Endangered Species Act Amendments of 2020

II 116TH CONGRESS 2D SESSION S. 4589 To amend the Endangered Species Act of 1973 to increase transparency, to support regulatory certainty, and to reauthorize that Act, and for other purposes. IN THE SENATE OF THE UNITED STATES SEPTEMBER 16, 2020 Mr. BARRASSO introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the Endangered Species Act of 1973 to increase transparency, to support regulatory certainty, and to re- authorize that Act, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Endangered Species Act Amendments of 2020’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. TITLE I—TECHNICAL CORRECTIONS OF GENDER-SPECIFIC PRONOUNS VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4589 IS Sec. 101. Technical corrections of gender-specific pronouns. TITLE II—ENHANCING THE FEDERAL-STATE CONSERVATION PARTNERSHIP Sec. 201. Definitions. Sec. 202. State-Federal consultation relating to conservation and recovery of wildlife. Sec. 203. Recovery of threatened and endangered species. Sec. 204. Delisting, downlisting, and uplisting. Sec. 205. Cooperation with States and Indian Tribes. Sec. 206. State consultation regarding experimental populations. Sec. 207. State participation in settlements. TITLE III—ENCOURAGING CONSERVATION ACTIVITIES THROUGH REGULATORY CERTAINTY Sec. 301. Sense of Congress regarding conservation agreements and activities. Sec. 302. Conservation agreements as factors in listing decisions. Sec. 303. Conservation efforts as regulatory mechanisms. Sec. 304. Candidate conservation agreements with assurances. Sec. 305. Safe harbor agreements. Sec. 306. Conservation agreement templates. TITLE IV—STRENGTHENING CONSERVATION DECISIONMAKING THROUGH INCREASED TRANSPARENCY Sec. 401. Transparency of information. Sec. 402. Transparency in litigation. TITLE V—OPTIMIZING CONSERVATION THROUGH RESOURCE PRIORITIZATION Sec. 501. Prioritization of listing petitions, reviews, and determinations. TITLE VI—STUDIES TO IMPROVE CONSERVATION Sec. 601. Definition of Secretaries. Sec. 602. Study to review conservation factors. Sec. 603. Study and report on expenditures. Sec. 604. Study to quantify litigation expenses. TITLE VII—REAUTHORIZATION Sec. 701. Reauthorization. TITLE VIII—MISCELLANEOUS Sec. 801. Effect. Sec. 802. Sense of the Senate. VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4589 IS TITLE I—TECHNICAL CORREC- 1 TIONS OF GENDER-SPECIFIC 2 PRONOUNS 3 SEC. 101. TECHNICAL CORRECTIONS OF GENDER-SPECIFIC 4 PRONOUNS. 5 (a) DETERMINATION OF ENDANGERED SPECIES AND 6 THREATENED SPECIES.—Section 4 of the Endangered 7 Species Act of 1973 (16 U.S.C. 1533) is amended— 8 (1) in subsection (a)(2)— 9 (A) by striking subparagraphs (A) and (B) 10 and inserting the following: 11 ‘‘(A) in any case in which the Secretary of 12 Commerce determines that the species should 13 be— 14 ‘‘(i) listed as an endangered species or 15 a threatened species, or changed in status 16 from a threatened species to an endan- 17 gered species— 18 ‘‘(I) the Secretary of Commerce 19 shall submit to the Secretary of the 20 Interior a notice of the determination; 21 and 22 ‘‘(II) the Secretary of the Inte- 23 rior shall list the species in accordance 24 with this section; or 25 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4589 IS ‘‘(ii) removed from any list published 1 pursuant to subsection (c), or changed in 2 status from an endangered species to a 3 threatened species— 4 ‘‘(I) the Secretary of Commerce 5 shall recommend that action to the 6 Secretary of the Interior; and 7 ‘‘(II) the Secretary of the Inte- 8 rior, on concurrence with the rec- 9 ommendation, shall implement the ac- 10 tion; and’’; and 11 (B) by redesignating subparagraph (C) as 12 subparagraph (B) and indenting the subpara- 13 graph appropriately; 14 (2) in subsection (b)— 15 (A) in paragraph (1)(A), by striking ‘‘to 16 him’’; 17 (B) in paragraph (2), in the second sen- 18 tence, by striking ‘‘he determines’’ each place it 19 appears and inserting ‘‘the Secretary deter- 20 mines’’; 21 (C) in paragraph (3)(D)(ii), by striking 22 ‘‘the Secretary shall’’ and all that follows 23 through the period at the end and inserting the 24 following: ‘‘the Secretary shall— 25 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4589 IS ‘‘(I) determine the means by 1 which to proceed with the requested 2 revision; and 3 ‘‘(II) promptly publish in the 4 Federal Register a notice of the deter- 5 mination.’’; 6 (D) in paragraph (5)(C), by striking ‘‘he 7 deems’’ and inserting ‘‘the Secretary determines 8 to be’’; 9 (E) in paragraph (6)(B)(ii), in the third 10 sentence, by striking ‘‘he determines’’ and in- 11 serting ‘‘the Secretary determines’’; and 12 (F) in paragraph (7), in the third sentence 13 of the undesignated matter following subpara- 14 graph (B), by striking ‘‘he shall withdraw it’’ 15 and inserting ‘‘the Secretary shall withdraw the 16 regulation’’; 17 (3) in subsection (c)(1), in the first sentence, by 18 striking ‘‘by him’’ each place it appears and insert- 19 ing ‘‘by the Secretary’’; 20 (4) in subsection (d), in the first sentence, by 21 striking ‘‘he deems’’ and inserting ‘‘the Secretary 22 determines to be’’; 23 (5) in subsection (e)— 24 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4589 IS (A) by redesignating subparagraphs (B) 1 and (C) as paragraphs (2) and (3), respectively, 2 and indenting the paragraphs appropriately; 3 and 4 (B) by striking ‘‘and to the extent’’ in the 5 matter preceding subparagraph (A) and all that 6 follows through ‘‘(A) such species’’ and insert- 7 ing the following: ‘‘to the extent the Secretary 8 determines to be advisable, treat any species as 9 an endangered species or threatened species, re- 10 gardless of whether the species is listed pursu- 11 ant to this section, if the Secretary finds that— 12 ‘‘(1) the species’’; and 13 (6) in subsection (f)(1), in the first sentence of 14 the matter preceding subparagraph (A), by striking 15 ‘‘he finds’’ and inserting ‘‘the Secretary finds’’. 16 (b) LAND ACQUISITION.—Section 5(a)(2) of the En- 17 dangered Species Act of 1973 (16 U.S.C. 1534(a)(2)) is 18 amended by striking ‘‘in him’’ and inserting ‘‘in the Sec- 19 retary’’. 20 (c) COOPERATION WITH STATES.—Section 6 of the 21 Endangered Species Act of 1973 (16 U.S.C. 1535) is 22 amended— 23 (1) in subsection (c)— 24 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4589 IS (A) in paragraph (1), in the matter pre- 1 ceding subparagraph (A), by striking ‘‘he’’ each 2 place it appears and inserting ‘‘the Secretary’’; 3 and 4 (B) in paragraph (2), in the matter pre- 5 ceding subparagraph (A), by striking ‘‘he’’ each 6 place it appears and inserting ‘‘the Secretary’’; 7 (2) in subsection (d)(2)— 8 (A) by striking the paragraph designation 9 and all that follows through ‘‘agreement; and’’ 10 in clause (i) and inserting the following: 11 ‘‘(2) COOPERATIVE AGREEMENT REQUIRE- 12 MENTS.— 13 ‘‘(A) IN GENERAL.—A cooperative agree- 14 ment under this section shall include provisions 15 relating to— 16 ‘‘(i) the benefits expected to be de- 17 rived in connection with the conservation 18 of each applicable endangered species or 19 threatened species; 20 ‘‘(ii) the actions to be carried out 21 by— 22 ‘‘(I) the Secretary; and 23 ‘‘(II) each applicable State; 24 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4589 IS ‘‘(iii) the estimated cost of the actions 1 described in clause (ii); and 2 ‘‘(iv) subject to subparagraph (B), the 3 Federal and non-Federal shares of those 4 costs. 5 ‘‘(B) FEDERAL SHARE.—In establishing 6 the provisions required under subparagraph 7 (A)(iv), the Secretary shall ensure that— 8 ‘‘(i) the Federal share of the applica- 9 ble program costs shall not exceed 75 per- 10 cent of the estimated program cost, as 11 stated in the cooperative agreement; but’’; 12 and 13 (B) in the undesignated matter following 14 clause (ii) of subparagraph (B) (as so des- 15 ignated)— 16 (i) in the second sentence— 17 (I) by striking ‘‘Secretary, whose 18 decision’’ and inserting the following: 19 ‘‘Secretary. 20 ‘‘(II) TREATMENT OF DETER- 21 MINATION.—A determination of the 22 Secretary pursuant to subclause (I)’’; 23 and 24 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4589 IS (II) by striking ‘‘For the pur- 1 poses’’ and inserting the following: 2 ‘‘(ii) FORM OF NON-FEDERAL 3 SHARE.— 4 ‘‘(I) IN GENERAL.—For pur- 5 poses’’; and 6 (ii) in the first sentence, by striking 7 ‘‘The Secretary may, in his discretion, and 8 under such rules and regulations as he 9 may prescribe, advance’’ and inserting the 10 following: 11 ‘‘(C) NON-FEDERAL SHARE.— 12 ‘‘(i) IN GENERAL.—At the discretion 13 of the Secretary, the Secretary, by regula- 14 tion, may advance’’; 15 (3) in subsection (e), by striking ‘‘his periodic 16 review’’ and inserting ‘‘periodic review by the Sec- 17 retary’’; and 18 (4) in subsection (g)(2)(B)(ii), in the first sen- 19 tence, by striking ‘‘applies such prohibition after he 20 finds, and publishes his finding, that’’ and inserting 21 ‘‘applies the prohibition after publishing a deter- 22 mination by the Secretary that’’. 23 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4589 IS (d) INTERAGENCY COOPERATION.—Section 7 of the 1 Endangered Species Act of 1973 (16 U.S.C. 1536) is 2 amended— 3 (1) in subsection (a)— 4 (A) in paragraph (1), in the first sentence, 5 by striking ‘‘administered by him and utilize 6 such’’ and inserting ‘‘administered by the Sec- 7 retary, and use those’’; and 8 (B) in paragraph (3), by striking ‘‘his 9 project’’ and inserting ‘‘the project of the appli- 10 cant’’; 11 (2) in subsection (b)(3)(A), in the second sen- 12 tence, by striking ‘‘which he’’ and inserting ‘‘that 13 the Secretary’’; and 14 (3) in subsection (g)— 15 (A) in paragraph (4), by striking ‘‘require- 16 ments set forth in paragraph (3)(A) (i), (ii) and 17 (iii) he shall, in consultation with the Members 18 of the Committee, hold’’ and inserting ‘‘require- 19 ments under clauses (i), (ii), and (iii) of para- 20 graph (3)(A), the Secretary, in consultation 21 with the Committee, shall hold’’; and 22 (B) in paragraph (7), by striking ‘‘such 23 agency to the Secretary to assist him in car- 24 rying out his duties under’’ and inserting ‘‘the 25 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4589 IS Federal agency to the Secretary to assist the 1 Secretary in carrying out’’. 2 (e) INTERNATIONAL COOPERATION.—Section 8 of 3 the Endangered Species Act of 1973 (16 U.S.C. 1537) 4 is amended— 5 (1) in subsection (a), in the second sentence, by 6 striking ‘‘he deems’’ and inserting ‘‘the President 7 determines to be’’; 8 (2) in subsection (b)(3), by striking ‘‘as he’’ 9 and inserting ‘‘as the Secretary’’; 10 (3) in subsection (c)(1), by striking ‘‘his depart- 11 ment’’ and inserting ‘‘the Department of the Sec- 12 retary’’; and 13 (4) in subsection (d), by striking ‘‘he deems’’ 14 and inserting ‘‘the Secretary determines to be’’. 15 (f) CONVENTION IMPLEMENTATION.—Section 16 8A(c)(2) of the Endangered Species Act of 1973 (16 17 U.S.C. 1537a(c)(2)) is amended by striking ‘‘by him’’ and 18 inserting ‘‘by the Secretary’’. 19 (g) PROHIBITED ACTS.—Section 9 of the Endan- 20 gered Species Act of 1973 (16 U.S.C. 1538) is amended— 21 (1) in subsection (d)(2)— 22 (A) in subparagraph (A), by striking ‘‘by 23 him’’ each place it appears and inserting ‘‘by 24 the person’’; and 25 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4589 IS (B) in subparagraph (B), by striking ‘‘his 1 place of business, an opportunity to examine his 2 inventory’’ and inserting ‘‘the place of business 3 of the person, an opportunity to examine the in- 4 ventory of the person’’; and 5 (2) in subsection (f)(1), in the third sentence— 6 (A) by striking ‘‘as he’’ and inserting ‘‘as 7 the Secretary’’; and 8 (B) by striking ‘‘if, in his discretion, he 9 deems it’’ and inserting ‘‘as the Secretary de- 10 termines to be’’. 11 (h) EXCEPTIONS.—Section 10 of the Endangered 12 Species Act of 1973 (16 U.S.C. 1539) is amended— 13 (1) in subsection (a), by striking ‘‘he’’ each 14 place it appears and inserting ‘‘the Secretary’’; 15 (2) in subsection (b)— 16 (A) in paragraph (1), by striking ‘‘applies 17 to him’’ and inserting ‘‘submits to the Secretary 18 an application’’; and 19 (B) in paragraph (3)— 20 (i) in the first sentence, by striking 21 ‘‘as he deems fit’’ and inserting ‘‘as the 22 Secretary determines to be appropriate’’; 23 and 24 VerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 4589 IS (ii) in the second sentence, by striking 1 ‘‘in his discretion’’; 2 (3) in subsection (d)— 3 (A) by striking ‘‘such endangered species, 4 and (3) will’’ and inserting the following: ‘‘an 5 endangered species; and 6 ‘‘(3) will’’; 7 (B) by striking ‘‘faith, (2) if granted and 8 exercised’’ and inserting the following: ‘‘faith; 9 ‘‘(2) if granted and exercised,’’; and 10 (C) by striking ‘‘and (b) of this section 11 only if he finds and publishes his finding in the 12 Federal Register that (1) such’’ and inserting 13 the following: ‘‘and (b) only if the Secretary 14 publishes in the Federal Register a determina- 15 tion by the Secretary that— 16 ‘‘(1) the’’; 17 (4) in subsection [Text truncated for display. 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