets the qualifying criteria — that the
proposed use would be lawful under state and local law and that the property owner
has demonstrated the means to undertake the proposed use. The criteria are worded
generally, and eligibility for aid would be broader than under current interpretations
of the Takings Clause of the 5th Amendment. Aid might be triggered for example,
by a curtailment of any proposed use of any part of an owner’s land or water. Several
aspects of this aid program are unclear, and the cost of compensation is difficult to
determine, but could be high. If appropriated funds (whether regular, supplemental,
or reprogrammed) appear to be insufficient to satisfy anticipated demands for aid, the
Secretary could face a conflict between paying aid which “shall” be provided but for
which funds are not sufficient, and permitting actions which might otherwise violate
the ESA to go forward. H.R. 3824 does not specify how the conflict is to be
resolved. In the face of inadequate funding, the Secretary could be forced to permit
landowners to proceed with violative proposed actions. If a written determination
has been sought and the action permitted to go forward, any use or action taken by
a property owner in reasonable reliance on either a written determination or a default
permission to proceed cannot be treated as a violation of the prohibitions of ESA.
Fourth, conservation grants would be available to landowners who voluntarily
seek to conserve threatened and endangered species. Grants may not be used to fund
several specific activities: litigation, lobbying, the acquisition of leases or easements
of more than 50 years, among other things. Priorities are set out for awarding grants,
and preference is given to grants that would promote conservation while making
economically beneficial use of the property.
Under the Miller/Boehlert Amendment, a landowner may request a written
determination as to whether a proposed action could violate the prohibitions of the
act, and hence whether an incidental take permit may be necessary to proceed. There
is no obligation to pay aid or compensation, and there is no presumption of approval
if the Secretary does not render a timely decision. The Miller/Boehlert Amendment
states that the process does not apply to agency actions that are subject to
consultation under §7. The Miller/Boehlert Amendment would authorize agreements
with property owners to provide technical assistance and financial assistance up to
70% of the costs of implementation. The Secretary would be required to give priority
to agreements that apply to private lands necessary to achieve recovery. These
agreements could be seen as serving similar purposes to the species conservation



agreements, recovery agreements, and conservation grants set out separately in H.R.

3824.


Some of the new agreements in the Miller/Boehlert Amendment and H.R. 3824
resemble the Candidate Conservation Agreements with Assurances promulgated
under 50 C.F.R. § 17.22(d)(1) for species that are candidates for listing, or other
unspecified unlisted species. These agreements provide regulatory guarantees to
landowners who voluntarily agree to protect habitat for wildlife and plant species
before they are listed for protection under the ESA.
S. 2110 authorizes conservation banking agreements that would be somewhat
similar to the conservation banking system for protecting wetlands. Conservation
banks could be established by private landowners who demonstrate that the affected
area would be managed under an enforceable legal instrument and contribute to the
conservation of a listed species, a candidate species, or a species of special concern.
There is no requirement that the conservation banks be consistent with approved
recovery plans. The habitat that is protected would not need to be contiguous, and
the agreement is to run in perpetuity or for an appropriate period. The Secretary is
to promulgate regulations on managing conservation banks, and is to determine the
value and credits for each bank. The service area to which the conservation bank
credits would apply is to be defined in the conservation agreement, and biological
data would determine how many credits a bank can sell. S. 2110 would also
establish tax incentives for private conservation efforts. These include tax credits for
certain federal or state approved conservation and recovery agreements. The amount
of the credit would vary depending on the length of the agreement. Details on
qualifying costs and other limitations are provided. S. 2110 would also add broad
additional protections for landowners participating in the Healthy Forest Recovery
Act program. S. 2110 does not contain provisions on individual conservation
agreements and financial aid similar to the two House proposals.
Section 15 — Authorization. Although the authorization for appropriations
under the ESA expired in FY1992, activities under the ESA have continued to be
funded. H.R. 3824 and the Miller/Boelhert Amendment would reauthorize the ESA
from FY2006 to FY2010. Both proposals would authorize “such sums as are
necessary” for the Secretary of the Interior to carry out the functions and
responsibilities of the DOI; and for the Secretary of Agriculture to carry out functions
and responsibilities of the DOI (emphasis added) with respect to the enforcement of
the act and pertaining to imports of plants under the Convention on the International
Trade in Endangered Species of Wild Fauna and Flora (CITES). The intent of the
language authorizing the Secretary of Agriculture to carry out enforcement functions
of the DOI is unclear. S. 2110 does not reauthorize appropriations for the ESA.
Costs. The administrative cost of implementing the ESA could be reduced by
some provisions of the three ESA proposals and increased by others. Reductions to
federal expenditures could result from state administration of ESA programs under
cooperative agreements, repeal of CH designations, and possibly fewer listings under
a priority schedule. Federal administrative costs could be increased in the short term
as a result of new data and information accessibility requirements; increased species
recovery agreements; increased monitoring, execution, and oversight of various types
of agreements with landowners; management of conservation banks; and processing



of written compliance determinations. In addition to administrative costs, there may
be increased costs to the federal government due to aid/compensation resulting from
the written determinations process, tax incentives, and tax credits. (See bill
comparison table for specific details.)
Two bills would add new provisions on cost analyses: H.R. 3824 and the
Miller/Boehlert Amendment would require the Secretary of the Interior to submit an
annual report containing reasonably identifiable expenditures made for the
conservation of listed species on a species-by-species basis and expenditures not
attributable to particular species (e.g., conservation activities on a river that may
benefit several species). Expenditures would include federal and state funds, and
funds voluntarily reported by local government entities. S. 2110 does not amend the
annual cost analysis in current law.
Conclusion
All three proposals contain incentives that proponents indicate would encourage
greater voluntary conservation of species by states and private landowners, a concept
that is supported by many observers in the past and present. All three proposals
would modify or eliminate parts of what some have seen as the current ESA safety
net of protections and prohibitions, including eliminating or changing the role of
critical habitat (which would eliminate one aspect of the current consultation
process), making the listing of all threatened and endangered species more difficult
or less likely, expanding §10 permits allowing incidental take (which could incur a
greater need for agency oversight and enforcement), and expanding state rather than
federal implementation of ESA programs (which might make oversight more
difficult). Proponents of these changes assert that improved standards would enable
a better focus on species with the most dire needs, and that other measures would
recover more species. It is difficult to predict whether, on balance, the proposals
would be likely to achieve greater protection and recovery of species. However,
replacing some of the protections of the current ESA with new incentives, rather than
adding the new incentives to the current protections, arguably makes adequate
funding of the new programs more critical to determining that outcome.



CRS-15
Table 1. Side-by-Side Comparison of The Endangered Species Act (H.R. 3824),
Miller/Boehlert Amendment to H.R. 3824, and S. 2110
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Best Available Science Definition.
there is no definition of bestDefines best available scientific dataDefines best available scientific dataNo similar provision.
ic and commercialto mean “scientific data, regardless ofas data and analyses, regardless of
a. The best scientific andsource, that are available to thesource, produced by scientifically
iki/CRS-RL33309mmercial data available is to beSecretary at the time of a decision oraccepted methods and procedures at
g/wing decisionsaction for which such data are requiredthe time of a decision or action (p. 2).
s.or)).by this act and that the Secretary
leakdetermines are the most accurate,
bereliable, and relevant for use in that
://wikiformation as records of tonnagedecision or action” (p. 3).
http
Jeopardy.
jeopardy orNo similar provision.Defines jeopardy in terms of effects onNo similar provision.


e continued existence of,recovery: “to engage in an action that,
In regulations, it hasdirectly or indirectly, makes it less
en defined as meaning: “to engagelikely that a threatened species or an
asonably would beendangered species will be brought to
or indirectly, tothe point at which measures provided
the likelihood ofpursuant to this Act are no longer
of anecessary, is likely to significantly

CRS-16
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
ild by reducingdelay doing so, or is likely to
reproduction, numbers, orsignificantly increase the cost of doing
ribution of that species.” (50so.”
phasis added.)
This definition changes the
FWS has interpreted “jeopardizeinterpretation of the FWS definition of
continued existence of” as actuallyjeopardy as meaning survival. The
effects of the broader interpretation on
iki/CRS-RL33309other parts of the Act are unclear.
g/wArguably for example, more actions
s.orcould trigger the duty to consult under
leak §7.
://wikiRole of the Secretary of Commerce.
httpe Secretary of the InteriorThe role of the Secretary of CommerceThe definition in ESA §3(15) forNo similar provision.


inisters the ESA (through the Fishis eliminated (p. 82). The President isSecretary is not modified to delete
ervice [FWS]) fordirected to transfer to the Secretary ofreference to the Secretary of
species, and the Secretary ofthe Interior all duties, resources, andCommerce.
merce (through the Nationalresponsibilities of the Secretary of
Fisheries Service [NMFS]) hasCommerce under the ESA, and theThe new §18 does not authorize
rious duties for marine andreference in the definition ofappropriations for the Department of
ous species.Secretary in current §3 to theCommerce (p. 54-55). In addition,
responsibilities of the Secretary of§19(j)(6)((A) deletes several specific
e Secretary of Agriculture hasCommerce under the provisions ofreferences to the Secretary of
ent duties with respect to theReorganization Plan Number 4 of 1970Commerce (p. 56).

CRS-17
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
isions of the ESA and theis stricken. The Secretary of
ention (The Convention onCommerce retains responsibilities
ternational Trade in Endangeredunder the Marine Mammal Protection
of Wild Fauna and FloraAct (pp. 70-71).
ITES) which pertain to the
portation or exportation ofAccording to some, the change reduces
duplication and focuses federal
resources to the FWS on recovering
iki/CRS-RL33309threatened and endangered fish.
g/wHowever, others have expressed
s.orconcern about the transfer, noting that
leakmanagement of ocean species would
be given to an agency without ocean
://wikiexpertise, and that dividing the
httpmanagement of anadromous fish
between NMFS and FWS on the basis
of whether a species is protected under
the ESA or not would be unworkable
and contrary to the recommendations
of two recent reports on management
of ocean resources.



CRS-18
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Endangered and Threatened Determinations.
e Secretary shall determine whetherAdds “including by human activities,Same as H.R. 3824 (p. 4).No similar provision.


species is endangered orcompetition from other species,
of any of severaldrought, fire, or other catastrophicAs in H.R. 3824, the addition of
natural causes” to the list of factors“competition from other species” may
under current law (p. 5).give new emphasis to protection of
species imperiled by invasive species.
iki/CRS-RL33309The Secretary is directed to use thecurrent authority to list a distinct
g/wpopulation segment “only sparingly”
s.or
leak(p. 6).
://wikiThe reference to”only sparingly” was
httpderived from H.Rept. 96-151( p. 7).
This approach has been criticized
based on concerns it could increase
the likelihood that a vertebrate species
would be protected only when all
populations of the species face
potential extinction, and that it could
also mean that the United States would
rely more on other countries to
maintain cross-boundary species if
they are dwindling only within our
borders.

CRS-19
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
e Secretary may take into accountWhen considering a statusSimilar to H.R. 3824 (p. 5).No similar provision.
made by any state ordetermination, the Secretary could take
n nation to protect such species,into account efforts to protect species
predator control, protectionmade by any federal agency in
, or otheraddition to other efforts the Secretary
ation practices, within any areamay consider under current law (p. 6).
urisdiction, or on the high
)).
iki/CRS-RL33309Use of Scientific and Commercial Data.
g/w
s.or§4(b), the Secretary must baseReplaces best scientific andReplaces best scientific andNo similar provision.


leak determinations and CHcommercial data available with bestcommercial data available with best
://wikinations solely on the bestailable scientific and commercialavailable scientific data.available scientific data.
httpo specific definitions of theseThe Secretary is to adopt regulationsData must meet scientifically accepted
pes of data are given.that establish criteria for which datastandards of objectivity, accuracy,
constitute the best available scientificreliability, and relevance (p. 2).
ata Quality Act, the FWSdata. The regulations are to assureScientifically accepted means those
NMFS must address the quality ofcompliance with guidance issuedmethods, procedures, and standards
ation they use. Both agenciesunder the Data Quality Act (44 U.S.C.that are widely used within the
e administrative guidance on this§3516) by the Director of the Office ofrelevant fields of science, including
bject that predates the Data QualityManagement and Budget and by thewildlife biology and management. No
t. Secretary. The regulations are also tospecific reference to Secretarial
assure that data consist of empiricaldetermination of best available science
data or are found in sources that haveor to the Data Quality Act. Provides

CRS-20
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
been subject to peer review byguidelines to federal agencies to
qualified individuals recommended byinclude criteria for determining best
the National Academy of Sciences toavailable scientific data (p. 15).
serve as independent reviewers (p. 4).
Like current law, the amendment does
The emphasis on empirical datanot give the Secretary the sole
appears to change the currentauthority to determine what constitutes
understanding of best availablebest available scientific data and
iki/CRS-RL33309science, which commonly uses boththerefore continues to allow the courts
g/wempirical data and mathematical,the opportunity to review whether the
s.orphysical, and other models to explainscience used in a particular instance
leaknatural phenomena. However, the billwas actually the best available.
does provide for the consideration ofFurther, the amendment does not
://wikidata from peer reviewed sources,restrict or give priority to one
httpwhich may include estimates fromscientific method (e.g., empirical data)
modeling.over others (e.g., population
modeling).


The Secretary is to issue regulations
that establish criteria that must be met
to determine which data constitute the
best available scientific data. This
could create consistency among the
data considered to be the best
available scientific data.

CRS-21
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
It is not clear to what extent defining
best available science as that
determined to be so by the Secretary
may restrict judicial review of whether
the science used in a particular
instance was in fact the best available.
Information on which decisions would
iki/CRS-RL33309be based is currently subject to the
g/wData Quality Act, under which the
s.oragency is required to respond to any
leakcorrections proposed by the public.
://wiki similar provision.The Secretary is required to makeIdentical (pp. 50-51).No similar provision.


httpavailable, on a publicly accessible
website and in a searchable format, allSee comments on H.R. 3824.
information concerned with
determining that species should be
listed, or with changing the status of
listed species. The Secretary must also
post all information submitted to the
Secretary by third parties. Similarly,
in §14 there is a requirement that the
Secretary must also maintain a
substantial body of other data,
publications, and documents and make

CRS-22
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
them accessible over the internet (pp.

65-66).


Volumes of information about species
currently exist on the internet. The
requirement for providing data
through the internet could be a
significant and possibly costly task,
iki/CRS-RL33309particularly if the database is to be
g/wmaintained and kept current.
s.or
leakScience Advisory Board.
://wiki there is no scientificisory board; the Secretary receivesNo similar provision.Secretary would establish a ScienceAdvisory Board (SAB) to evaluateNo similar provision.


httph comments submitted(upon request) the use of science in
comment periods on proposedimplementing the act, including
other actions as published indevelopment of policies and
Federal Register. procedures on use of scientific
information (p. 66).
Scientific weight might be limited
because the SAB is restricted only to
review issues requested by the
Secretary.

CRS-23
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
The SAB would have 9 members,
appointed from list of nominees
recommended by National Academy
of Sciences (NAS). Members would
be selected on qualifications in
specified sciences; not be federal
employees; and would have their
names and professional affiliations
iki/CRS-RL33309published in the Federal Register. The
g/wSAB would elect its chair and the
s.orSecretary would make employees
leakavailable to assist the SAB (pp. 66-67).
://wikiSome question whether the SAB could
httpact quickly enough to avoid slowing
implementation of ESA decisions.
Critical Habitat — General.
e ESA is designed to protectSection 5 of the bill repeals all currentThe definition for CH is retained as itCH provisions are retained and
idual species that are determinedrequirements related to the designationis stated in current law (§3(5)), yetmodified. The Secretary shall
n danger of extinction orof CH (pp. 8-10). Areas that areother references to the designation ofdesignate any habitat of an endangered
reatened with extinction. Further,currently designated as CH would beCH have been deleted, similar to H.R.species or a threatened species that is
are “toconsidered areas of special value until3824 (p. 6-8).considered to be CH in accordance
ovide a means whereby thea recovery plan is developed for thatwith the priority system (p. 9).


stems upon which endangeredspecies, and recovery plans would beThe current definition of CH in

CRS-24
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
species dependrequired to identify areas of special§3(5)(A)(ii) provides for designation ofSee comments on priority systems
ay be conserved, to provide avalue for the species (p. 22-23).CH areas essential for thebelow.


ram for the conservation of suchconservation of species. The retention
ered species and threatenedUnder H.R. 3824, recovery plansof this language despite the repeal of
and to take such steps as maywould not be required to retain CHother CH provisions is ambiguous.
achieve the purposesareas, and there are no requirements
entionsas to what areas will qualify as areasRecovery plans are to identify areas on
of special value. Special value areaspublicly owned lands or waters or
iki/CRS-RL33309will receive consideration in theother areas of land or water necessary
g/we current ESA also provides for theimplementation of certain otherto achieve the purposes of the recovery
s.orination of “critical habitat”provisions (e.g., the priority given toplan (p. 21), and currently designated
leakH), which triggers special duties forsuch areas in completing speciesCH is to be treated as such an area (p.
encies or for private actionsrecovery agreements), and would22) until a recovery plan is developed
://wikifederal nexus. Federal agenciesprovide guidance in the developmentor revised (p. 22).
httpust consult with FWS or NMFS withof recovery plans, but the phrase
ency actions and private“special value areas” is not defined
that are authorized, funded, orand there are no binding requirements.
rried out by a federal agency toThere would be no explicit duty for
sure not only that those actions dofederal agencies or others to consult
eopardize the continued existenceregarding special value areas and no
do notexpress duty to avoid destroying or
erseadversely modifying them. There is no
odification of CH (§3(5) andrequirement in the bill that moneys
spent on recovery plans be used to
secure the areas of special value as a

CRS-25
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
priority.
Critical Habitat — Designation.
ulation designating CH ofCH is eliminated (pp. 8-10).Current CH designations become areasCH would be designated either three
ered or threatened speciesnecessary for recovery until recoveryyears after the date on which a
urrently withRepeal of CH eliminates one aspect ofplans are completed or revised.recovery plan is commissioned, or in
ulation implementing thethe current §7 consultation process.Species listed after enactment wouldaccordance with the priority system,
ination that the species isWithout CH, §7 consultations are onlynot have CH designated (p. 6-8), as inbut not later than five years after a
iki/CRS-RL33309ered or threatened, unless therequired when federal actions mightH.R. 3824.species is listed (p. 14). The Secretary
g/w deems that — jeopardize the continued existence of amust determine whether a petition to
s.orIt is essential for the species that thespecies. (For more explanation seeThe designation of areas necessary forrevise CH may be warranted in
leakination is promptly published;Consultations — Alternativerecovery is to substitute for CHs.accordance with the schedule, but not
://wikimined or that itnot prudent to establish CH. If CHProcedures.)However, compliance with recoveryplans is voluntary. The elimination oflater than one year after receipt of apetition, and the response time for
httptermined, the one-yearFWS and NMFS have maintained thatCH would eliminate one aspect ofdecision on how to proceed with
ay be extended forCH adds almost no benefit not alreadyconsultation, but effects on areaswarranted petitions would be in
ear (§4(b)(5)(C)).encompassed by the no-jeopardyidentified as part of recovery planningaccordance with the schedule or not
standard. Court cases have held thatare to be considered in evaluatinglater than three years from the date of
this agency conclusion rests on anjeopardy during §7 consultations andreceipt of a petition (pp. 12 and 14).
unlawful interpretation and regulation.a new definition of jeopardy that is
See Sierra Club v. U.S. FWS, 245 F.thbroader than the current definition inUnder the bill, the time for designating
3d 434 (5 Cir. 2001), cited withregulations is added. CH would be moved to being later
approval in New Mexico Cattlethan at listing. CH is not be
Growers Ass’n v. USFWS, 248 F. 3dthdesignated for species that are not

1277, 1283 (10 Cir. 2001); Giffordlisted. While this is also true under



CRS-26
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Pinchot Task Force v. USFWS, 378 F.thcurrent law, the limitation on judicial
3d 1059, 1069-1070 (9 Cir. 2004)review (p. 21) could preclude listings
amended 387 F. 3d 968 (2004). that might be ordered by a court under
current law.
Critical Habitat — Location.
shallCH is eliminated (pp. 8-10).Similar to H.R. 3824 (pp. 6-8).With respect to a regulation to
f all threatened anddesignate or revise CH (p.13), maps
iki/CRS-RL33309ered species, including theand coordinates that describe in detail
g/wes where they arethe specific areas and all field survey
s.orered or threatened, and specifydata upon which the designation is
leak CH within their ranges. CH canbased must be published. The current
://wiki the species, oras if essential for therequirement to designate CH onlywhen prudent is retained in the bill.
httpation of the species (§3(5)(A).
There is no indication of how the
requirements for publishing the exact
location of CH are to relate to the
discretion under current §4 (a)(3)(A)
of the ESA to refrain from indicating
where CH is if doing so would not be
prudent. Mapping CH may be difficult
and, precision or detail may not be
possible for many species, either for
lack of knowledge, variability of the



CRS-27
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
species, or other factors.
Critical Habitat — Economic Impact and Benefit Analyses.
nating CH, the SecretaryConcurrently with making a listingNo similar provision.No similar provision.
e into consideration thedetermination, the Secretary will
ic or any other relevantprepare an analysis of the impacts andS. 2110 would allow for the
pacts of specifying an area as CHbenefits of the listing determination,consideration of economic and
relating to economic, national security,national security factors when
iki/CRS-RL33309and any other relevant factors (p.7).(This does not apply to CH since it isdetermining the priority for species.
g/w
s.oreliminated under this bill.)
leakReview of Listed Species.
://wikie Secretary shall conduct a reviewIn changes to §4(c) of the act, theSimilar to H.R. 3824 (pp. 5-6).No similar provision.


httpery five yearsSecretary would base the five-year
ine whether the status ofreviews of species status on biennialSee comments for H.R. 3824.
species should be changed (i.e.,reports sent to Congress and would be
oved, threatened to endangered, orallowed to consider “any other
ered to threatened) (§4(c)(2)).information the Secretary considers
relevant” in determining whether to
change the status of a species listed as
threatened or endangered (pp. 6-7).
How this phrase would be construed in
light of the Secretary’s obligation to

CRS-28
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
consider the best available scientific
data is unclear.
Notice to States.
e Secretary shall cooperate withSection 6(b) would require notice toWould require notice to the governorNo similar provision.


consultation withthe governor of a state and stateof a state and state agencies of
gencies, beforeagencies of proposed endangered orproposed endangered or threatened
any land or water, or interestthreatened determinations (p.11).determinations (p. 10).
iki/CRS-RL33309for conserving any endangeredSection 8 would require that any
g/w
s.oror actions (e.g., listing) are throughcomments of a governor, state agency
leakmaking with publication in theor local government on proposed
Register.regulations finalizing such
://wikideterminations be considered (p.16).
httpe Secretary must give notice of
on CH designation orUnder current law, there are no
isions to state agencies in the stateexpress requirements for notices or
ere species is thought to existconsideration of comments as specified
nd consider theirin H.R. 3824, although major actions
ments; similar for foreign nations.are done through rulemaking with
notice and comment. Local
governments are not specifically
involved under current law, though
they may comment on all proposed
actions.

CRS-29
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Special Rules for Threatened Species.
er any species is listed asThe Secretary shall review regulationsSection 8 amends ESA §4(d) toNo change to this provision of ESA.


reatened, the Secretary shall issueunder §4(d) of ESA to determine ifspecifically require consultation with
gulations to provide for itstheir revision would facilitate andstates before species are designated as
nservation. For threatened species,improve cooperation with states underthreatened (p. 13). It also requires
Secretary may prohibit acts§6 of ESA (p. 83).published Secretarial justification for
angered speciesany prohibitions on threatened species,
1) and (2); except forA review of §4(d) rules for threatenedand restricts conditions under which
iki/CRS-RL33309ing resident species of fish orspecies could result in the removal ofsuch prohibitions may be applied to
g/wfederal penalties for threatenedmore than one species (pp. 13-14).
s.orspecies covered by state law and a
leak extent to which §4(d) rules arecooperative agreement.This could result in the removal of
with cooperativeprohibitions on the take of threatened
://wikispecies in the absence of special rules
httpand remove the current FWS
rrent law states that §4(d)presumption of the full protection of
ulations apply to states withthe ESA for such species unless special
e agreements only to therules provide other options. While
ulations are also adoptedoffering potential additional flexibility,
the state (§4(d)), yet otherthis change may be an incentive to list
isions indicate that the ESAspecies as endangered rather than
(§§6(c)(E)(ii) threatened.
regulation, the FWS has afforded

CRS-30
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
st threatened species the same
as endangered species
l rule is adopted for a
NMFS has
special rules for all
Recovery Plans — Overview.
iki/CRS-RL33309e Secretary shall develop andplement recovery plans for theThe Secretary shall develop andimplement recovery plans forSimilar to H.R. 3824 (p. 17), butspecifies that recovery plans are “forA recovery plan is to be non-bindingand advisory (p. 27), as in current law.
g/w
s.ortion and survival ofthreatened and endangered species,the conservation” of listed species.The recovery plan may be amended by
leakered species,unless the Secretary feels the plan willthe Secretary or by recommendation of
ecretary feels that such anot promote the conservation andthe executive committee and approval
://wikiill not promote the conservationsurvival of the species (p. 17).by the Secretary (p. 27).
httpriority is given to
ost likely to benefit fromAlthough the Secretary and an
ery plans and plans for speciesexecutive committee can initiate
ic conflicts (§4(f)(1)). Arevisions of a recovery program, a
ery plan need not be created forscientific recovery team can not. It is
not clear what roles the public may
play in these amendments to recovery
plans.



CRS-31
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Recovery Plans — Development.
e Secretary shall develop andThe Secretary will give priority toRecovery plan goals must beAt the time of listing, the Secretary
plement recovery plans for theplans for species that are most likely toconsidered in changing the status of amust publish provisional recovery
nservation and survival ofbenefit, particularly those that are, orlisted species (p. 13); recovery plangoals which may include standards for
ered species thatmay be, in conflict with economicpriority continues to go to species mostdelisting (p. 15). These remain in
ld benefit from such a plan.activities. The Secretary will publishlikely to benefit, and most likely toeffect unless replaced by an approved
iority is given to those species mosta recovery plan within two years forconflict with economic activity (p. 17).recovery plan. When a species is
ely to benefit from such plans.species listed after enactment (pp. 17-Recovery plan deadline for newlyscheduled for recovery on the priority
iki/CRS-RL33309ery plans might not be prepared18). For species listed at the time oflisted species is three years (p. 19).schedule, or upon petition by a
g/wenactment, a priority system will bequalifying collaborative group, the
s.orcreated, and within 10 years, recoveryFor previously listed species withoutSecretary shall establish a recovery
leak the maximum extent practicable,plans will be completed for speciesrecovery plans, the new deadline isprogram for that species (and others if
ery plans must incorporate awithout recovery plans or specieswithin 10 years (pp. 18-19), andpracticable) by assigning a recovery
://wikianagement actions towhose recovery plans need to beSecretary must publish reasons forcoordinator and possibly forming a
httpe the plan’s goals, objective andrevised (pp. 18-19).deviation from schedule for meetingrecovery team or executive committee,
easurable criteria for determining thedeadlines (p. 19).or both (pp. 21-22). No deadlines are
oval of species from ESA lists; andset for recovery plans.
ates of time required and cost toA recovery plan must identify publicly
out the recovery plan (§4(f)(1)).owned areas necessary to achieveThe provisional recovery goals,
recovery, and if a species cannot beincluding standards for delisting,
recovered on those areas, othermight not be replaced with a recovery
necessary areas (p. 21).plan, but rather be set by the Secretary
alone.
The use of public lands for achievingThe absence of a deadline for recovery
the recovery of listed species throughplans in combination with limitation of



CRS-32
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
recovery plans is required before usejudicial review could result in
of private lands.recovery plans not being prepared for
some species. Under current law, not
The Secretary may, before planall species need to have a recovery
approval, identify activities or areasplan. Under S. 2110 a qualifying
where those or other activities maycollaborative group could force
impede conservation (p. 21).preparation of a plan.
Recovery Plans — Team.
iki/CRS-RL33309 developing and implementingThe Secretary shall promulgateThe Secretary is to issue regulationsThe Secretary may establish a recovery
g/w
s.orery plans, the Secretary mayregulations for establishing recoveryfor recovery teams; teams must ensureteam (pp. 22-23), composed of
leakrvices of appropriateteams (pp. 22-23). Criteria will bethat plans are scientifically andmembers with expertise and technical
ate agencies andestablished for selecting members ofeconomically rigorous (p. 22).and academic experience relating to
://wikistitutions, and other qualifiedthe team to ensure that teams are ableRegulations must ensure that team isthe species or ecosystem, who are to
https. Recovery teams appointedto complete the recovery plan andof a size and composition to enableact in good faith and not express the
shall not beinclude representation fromtimely completion, includes expertviews or representations of any
ect to FACA (§4(f)(2).stakeholders who have interest in thescientists and those with aorganization. The recovery team
species or in the economic or socialdemonstrated direct interest in thewould propose a recovery plan to the
impacts of a plan. A recovery team isspecies’ conservation or in economicexecutive committee.
not required for creating a recoveryand social impacts of the plan (pp. 22-
plan and the Secretary is to provide23). Teams are exempt from FACA.For every recovery program, the
guidelines specifiying when a team isSecretary shall establish an executive
not necessary (p. 23). If a team is notThese provisions increase the role ofcommittee (pp. 23-25) to reflect a
appointed, the Secretary may prepare aeconomic analysis and consideration,balance of viewpoints and knowledge
plan. Teams are not subject to FACA.while continuing to give scientificand, to the maximum extent
criteria a larger role than economicpracticable, be from nearby



CRS-33
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Although there are references tofactors. However, the presence ofcommunities and have an economic,
recovery team members with relevantnon-scientists on recovery teams maysocial, or professional interest in the
scientific expertise, there is no expresshave an indeterminable effect on therecovery of the species (pp. 23-24).
requirement that such members begoals of resulting plans.The recovery team and executive
appointed, or how many there shouldcommittee are exempt from FACA. A
be. However, the bill does specify thatrecovery coordinator also is assigned
constituencies affected by conservationto staff and coordinate implementation
of a species must be represented (p.of a recovery plan (p. 25).
23). This may allow stakeholders with
iki/CRS-RL33309diverse perspectives and experiencesThe recovery team seems to be the
g/wto create recovery plans with scientificmore scientific body, but is optional.
s.orand socio-economic considerations.The executive committee is composed
leakof stakeholders and is mandatory. A
://wikirecovery team cannot initiate arevision of a recovery plan, but an
httpexecutive committee may. Although
there are requirements for recovery
plans, there are no requirements for
recovery programs. Thus recovery
efforts might not have the benefit of a
scientific team to establish the needs of
a species.
Recovery Plans — Coordination with Government Agencies.
e Secretary may procure theFederal agencies may enter intoSimilar to H.R. 3824 (p. 25), except inWould authorize the Secretary to
ices of appropriate private andagreements with the Secretaryomitting a provision to clarify thatcoordinate with all government



CRS-34
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
c agencies in developing andspecifying the measures the agencyrecovery plans are not mandatory.agencies to incorporate other
plementing a recovery planwill carry out to implement a recoveryconservation programs into the
Recovery plans are notplan (p. 26).recovery program for listed species (p.
andatory.27).
This language does not impose a duty
on federal agencies to take actions to
support recovery.
Federal agencies must consider best
iki/CRS-RL33309available scientific data from recovery
g/wplans in any NEPA analysis (pp. 25-
s.or 26).
leak
Recovery Plans — Contents.
://wiki
http the maximum extent practicable,The criteria set out in a recovery planRecovery plans shall be based on theRecovery plans must be approved by
ery plans must incorporate aare among the things that may bebest available scientific data andthe Secretary, and must include a
anagement actions toconsidered when deciding whether toinclude objective, measurable criteriadescription of site-specific recovery
e the plan’s goals, objective anddelist or downlist a species (p. 14).for determining that a species could beactions including financial assistance
easurable criteria for determining thedelisted or reclassified from anand incentive programs for
oval of species from ESA lists, andRecovery plans shall be based on theendangered to a threatened species.landowners; guidance on how the
ates of time required and cost tobest available scientific data andgeographic distribution of site-specific
out the recovery plan (§4(f)(1)).include objective, measurable criteriaProvisions regarding relative costs ofrecovery actions can enhance
for determining that a species could bealternatives, estimated time and costsrecovery; and objective, measurable
ere is no provision that requiresdelisted or reclassified from anrequired to implement plans, and leastcriteria that can indicate that the status
ery plans to be based on the bestendangered to a threatened species (p.costly alternatives are similar to H.R.of a species should be changed, or that
ailable science.19). Recovery team members with3824 (p. 20).the species should be removed from



CRS-35
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
“relevant scientific expertise” willRequires the identification of publiclythe list (pp. 26-27).
establish objective, measurable criteriaowned lands needed for recovery, and
based solely on the best availableother lands that may be necessary toIn planning recovery, the Secretary
scientific data (pp. 21-22). Site-achieve recovery (p. 21).must acknowledge “appropriate
specific measures would be requiredexisting conservation programs,” and
that would achieve the criteria of theThe Secretary may issue guidance thatcoordinate with all governmental
recovery plan (pp. 19-20). Recoveryidentifies particular activities or areasagencies (p. 27).


teams are to consider the relative costsof lands or water that may impede the
of alternatives that are of comparableconservation of species (p. 21).
iki/CRS-RL33309expected efficacy (p. 22). Estimates of
g/wthe time and costs required and the
s.oridentification of the least costly
leakalternatives expressly would not be
://wikirequired to be based on the bestavailable scientific data (p. 22).
http
A recovery plan may provide for only
interim improvement of the status of a
species if there are insufficient best
available scientific data, as determined
by the recovery team, to ascertain the
criteria or measures that indicate when
a species may be delisted (p. 21).
If a recovery plan does not contain
specified criteria provided in the bill,

CRS-36
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
the recovery team shall review the plan
at least every five years and determine
if the plan can be revised to adopt the
criteria (p. 21).
The interim recovery plan provision
may provide a mechanism for assisting
species until sufficient scientific data
are available to measure when
iki/CRS-RL33309recovery has been achieved and
g/wdelisting is appropriate. On the other
s.orhand, the fact that the recovery team
leakitself determines the adequacy of best
://wikiavailable scientific data, both initiallyand upon review, may permit interim
httpplans aimed at improvement rather
than recovery to continue.
Recovery provisions under a heading
relating only to federal agencies state
that recovery plans would continue to
be non-binding and recommendatory,
as in current law. It is not clear
whether this provision on plans being
non-binding is meant to have general
applicability.



CRS-37
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Recovery Plans — Consultation and Comment.
e Secretary shall, prior to finalPrior to final approval of a recoveryBefore approving of new or revisedProposed recovery plans are reviewed
al of a new or revised recoveryplan or revision, the Secretary shallplans, the Secretary is to provide forby an executive committee that is to
ide public notice and anprovide for public review and statepublic notice and comment, andconsult with a recovery team
for public review andreview of the plan (pp. 24-25).consider resulting information before(previously established); state, local,
ment on such plan (§4(f)(4)).Further, the Governor, or any statefinal approval (p.24).and tribal governments, and
ates and other governments mayagency in any state in which alandowners on opportunities for
it comments. FACA does notrecovery plan would apply will beAffected Governors, state agencies,implementing the plan (p. 24).


iki/CRS-RL33309 to recovery teams.provided a draft of the plan toand Indian tribes would receive a draft
g/wcomment on (p. 25). In the final planplan and have opportunity to comment;
s.orthe Secretary must respond to theand the Secretary must respond to
leakcomments of the Governor and thecomments of the Governor, state
state agency. The Secretary shall alsoagencies, or local and regional use
://wikiconsult with any pertinent state, tribal,agencies (pp. 24-25). All final
httpor regional land use agency prior torecovery plans, and draft plans after
approval of the plan (p. 25). FACAthe enactment date, would be available
does not apply to recovery teams (p.on the Internet (pp. 50-51). FACA

24).does not apply to recovery teams (p.


23).


See comments from the Amendment.
The requirement to respond in a
recovery plan to any comments from
the Governor and state may increase
cooperation between the state and
federal governments. Public access to

CRS-38
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
recovery plan information is
increased.
Recovery Plans — Status.
e Secretary shall report every twoEvery two years the Secretary shallNo similar provision regarding reviewThe Secretary shall periodically review
enate Committee onreport to the House Resources andat least every five years if a plan doesrecovery programs; if a recovery
ironment and Public Works andSenate Environment and Public Worksnot contain the required criteria.program is not making progress
ouse Committee on Resources onCommittees on the specified criteriaSimilar to H.R. 3824.towards recovery or “is not acting
iki/CRS-RL33309 of efforts to develop andplement recovery plans for allconcerning the status of threatened andendangered species and efforts towithin the guidance of the recoveryplan” (p. 28), the Secretary shall
g/w
s.orectiondevelop recovery plans (pp. 23-24). submit to the relevant executive
leakd on the status of all species forcommittee a written inquiry for an
plans have been developedexplanation and specific remedial
://wikiactions. The executive committee
httpwould have 180 days to respond. A
process is provided for resolving
disputes between an executive
committee and the Secretary regarding
recovery program progress and
whether remedial actions are necessary
(pp. 28-29).



CRS-39
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Establishing Priority of Species.
)(iii), a petitionedNo new priority system for speciesPetitioned actions could only beThe Secretaries of Interior and
ay be precluded by otherdeterminations is proposed. (But seeprecluded in a fiscal year by proposalsCommerce would each be required to
listing proposals.recovery plans above.)involving species at greater risk (pp. 9-establish priority systems for making
10).decisions in the “most efficient and
can review assertions by aneffective manner practicable” (p. 16).
ency that a listing is “warranted butThis could facilitate consideration ofThe priority systems would apply to all
d” to determine if theparticular petitions of at-risk species.decisions which relate to status/listing
iki/CRS-RL33309ent is legitimate or thedeterminations, designation of CH, and
g/wency is delinquent. Californiarecovery plans. Priorities are to be
s.ore Plant Society v. Norton, 2005based on five criteria (pp.16-18).
leakIS 4634 (2005).
Courts would lack the power to
://wikiy shallrequire the Secretary “to complete an
httpency guidelines to carryaction inconsistent with” the priority
ities such as listings, CHschedule.
nations, and recovery plans. The
idelines should include (1)Currently, there is a duty to list all
the receiptspecies that are threatened or
d the disposition of petitions; (2)endangered. No species legally may
aking the findings frombe consigned to extinction. It appears
ing system to assistthat the new priority system and
tion of species thatschedule — combined with the
e priority review underreferences to: 1) considering whether
on; and (4) aa species is likely to be able to



CRS-40
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
stem for developing andrecover; 2) making listing and other
plementing, on a priority basis,decisions in a “practicable” manner;
ery plans. Agency guidelinesand 3) the possible limitation on
ide additional details on thesejudicial review — could result in some
species never being afforded
enforceable protections under the Act.
is system relates to the commitment
agency personnel and funds, but
n by court orders
iki/CRS-RL33309 ESA
g/wist species and CH
s.orain.
leak
ilar provision.No similar provision.No similar provision.1) The first criterion is the magnitude
://wikiand immediacy of the risk of
httpextinction (including the factors
considered at the time of listing, the
species’ geographic distribution, its
habitat specificity, and its taxonomic
distinctiveness) (p. 16).
ilar provision.No similar provision.No similar provision.2) The priority system is to be based
on the likelihood of achieving recovery
(p. 17).
similar provision.No similar provision.No similar provision.3) The quality and quantity of
available information would be a



CRS-41
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
criterion. Within that, four factors are
to be considered. In “increasing order
of importance” they are: known
distribution; occupied habitat data;
rates of reproduction, survival, or
population growth; and the habitat
types that correlate with these rates.
These four factors together represent
the basic demographic data which
iki/CRS-RL33309would be used to assess the health of a
g/wspecies (p. 17).
s.or
leakWhere the information is available,
://wikithese factors would undoubtedly beconsidered by the agencies, whether
httprequired in law or not, and may not
represent a substantial change from
current practice. Such data may not
be available for many rare species
likely to be listed under ESA, and
might be especially difficult to obtain
for foreign species.



CRS-42
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
similar provision.No similar provision.No similar provision.4) The degree to which recovering the
species helps to recover other species
is to be considered (p. 18).
Explicit inclusion of this criterion may
aid FWS and NMFS considerably
since many species may be rare in the
same diminishing habitat, but a few
species may be better understood than
iki/CRS-RL33309others and conservation of the
g/w“primary” species would benefit the
s.orothers as well.
leak
(1), theNo similar provision.No similar provision.5) Another criterion is the degree to
://wiki is to give priority towhich recovery would minimize
httpinimizing conflicts withconflicts with specified economic
onstruction or other developmentactivities, military needs, or other
ojects or other forms of economicundefined human activities (p. 18).
ity.”
The major change here is the inclusion
of military needs and other human
activities.
ery plans, the Secretary willThe Secretary shall publish a prioritySimilar to H.R. 3824 (p. 17).The priority systems would apply to all
ve priority to those species that areranking system for preparing ordecisions which relate to status/listing
ost likely to benefit, particularlyrevising recovery plans. Priority willdeterminations, designation of CH, and
ay be inbe given to endangered and threatenedrecovery plans (p. 16).



CRS-43
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
species that will benefit most from
elopment projects or other forms ofsuch plans, especially those that may
ic activity (§4(f)(1)(A)).be or are in conflict with forms of
economic activity (p.17).
Establishing Priorities of Species — Schedule.
e Secretary shall establish agencyThe Secretary is to implement agencySimilar to H.R. 3824 (p. 15).The Secretary is to establish a schedule
idelines to carry out activities in §4.guidelines similar to current law, butof actions based on the priority ranking
iki/CRS-RL33309e guidelines should include (1)ures for recording the receiptwith the addition of criteria fordetermining best available scientificsystem (pp. 18-22). The Secretary alsois to submit to relevant congressional
g/w
s.or (2)data (p. 15).committees, information on listing
leakaking findings fromstatus petitions in review (based on the
(3) a ranking system to assistpriority ranking system), together with
://wikiing species that shouldinformation on all findings, decisions,
httpe priority review underand designations that are pending (pp.
19-20). Determinations remanded to
stem for developing andthe Secretary by a court before the date
plementing, on a priority basis,of enactment are to be entered on the
ery plans (§4(h)).schedule, and no court is to have the
power to require the Secretary to
complete action inconsistent with the
priority schedule. The Secretary has
authority to revise the priority
schedule (p. 21).
There are no provisions related to the



CRS-44
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
establishment of the schedule other
than the criteria for priorities
discussed above; nor are there
provisions relating to public
participation in or appeal of priority
schedule decisions. It appears that no
listings, etc., could be ordered
contrary to the priority schedule. If
so, this could eliminate the possibility
iki/CRS-RL33309of injunctive court relief to compel the
g/wSecretary to complete species status
s.ordeterminations (listings) or to
leakdesignate CH, and judicial review
://wikicould be limited only to the question ofwhether the Secretaries’ actions were
httpconsistent with the schedule. Various
proposals have circulated that include
making (or failing to make) CH
designations beyond judicial review,
but this bill provision could be
interpreted as applying to species
status/listing determinations as well,
such that some species may be allowed
to go extinct with no recourse for
judicial intervention to give higher
priority to a species ahead of other,



CRS-45
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
less urgent actions. On the other
hand, requests by qualified
collaborative groups are to receive
highest priority, which provides a
means to get species onto the schedule.
Cooperative Agreements With States.
e Secretary is authorized to enterThe Secretary may enter intoSimilar to H.R. 3824 (pp. 27-30).Cooperative agreements would allow
iki/CRS-RL33309e agreement with anyhich establishes and maintainscooperative agreements with states notonly for listed species, but also forcooperative efforts to addresscandidate species or any other species
g/w
s.ore program forcandidate species or any other speciesthat the state and the Secretary agree
leaking endangered and threatenedthat the state and the Secretary agree isare likely to be determined to be an
ecies (§6(c)(1)). Separateat risk of being determined to be anendangered species or threatened
://wikie agreements are authorizedendangered or threatened species. Aspecies (p. 3).


httpals and plants (§6(c)(2)).cooperative agreement may be entered
between the Secretary and an Indian
tribe in substantially the same manner
as with a state (pp. 38-43).

CRS-46
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Cooperative Agreements — Consultation.
isions as to whenAgreements would be subject toGenerally agreements would beConsultation on a cooperative
tions relating to cooperativeconsultation requirements before theysubject to consultation requirementsagreement under §7 of the ESA would
reements are subject to consultation.are entered into and upon renewal orand regulations implementing suchonly occur at the time the cooperative
amendment (pp. 41-42). However, ifprovisions. Specific times foragreement is entered into or when the
a species not listed as threatened orconsultation are not identified (p. 29).Secretary approves a renewal or
endangered at the time of theamendment of the cooperative
agreement is listed later, no newagreement to accomplish certain stated
iki/CRS-RL33309consultation on the agreement wouldthings. Consultation would not recur
g/wbe required (pp. 38-39).in connection with incidental take
s.orstatements allowing take (pp. 3-4).


leakIt appears that the Secretary would
consult with FWS on agreements, a
://wikiprocess somewhat analogous to the
httpintra-service consultations on §10
permits.

CRS-47
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Cooperative Agreements — Incidental take and Consultation .
e relationship of cooperativeAny incidental take statement issuedNo provisions regarding theAny incidental take statement issued
reements with states to theon the agreement would apply to therelationship of agreements toon a cooperative agreement appears to
of ESA prohibitions andstate and to any landowners enrolled inincidental take.apply to candidate or species
e permits is not alwaysany program under the agreement. Ifdetermined likely to be endangered or
the agreement is for candidate speciesthreatened species addressed in the
or species of special concern, noagreement, and to the state and
further consultation would be needed iflandowner enrolled in a program under
iki/CRS-RL33309those species became endangered orthe agreement without further
g/wthreatened if the current agreement isconsultation if additional species are
s.oradequate for conserving those speciessubsequently determined to be
leak(pp. 38-39).endangered or threatened. However,
the cooperative agreement and its
://wikiprogram must be adequate for the
httpconservation of the species (pp. 3-4).
Cooperative Agreements — Monitoring, Voluntary Enrollments, and Review.
en by the Secretary underA cooperative agreement may provideSimilar to H.R. 3824 (pp. 27-29).A cooperative agreement may provide
ust be reviewed annually (§6(e)).for monitoring or assistance infor monitoring or assistance in
monitoring the status of candidatemonitoring the status of candidate
species or species that are determinedspecies or species that are determined
to be recovered and are delisted (p.to be recovered and are delisted. The
39).Secretaries are directed to ensure that
any enrollment of land or water rights
The Secretary may review cooperativeSimilar to H.R. 3824.under an agreement is voluntary (pp.



CRS-48
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
agreements and “seek to make changes4-5).
the Secretary considers necessary” to
conserve species (p. 39).Actions taken by the Secretary under
§6 would be subject to review by the
The Secretary is to ensure that theSimilar to H.R. 3824.Secretary at least every three years (p.
enrollment of private lands or water5). The Secretary may suspend a
rights in a program established by ancooperative agreement after
agreement is voluntary (p. 39).consultation with the Governor of the
affected state if the Secretary finds
iki/CRS-RL33309The Secretary may suspend aSimilar to H.R. 3824.during the periodic review that the
g/wcooperative agreement aftercooperative agreement no longer
s.orconsultation with the Governor of theconstitutes an adequate and active
leakaffected state if the Secretary findsprogram (p. 7).
://wikiduring the periodic review that thecooperative agreement no longer
httpconstitutes an adequate and active
program (p. 42).
Cooperative Agreements — Termination.
ere are no specific provisionsThe Secretary may terminate aSimilar to H.R. 3824 (pp. 29-30).Similar to H.R. 3824, except that
ating the requirements forcooperative agreement afterdestruction or adverse modification of
inating a cooperative agreementconsultation with the Governor if theCH may also result in termination (pp.
owever, for the programSecretary finds that continued7-8).


eemed an adequate and activeimplementation of the cooperative
ram for the conservation of listedagreement is likely to jeopardize the
the Secretary is required tocontinued existence of an endangered

CRS-49
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
iew a list of conditions under eachor threatened species. To terminate an
reement annually (§6(c)(2)(A)).agreement, the Secretary must also
find that either: (1) the cooperative
dequate andagreement has not been amended or
servation of listedrevised to incorporate a reasonable and
ecies, then it appears theprudent alternative offered by the
eSecretary; or (2) if the Secretary had
§6(c)(1).suspended the agreement, the
agreement has not been revised or the
iki/CRS-RL33309problems remedied within 180 days
g/wafter the date of suspension (pp. 42-
s.or 43).
leak
Indian Tribes.
://wiki
httpe Secretary shall, prior to final“Pertinent” Indian tribes may consultThe amendment specifiesRecovery plans are to be reviewed by
al of a new or revised recoveryon recovery plans prior to their finalopportunities for recognized Indianan executive committee, which has
ide public notice and anapproval and or revision (p. 25).tribes to comment on draft recoverybroad guidelines for membership, and
for public review andplans (pp. 24-25); allows tribes totherefore could include representatives
ment (§4(f)(4)). Tribes mayIndian tribes may enter intoparticipate in cooperative agreementsfrom Indian tribes (pp. 23-24). The
e extent as othercooperative agreements in a mannerin a manner similar to states (p. 28);executive committee is to consult with
but are not expresslysimilar to states, and may provideallows tribes to offer expertise totribal governments on opportunities for
entioned or afforded any specialassistance to persons entering intoprivate property owners engaged inimplementation of the plan (p. 24).


ent.management plans (pp. 35-36).cooperative species management plans
(p. 47). (See also Public Input, below.)
Similar comments as the Amendment.
Provisions tend to put tribes on a

CRS-50
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
footing similar to states, especially in
enhanced opportunities to comment on
draft recovery plans.
Consultations — Alternative Procedures.
encies must consult on “anyCritical habitat is eliminated.Would eliminate references to CHNo similar provision.


ed, funded, orunder §7, but would add a definition of
out by an agency to insure thatWithout CH, §7 consultations are onlyjeopardy different from what is now
iki/CRS-RL33309on’t jeopardize theeredrequired when federal actions mightjeopardize the continued existence of aused in regulations. “Jeopardize thecontinued existence” is defined to
g/w
s.or in thespecies.mean acting so as to make it less likely
leakerse modification ofthat, or to delay the time when, a
. The reference to “any action”Would change “any action” to “anyspecies will no longer need the
://wiki-federal actions with aagency action.” (Emphasis added.)protections of the act, or to
httpsignificantly increase the cost of doing
This change arguably eliminates theso (i.e., be recovered) (p. 3).
r federal activities, FWS or NMFSconsultation requirements for private
ues biological opinions as toactions with a federal nexus.Jeopardy is not defined in current law;
ether a proposed agency actionHowever, other references toprovision specifies that recovery is the
eopardize a species or destroyconsultations involving permit orstandard by which jeopardy is judged,
ersely modify CH, and, if so,license applicants are retained, so theand adds increased costs as a factor in
gests reasonable and prudentnet effect is ambiguous.determining whether an agency is
es to avoid or mitigate theAuthorizes the Secretary to identifyjeopardizing a listed species. The
(§§7(a) — (c)).certain agency actions or types oflanguage is broad — in finding
action through alternative proceduresjeopardy for any action that makes
other than the §7 consultation processrecovery less likely. The consequences

CRS-51
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
under current law (p. 44). of the definition for consultation and
throughout the ESA are not clear.
Alternative procedures could
substitute for agency biologicalIn determining whether an agency
assessments, the preparation ofaction is likely to jeopardize the
biological opinions by FWS or NMFS,continued existence of a species, the
and the limitation on agencySecretary must consider any special
commitments of resources. However,areas identified in recovery plans (p.
the authority for issuing an incidental22).
iki/CRS-RL33309take statement and the provision that
g/wexempts from the penalties of the ActCooperative agreements with a state or
s.orany takes of a species pursuant to antribe may be ended if continued
leakincidental take statement, would onlyimplementation of an agreement
://wikiapply if the Secretary finds or concursthat the agency action meets thethreatens to jeopardize the continuedexistence of listed species, and the
httpstandards of §7(a)(2) — i.e., will notagreement is not amended to include a
jeopardize. reasonable and prudent alternative
offered by the Secretary. An
The Secretary shall suggest, or concuragreement may also be terminated if it
with, any suggested, reasonable andhas been suspended and the Secretary
prudent alternatives developed for anyfinds it does not constitute an adequate
action determined not to meet theand active program (pp. 29-30).


no-jeopardy standard (p. 44).
These changes could be seen as
expediting the consultation process

CRS-52
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
along the lines of current
administrative practices (see H.Rept.
109-237, pp. 44-45). On the other
hand, allowing the action agencies to
make the initial determinations as to
jeopardy, and reducing the role of the
Secretary to one of concurrence,
arguably could reduce the independent
role of the FWS under this bill. The
iki/CRS-RL33309extent to which agency processes
g/wreplacing biological opinions could be
s.orreviewed by the courts is not clear.
leak
://wikiAlthough authority for “counterpartregulations” has existed in regulations
httpfor years, it has only recently been
used and is being challenged in court.
The process is somewhat similar to
“categorical exclusions” re types of
actions for which no environmental
analyses under the National
Environmental Policy Act need be
prepared, but the NEPA exclusion
applies to an essentially procedural
process, and these alternative
consultation processes would apply to



CRS-53
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
substantive determinations.
ilar provision.A new §7(a)(5) would direct a federalNo similar provision.No similar provision.


agency or the Secretary in conducting
a jeopardy analysis to “consider only
the effects of any agency action that
are distinct from a baseline of all
effects upon the relevant species that
have occurred or are occurring prior to
iki/CRS-RL33309the action” (p. 45).
g/w
s.orA jeopardy analysis would not look at
leakthe proposed action’s effect as part of
the aggregate of all other impacts on
://wikithat species; rather the jeopardy
httpanalysis would be limited to the most
recent action, which considered alone,
might not harm a species, but which
taken together with other prior actions
or conditions might result in jeopardy.
Administratively taking the approach
of new §7(a)(5) was recently enjoined
in National Wildlife Federation v.
National Marine Fisheries Service,

2004 U.S. Dist. LEXIS 15239, aff’dth


418 F. 3d 871 (9 Cir. 2005) as not

CRS-54
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
providing an adequate analysis of the
true impacts of an agency action.
Some contend that a jeopardy analysis
should be based on the incremental
effects of agency actions and that pre-
existing conditions or past activities
should not be included.
iki/CRS-RL33309Exemption Changes: Repeal of the Endangered Species Committee; National Security; and Emergencies.
g/w
s.ore ESASection 11(d) of the bill would repealNo similar provision.No similar provision.


leakangered Speciesthe Endangered Species Committee
mittee (the “God Squad”) to grantprovisions and the current exemption
://wiki an exemption for a federalprocess (pp. 48-49).
httpafter completing a little-used
bersome process.Several new exemptions under
Presidential authority would be
tion 33 years ago, theestablished, but no general system for
Species Committee hasexemptions would replace the current
sions (on theEndangered Species Committee
llico Dam, a water project on theprocedure. This might necessitate
special legislation to permit particular
egon). The committee rejected theprojects to go forward despite
projectjeopardy to species.
ber sales.
he approved timber sales were later

CRS-55
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
In addition, three
ption applications were begun,
mittee was convened.
), the EndangeredSection 12(e) would replace §7(j) withPresident may exempt any act fromNo similar provision.


ommittee must grant annew §10(l) giving authority to theESA provisions if necessary for
iki/CRS-RL33309ption if the Secretary of DefensePresident, after consultation with thenational security (p. 43).
g/wption is necessary forappropriate federal agency, to exempt
s.orsecurity, and under §7(p), theany act or omission from the act if
leakay exempt projects tonecessary for national security (pp. 58-
pair or replace public facilities in59).
://wikiect toUnder certain circumstances, President
httpThe bill would expand the authoritymay exempt federal agencies from
for the President to make exemptionrequirements for consultation,
decisions from any provision in ESAbiological opinions, biological
in declared disaster areas (p. 59). Theassessments, and limitation on
Secretary is to promulgate regulationscommitting resources, to repair or
regarding application of the ESA in thereplace public facilities in federal
event of an emergency, includingdisaster areas (p. 35).
circumstances other than a major
disaster, involving a threat to humanExemption is available not only for
health or safety or property. Thesefederal but also non-federal actions;
regulations may address immediateno need for approval of Endangered

CRS-56
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
threats through expeditedSpecies Committee; no limit on
consideration under or waiver of anyPresident’s authority other than
provision of the ESA (p. 59).consultation with the appropriate
federal agency (undefined); and no
Some current authority exists in § 7(p)public disclosure process specified.
for the President to make exception
determinations in disaster areas.
iki/CRS-RL33309
g/wTakings — Written
s.ore r m inat ion.
leak
e “take” prohibitions of §9 of theUnder a new procedure, landownersFor uses that are lawful under state andNo similar provision.


://wikicould request a written determinationlocal laws, landowner may request
http kill and prohibit “harming” afrom the Secretary as to whether awritten determination from Secretary
defined in regulationsproposed action on their private landson whether a proposed use, as
habitat destruction thatwould violate the ESA. If so, adescribed, requires an incidental take
tually injures or kills a species bylandowner could requestpermit under §10(a) (p. 41-42).
gnificantly impairing essentialaid/compensation for foregoing theDescription is to include specified
ioral patterns, includingproposed use. The Secretary “shallinformation; if written determination is
ding, feeding or sheltering. (50award” aid if the proposed use meetsdenied due to omission of specified
the qualifying criteria — that theinformation, applicant may resubmit,
proposed use would be lawful underwith new information. Determination
ate landowners can obtainstate and local law and that theis to be made within 180 days of
ission to take species through §7property owner has demonstrated thesubmission, unless requestor agrees to
e statements or §10means to undertake the proposed usemore time; there is no presumption

CRS-57
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
e statements (both(pp. 55-56).that an action may proceed without a
nvolve public review).permit if Secretarial response is
ere is no current statutory procedureSeveral aspects of this aid are unclear,delayed, nor is aid provided to
a written determinationand the costs of compensation areapplicants for a determination that a
pliance with §9 prohibitions.difficult to determine, but could bepermit is necessary. Secretary is to
high. (See “Property Ownerreport to Congress on determinations
Incentives — Compensation tothat were not timely (pp. 42-43).
Landowners” for further explanation.)Provision does not apply to agency
actions subject to §7 consultations (p.
iki/CRS-RL33309The landowner would submit a written43).
g/wdescription of the proposed action to
s.orthe Secretary. The Secretary mayThe determinations might quickly
leakrequest additional information whicheliminate concerns of some
://wikithe applicant “may” provide (p. 56). Ifthe Secretary determines, based on thelandowners about whether a §10permit is necessary, but only if the
httpapplicant’s information, that theSecretary responds in a timely way.


proposed use would comply with the
take prohibitions of §9(a), the use may
proceed (pp. 57-58). If the Secretary
determines that the proposed use
would not comply with §9(a), then a
property owner who requests “aid” for
foregoing the use must be paid if
qualifying criteria are met (pp. 60-65).
It appears that the Secretary’s

CRS-58
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
determination is to be made based only
on information submitted by the
applicant, and that information “is
deemed to be sufficient for
consideration by the Secretary” if it
includes certain elements.
The written determination process
appears to provide an alternative to
iki/CRS-RL33309the current requirements of §10 that
g/wallow a landowner who submits a
s.orhabitat conservation plan to obtain an
leak“incidental take permit” allowing
://wikiexcused takes of listed species, and isan alternative process that lacks the
httppublic input of the §§7 and 10
processes. In addition, it may allow a
landowner who is uncertain that a take
will occur at all to obtain a written
determination that it will not.
similar provision.If a written determination is notNo similar provision.No similar provision.


received within 180 days of
application (subject to some possible
extensions), uses are deemed
acceptable and may proceed free of

CRS-59
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
penalties under the act (p. 57). A
deemed determination is effective for
five years, and a written determination
is effective for 10 years (pp. 57-58).
The Secretary may withdraw any
determination if unforeseen
circumstances would preclude
conservation measures essential to the
iki/CRS-RL33309survival of a species, but compensation
g/wcould also be owed if a previous
s.ordetermination of compliance were
leakwithdrawn (p. 58).
://wikiIf the Secretary does not make aThere is no presumption that an action
httpdecision within the time limit, theis approved if Secretarial response is
proposed action is deemed approved.delayed, nor is aid provided to
If appropriated funds (whetherapplicants for determinations that a
regular, supplemental, orpermit is necessary.


reprogrammed) appear to be
insufficient to satisfy anticipated
demands for aid, the Secretary could
face a conflict between paying aid
which “shall” be provided but for
which funds are not sufficient, and
permitting actions which might

CRS-60
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
otherwise violate the ESA to go
forward. H.R. 3824 does not specify
how the conflict is to be resolved.
Incidental Take — Habitat Conservation Plans (HCPs).
takeAmends §10(a)(2) to require that an Similar to H.R. 3824, except that theApplicants must provide an HCP with
it must specify the steps theapplicant’s HCP include 1) measurableterms imposed can be no more thanmeasurable biological goals for
ill take to minimize andbiological goals and how they will benecessary to offset impacts (pp. 35-species, as well as measures to achieve
iki/CRS-RL33309itigate impacts and any othereasures the Secretary may require asachieved; 2) how impacts will bemonitored; and 3) adaptive37).these goals, and a description of howimpacts of the HCP will be monitored
g/w
s.or or appropriate.management provisions to responds toThe amendment lacks provisions on(pp. 44-45). The current requirement
leakchanges in circumstance.acre-for-acre mitigation, capability ofthat an HCP include “measures that the
successful implementation andSecretary may require as being
://wikiThe Secretary is required to evaluate aconsistency with applicant’snecessary or appropriate for purposes
httppermit for how reasonable its lengthobjectives.of the plan” would be repealed, but a
might be, the extent to which the plansimilar authority for the Secretary to
will enhance conservation of coveredspecify terms and conditions in §10
species, the scope of the plan’spermits would be retained.
adaptive management, and other
factors. The Secretary will imposeSee H.R. 3824 comments on biological
terms that are roughly proportional togoals. The modified requirements for
impacts (pp. 50-52).HCP applicants generally add clarity
and require additional information as
The addition of measurable biologicalpart of HCPs. Although the authority
goals may add certainty to anof the Secretary to impose “other
applicant’s own planning, as well asmeasures that the Secretary may



CRS-61
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
provide clearer markers to indicaterequire as being necessary or
whether the plan is succeeding.appropriate”is repealed, the authority
in §10(a)(1) to require terms and
The Secretary may require greater thanconditions in §10 permits is retained.
acre-for-acre mitigation if necessary.
All terms and conditions must be
capable of successful implementation
and consistent with the objective of the
iki/CRS-RL33309applicant to the greatest extent
g/w possible.
s.or
leakIncidental Take — Recovery Plan Actions.
://wikiilar provision.No similar provision.No similar provision.The Secretary is required to specify
httpterms and conditions necessary to
offset or reduce impacts of incidental
takings if a proposed HCP implements
an action from an approved recovery
plan (pp. 46-47); such terms and
conditions are to be: (1) proportional
to the effect of the incidental take; and
(2) feasible and consistent with HCP
goals (p. 46). If the Secretary also
finds that the contribution to recovery
is at least proportional to the potential
for, and degree of, incidental take,



CRS-62
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
approval of the HCP would constitute
compliance with the consultation
requirements of §7(a) of ESA and with
NEPA (p. 47).
This language appears to balance the
rights and responsibilities of both
applicant and permitting agency in
providing assurances of what may be
iki/CRS-RL33309reasonable. However, the
g/wrestructuring of §10 may leave the
s.orSecretary with basically a yes-or-no
leakrole in approving an applicant’s HCP
://wikiin actions implementing recoveryplans, because the bill language would
httpeliminate consultation under the ESA
and the consideration of alternatives
under NEPA for significant HCPs. As
a result, the flexibility to consider
other alternatives could be curtailed.
P. 45 refers to reducing the likelihood
of “survival and recovery” of any
species covered by the plan —
language that has been subject to
repeated litigation and has been



CRS-63
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
interpreted by the agencies as meaning
only survival rather than recovery.
Incidental Take — No Surprises.
provides that the SecretaryNew language would codify a NoSame as H.R. 3824 (pp. 37-40), exceptSimilar to H.R. 3824, except
ay issue permits to allow incidentalSurprises concept similar to that inthat as for revocation, the Secretary isprovisions regarding the revocation or
e of species for otherwise lawfulcurrent regulations. This providesrequired to fund remedial conservationtermination of permits.
he applicant for anpermit holders with more managementmeasures if plan goals are likely to fail
iki/CRS-RL33309 take permit must submit at conservation plan (HCP) thatcertainty during the life of a permit, byassuring permittees that no additional(p. 39). Other revocation provisionsare the sameA permit shall be terminated if theholder is not in compliance, but new
g/w
s.ors: the likely impact of therequirements will be imposed without§10(a)(7) limits the circumstances
leakities to the species; the steps tothe consent of the permittee forwhen the Secretary may revoke a
inimize and mitigate the impact; thechanges of circumstance identified inpermit due to changed circumstances
://wiki for the mitigation; thethe permit (pp. 52-54). For changes ofto those in which continuing the
httptives that were considered andcircumstance not identified in theactivities under the permit would be
jected; and any other measures thatpermit, the additional actions theinconsistent with §10(a)(2) (p. 53).
ry may require. ThroughSecretary may require are limited (p.
inistrative regulations No52). The Secretary bears the burden ofBecause paragraph (2) would be
rprises provisions provideproof for changed circumstances (p.expanded, it is not clear what would
reater certainty that53). Transition provisions arejustify revocation. Overall, this
es to the terms of the agreementprovided (p. 53).language may clarify the rights and
ould be limited (50 C.F.R.responsibilities of both parties.
amlinedThe Secretary may revoke a permit ifHowever, the word “additional”
ities with minimalthe permittee is in violation of theappears to be missing from p. 50, line
pacts were also administrativelypermit, or under changed19, which states that a permit holder
ided. A permit can be revoked forcircumstances if continuation would bewho is in compliance cannot be



CRS-64
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
eral causes or if continuation wouldinconsistent with survival and recoveryrequired to adopt any minimization,
crease the survival and recovery ofof the species, and if the Secretary andmitigation, or other measures; it may
ild (50 C.F.R.the permittee cannot remedy thehave been intended that requirements
inconsistency (pp. 53-54).in addition to those set out in the
agreement and permit cannot be
Under current No Surprisesrequired.
regulations, a permit may be revoked
if the continuation of its prescribed
activities would decrease the survival
iki/CRS-RL33309and recovery of the species in the wild
g/w(50 C.F.R. §17.22(b)(8)). The
s.orrevocation authority in current
leakregulations is not limited to “changed
://wikicircumstances” as is true in the twobills and the amendment.
http
Incidental Take — Provisional Permits.
similar provision.No similar provision.No similar provision.New §10(a)(3) provides for
provisional permits for incidental take
if an applicant voluntarily implements
the terms of a proposed HCP during
review and has completed a survey to
determine the area occupied by the
species (pp. 47-48). Provisional
permits would authorize management
activities (other than ground clearing)



CRS-65
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
until a §10 permit is issued (p. 48).
Information submitted for a
provisional permit cannot be used as
evidence for prosecuting prohibited
acts.
Provisional permits appear to provide
more certainty for applicants while
permits are under consideration. The
iki/CRS-RL33309cost of administering a provisional
g/wpermit program may be a concern.
s.orThe fact that information submitted for
leakprovisional permits is not admissible
://wikiin prosecutions of offenses mightprovide an opportunity to circumvent
httpenforcement.



CRS-66
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Incidental Take — Protection from Liability for Site Specific Plans Under the Healthy Forests Restoration Act of 2003.
ision in ESA, butNo similar provision.No similar provision.Section 401 adds additional ESA
aw (Healthy Forestsprotections for landowners in the
of 2003; HFRA, 16healthy forests reserve program (pp.
62-63). If there is an approved
oll private land in arecovery plan under ESA, and a
y forests reserve program, onelandowner agrees to engage in
quirement of which is thatsite-specific recovery actions from that
iki/CRS-RL33309lment of the private land willplan, then the landowner is not liable
g/wr otherwiseunder §9 of ESA for incidental take of
s.oreasurably increase the likelihood ofspecies covered by the restoration
leakery of a listed species, withplan. Liability would be waived for
given to lands that will providethe duration of the landowner’s
://wikireatest conservation benefit toagreement (which under HFRA can be
httpf a landowner’s99 years), and the waiver would be for
ation activities result in a nettake proportional to the area in which
ation benefit for listed,net conservation benefits would
, theaccrue.
ary of Agriculture must make
ailable safe harbor agreements, orThe exemption for a landowner from
ilar agreements, and protection§9 take liability could be sweeping. It
penalties for incidental take,is not conditioned on the landowner
ESAcomplying with either an incidental
arding incidental take statementstake statement or a §10 permit and
consultation with FWS or NMFS)contains no provision to review the



CRS-67
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
(regardinglandowner’s actions if obligations are
e permits obtained bynot met, or if recovery plan goals are
not being met. In addition, the
provision appears to apply to areas
not covered by the landowner’s
agreement under the HFRA, as long as
the exempted takes are proportional to
the area of net conservation benefits.
For forested areas containing wide-
iki/CRS-RL33309ranging species (e.g., Northern spotted
g/wowls or Florida panthers), the
s.orexemption from the take prohibition in
leakone area might negate the anticipated
://wikibenefit in another area, possibly toorapidly to be reversed or adapted to,
httpeven when or if it were detected.
Property Owner Incentives — Compensation to Landowners.
compensation to landowners forIn addition to possibly providingNo similar provision.No similar provision.


takings for ESA-relatedoptional conservation grants under
limited to that required underthnew §13 (pp. 60-62), the Secretary
akings Clause of the 5shall provide financial compensation,
endment of the United States“aid,” for conservation measures
imposed on private property owners by
the ESA (pp. 62-65).

CRS-68
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Compensation for property owners
under §13 would be broader than the
compensation available under the
current interpretation of the 5th
Amendment of the Constitution, in that
less impact to property interests need
be shown than under 5th Amendment
“regulatory takings” analysis, and the
impact to a part of the property rather
iki/CRS-RL33309than to the property as a whole is the
g/wmeasure of compensation under the
s.orbill. This fact could be relevant, for
leakexample, to assertions that failure to
://wikideliver full amounts of Bureau ofReclamation water would be
http compensable.
The relationship of §13 compensation
to 5th Amendment compensation is not
totally clear; also not clear is whether
§13 compensation would be limited to
those obtaining a written
determination or might be available
more broadly.



CRS-69
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
ilar provision.If a written determination is madeNo similar provision.No similar provision


under new §10(k) that a proposed use
of private property would not comply
with the take prohibitions of §9(a) of
the ESA, or if the Secretary withdraws
a determination of compliance, then,
upon receiving a request from a
property owner, the Secretary shall
pay the qualifying property owner aid
iki/CRS-RL33309to not proceed with the proposed use.
g/wThe aid to private property owners is
s.orto be equal to the fair market value of
leakthe foregone use, if the use is lawful
://wikiunder state and local law and theproperty owner demonstrates the
httpmeans to undertake the proposed use
(pp. 62-63).
It is unclear how compliance with state
and local law is to be determined, and
the bill does not require the property
owner to obtain state permits or take
other specific actions to demonstrate
that the use is concrete and lawful.
The availability of compensation may

CRS-70
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
affect whether a landowner chooses to
seek a written determination or
proceed under full §10 processes and
go forward with a project. If
appropriated funds appear to be
insufficient to satisfy anticipated
demands for aid, the Secretary could
face a conflict between paying aid
which “shall” be provided but for
iki/CRS-RL33309which funds are not sufficient, and
g/wpermitting actions which might
s.orotherwise violate the ESA to go
leakforward. (See “Takings — Written
://wikiDetermination” for more information.)
httpilar provision.The Secretary and the property ownerNo similar provision.No similar provision.
would each conduct an appraisal of the
fair market value of the proposed use
and if they cannot reach an agreement,
a third appraiser is appointed whose
determination shall be the final offer
by the Secretary (p. 64).
similar provision.The Secretary must negotiate with theNo similar provision.No similar provision.


property owner to document the
foregone use through various
mechanisms “such as contract terms,

CRS-71
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
lease terms, deed restrictions,
easement terms, or transfer of title”
(pp. 63-64). Such documentation is to
be negotiated between 30 and 60 days
after the request for aid. If agreement
is not reached within 60 days, the
Secretary determines how the foregone
use will be documented. The
documentation must have “the least
iki/CRS-RL33309impact on the ownership interests of
g/wthe property owner necessary to
s.ordocument the foregone use, which
leakshall not include transfer of title.”
://wikiHow this last reference to not
httptransferring title relates to the
previous references to easements, deed
restrictions, or transfer of title is not
clear.
Compensation generally must be paid
within 270 days of receipt of a request
for payment, unless questions
regarding the fair market value need to
be resolved (p. 63).



CRS-72
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
similar provision.The property owner may not receiveNo similar provision.No similar provision.
“additional aid for the same foregone
use of the same property and for the
same period of time” (p. 65).
It is not clear whether the owner could
receive compensation for various uses
involving the same period of time, or
how a “period of time” would be
iki/CRS-RL33309calculated for each use. Arguably,
g/wpayment for one foregone use would
s.ornot preclude payment for not pursuing
leak others.
://wiki similar provision.New §10(k)(7) states that the writtenNo similar provision.No similar provision.
httpdetermination process is only available
to those whose actions are not subject
to consultation under §7 (p. 57).
Property Owner Incentives — Conservation Agreements.
incidental take permit may beUnder species conservation contractThe Secretary is authorized to enterNo similar provision, but see
ho submits aagreements, running for 10, 20, or 30into agreements with property ownersAppendix.


conservation plan (HCP). Anyears, persons would carry outto improve habitat and promote
P may address listed and certainconservation practices to meetconservation for listed and candidate
elementsstatutory goals for endangered andspecies, with payments to property
threatened species, candidate species,owners to implement these agreements

CRS-73
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
ed, the planor species subject to comparableof as much as 70% of costs (pp. 44-
ust contain the elements underdesignations under state law (pp. 30-50).
With an approved HCP, the32).
may authorize the take ofThe agreement will include a
consistent with theThis provision would expand speciesmanagement plan for species and
n addition, under regulations atassistance to a point earlier in time —habitat, a finding by the Secretary that
C.F.R. §17.22(d) and 17.32(d), anbefore a species is on the brink ofthe land is appropriate for the
may seek a “candidateextinction — which could provideconservation of the species, a
nservation agreement withgreater flexibility and potentially fewerdescription of activities to be used for
iki/CRS-RL33309surances” covering proposed,restrictions.conserving the species and restoring
g/wt yethabitat, a description of future
s.orThe agreements specify theactivities compatible with the
leakconservation practices the person willagreement, and terms and conditions
://wikiundertake, and describe othereconomic activities on the land thatfor modifying or terminating theagreement (pp. 44-45).


httpwould be compatible with the
conservation practices (pp. 30-31).
The terms of the agreement would
specify the acts or omissions that
would be considered violations,
provide for an opportunity to remedy
any violations, and provide for early
termination of the agreement if a
violation is not remedied (pp. 31-32).
There are no other provisions

CRS-74
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
regarding termination, and it is not
clear whether the Secretary could
terminate these agreements if a species
later proved to be in jeopardy on the
landowner’s property or elsewhere.
Property Owner Incentives — Priorities for the Selection of Agreements.
atutory priorities forThe Secretary would establishThe Secretary shall give priority toNo similar provision.


iki/CRS-RL33309cting conservation agreementspriorities for the selection ofagreements or groups of agreementsthose agreements that apply to areasother than public lands that are
g/w
s.orthat address the potential of land,necessary for recovery under
leakamong other things, to contribute§5(c)(1)(A)(iv) (p. 21), and areas that
significantly to the conservation orwould yield the greatest benefit for
://wikiimprovement of species (pp. 32-33).conservation of the species in relation
httpto the cost of implementation (pp. 46-
Financial compensation would be an47).
amount equal to 100% of the person’s
actual costs to implement theIf the best plan for the species is not
conservation practices if the agreementthe one that has the best benefit-cost
is for 30 years; 80% if 20 years; andratio, conservation goals may not be

60% if a 10-year agreement (p. 34).achieved.


The agreement would be deemed to be
a permit under §10(a)(1) for incidentalThe Secretary may provide up to 70%
take of species free of penalties underof the cost to implement the
the act (p. 37).management plan (p. 46).

CRS-75
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Both types of agreements must be with
parties other than federal agencies or
departments, or state governments.
The agreements would obligate the
Secretary to provide payments or other
compensation for the implementation
of the agreements, subject to the
availability of funds.
iki/CRS-RL33309Property Owner Incentives — Species Recovery Agreements.
g/w
s.orulations, FWS offersSpecies recovery agreements are madeSee Conservation ProgramA system of conservation banks of
leake to assist in thewith landowners who will protect andsummarized above.undefined scope would be authorized
covery of a protected species byrestore habitat for endangered andin a new §4(A) (pp. 30-43). A
://wikiiding regulatory assurances tothreatened species pursuant to aconservation bank is an area of land,
httpree to improvemanagement plan with specifiedwater, or other habitat to be managed
bitat conditions for species listedfeatures (pp. 28-30).in a specified manner and subject to
These safe harborconditions (p. 31).


(50 C.F.R. §§17.22(c) and
to provide
ation benefit that will
ery of a listed
ecies in exchange for the assurance
habitat
e of permit
ill not result in liability for
ful take.

CRS-76
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
ilar provision.New species recovery agreements (pp.See Private Property ConservationSee Conservation Banks in Appendix.


28-30) are to be for not less than fiveProgram summarized above.


years and must meet certain criteria,
including that the person with whom
the agreement is made will protect and
restore habitat for endangered or
threatened species pursuant to a
management plan. Priority in entering
into the agreements would go to areas
iki/CRS-RL33309identified in recovery plans as areas of
g/wspecial value to species (p. 30). The
s.oragreement also would set out the
leakcompensation to be paid to the
://wikilandowner and the circumstancesunder which the parties could mutually
httpagree to modification or termination,
and the acts that would constitute
violations.
There is no explicit language
authorizing unilateral modification or
termination of an agreement by the
Secretary if a species later is in
jeopardy of extinction.

CRS-77
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Property Owner Incentives — Conservation Grants.
e Private Stewardship ProgramThe Secretary may provideThe Private Property ConservationNo similar provision, but see
ides grants on a competitive basisconservation grants to promoteProgram is essentially a grant programAppendix.
iduals and groups engaged involuntary conservation of species byfor private property owners who enter
private, and voluntaryprivate property owners (p. 60).into a conservation agreement (pp. 44-
ation efforts that benefitPriorities are set out for awarding50). (See above for more explanation.)
listed, proposed, or candidategrants, and giving preference to grants
risk species. Thisthat promote conservation while
iki/CRS-RL33309ram is authorized generally bymaking economically beneficial use of
g/wutes. (Seethe property (pp. 61-62).
s.oret Justification.)
leak
Tax Incentives — Deduction for Cost of Credits Purchased from Conservation Banks.
://wiki
http, it appears the IRScosts of credits purchasedNo similar provision.No similar provision.Taxpayers may deduct the cost ofcredits purchased from conservation
conservation banks as capitalbanks in the taxable year in which the
See IRS PLR 9612009.)credit is purchased (pp. 55-56).
is means that the costs are added toThe deduction may be claimed in
er’s basis in the credit or thetaxable years ending after the act’s
ect’s property, and the taxpayerenactment.


ay only recover the costs in a future
e year (i.e., the year of sale) or,
is depreciable, over a
ears.

CRS-78
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Tax Incentives — Credit for Conservation and Recovery Costs; See Appendix .
Annual Cost Analysis.
law, the Secretary of theRequires the Secretary to submit anIdentical to H.R. 3824 (pp. 51-53).No similar provision.


terior shall submit an annual reportannual report of all reasonably
ress containing an accountingidentifiable expenditures madeSee comments under H.R. 3824.
a species-by-species basis from theprimarily for conservation of
fiscal year of: 1) reasonablythreatened and endangered species
iki/CRS-RL33309adehe conservation of listed species;covering the preceding fiscal year (p.66). This report is to contain
g/w
s.or reasonably identifiable expendituresexpenditures from the previous fiscal
leakade for the conservation of listedyear of federal and state funds, and
states receiving grantsfunds voluntarily reported by local
://wikigovernment entities on a species-by-
httpspecies basis, and funds not
attributable to specific species (p. 67).
This provision will expand reporting
requirements of current law to include
expenditures made for the
conservation of listed species that
cannot be attributed to one species.
This may include expenditures for
refuges or rivers where several listed
species may benefit. By providing for
local governments to report, this

CRS-79
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
provision appears to capture the
universe of government spending on
listed species. Note that tribal and
non-governmental spending are not
included in these reports.
The Secretary will provide means for
local government entities to
voluntarily report expenditures
iki/CRS-RL33309electronically and to attest to the
g/waccuracy of such data (p. 67).
s.or
leakStates will not be eligible for financial
assistance unless they provide
://wikiinformation on expenditures made for
httpthe conservation of listed species as
described in §16(b)(2) (p. 68).
Compensation — Livestock.
ilar provision.Authorizes compensation toSimilar to H.R. 3824, exceptNo similar provision.


landowners for loss of livestock toprovisions on presentation of animal
reintroduced species (pp. 68-69).carcasses not included and the
Livestock owner is not required toSecretary is authorized to accept
present, and Secretary may notdonations for compensation.
demand, the body of individual
livestock as a condition for

CRS-80
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
reimbursement.
Authorization of Appropriations.
ations ofAuthorizes such sums as may beIdentical to H.R. 3824 (p. 54).No similar provision.
ounts were authorized fromnecessary from FY2006 to FY2010 for
Departmentthe Secretary of the Interior to carryS. 2110 does not reauthorize the ESA.


e Interior to carry out itsout functions and responsibilities of
sponsibilities and functions under thethe Department of the Interior under
iki/CRS-RL33309epartment of Agriculture out its functions andthis act; and for the Secretary ofAgriculture to carry out functions and
g/w
s.oribilities with respect toresponsibilities of the Department of
leakent of this act and thethe Interior with respect to the
ention which pertains to theenforcement of this act and the
://wikits and imports of plantsconvention which pertains to the
http to the Convention on theimportation of plants. These
ternational Trade in Endangeredprovisions do not apply to activities
under §8A(e) (p. 69).
the Department of Commerce to
rry out its functions andThere are no set limits on the
authorization of funds to implement
this bill. Funding for the Secretary of
Commerce is not included, whichUnder the amendment, there are no set
1993 to present, even though thereflects the elimination of functionslimits on the authorization of funds to
on lapsed at theand responsibilities of the Secretary ofcarry out the provisions under this bill,
1992.Commerce under this bill.and funds for the Secretary of
Commerce are not provided. The

CRS-81
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Reference to the Secretary ofdefinition of the Secretary of
Agriculture to receive funds forCommerce is still retained.
carrying out the functions of the
Department of the Interior is not clear.See comments under H.R. 3824,
Also, the provision refers to dutiesregarding the authorization of
under the Convention with respect toappropriations for the Secretary of
the importation of plants, but omits theAgriculture.
current reference to exports of plants.
iki/CRS-RL33309, the Secretary of theAuthorizes such sums as may beIdentical to H.R. 3824 (p. 55).No similar provision.
g/wterior is authorized to receive fundsnecessary from FY2006 to FY2010 for
s.orxceed a certain limit forthe Secretary of the Interior to carry
leaking out §8A(e) for FY1988 toout functions of §8A(e) (p. 70).
://wiki
http(e) authorizes the Secretary of the
terior to implement the Convention
e Protection and Wildlife
ervation in the Western
isphere (56 Stat. 1354, T.S. 982)
ESA and Farm Conservation Programs.
similar provision.No similar provision.No similar provision.Participants in Farm Bill conservation
programs that conduct activities
resulting in a net conservation benefit
for a listed, candidate, or other species



CRS-82
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
may receive a permit for incidental
take for the duration of the agreement
if it allows take within the area where
net conservation benefits will accrue
(p. 49). Incidental take will be allowed
if the takes occur as a result of
implementing a site-specific recovery
action of an approved recovery plan
and is at least proportional to the
iki/CRS-RL33309contribution to recovery (pp. 49-50).
g/w
s.orThis change appears to improve
leakcoordination of the conservation
://wikireserve and ESA programs. Further,this provides certainty for landowners
httpthat incidental consequences of certain
actions taken to promote species
recovery will not be prosecuted.
NEPA analysis is limited for any
permit to either the applicant’s
alternative or a no-action alternative.
The Secretary would be required to
reimburse an applicant for any
reasonable costs in meeting any NEPA
documentation or requirements related



CRS-83
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
to an incidental take permit (pp. 53-

54).


The possible costs for implementing
this reimbursement program are
uncertain, but could be substantial.
Further, the avoidance of costs might
bias against requiring comprehensive
NEPA compliance in situations where
iki/CRS-RL33309such compliance might otherwise be
g/w applicable.
s.or
leak similar provision.No similar provision.No similar provision.ESA §7(a) consultation will not be
applicable to species covered by
://wikiincidental take permits or to agency
httpactions related to HCPs or other
agreements under incidental take
permits (p. 47).
This language would reduce the
burden on landowners by foregoing
any potential §7 consultation that
might otherwise be required, but
presumes that the modified procedures
for incidental take permits are
sufficiently stringent to provide species



CRS-84
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
protection. Comments made above
also relate to this additional
elimination of consideration of
alternatives .
ilar provision.No similar provision.No similar provision.Publication of a notice of decision is
required 15 days before the effective
iki/CRS-RL33309date of any action to approve,
g/wdisapprove, or amend an incidental
s.ortake permit (p. 55).
leak
This language requires notification in
://wikithe Federal Register of actions taken
httpon incidental take permits. It is not
clear whether this notice provision is
meant to eliminate a public comment
period.
Miscellaneous Provisions — ESA and Pesticides.
ilar provision.Section 20 would add a new exemptionNo similar provision.No similar provision.


for using pesticides. Any action taken
by a federal agency, state agency, or
person that complies with the Federal
Insecticide, Fungicide, and

CRS-85
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Rodenticide Act (FIFRA) would be
deemed to comply with the
consultation and take requirements of
the ESA for a period that is the earlier
of either five years from the date of
enactment or the date of completion of
any procedure required under 50
C.F.R. Subpart D, Part 402 (on
consultation) (pp. 81-82).
iki/CRS-RL33309
g/wThis last date may mean the time when
s.orthe EPA reaches a determination
leakunder their “counterpart” regulations
://wikiregarding the need for consultation ona proposed action. Compliance with
httpFIFRA relates to registration of
pesticides and to compliance with
requirements as to how, where, and in
what amounts pesticides may be used.
This waiver is controversial because of
litigation over current counterpart
pesticide regulations and the effects of
pesticides on fish.



CRS-86
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Miscellaneous Provisions — Compliance Costs of Federal Power Administrations.
ilar provision.Several power marketingNo similar provision.No similar provision.
administrations would be required to
show in each customer’s monthly bill
a report of that customer’s share of the
direct and indirect generating and
marketing costs related to compliance
with the ESA (p. 84).
iki/CRS-RL33309Miscellaneous Provisions — Survey of Bureau of Land Management and Forest Service Lands.
g/w
s.orilar provision.Not later than two years afterNo similar provision.No similar provision.


leakenactment, the Secretary of the Interior
://wikishall survey all BLM and FS lands to
httpassess their value for management forthe recovery of listed species and for
addition to the National Wildlife
Refuge System and make
recommendations to Congress for
managing such lands as part of the
Refuge System (p. 85).
The Secretary of the Interior is to
conduct the survey, even though lands
managed by the Forest Service are in
the Department of Agriculture. The

CRS-87
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
survey provision appears to be based
on the premise that all lands that could
be of value to recovering listed species
might be managed as a part of the
National Wildlife Refuge System.
Miscellaneous Provisions — Consultation and the Marine Mammal Protection Act.
SA consultation involves a listedSection 25 states that an ESANo similar provision.No similar provision.


iki/CRS-RL33309rine mammal species, taking isconsultation is equivalent to a §101
g/wed pursuant to §101(a)(5) ofincidental take authorization under the
s.ormal Protection Act ofMMPA for receiving dock building
leakpermits (p. 86).
://wiki
http

CRS-88
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
Costs of Implementation.
ion 18 of the ESA requires theCosts will probably be reduced by theCosts will likely be reduced by theCosts will probably be reduced as a
it to Congress an annualrepeal of CH designations andrepeal of CH requirements (p. 6) andresult of state administration of ESA
analysis of federal andincreased state administration of ESAincreased state administration of ESAprograms under cooperative
es for conservingprograms under cooperativeprograms under cooperativeagreements, and possibly a reduction
ered species.agreements (pp. 40-43). Short-termagreements. Increases might beof federal ESA actions identified on the
e latest report was available Feb. 9,cost increases may result fromexpected from revisions to variouspriorities schedule. Increases might
iki/CRS-RL33309[http://www.fws.v/endangered/expenditures/reports/information and data collection andnew systems for making data moreregulatory requirements, includinglisting (p. 3), information and databe anticipated from increasedoversight activities, tax incentives, and
g/wS%20Endangered%20Species%2available, recovery plans, speciesavailability systems (p. 50), recoverytax credits.


s.or
leak0Expenditures%20Report.precovery agreements, speciesplans, monitoring (p. 16), increased
conservation contract agreements andincidental take permits, negotiation
://wikiassociated financial assistance (p. 34),and administration of agreements
httpoversight of expanded cooperativeunder the Private Property
agreements (pp. 40-43), increasedConservation Program, technical
incidental take permits, writtenassistance (p. 44), cost analysis report
compliance determinations (pp. 55-57)(p. 51), the Science Advisory Board (p.
and payment of “aid” to landowners66), and any discretionary
(p. 62), and any discretionarycompensation for livestock lost to
compensation for livestock lost toreintroduced species (p. 53).
reintroduced species.
Because the “aid” to be paid to
property owners can be triggered by
limits on any proposed use of even a

CRS-89
Miller/Boehlert Amendment to
Topic and Current LawH.R. 3824H.R. 3824S. 2110
part of an owner’s land and water, the
potential costs of such aid could be
high.
See also Congressional Budget Office,
Cost Estimate for H.R. 3824, available
at [http://www.cbo.gov/
showdoc.cfm?index=6663&sequence
iki/CRS-RL33309=0], Feb. 9, 2006.


g/w
s.or
leak
://wiki
http

Appendix
Since conservation banks and tax incentives are addressed only in S. 2110, they
will be discussed outside the table to conserve space. Provisions related to
conservation banks will be paraphrased and CRS comments are in italics. Page
numbers refer to the PDF version of S. 2110 as introduced.
Conservation Banks Under S. 2110
Under S. 2110, a conservation bank is defined as an area of land, water, or other
habitat (not necessarily contiguous) that is managed in perpetuity or for an
“appropriate period” under an enforceable legal instrument and for the purpose of
conserving and recovering habitat, or an endangered, threatened, or candidate
species, or a species of special concern (p. 31).
The conservation bank definition includes habitat “not necessarily contiguous,”
which suggests that a bank could consist of segments of habitat rather than a block.
Given the importance and benefits of habitat continuity for species survival, some
might argue that banks consisting of fragmented portions would have less value than
banks with contiguous habitats. This definition also mentions an “appropriate
period” as an alternative to in perpetuity when referring to the lifetime of the bank.
The bill does not identify who will make the determination of an appropriate period
or what criteria will be used.
Credit is defined as the “unit of currency” of a conservation bank generated by
preserving or restoring habitat in an agreement, and quantified through the
conservation values of a species or habitat. Conservation values are to be determined
by the Secretary for each bank and converted into a fixed number of credits (pp. 31-

32).


The definition of credit is written in a way that appears to allow alternatives to
money that could be exchanged to pay for the values being purchased out of the
bank. There is no indication what those alternatives might be. There is little
guidance on how the Secretary will determine or measure conservation value, and
how much “value” will equal a credit. Due to the changing nature of habitat and
the potential for habitat improvement or degradation, conservation values may
change within banks. There do not appear to be any provisions that allow the
Secretary to reassign values to conservation banks. On the other hand, allowing the
Secretary to determine the value and credits for each bank, has the potential to
insure that there will be consistency among banks. This may be helpful, since a
credit program for species could involve a wide range of habitat values.
A service area is an area identified in a conservation bank agreement. It
includes a soil type, watershed, habitat type, political boundary, or an area in a
federally recognized conservation plan, among others, in which a credit may be used
to offset the effects of a project (p. 32).
The scope of a service area may vary broadly under this definition, which could
allow the Secretary to create areas that fit desired biological criteria. Because



person under the ESA includes federal agencies, and page 32 includes a reference
to federally recognized conservation plans, the provisions on conservation banking
may apply to federal agencies; it is unclear if this was intended.
Conservation banks may be established by any private landowner who applies
and demonstrates that the affected area is managed under an enforceable legal
instrument and contributes to the conservation of a listed species, a candidate species,
or a species of special concern (pp. 32-33). Secretary shall approve or disapprove a
bank within 180 days after the application is submitted (p. 33). A bank can be
managed by a state, a holder of the bank, another party specified in the agreement,
or a party that acquires property rights related to the conservation bank (p. 34).
While conservation banks would require an enforceable legal instrument, the
bill does not specify any contents for that instrument. There may be certain minimal
contents that all such instruments or banking agreements should contain to ensure
that protection of species and habitat will be effective and consistent from site to site.
The time limit for a decision will allow approved banks to enter into the program and
gain credits within six months, which some feel would encourage participation, but
it is unclear whether this period will be sufficient for the Secretary to render a
decision with adequate justification. Management of the bank is not restricted,
which may relieve the burden of management from the landowner and allow other
entities (e.g., state agencies or non-governmental organizations) to manage the bank.
However, no criteria for holders are stated.
The holder of a conservation bank is required to establish an agreement that
describes the proposed management of the bank (p. 34). The agreement is submitted
to the Secretary, who shall approve or disapprove it “as soon as practicable” (p. 35).
Conditions for amending and nullifying the agreement are given (pp. 35-36). The
Secretary shall consider the use of banks for implementing recovery plans and must
adopt regulations on managing banks that balance the biological conditions of the
target species and habitat with “economic free market principles” to ensure value to
landowners through a tradeable credit program (p. 36).
A bank management agreement undergoes a separate approval process from
establishing a conservation bank, and the deadline for approving or disapproving
bank management agreements is uncertain. No standards for acceptable agreements
are provided. An approved agreement does not seem to be required to transfer
credits or to maintain a conservation bank. The bill does specify that the bank must
contribute to the conservation of qualified species, but there is no requirement that
banks be consistent with approved recovery plans, and it is not clear that bank
managers must comply with the relevant agreement.
The Secretary is to promulgate regulations on managing conservation banks
(p. 37). The regulations are to relate to 11 subjects, including conservation and
recovery goals, activities that may be carried out in any conservation bank, measures
that ensure the viability of conservation banks, “the demonstration of an adequate
legal control of property proposed to be included in the conservation bank” (p. 37),
criteria for determining credits and an accounting system for them, and the
applicability of and compliance with §7 and §10 of ESA. Monitoring and reporting
requirements are also to be addressed in the regulations (pp. 37-38).



The regulations are to include provisions “relating to” how the consultation
requirements of §7 of the ESA and the incidental take provisions apply in the context
of conservation banks. It is not clear whether the authority given the Secretary to
develop these regulations could be broad enough to eliminate consultation, or to
authorize the issuance of general incidental take permits for activities in
conservation bank areas. The requirement that banks be financially viable (pp. 37-
38) appears to refer to both biological and financial viability. As to the latter, some
contend that financial viability should be determined by market forces rather than
the federal government, which should ensure the biological viability of the species
or habitat should a bank fail.
Biological data would determine how many credits a bank can sell (p. 38), and
the Secretary is to establish a standard process by which credits could be transferred.
Credit transfers can be used to comply with court injunctions, to meet requirements
of §§7(a), 7(b) or 10(a)(1) of the ESA, and to provide out-of-kind mitigation (p. 39).
“Out-of-kind mitigation” is defined as mitigation involving the same species or
habitat, but in a different service area. Additional requirements must be met for
approval of out-of-kind mitigation, and the Secretary is to give preference to in-kind
mitigation to the maximum extent practicable (pp. 39-40). The Secretary is not to
regulate the price of credit transfers or to limit participation by any party in the credit
transfer process (p. 40). In some circumstances, credits may be transferred before the
Secretary approves a bank (p. 41).
The criteria for transferring credits do not include habitat or species
requirements for the area being mitigated by the purchase of credits. Habitat for
different species may not be interchangeable; therefore, if the area being mitigated
contained habitat for an endangered species of salamander, there are no
requirements that credits purchased will be from a conservation bank with similar
habitat.
Out-of-kind mitigation is allowed when both ecological desirability and
economic practicability can be met. The bill allows transfer of credits before the
bank is approved if specified conditions can be met, which would seem to be a risk
to the federal interest in species protection should the Secretary ultimately reject the
application for establishing the bank. If the Secretary rejects a bank proposal, how
would that rejection affect any prior purchase of credits?
Creation of conservation banks can be integrated with conservation plans
developed under §10 of the ESA if certain criteria are met (pp. 41-42). Any party to
an agreement, including the United States, may sue for breach of the agreement, and
sovereign immunity is waived for participating federal, state, tribal, and local
governments (pp. 42-43).
Subsection (g) (pp. 41-42) requires, to the maximum extent practicable, that a
bank be integrated with habitat conservation plans developed under §10 of the ESA
if the bank meets the ecological criteria of the habitat conservation plan and
provides greater economic benefits compared with other forms of mitigation of
habitat destruction. Only a party to the agreement (not interested outsiders with
standing) may sue for breach of the agreement. How this restriction could affect
enforcement actions under §10 is not clear. Since a party violating an agreement is



not likely to sue to enforce the agreement, this really means that only the Secretary
can enforce the agreement. “Equitable relief” is specifically allowed, despite the
wording that judicial review is allowed for a breach of an agreement — which
usually connotes a suit for damages. It is not clear in what circumstances states,
local governments, or tribes would be defendants.
Tax Incentives Under S. 2110
Taxpayers may claim a tax credit based on the taxpayer’s qualified conservation
and recovery costs for the taxable year (pp. 56-62). Qualified costs are those paid or
incurred by the taxpayer in carrying out approved site-specific recovery actions under
§4(f) of ESA or other federal- or state-approved conservation and recovery
agreements that involve an endangered, threatened, or candidate species (p. 57). The
project must be undertaken according to a binding agreement, and the credit is
subject to recapture if the agreement is breached or terminated (pp. 57-58 and 61).
The amount of tax credit gained depends on the length of the agreement: 1) if it is for
at least 99 years, the credit equals the reduction in the land’s fair market value due
to the recovery action or agreement plus the property owner’s actual costs; 2) if it is
for at least 30 years but less than 99 years, the credit equals 75% of the above
amounts; 3) if it is for at least 10 years but less than 30 years, the credit equals 75%
of the actual costs (pp. 57-58).
The qualifications or standards for the binding agreement are unclear.
Depending on the specifics of the agreement, the requirements for claiming the tax
credit may be more or less stringent than those for tax incentives that currently exist
for similar conservation activities (e.g., the charitable deduction for conservation
easements under IRC §170).
The taxpayer must submit to the IRS evidence of the binding agreement and a
written verification from a biologist that the conservation and recovery practice is
described in the agreement and implemented during the taxable year in accordance
with the agreement’s schedule (pp. 58-59). The credit may not be claimed if the
taxpayer received cost-share assistance from the federal or state government under
any credit-eligible recovery action or agreement for that year (p. 59). There is an
exception for individuals whose adjusted gross income is less than the limitations in
IRC §32, the earned income tax credit (p. 59). Also, the taxpayer’s qualified costs
are reduced by any non-taxable governmental assistance for qualified conservation
and recovery costs received in the year the credit was claimed or in any prior year (p.

61).


With respect to the second limitation regarding cost-share assistance, it is
unclear as to whether the assistance must have been received for the specific project
for which the credit is claimed. There are no requirements regarding the
qualifications of the biologist who can verify the agreement.
The basis of the property for which any credit is allowable must be reduced by
the amount of the taxpayer’s qualified costs, regardless of whether those costs were
greater than the amount that the taxpayer’s tax liability exceeded the sum of the
specified credits (p. 60).



This could be interpreted to require that the taxpayer reduce the basis by the
total qualified costs in the first taxable year even if the taxpayer did not claim the full
credit in that year. Thus, the taxpayer would experience the negative consequences
from reducing the basis to account for the total costs without necessarily receiving
the positive benefits from claiming the full credit.
The amount of any deduction or other tax credit must be reduced by the
taxpayer’s qualified costs, limited to the taxpayer’s tax liability (pp. 60-61).
This appears to require that the taxpayer reduce all deductions and other
credits by the amount of the credit allowed, regardless of whether they are based on
the same expenses used for this credit.
The credit is limited to the taxpayer’s tax liability (including alternative
minimum tax liability) after applying certain credits (p. 57). Any portion of the credit
that cannot be claimed because of this limitation may be carried back for one year
and carried forward for 20 years (pp. 59-60). The new credit may be transferred
through sale and repurchase agreements (p. 60).
The tax consequences of such sale are unclear. This provision is unusual as no
other tax credit is allowed to be sold.