109th
CONGRESS
1st
Session
S.
2110
To
amend the Endangered Species Act of 1973 to enhance the role of States in the
recovery of endangered species and threatened species, to implement a species
conservation recovery system, to establish certain recovery programs, to provide
Federal financial assistance and a system of incentives to promote the recovery
of species, and for other purposes.
IN
THE SENATE OF THE UNITED STATES
Mr.
CRAPO (for himself, Mrs. LINCOLN, Mr. THOMAS, and Mr. ALLARD) introduced the
following bill; which was read twice and referred to the Committee on Finance
A
BILL
To
amend the Endangered Species Act of 1973 to enhance the role of States in the
recovery of endangered species and threatened species, to implement a species
conservation recovery system, to establish certain recovery programs, to provide
Federal financial assistance and a system of incentives to promote the recovery
of species, and for other purposes.
Be
it enacted by the Senate and House of Representatives of the
(a)
Short Title- This Act may be cited as the `Collaboration for the Recovery of
Endangered Species Act'.
(b)
Table of Contents- The table of contents of this Act is as follows:
Sec.
1. Short title; table of contents.
Sec.
101. Short title.
Sec.
102. Cooperation with the States.
Sec.
201. Short title.
Sec.
202. Determination and recovery of endangered species and threatened species.
Sec.
301. Short title.
Sec.
302. Conservation banks.
Sec.
303. Exceptions.
Sec.
304. Technical corrections.
Sec.
305. Tax incentives.
Sec.
401. Protections and measures.
This
title may be cited as the `State Government Assistance in Recovery Act'.
Section
6 of the Endangered Species Act (16 U.S.C. 1535) is amended--
(1)
in subsection (c), by adding at the end the following:
`(3)
COOPERATIVE AGREEMENTS-
`(A)
AGREEMENTS-
`(i)
IN GENERAL- A cooperative agreement entered into by the Secretary under this
subsection may provide for development of a program for the conservation of--
`(I)
a species determined to be a candidate species under section 4(b)(3)(B)(iii); or
`(II)
any other species that the State and the Secretary agree is likely to be
determined to be an endangered species or threatened species under section
4(a)(1).
`(ii)
APPLICATION OF TAKE STATEMENT- After consultation on the cooperative agreement
in accordance with subsection (e)(2), any incidental take statement issued on
the cooperative agreement shall apply to any species described in clause (i) and
to the State and any landowners enrolled in any program under the cooperative
agreement, without further consultation (except any additional consultation
required under subsection (e)(2)), if--
`(I)
the species is subsequently determined to be an endangered species or a
threatened species; and
`(II)
the cooperative agreement remains an adequate and active program for the
conservation of endangered species and threatened species.
`(B)
MONITORING- A cooperative agreement entered into by the Secretary under this
subsection may provide for monitoring, or assistance in monitoring, the status
of--
`(i)
a candidate species in accordance with section 4(b)(3)(C)(iii); or
`(ii)
a species that is determined to be recovered, and that is delisted, in
accordance with section 4.
`(4)
ENROLLMENT OF LAND OR WATER RIGHTS- A cooperative agreement entered into by the
Secretary under this subsection that provides for the enrollment of private land
or water rights in any program established by the cooperative agreement shall
ensure that the decision to enroll is voluntary for each owner of the land or
water rights.';
(2)
in subsection (d)(1)--
(A)
in the first sentence--
(i)
by striking `pursuant to subsection (c) of this section'; and
(ii)
by striking `or to assist' and all that follows through `section 4(g)' and
inserting `under paragraphs (1) or (2) of subsection (c) or section 4(b)(5)(C),
or to address candidate species or other species at risk and recovered species
under subsection (c)(3)'; and
(B)
in subparagraph (F), by striking `monitoring the status of candidate species'
and inserting `developing a conservation program for, or monitoring the status
of, candidate species or other species determined to be at risk under subsection
(c)(3)'; and
(3)
by striking subsection (e) and inserting the following:
`(e)
Review of State Programs-
`(1)
IN GENERAL- Any action taken by the Secretary under this section shall be
subject to periodic review by the Secretary at least every 3 years.
`(2)
APPLICABLE AUTHORITY- A cooperative agreement entered into by the Secretary
under subsection (c) shall be subject to subsections (a)(2) through (d) of
section 7 (including implementing regulations) only before the date on which--
`(A)
the Secretary enters into the cooperative agreement; or
`(B)
the Secretary approves any renewal of, or amendment to, the cooperative
agreement that--
`(i)
addresses species that--
`(I)
are determined to be endangered species or threatened species;
`(II)
are not addressed in the cooperative agreement; and
`(III)
may be affected by the cooperative agreement; or
`(ii)
contains new information about any species addressed in the cooperative
agreement that the Secretary determines--
`(I)
constitutes the best scientific and commercial data available; and
`(II)
indicates that the cooperative agreement may have adverse effects on the species
that had not been considered previously when the cooperative agreement was
entered into or during any revision of or amendment to the cooperative
agreement.
`(3)
SUSPENSION OF COOPERATIVE AGREEMENT- The Secretary may suspend a cooperative
agreement entered into by the Secretary under subsection (c), after consultation
with the Governor of the affected State, if Secretary finds during the periodic
review required by paragraph (1) that the cooperative agreement no longer
constitutes an adequate and active program for the conservation of endangered
species and threatened species.
`(4)
TERMINATION OF COOPERATIVE AGREEMENT- The Secretary may terminate a cooperative
agreement entered into by the Secretary under subsection (c), after consultation
with the Governor of the affected State, if--
`(A)
as result of subsections (a)(2) through (d) of section 7 (including implementing
regulations), the Secretary determines that--
`(i)
continued implementation of the cooperative agreement is likely--
`(I)
to jeopardize the continued existence of endangered species or threatened
species; or
`(II)
to result in the destruction or adverse modification of critical habitat; and
`(ii)
the cooperative agreement is not amended or revised to incorporate a reasonable
and prudent alternative offered by the Secretary under section 7(b)(3); or
`(B)
the cooperative agreement--
`(i)
has been suspended under paragraph (3); and
`(ii)
as of the date that is 180 days after the date of the suspension, has not been
amended or revised and found by the Secretary to constitute an adequate and
active program for the conservation of endangered species and threatened
species.'.
This
title may be cited as the `Priority for Listing and Recovery Act'.
(a)
In General- Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) is
amended--
(1)
by striking the section heading and all that follows through `(a) General- (1)
The Secretary' and inserting the following:
`(a)
In General-
`(1)
FACTORS- The Secretary';
(2)
in subsection (a)(3)(A), by striking clause (i) and inserting the following:
`(i)
shall designate any habitat of an endangered species or a threatened species
that is considered to be critical habitat in accordance with the priority system
established under subsection (b); and'; and
(3)
in subsection (b)--
(A)
by striking `(b) Basis for Determinations- (1)(A) The Secretary' and inserting
the following:
`(b)
Basis, Priority, and Schedule for Decisions-
`(1)
BASIS FOR DECISIONS-
`(A)
IN GENERAL- The Secretary';
(B)
in paragraph (1), by striking `(B) In carrying out' and inserting the following:
`(B)
CONSIDERATIONS- In carrying out';
(C)
in paragraph (2), by striking `(2) The Secretary' and inserting the following:
`(2)
DESIGNATION OF CRITICAL HABITAT- The Secretary';
(D)
by redesignating paragraphs (5) through (8) as paragraphs (7) through (10),
respectively;
(E)
in paragraph (3)--
(i)
by striking `(3)(A) To' and inserting the following:
`(5)
PETITION-
`(A)
IN GENERAL- To';
(ii)
in subparagraph (B)--
(I)
by striking `(B) Within 12 months' and inserting the following:
`(B)
FINDINGS- In accordance with the schedule established under paragraph (4), and
not later than 3 years';
(II)
in clause (ii), by striking `paragraph (5)' and inserting `paragraph (7)';
(III)
in clause (iii)(I), by striking `paragraphs (5) and (6)' and inserting
`paragraphs (7) and (8)'; and
(IV)
by indenting clauses (i) through (iii) and subclauses (I) and (II)
appropriately;
(iii)
in subparagraph (C)--
(I)
by striking `(C)(i) A petition' and inserting the following:
`(C)
OTHER REQUIREMENTS-
`(i)
TREATMENT OF CERTAIN PETITIONS- A petition';
(II)
in clause (ii), by striking `(ii) Any' and inserting the following:
`(ii)
JUDICIAL REVIEW- Any'; and
(III)
in clause (iii)--
(aa)
by striking `(iii) The Secretary' and inserting the following:
`(iii)
MONITORING- The Secretary'; and
(bb)
by striking `paragraph 7' and inserting `paragraph (9)'; and
(iv)
in subparagraph (D)--
(I)
by striking `(D)(i) To the maximum extent practicable, within 90 days' and
inserting the following:
`(D)
SUBSTANTIAL SCIENTIFIC INFORMATION-
`(i)
IN GENERAL- In accordance with the schedule described in paragraph (4), and not
later than 1 year'; and
(II)
in clause (ii), by striking `(ii) Within 12 months' and inserting the following:
`(ii)
INTENT TO PROCEED- In accordance with the schedule described in paragraph (4),
and not later than 3 years';
(F)
in paragraph (4), by striking `(4) Except as provided in paragraphs (5) and (6)
of this subsection' and inserting the following:
`(6)
RULEMAKING PROCEDURES- Except as provided in paragraphs (7) and (8)';
(G)
in paragraph (7)(A) (as redesignated by subparagraph (C))--
(i)
in clause (i), by striking `, and' and inserting a semicolon; and
(ii)
by striking clause (ii) and inserting the following:
`(ii)
give actual notice of the proposed regulation (including the complete text of
the regulation) to, and invite the comment of--
`(I)
the State agency in each State in which the species is believed to occur;
`(II)
each county or equivalent jurisdiction in which the species is believed to
occur; and
`(III)
any county or municipality that has administrative jurisdiction over the area;
and
`(iii)
with respect to a regulation to designate or revise a designation of critical
habitat--
`(I)
publish maps and coordinates that describe, in detail, the specific areas that
meet the definition under section 3 of, and are designated under subsection
(a)(3) as, critical habitat, and all field survey data upon which the
designation is based; and
`(II)
maintain the maps, coordinates, and data on a publicly accessible Internet page
of the Department; and
`(iv)
include in each of the notices required under this subparagraph a reference to
the Internet page described in clause (iii)(II);';
(H)
in paragraph (8) (as redesignated by subparagraph (C))--
(i)
in subparagraph (A), by striking `paragraph (5)(A)(i)' and inserting `paragraph
(7)(A)(i)';
(ii)
in subparagraph (C), by striking the matter preceding clause (i) and inserting
the following:
`(C)
FINAL REGULATION- Either 3 years after the date on which a recovery program is
commissioned or in accordance with the schedule described in paragraph (4), and
in no case later than 5 years after the date on which an endangered species or
threatened species is listed under this Act, the Secretary shall publish a final
regulation designating the critical habitat of the endangered species or
threatened species, unless the Secretary determines that--'; and
(iii)
by adding at the end the following:
`(D)
PROVISIONAL RECOVERY GOALS- The Secretary shall promulgate and publish
provisional recovery goals for a species at the time of the listing of the
species, which--
`(i)
may set standards for delisting; and
`(ii)
shall remain in effect, unless replaced by an approved recovery plan.';
(I)
in paragraph (9) (as redesignated by subparagraph (C)), by striking `(9) Neither
paragraph (4), (5), or (6)' and inserting the following:
`(9)
EMERGENCIES- Neither paragraphs (6) through (8)';
(J)
in paragraph (10) (as redesignated by subparagraph (C)), by striking `(8) The
publication' and inserting the following:
`(10)
PUBLICATION OF REGULATIONS- The publication';
(K)
by inserting after paragraph (2) the following:
`(3)
PRIORITY FOR DETERMINATIONS, DESIGNATIONS, AND COMMISSIONING OF RECOVERY
PROGRAMS-
`(A)
IN GENERAL- Not later than 270 days after the date of enactment of the Priority
for Listing and Recovery Act, the Secretary of the Interior and the Secretary of
Commerce, after providing notice and an opportunity for public comment, each
shall establish a priority system for making all decisions under this
subsection, subsection (a), and subsection (f) regarding various species in the
most efficient and effective manner practicable.
`(B)
CRITERIA FOR PRIORITIES- The priority system shall assign priorities to species
based on--
`(i)
the magnitude and immediacy of risk of extinction (high, moderate, or low),
considering--
`(I)
the level of risk to the species based on the factors described in subsection
(a)(1);
`(II)
the geographic distribution of the species (wide or narrow),
`(III)
the habitat specificity of the species (broad or restricted); and
`(IV)
the taxonomic distinctiveness of the species (monotypic genus, species,
subspecies, or distinct population segment);
`(ii)
the likelihood of achieving recovery of the species;
`(iii)
the quality and quantity of available information, with the species priority
increasing progressively as current professional documentation is obtained for
each of the following in order of increasing importance:
`(I)
Distribution of the species based on data describing presence and absence.
`(II)
Habitat types that correlate with population density (defined as various
concentrations of individuals of the species occupying an area).
`(III)
Rates of reproduction, survival, or population growth.
`(IV)
Habitat types that correlate with rates of reproduction, survival, or population
growth;
`(iv)
the degree to which recovering the species helps recover other species; and
`(v)
the degree to which recovery efforts would minimize conflicts with--
`(I)
construction, development projects, jobs, private property, or other economic
activities;
`(II)
military training and operations; or
`(III)
other human activities.
`(C)
INCENTIVE FOR COLLABORATIVE CONSERVATION-
`(i)
IN GENERAL- The Secretary shall assign highest priority to a decision pending
for any species if petitioned to do so by a collaborative group that, in the
judgment of the Secretary, meets the description of an executive committee under
subsection (f)(3)(B).
`(ii)
FACILITATION- If a collaborative group described in clause (i) uses non-Federal
funds to carry out actions that support the completion of the pending action for
a species, the Secretary shall facilitate the pending action to a commensurate
extent.
`(4)
SCHEDULE-
`(A)
IN GENERAL- The Secretary shall establish a schedule of all decisions under this
subsection, subsection (a), and subsection (f) based on the priority ranking
system described in paragraph (3).
`(B)
ESTIMATES- Not later than February 1 of each year following the date of
enactment of this subparagraph, the Secretary shall submit to the Committee on
Appropriations of the Senate and the Committee on Appropriations of the House of
Representatives an estimate with respect to the following year, based on the
priority ranking system described in paragraph (3), of--
`(i)
the quantity of--
`(I)
petitions to be reviewed under this section;
`(II)
status reviews to be completed under this section; and
`(III)
rules that will be promulgated with respect to status and critical habitat; and
`(ii)
the amount of funds required for each recovery plan to be funded under this
section.
`(C)
PENDING ACTIONS- The schedule established under subparagraph (A) shall include
all decisions pending under this subsection, subsection (a), and subsection (f),
including--
`(i)
findings and decisions based on status reviews, proposed determinations, or
final determinations for which a court has issued an order prior to the date of
enactment of the Collaboration for the Recovery of Endangered Species Act
remanding to the Secretary a decision, or setting a schedule for the Secretary
to act, or requiring any other action regarding such findings and decisions; and
`(ii)
designations of critical habitat for which a court has issued an order prior to
the date of enactment of the Collaboration for the Recovery of Endangered
Species Act remanding to the Secretary a decision, or ordering the Secretary to
act by a specified date, or requiring any other action regarding the designation
of critical habitat.
`(D)
REMANDED ACTIONS- No court shall have the power to require the Secretary to
complete an action inconsistent with the schedule established under subparagraph
(A).
`(E)
REVISIONS TO SCHEDULE- The Secretary may revise the schedule established under
subparagraph (A) during a fiscal year by--
`(i)
reviewing a petition received during the fiscal year that the Secretary
determines to be filed in a timely manner; or
`(ii)
elevating the priority of a recovery plan that receives financial or other
commitments from a non-Federal sponsor.';
(4)
by striking subsection (f) and inserting the following:
`(f)
Recovery Programs-
`(1)
IN GENERAL- When a species is scheduled for recovery under subsection (b)(4), or
upon the petition of a collaborative group that qualifies as an executive
committee under paragraph (3), the Secretary--
`(A)
shall establish a recovery program for that species, and other threatened or
endangered species if practicable, by assigning a recovery coordinator; and
`(B)
may, based on the nature and extent of actions required for recovery, also form
a recovery team, an executive committee, or both.
`(2)
RECOVERY TEAM-
`(A)
ESTABLISHMENT-
`(i)
IN GENERAL- If the Secretary establishes a recovery team, the team shall consist
of members of appropriate public and private agencies and institutions
reflecting individual perspectives and objectiveness resulting from professional
expertise, and technical and academic experience, relating to the species or
ecosystem that is the subject of the recovery program.
`(ii)
LACK OF BIAS- In carrying out the duties described in subparagraph (B), members
described in clause (i) shall provide their expertise in good faith and not
express the views or representations of any organization.
`(B)
DUTIES- After considering the provisional recovery goals set by the Secretary
under subsection (b)(8)(D) and identifying all relevant conservation programs of
State, local, tribal, and private entities and foreign governments, a recovery
team shall propose a recovery plan to the executive committee.
`(C)
FACA- A recovery team established under this subsection shall not be subject to
the Federal Advisory Committee Act (5 U.S.C. App.).
`(3)
EXECUTIVE COMMITTEE-
`(A)
IN GENERAL- For each recovery program, the Secretary shall establish an
executive committee to propose collaborative efforts to achieve the goals of the
recovery plan.
`(B)
MEMBERSHIP- The membership of an executive committee shall--
`(i)
reflect a cross-section of interests from appropriate public and private
persons, agencies, or institutions reflecting a balance of viewpoints;
`(ii)
to be selected for diversity of knowledge and experience in natural resource
issues and for commitment to collaborative decisionmaking;
`(iii)
to the maximum extent practicable, be from communities within and adjacent to
the recovery plans geographic area; and
`(iv)
have an economic, social, or professional interest in the recovery of the
species.
`(C)
DUTIES- An executive committee shall--
`(i)
review the proposed recovery plan and make recommendations on collaborative
efforts that may be undertaken to implement and achieve the goals of the
recovery plan;
`(ii)
consult with the applicable recovery team, as necessary;
`(iii)
consult with State, local, and tribal governments and landowners on
opportunities for implementation of the recovery plan; and
`(iv)
after approval by the Secretary of the applicable recovery plan, publish a work
plan describing the collaborative and voluntary efforts that the executive
committee recommends to contribute to the recovery of the applicable species.
`(D)
FACA- An executive committee established under this subsection shall not be
subject to the Federal Advisory Committee Act (5 U.S.C. App.).
`(4)
RECOVERY COORDINATOR- The Secretary shall assign for each recovery program, by
direct employment or cooperative arrangement with an appropriate Federal
department or agency, a full-time recovery coordinator--
`(A)
to serve as the primary staff to implement the recovery plan and manage program
operations for the executive committee, if applicable; and
`(B)
to the maximum extent practicable, to ensure that relevant Federal and State
programs are coordinated to support programs toward the recovery goals of the
recovery plan.
`(5)
RECOVERY PLAN-
`(A)
IN GENERAL- A recovery plan shall--
`(i)
be proposed by a recovery team and an executive committee, in a case in which a
recovery team and executive committee are involved in the recovery program;
`(ii)
be approved by the Secretary; and
`(iii)
include--
`(I)
a description of site-specific recovery actions that may be necessary to achieve
the goal of the plan for the conservation of the species, including appropriate
financial assistance and incentive programs for landowners;
`(II)
guidance on how the geographic distribution of site-specific recovery actions
can enhance the effectiveness of the actions in promoting recovery; and
`(III)
objective, measurable criteria (including population size and geographic range)
that, when met, would result in a determination, in accordance with this
section, that the status of the species should be changed from an endangered
species or a threatened species, or that the species should be removed from the
list.
`(B)
EFFECT OF PLAN- A recovery plan approved by the Secretary--
`(i)
shall be non-binding and advisory; and
`(ii)
may be amended by the Secretary or by recommendation of the executive committee
and approval by the Secretary.
`(C)
RELATIONSHIP TO CONSERVATION PROGRAMS- The Secretary shall--
`(i)
acknowledge appropriate existing conservation programs; and
`(ii)
coordinate with all governmental agencies to incorporate those programs in a
recovery plan.
`(6)
PERIODIC REVIEW-
`(A)
IN GENERAL- The Secretary shall periodically review the progress of all recovery
programs.
`(B)
INQUIRY- If the Secretary finds that a recovery program is not making progress
towards recovery of the species or is not acting within the guidance of the
recovery plan, the Secretary shall submit to the relevant executive committee a
written inquiry for an explanation that requests specific remedial actions.
`(C)
RESPONSE- The executive committee shall have 180 days from the date of receipt
of the inquiry to fulfill the request.
`(D)
DISPUTE RESOLUTION- If the executive committee disputes the findings of the
Secretary--
`(i)
the Secretary shall, in consultation with an appropriate professional society,
appoint a technical reviewer;
`(ii)
the executive committee shall, in consultation with an appropriate professional
society, appoint a technical reviewer;
`(iii)
the 2 technical reviewers shall appoint a third technical reviewer;
`(iv)
the technical reviewers, based on majority opinion, shall make a recommendation
to the Secretary as to whether the program is achieving progress toward recovery
and whether remedial actions are necessary; and
`(v)
having considered the recommendation of the technical reviewers, the Secretary
may--
`(I)
require remedial actions of the executive committee;
`(II)
decommission the recovery program; or
`(III)
take other appropriate actions.';
(5)
in subsection (g)(2), by striking `paragraph 7 of subsection (b) of this
section' and inserting `subsection (b)(9)';
(6)
in subsection (h)(1), by striking `subsection (b)(3) of this section' and
inserting `subsection (b)(5)'; and
(7)
in subsection (i)--
(A)
by striking `subsection (b)(5)(A)(ii)' and inserting `subsection (b)(7)(A)(ii)';
and
(B)
by striking `subsection (b)(3)' and inserting `subsection (b)(5)'.
(b)
Conforming Amendment- The table of contents in the first section of the
Endangered Species Act of 1973 (16 U.S.C. 1531 note) is amended by striking the
item relating to section 4 and inserting the following:
`Sec.
4. Determination and recovery of endangered species and threatened species.'.
This
title may be cited as the `Incentives for Species Recovery Act'.
(a)
In General- The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) is
amended by inserting after section 4 the following:
`(a)
Purposes- The purposes of this section are--
`(1)
to conserve, restore, and enhance habitat for the conservation and recovery of--
`(A)
candidate species;
`(B)
threatened species;
`(C)
endangered species; and
`(D)
species of special concern; and
`(2)
to provide market incentives that promote conservation of species on private
property.
`(b)
Definitions- In this section:
`(1)
CONSERVATION BANK- The term `conservation bank' means an area of land, water, or
other habitat (not necessarily contiguous) that is managed--
`(A)
in perpetuity, or for another appropriate period, under an enforceable legal
instrument; and
`(B)
for purposes of conservation and recovery of--
`(i)
a habitat;
`(ii)
a candidate species, threatened species, or endangered species; or
`(iii)
a species of special concern.
`(2)
CREDIT-
`(A)
IN GENERAL- The term `credit' means the unit of currency of a conservation bank,
generated by preserving or restoring habitat in a conservation bank agreement,
as established through a quantification of the conservation values of a species
or habitat.
`(B)
CONSERVATION VALUES- Conservation values described in subparagraph (A) shall--
`(i)
be determined by the Secretary for each conservation bank; and
`(ii)
be converted into a fixed number of credits that may be bought, sold, or traded
to offset the impact of Federal, State, tribal, local, or private activities.
`(3)
SERVICE AREA-
`(A)
IN GENERAL- The term `service area' means an area identified in a conservation
bank agreement.
`(B)
INCLUSIONS- The term `service area' includes a soil type, watershed, habitat
type, political boundary, an area described in a federally-recognized
conservation plan, and an area designated for conservation purposes in which a
credit may be used to offset an effect of a project.
`(c)
Establishment and Management of Conservation Banks-
`(1)
ESTABLISHMENT- A conservation bank under this section may be established by any
private landowner that--
`(A)
submits to the Secretary an application, in accordance with any regulations
promulgated by the Secretary;
`(B)
demonstrates that the affected area of land, water, or other habitat is managed
under an enforceable legal instrument; and
`(C)
contributes to the conservation of the candidate species, threatened species,
endangered species, or species of special concern that is the subject of the
conservation bank.
`(2)
CERTAIN PROPERTY OWNERS- A property owner that uses Federal or State funding
(including funding for technical assistance), such as funding under the Farm
Security and Rural Investment Act of 2002 (Public Law 107-171; 116 Stat. 134) or
an amendment made by that Act, may submit an application to the Secretary under
paragraph (1)(B)(i).
`(3)
DETERMINATIONS REGARDING APPLICATIONS- The Secretary shall approve or disapprove
a proposed conservation bank under paragraph (1)(B) not later than 180 days
after the date on which the application relating to the conservation bank is
submitted to the Secretary under paragraph (1)(B)(i).
`(4)
MANAGEMENT-
`(A)
IN GENERAL- A conservation bank established under paragraph (1) may be managed,
in accordance with a conservation bank agreement under subparagraph (B), by--
`(i)
a State, in accordance with a process of the State that has been approved by the
Secretary;
`(ii)
the holder of the conservation bank;
`(iii)
a party other than the holder of the conservation bank, as specified in the
conservation bank agreement; or
`(iv)
a party that acquires property rights relating to the conservation bank.
`(B)
CONSERVATION BANK AGREEMENTS-
`(i)
IN GENERAL- The holder of a conservation bank under this section shall--
`(I)
establish an agreement that describes the proposed management of the
conservation bank; and
`(II)
submit the agreement to the Secretary for approval.
`(ii)
APPROVAL BY SECRETARY- As soon as practicable after the date on which the
Secretary receives an agreement under clause (i)(II), the Secretary shall
approve or disapprove the agreement.
`(iii)
AMENDMENTS- An agreement approved under clause (ii) may be amended on the
approval of--
`(I)
each party to the agreement; and
`(II)
the Secretary.
`(iv)
NULLIFICATION OF AGREEMENT- The Secretary shall nullify an agreement approved
under clause (ii) on a determination by the Secretary that--
`(I)
the holder of the conservation bank has been convicted of--
`(aa)
making a materially false statement on a bank application or a report to the
Secretary; or
`(bb)
any other offense that demonstrates that the holder is unfit to manage the
conservation bank; or
`(II)(aa)
the holder of the conservation bank has irremediably failed to carry out the
duties of the holder; and
`(bb)
the failure was not the result of a drought, hurricane, tornado, or other event
outside the reasonable control of the holder.
`(d)
Recovery Plans and Incentive Programs- In developing and implementing recovery
plans and incentive programs, the Secretary shall--
`(1)
take into consideration the practicability of establishing conservation banks;
and
`(2)
not later than 180 days after the date of enactment of this section, promulgate
regulations to manage conservation banks in a manner that balances--
`(A)
the biological conditions of candidate species, threatened species, and
endangered species, species of special concern, and habitat; with
`(B)
economic free market principles to ensure value to landowners through a tradable
credit program.
`(e)
Regulations- Regulations promulgated under subsection (d)(2) shall include
provisions relating to--
`(1)
conservation and recovery goals;
`(2)
activities that may be carried out in a conservation bank;
`(3)
design, operation, and management to ensure the viability of conservation banks;
`(4)
the demonstration of adequate legal control of property proposed to be included
in the conservation bank, such as a title, license, easement, or option relating
to the property;
`(5)
criteria for determining--
`(A)
the number of credits allocated to a conservation bank under subsection (f)(1);
`(B)
methods for accounting for, and recording, the creation and use of credits; and
`(C)
a timeline with respect to the transfer and accounting of credits;
`(6)
the determination of the boundaries of service areas;
`(7)
the applicability of, and compliance with, sections 7 and 10;
`(8)
the monitoring of, and reporting requirements for, conservation banks;
`(9)
financial requirements to ensure the viability of conservation banks;
`(10)
procedures for resolving disputes relating to conservation bank management,
including procedures for providing notices; and
`(11)
remedies for disputes that are not resolved under a procedure described in
paragraph (10).
`(f)
Transfer of Credits by Conservation Banks-
`(1)
ALLOCATION- The number of credits allocated for transfer by a conservation bank
shall be determined by biological data that reflects--
`(A)
the quality of habitat preserved or restored in the conservation bank;
`(B)
the necessary amount of habitat needed to be preserved or restored within the
entire service area of the conservation bank; and
`(C)
the population of candidate species, threatened species, and endangered species,
and species of special concern, that the conservation bank supports or could
support.
`(2)
CREDIT TRANSFER APPROVAL PROCESS-
`(A)
IN GENERAL- As soon as practicable after the date of enactment of this section,
the Secretary shall establish a standard credit transfer approval process for
each service area to facilitate efficient and prompt transactions relating to
credits.
`(B)
REQUIREMENTS- The process established under subparagraph (A) shall provide for
credit transfers for purposes of--
`(i)
compliance with an injunctive order of a court;
`(ii)
meeting a requirement under subsection (a) or (b) of section 7, or section
10(a)(1); and
`(iii)
out-of-kind mitigation under subparagraph (C).
`(C)
OUT-OF-KIND MITIGATION-
`(i)
DEFINITION OF OUT-OF-KIND- In this subparagraph, the term `out-of-kind', with
respect to mitigation, means mitigation involving the same species or habitats,
but in a different service area.
`(ii)
DETERMINATION BY SECRETARY- The Secretary may allow out-of-kind mitigation
through the use of credits if the Secretary determines that out-of-kind
mitigation--
`(I)
is a desirable ecological alternative to in-kind mitigation; and
`(II)
is practicable for an expanded market of potential buyers of credits.
`(iii)
PREFERENCE- Notwithstanding any other provision of this subparagraph, the
Secretary shall give preference to in-kind mitigation to the maximum extent
practicable.
`(iv)
EFFECT OF SUBPARAGRAPH- Nothing in this subparagraph affects any requirement
relating to in-kind mitigation.
`(D)
LIMITATION- In establishing a process under this subsection, the Secretary shall
not--
`(i)
regulate the price of any credit transfer; or
`(ii)
limit participation in the credit transfer process by any party.
`(3)
CREDIT TRANSFERS- A conservation bank may transfer credits of the conservation
bank--
`(A)
on the date on which the Secretary approves the conservation bank under
subsection (c)(3); or
`(B)
before the date described in subparagraph (A), if the holder of the conservation
bank demonstrates to the satisfaction of the Secretary that--
`(i)
the conservation bank agreement adequately provides for each activity proposed
to be carried out relating to the conservation bank; and
`(ii)
a timetable relating to the activities described in clause (i) has been approved
by the Secretary.
`(4)
USE OF PROFITS BY CERTAIN HOLDERS- A holder of a conservation bank described in
subsection (c)(2) may retain any profits from the transfer of a credit under
this subsection.
`(g)
Integration With Other Conservation Plans-
`(1)
IN GENERAL- Except as provided in paragraph (2), to the maximum extent
practicable, the creation of a conservation bank shall be integrated with
conservation plans developed or being developed under section 10 if the
conservation bank--
`(A)
meets the ecological criteria of the habitat conservation plan; and
`(B)
provides greater economic benefits compared with other forms of mitigation of
habitat destruction.
`(2)
EFFECT OF SUBSECTION- Notwithstanding paragraph (1), nothing in this subsection
requires any person operating a conservation bank in existence on the date of
enactment of this section to submit an application for the conservation bank
under this section.
`(h)
Judicial Review-
`(1)
IN GENERAL- Any party to an agreement entered into with respect to a
conservation bank may bring a civil action in a
`(2)
ACTIONS BY COURT- A United States district court described in paragraph (1)
may--
`(A)
issue such awards and judgments, including equitable relief, as the court
determines to be appropriate; and
`(B)
award costs of litigation to the prevailing party.
`(3)
CERTAIN DEFENDANTS-
`(A)
IN GENERAL- Notwithstanding any other provision of law, the
`(B)
SOVEREIGN IMMUNITY- An entity described in subparagraph (A) that is named as a
defendant in a civil action under this subsection shall be considered to have
waived sovereign immunity.'.
(b)
Conforming Amendment- The table of contents of the Endangered Species Act of
1973 (16 U.S.C. 1531 note) is amended--
(1)
by inserting after the item relating to section 4 the following:
`Sec.
4A. Conservation banks.';
and
(2)
by inserting after the item relating to section 17 the following:
`Sec.
18. Annual cost analysis by the Fish and Wildlife Service.'.
Section
10(a) of the Endangered Species Act of 1973 (16 U.S.C. 1539(a)) is amended--
(1)
in paragraph (2)--
(A)
in subparagraph (A)--
(i)
by striking clauses (i) and (iv);
(ii)
by redesignating clauses (ii) and (iii) as subclauses (I) and (II),
respectively, and indenting the subclauses appropriately;
(iii)
in the matter preceding subclause (I) (as redesignated by clause (i)), by
striking `that specifies--' and inserting the following: `that--
`(i)
summarizes the potential for and degree of incidental take that may be
reasonably expected to occur under the proposed action and habitat conservation
plan; and
`(ii)
specifies--';
(iv)
in subclause (I) (as redesignated by clause (i)), by striking `and the funding'
and all that follows through the end of the subclause and inserting `the funding
that will be available to implement those steps, and reports describing the
implementation and results of the conservation plan;';
(v)
in subclause (II) (as redesignated by clause (i)), by striking `and' at the end;
and
(vi)
by adding at the end the following:
`(III)
objective, measurable biological goals to be achieved for species covered by the
plan and specific measures for achieving the goals consistent with subparagraph
(B);
`(IV)
measures the applicant will take to monitor impacts of the plan on covered
species and the effectiveness of the measures in achieving the biological goals
of the plan; and
`(V)
adaptive management provisions necessary to respond to all reasonably
foreseeable changes in circumstances that could appreciably reduce the
likelihood of the survival and recovery of any species covered by the plan.';
(B)
in subparagraph (B)--
(i)
in the matter preceding clause (i), by striking `If' and inserting `The
Secretary shall issue a permit for an application and the related conservation
plan if';
(ii)
in clause (v)--
(I)
by striking `, if any,';
(II)
by striking `subparagraph (A)(iv)' and inserting `subparagraph (A)(ii)'; and
(III)
by striking the semicolon at the end and inserting a period; and
(iii)
by striking the matter following clause (v); and
(C)
by striking subparagraph (C) and inserting the following:
`(C)
VOLUNTARY CONTRIBUTIONS TO RECOVERY-
`(i)
IN GENERAL- If a proposed conservation plan implements a site-specific recovery
action from a relevant approved recovery plan, the Secretary shall include such
terms and conditions as the Secretary considers necessary to reduce or offset
the impacts of incidental taking or otherwise comply with the requirements of
paragraph (2)(B), such that--
`(I)
the effect of the terms and conditions are approximately proportional in extent
to the effect of the incidental take specified in the conservation plan under
subparagraph (A)(i); and
`(II)
the terms and conditions are feasible and consistent with the goals of the plan
to the maximum extent practicable.
`(ii)
ADDITIONAL FINDING- If, in addition to a finding described in subparagraph (B),
the Secretary finds that the proposed conservation plan will implement 1 or more
site-specific recovery actions from a relevant approved recovery plan, so long
as the contribution to recovery is at least proportional to the potential for
and degree of incidental take that may reasonably be expected to occur under the
plan, the application relating to, and issuance of a permit for, the plan shall
be considered to be exempt from--
`(I)
section 7; and
`(II)
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
`(iii)
EFFECT OF PARAGRAPH- This paragraph does not limit the authority of the
Secretary to require greater than acre-for-acre mitigation when necessary to
address the extent of the impacts.'; and
(2)
by adding at the end the following:
`(3)
QUALIFICATION FOR PROVISIONAL PERMIT-
`(A)
IN GENERAL- An applicant shall qualify for a provisional permit with respect to
an application and the related conservation plan if, as of the date on which the
applicant submits the application and the related conservation plan to the
Secretary under this subsection--
`(i)
the applicant voluntarily implements the terms of the proposed application under
paragraph (2) during the pendency of review; and
`(ii)
the applicant has completed a field survey to determine the area occupied by the
species.
`(B)
EFFECT OF PERMIT- A provisional permit under subparagraph (A) shall--
`(i)
authorize existing activities (except an activity that requires ground clearing)
relating to the relevant land; and
`(ii)
remain in effect until the date on which a permit is issued under this
subsection.
`(C)
ADMISSIBILITY OF INFORMATION- Information submitted by an applicant in an
application under this paragraph shall not be admissible in any action relating
to a prohibited act under section 9.
`(4)
AGRICULTURAL AGREEMENTS- If a landowner enters into an agreement under title XII
of the Food and Security Act of 1985 (16 U.S.C. 3831 et. seq.) and the
conservation activities of the landowner include 1 or more site-specific
recovery actions from an approved recovery plan resulting in a net conservation
benefit for a listed species, the Secretary shall permit the incidental take of
that species--
`(A)
for the duration of the agreement; and
`(B)
within the area in which the net conservation benefits will accrue, so long as
the contribution to recovery is at least proportional to the potential for and
degree of incidental taking that may reasonably be expected to occur in the
agreement.
`(5)
LIABILITY WHILE PERFORMING RECOVERY ACTIONS- The Secretary shall permit the
incidental take of a species that--
`(A)
occurs or may occur as a result of the landowner implementing a site-specific
recovery action of an approved recovery plan in a manner that contributes to the
conservation of the species; and
`(B)
occurs or may occur within the area in which the net conservation benefits will
accrue, so long as the contribution to recovery is at least proportional to the
potential for and degree of incidental taking that may reasonably be expected to
occur.
`(6)
REQUIREMENTS APPLICABLE UPON COMPLIANCE WITH PERMIT-
`(A)
IN GENERAL- Except as otherwise provided in this paragraph, if the holder of a
permit under this subsection for any purpose other than a scientific purpose is
in compliance with the terms and conditions of the permit (including any
conservation plan or agreement incorporated by reference in the permit), as
determined by the Secretary, the Secretary shall not require the holder to adopt
any minimization, mitigation, or other measure with respect to any species that
the Secretary determines to be adequately covered by the permit during the term
of the permit without the consent of the holder.
`(B)
IDENTIFIED CHANGE OF CIRCUMSTANCE- If a change of circumstance that is
identified in the permit occurs, as determined by the Secretary, the Secretary
may require the holder to carry out only such additional minimization,
mitigation, or other measures as are provided under the permit with respect to
the circumstance.
`(C)
UNIDENTIFIED CHANGE OF CIRCUMSTANCE- If a change of circumstance that is not
identified in the permit occurs, the Secretary may require the holder to carry
out only additional minimization, mitigation, and other measures that do not
involve--
`(i)
the commitment of any additional uncommitted land, water, or financial
compensation; or
`(ii)
the imposition of additional restrictions on the use of any land, water, or
other natural resource that is otherwise available for development or use under
the original terms and conditions of the permit.
`(D)
BURDEN OF PROOF- The Secretary shall have the burden of proof in demonstrating
and documenting, using the best scientific and commercial data available, the
occurrence of any changed circumstances for the purpose of this paragraph.
`(E)
ASSURANCES-
`(i)
RECENT PERMITS- All permits issued under this subsection on or after the date of
enactment of this paragraph, other than permits issued for scientific purposes,
shall contain assurances regarding requirements specified in subparagraphs (B)
through (D) of this paragraph and subparagraphs (A) and (B) of paragraph (5).
`(ii)
OLDER PERMITS- All permits issued under this subsection on or after March 25,
1998, and before the date of enactment of this paragraph, other than permits
issued for scientific purposes, shall be governed by the applicable portions of
subsections (b) through (d) of section 17.22, and subsections (b) through (d) of
section 17.32, of title 50, Code of Federal Regulations (as in effect as of the
date of enactment of this paragraph).
`(7)
REVOCATION OF PERMIT-
`(A)
IN GENERAL- The Secretary shall revoke a permit issued under this subsection if
the Secretary determines that the holder of the permit is not in compliance with
the terms and conditions of the permit.
`(B)
REVOCATION OF PERMIT THAT INCLUDES CONSERVATION PLAN- The Secretary may revoke a
permit that includes a conservation plan described in this subsection due to a
change in circumstances only if the Secretary--
`(i)
determines that continuing the activities under the permit would be inconsistent
with paragraph (2);
`(ii)
not later than 60 days before the date on which the Secretary revokes the
permit, provides a notice of revocation to the holder of the permit; and
`(iii)
is unable to otherwise remedy the inconsistency.
`(8)
STATEMENTS AND ASSESSMENTS-
`(A)
IN GENERAL- In preparing any environmental impact statement or environmental
assessment under section 102 of the National Environmental Policy Act of 1969
(42 U.S.C. 4332) with respect to the application for, or issuance of, a permit
under this subsection, the Secretary shall not identify or analyze the impacts
and potential minimization and mitigation measures relating to any alternative
other than--
`(i)
the alternative presented by the permit applicant under the conservation plan or
another document; and
`(ii)
an alternative requiring no action by the Secretary.
`(B)
REGULATIONS- The Secretary shall promulgate regulations under which the
Secretary, subject to the availability of appropriations, shall reimburse a
permit applicant under this subsection for reasonable amounts paid by the person
for preparation by a contractor, or another person selected by the Secretary, of
an environmental impact statement, environmental assessment, or related
documentation or study required under section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332) with respect to the application for, or
issuance of, the permit.
`(9)
PUBLICATION OF NOTICE OF DECISION- Not later than 15 days before the proposed
effective date of a permit, the Secretary shall publish in the Federal Register
a notice of any decision of the Secretary to approve or disapprove an
application for, or amendment to, a permit under this section.'.
Section
4(f)(1) of the Endangered Species Act of 1978 (16 U.S.C. 1533(f)(1)) is
amended--
(1)
in the matter preceding subparagraph (A), by striking `in development' and
inserting `in developing'; and
(2)
in subparagraph (A), by striking `activity;' and inserting `activity; and'.
(a)
Deduction for Cost of Conservation and Recovery Bank Credit-
(1)
IN GENERAL- Part VI of subchapter B of chapter 1 of the Internal Revenue Code of
1986 (relating to itemized deductions for individuals and corporations) is
amended by adding at the end the following new section:
`There
shall be allowed as a deduction an amount equal to the cost of any credit
purchased from a conservation bank approved under section 4A of the Endangered
Species Act of 1973 in the taxable year in which such credit is purchased.'.
(2)
CLERICAL AMENDMENT- The table of sections for such part VI is amended by adding
at the end the following new item:
`Sec.
200. Conservation bank credits.'.
(3)
EFFECTIVE DATE- The amendments made by this subsection shall apply to taxable
years ending after the date of the enactment of this Act.
(b)
Credit for Costs Incurred for Conversation Activities Related to Endangered,
Threatened, and Candidate Species-
(1)
IN GENERAL- Subpart B of part IV of subchapter A of chapter 1 of the Internal
Revenue Code of 1986 (relating to other credits) is amended by adding at the end
the following new section:
`(a)
Allowance of Credit- There shall be allowed as a credit against the tax imposed
by this chapter for the taxable year an amount equal to the qualified
conservation and recovery costs of an eligible taxpayer for the taxable year.
`(b)
Limitation Based on Amount of Tax- The credit allowed under subsection (a) for
the taxable year shall not exceed the excess of--
`(1)
the sum of the regular tax liability (as defined in section 26(b)) plus the tax
imposed by section 55, over
`(2)
the sum of the credits allowable under subpart A and sections 27, 30A, 30B, and
30C for the taxable year.
`(c)
Qualified Conservation and Recovery Costs- For purposes of this section, the
term `qualified conservation and recovery costs' means costs paid or incurred by
the eligible taxpayer in carrying out approved site-specific recovery actions
under section 4(f) of the Endangered Species Act (16 U.S.C. 1533(f)), or any
other Federal- or State-approved conservation and recovery agreements involving
an endangered, threatened, or candidate species under the Endangered Species Act
(16 U.S.C. 1531 et seq.) in an amount equal to--
`(1)
under a binding agreement for not less than 99 years, the sum of--
`(A)
the amount by which the fair market value of the land is reduced by such
site-specific recovery actions or agreements, and
`(B)
the actual costs to the property owner of such approved site-specific recovery
actions or agreements,
`(2)
under a binding agreement for not less than 30 years but less than 99 years, the
sum of--
`(A)
75 percent of the amount described in paragraph (1)(A), and
`(B)
75 percent of the actual costs of such approved site-specific recovery actions
or agreements, and
`(3)
under a binding agreement for not less than 10 years but less than 30 years, 75
percent of the actual costs of such approved site-specific recovery actions or
agreements.
`(d)
Eligible Taxpayer- For purposes of this section--
`(1)
IN GENERAL- The term `eligible taxpayer' means any person who submits to the
Secretary, together with the return of the taxpayer for the taxable year--
`(A)
evidence of the binding agreement described in subsection (c), and
`(B)
a written verification from a biologist not directly employed by the taxpayer
that any conservation and recovery practice for which the taxpayer seeks a
credit under this section--
`(i)
is described in a Federal- or State-approved agreement in subsection (c), and
`(ii)
was carried out--
`(I)
during the taxable year, and
`(II)
in accordance with the schedule of the Federal- or State-approved agreement in
subsection (c).
`(2)
EFFECT OF GOVERNMENTAL ASSISTANCE ON ELIGIBILITY- Such term shall not include
any taxpayer who receives any cost share assistance from the Federal Government
or a State government under any approved site-specific recovery action or
agreement described in subsection (c) for the taxable year, unless the adjusted
gross income of the taxpayer for such taxable year does not exceed the amount of
the adjusted gross income limitation which would apply to such taxpayer for such
taxable year for purposes of the credit allowed under section 32.
`(e)
Carryback and Carryforward Allowed-
`(1)
IN GENERAL- If the credit allowable under subsection (a) for a taxable year
exceeds the amount of the limitation under subsection (b) for such taxable year
(in this paragraph referred to as the `unused credit year'), such excess shall
be a credit carryback to each of the 1 taxable years preceding the unused credit
year and a credit carryforward to each of the 20 taxable years following the
unused credit year.
`(2)
RULES- Rules similar to the rules of section 39 shall apply with respect to the
credit carryback and credit carryforward under subparagraph (A).
`(f)
Credits May Be Transferred- Nothing in any law or rule of law shall be construed
to limit the transferability of any credit allowed by this section through sale
and repurchase agreements.
`(g)
Special Rules-
`(1)
BASIS REDUCTION- The basis of any property for which a credit is allowable under
subsection (a) shall be reduced by the amount of such credit (determined without
regard to subsection (b)).
`(2)
NO DOUBLE BENEFIT- The amount of any deduction or credit allowable under this
chapter (other than the credit allowable under subsection (a)), shall be reduced
by the amount of credit allowed under subsection (a) (determined without regard
to subsection (b)(2)) for the taxable year.
`(3)
REDUCTION FOR ASSISTANCE- The amount taken into account under subsection (a)
with respect to any project shall be reduced by the amount of any Federal,
State, or local grant or other assistance received by the taxpayer during such
taxable year or any prior taxable year which was used for qualified conservation
and recovery costs and which was not included in the gross income of such
taxpayer.
`(h)
Recapture- The Secretary shall, by regulations, provide for the recapture of any
credit allowable under subsection (a) if the taxpayer breaches or terminates the
agreement described in subsection (c).'.
(2)
BASIS ADJUSTMENT- Section 1016(a) of such Code is amended by striking `and' at
the end of paragraph (36), by striking the period at the end of paragraph (37)
and inserting `, and', and by adding at the end the following new paragraph:
`(38)
to the extent provided in section 30D(g)(1).'.
(3)
CLERICAL AMENDMENT- The table of sections for subpart B of part IV of subchapter
A of chapter 1 of such Code is amended by inserting after the item relating to
section 30C the following new item:
`Sec.
30D. Credit for costs incurred for conversation activities related to
endangered, threatened, and candidate species.'.
(4)
EFFECTIVE DATE- The amendments made by this subsection shall apply to taxable
years ending after the date of the enactment of this Act.
Section
506(a) of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6576(a)) is
amended--
(1)
by striking `and protection under--' and inserting `and protection as follows:';
and
(2)
by striking paragraphs (1) and (2) and inserting the following:
`(1)
CONSERVATION ACTIVITIES THAT INCLUDE A SITE-SPECIFIC RECOVERY ACTION- In the
case of a landowner that enrolls in the program and the restoration plan of
which includes 1 or more site-specific recovery actions from a recovery plan
approved under section 4(f) of the Endangered Species Act of 1973 (16 U.S.C.
1533(f)), the landowner shall not be liable under section 9 of that Act (16
U.S.C. 1538) for the incidental take of species covered by the restoration
plan--
`(A)
for the duration of the agreement; and
`(B)
within the area in which the net conservation benefits will accrue, so long as
the contribution to recovery is at least proportional to the potential for and
degree of incidental taking that may reasonably be expected to occur in the
restoration plan.
`(2)
CONSERVATION ACTIVITIES THAT DO NOT INCLUDE A SITE-SPECIFIC RECOVERY ACTION- In
the case of a landowner the conservation activities of which do not include a
site-specific recovery action from a recovery plan approved under section 4(f)
of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)), the Secretary of
Agriculture shall make available to the landowner safe harbor or similar
assurances and protections under--
`(A)
section 7(b)(4) of the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(4)); or
`(B)
section 10 (a)(1) of that Act (16 U.S.C. 1539(a)(1)).'.
END
THOMAS
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