THE ENDANGERED SPECIES RECOVERY ACT OF 1997

The Endangered Species Act ("ESA") was originally enacted in 1973 to conserve endangered and threatened species and their habitat. While the Act's goal of promoting the "recovery" of endangered species enjoys widespread support, implementation of the ESA has been the source of significant controversy. The Endangered Species Recovery Act of 1997 reauthorizes and improves the ESA. The major provisions of the bill are summarized below:

SECTION 2 -- LISTING OF SPECIES

Under current law, the Secretary of the Interior, or the Secretary of Commerce with respect to marine species, is required to list any species as endangered or threatened if, based on the best scientific and commercial data available, the species is in danger of extinction or will be in the foreseeable future. The scientific basis for listing individual species has been the subject of considerable controversy. In order to enhance public confidence in the listing process, the bill places greater emphasis on the use of good science and public participation.

Good Science

Where the Act requires the Secretary to use the best scientific and commercial data available, the bill requires the Secretary, in evaluating comparable data, to give greater weight to data that is empirical, field-tested, or peer-reviewed.

Delisting

The bill requires the Secretary to initiate the procedures for determining whether to delist a species once the recovery goal for the species has been met.

Minimum Requirements for Listing Petitions

The bill establishes minimum scientific requirements for petitions to list, delist or change the status of a species. Among other things, petitions submitted under the bill must include a description of the available data on the historical and current range of the species, an appraisal of the data on the status of the species, and of any threats to the species. The petition must also identify which information in the petition has been peer reviewed.

Greater Role For The States

The bill recognizes that States should have a greater role in the listing process. Under the bill, affected state fish and wildlife agencies must be given notice of any petition which includes the required minimum documentation or of any listing initiated by the Secretary. The Secretary must solicit and consider the views of the state agency.

Public Hearings

If requested, the bill requires the Secretary to hold at least one public hearing on a proposed listing in each affected State (including one hearing in an affected rural area, if any), up to a total of 5 hearings.

Call for More Data

Along with a proposal to list a species, the bill requires the Secretary to identify and publish in the Federal Register a description of additional scientific and commercial data that would assist in the development of a recovery plan and to invite any person to submit the information to the Secretary.

Independent Peer Review

The bill establishes a process for independent peer review by three scientists, nominated by the National Academy of Sciences and appointed by the Secretary, for all listing and delisting decisions.

Distinguishing Between Endangered and Threatened Species

The bill requires the Secretary to issue a species specific "special rule" under section 4(d) of the Act for species listed as threatened in the future by no later than 30 months after the species is listed. The special rule allows the Secretary to provide greater management flexibility for threatened species.

SECTION 3 -- ENHANCED RECOVERY PLANNING

The linchpin of the ESA is the recovery of endangered and threatened species. The bill significantly strengthens the recovery planning and implementation process by more clearly focusing the Act on saving species and removing them from the endangered species list. The bill creates a new Section 5 on recovery plans that includes:

- deadlines for the development of recovery plans for each listed species;

- a new requirement that recovery plans be developed by

broadly representative recovery teams, appointed by the Secretary;

- substantive requirements for the contents of recovery plans, including an objective biological recovery goal as well as general and site-specific recovery measures to achieve that goal; and

- authority for the Secretary to enter into recovery plan implementation

agreements with federal agencies and other parties.

Deadlines for Developing Recovery Plans

The bill establishes deadlines for the development of draft and final recovery plans. For newly listed species, a draft recovery plan must be published within 18 months of a final listing decision and a final plan must be published within 30 months of the listing decision. Plans for species already listed, and for which no plans have been developed, must be completed within 60 months of the date of enactment of this Act, with half of those to be completed within 36 months.

Involve Stakeholders and Scientific Experts in the Development of Recovery Plans

To promote broader participation in the development of draft recovery plans, the bill requires that most draft plans be developed by recovery teams appointed by the Secretary. The teams shall include representatives of local governments, academic institutions, private individuals and organizations, as well as state and federal agencies. In addition to developing the draft recovery plan, the recovery team is charged with advising the Secretary on designation of critical habitat.

Adding "Teeth" to Recovery Plans

The bill recognizes that recovery plans are the road map for conserving threatened and endangered species. In order to make recovery plans more effective, the bill establishes minimum requirements for the contents of recovery plans, including: a biological recovery goal, expressed as measurable and objective criteria; objective, measurable benchmarks to determine whether progress is being made towards the recovery goal; general and site-specific recovery measures to achieve the recovery goal; and an identification of those federal agencies whose actions are likely to have a significant impact on the recovery of a species. Recovery plans must be based on the best scientific and commercial data available.

Consideration of Costs

Recovery measures must meet the recovery goal and must do so in a way that achieves an appropriate balance among the following factors: the effectiveness of the measures in meeting the recovery goal, the time period in which recovery will be achieved, and the social and economic impacts of the those measures. Each draft recovery plan must include a description of any alternative recovery measures that were considered, but not recommended, and provide an explanation as to why they were not recommended.

If the recommended recovery measures would impose significant costs on a municipality, county, region or industry, the recovery team must describe the overall economic effects of implementing the plan on the public and private sectors, including the effects on employment, public revenues and the value of property.

Selection of Recovery Measures

The bill requires the Secretary to hold up to 5 public hearings on draft plans in affected States. After notice and opportunity for public comment, the Secretary retains the authority to approve the final recovery plan. If the Secretary selects recovery measures to meet the recovery goal other than those recommended by the recovery team, the Secretary must explain why the recommended measures were not selected.

Implementation Agreements

In many instances, recovery plans that have been developed are not being fully implemented. The bill requires federal agencies identified in a recovery plan to enter into implementation agreements with the Secretary to implement recovery measures identified in recovery plans. State and local governments, private property owners, and other organizations may also enter into implementation agreements.

The bill waives section 7 consultation for actions authorized, funded, or carried out by a federal agency specified in an implementation agreement provided that the agreement sets forth sufficient information on the nature, scope, and duration of the action. If a non-federal person proposes to include in an implementation agreement a site-specific action that requires authorization or funding from one or more federal agencies, the bill requires those agencies to participate in the development of the agreement. At that time, the bill requires those agencies to identify all measures for the species that would be required under the ESA as a condition of that authorization or funding.

States May Assume Responsibility for Recovery Planning

The bill authorizes qualified state fish and wildlife agencies, either individually or working together, to develop a draft recovery plan for an endangered or threatened species. Under this authority, the state agency may appoint the recovery team and submit the draft recovery plan to the Secretary for final approval.

Critical Habitat Designation

Under current law, the Secretary is generally required to designate critical habitat at the time that a species is listed. At that point, however, the Secretary often does not have sufficient information to designate critical habitat. In practice, critical habitat is rarely designated at the time of listing, if at all. The bill revises the current requirement to allow the Secretary to designate critical habitat 30 months after listing, along with the final recovery plan. This will allow the Secretary to take advantage of the expertise and recommendations of the recovery team.

SECTION 4 -- INTERAGENCY CONSULTATION AND COOPERATION

Section 7(a)(2) of the ESA requires each federal agency to consult with the Fish and Wildlife Service (or the National Marine Fisheries Service for certain species) to ensure that agency actions are not likely to jeopardize the continued existence of a threatened or endangered species or destroy critical habitat. This consultation process is required not only for activities that affect listed species on public lands, but also for activities that require federal permits that affect listed species on private lands. The bill includes provisions to streamline the consultation process.

Inventory of Species

The bill requires each federal land management agency to develop an inventory of endangered, threatened, proposed and candidate species on lands or waters owned or under control of the agency and to update the inventory every five years.

Streamline Consultation Process

The bill provides federal action agencies with greater responsibility for determining when formal consultations are required. Under the bill, each federal agency would be required to notify the Secretary before commencing an action that "may affect" listed species or critical habitat. Consultation with the Secretary is required on these actions unless the federal action agency determines that the proposed action "is not likely to adversely affect" a listed species or critical habitat, notifies the Secretary of that determination, and the Secretary does not object to the determination in writing within 60 days. If the Secretary objects to the determination, formal consultation is initiated. The bill authorizes the Secretary to exclude by regulation categories of actions from this streamlined process that are likely to have an adverse effect on a species or critical habitat.

Reports

The bill directs the National Academy of Sciences and the Government Accounting Office to prepare reports for the Congress on implementation of the new streamlined consultation process.

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Consultation on Forest Plans

Several lawsuits (including the Pacific Rivers Council suits) have enjoined or threatened to enjoin site-specific activities that may affect newly listed species in national forests until the U.S. Forest Service completes formal consultation on the land and resource management plans for those forests. The bill addresses these situations by allowing site-specific actions on national forests or BLM lands to proceed, provided they comply with section 7 as appropriate, while consultation on the forest or land management plan is underway. Consultation on the forest plan or BLM plan must be completed within one year of the date on which it is initiated.

Increased Coordination and Efficiency

The bill will increase efficiency by allowing the Secretary to consolidate Section 7 consultations for a number of actions within a particular geographic region. This would apply to related or similar actions by one federal agency or actions involving several federal agencies which affect the same species.

Increased State Role

The bill requires the Secretary, when consulting on a federal action affecting a listed species or critical habitat, to solicit and consider information from the State fish and wildlife agency in each affected State.

Give Permit Applicants a Greater Role in Consultation

One common criticism of the Section 7 consultation requirements is that, in cases involving private citizens requiring federal permits or approvals, the parties who are most affected by the consultation are not given adequate access to the process. The bill requires the Secretary to provide any person who has sought authorization or funding from a federal agency on which consultation is required an opportunity to submit information prior to the development of a draft biological opinion, to discuss the information with the Secretary, to receive information used by the Secretary in developing the draft and final biological opinion, and to receive a copy of the draft biological opinion and submit comments on it.

Reasonable and Prudent Measures

The bill provides that mitigation for incidental taking resulting from an activity that is the subject of a consultation shall be related both in nature and extent to the effect of the proposed activity.

SECTION 5 -- CONSERVATION PLANS

Under the ESA, people whose land is occupied by threatened or endangered species are able to get "incidental take" permits in return for carrying out habitat conservation plans ("HCPs") on their property. These permits, in turn, allow landowners to carry out economic activities on their property that may incidentally harm listed species. The bill authorizes multiple species conservation plans, provides a more streamlined HCP process to address the needs of small private landowners, and encourages voluntary actions to conserve species before they are on the brink of extinction.

Multiple Species Conservation Plans

The bill authorizes private landowners to develop conservation plans for multiple species that depend on the same habitat. By considering the needs of several species at once, this approach will help address the needs of both species and private landowners. For listed species, the plan must satisfy the criteria under current law. For proposed and candidate species, the bill requires that the actions taken by the applicant, if undertaken by all similarly situated persons, must be likely to eliminate the need to list the species. For other non-listed species, the bill requires that the actions taken by the applicant, if undertaken by all similarly situated persons, must not be likely to contribute to a determination to list the species.

Low Effect Conservation Plans

The bill establishes a streamlined HCP process for activities that will have no more than a negligible effect, both cumulatively and individually, on a species. To minimize the cost to small landowners, the bill requires the Secretary, in cooperation with State fish and wildlife agencies, to develop a model permit application that can serve as the conservation plan.

No Surprises Policy

The bill ensures that landowners who develop HCPs and receive incidental take permits will not be required to spend more money or set aside additional land for conservation of species covered by the plan.

Candidate Conservation Agreements

In many instances, preserving habitat and undertaking conservation measures before a species is listed can prevent the need to list a species. The bill authorizes non-Federal persons, at their request, to enter into candidate conservation agreements with the Secretary for candidate and proposed species. Actions taken under the agreement, if undertaken by all similarly situated persons, must be likely to eliminate the need to list the species. Landowners who enter into candidate conservation agreements would receive essentially the same "no surprises" assurances as a landowner who entered into an HCP.

Safe Harbor Agreements

Fear that requirements under the ESA will restrict use of land occupied by threatened or endangered species acts as a disincentive that prevents many landowners from taking voluntary steps to conserve species on their property. The bill helps address this problem by authorizing "safe harbor agreements". This provision encourages landowners to enter into voluntary agreements with the Secretary that benefit conservation of listed species by assuring these landowners that their efforts to maintain, create, restore or improve habitat will not subject them to additional liability under the ESA.

Habitat Reserve Agreements

The bill authorizes the Secretary to enter into habitat reserve agreements with non-Federal persons to protect, manage or enhance suitable habitat for endangered or threatened species. The Secretary is authorized to make payments to a property owner to carry out the terms of the agreement. The bill authorizes ten million dollars per year to the Secretary of the Interior and five million dollars per year to the Secretary of Commerce to carry out this program.

Habitat Conservation Planning Fund

The bill establishes a revolving loan fund known as the "Habitat Conservation Planning Fund" to assist States and local governments in the development of HCPs.

NAS Report

The bill directs the Secretary to contract with the National Academy of Sciences to review and prepare a report on the development and implementation of conservations plans.

SECTION 6 -- ENFORCEMENT

Incidental Take Actions

The bill clarifies that in order to maintain an action for an incidental take prohibited by Section 9 of the ESA, the person bringing the action must establish, using scientifically valid principles, that the activity has caused, or will cause, the take of a listed species.

SECTION 7 -- EDUCATION AND TECHNICAL ASSISTANCE

The bill will provide more effective communication between the Secretary and private landowners regarding the requirements of the ESA by establishing a "Property Owners Education and Technical Assistance Program." Under this program, the Secretary is directed to inform the public about the ESA, respond to requests for technical assistance, and recognize exemplary efforts to conserve species on private lands.

SECTION 8 --AUTHORIZATION OF APPROPRIATIONS

The bill reauthorizes the ESA through fiscal year 2003. Authorization of appropriations would increase by fiscal year 2000 for the Department of the Interior to 165 million dollars and for the Department of Commerce to 70 million dollars. The authorization of appropriations for the Department of Agriculture would be increased to 4 million dollars for each of fiscal years 1998 through 2003.

In addition, the bill includes authorization of appropriations for implementing the safe harbor program, establishing the habitat conservation planning fund, providing financial assistance for recovery plan implementation agreements, and assisting state fish and wildlife agencies in carrying out conservation activities under the Act.

SECTION 9 -- OTHER AMENDMENTS

No Take Agreements

The bill authorizes the Secretary to enter into agreements with property owners, at the request of the property owner, that identify activities that will not result in a prohibited take of an endangered or threatened species.