Endangered Species Conservation and Management Act of 1995

TABLE OF CONTENTS:

Title I: Private Property Rights and Voluntary Incentives

for Private Property Owners

Title II: Improving Ability to Comply with the Endangered

Species Act of 1973

Title III: Improving Scientific Integrity of Listing

Decisions and Procedures

Title IV: Recognizing Other Federal Action, Laws, and

Missions

Title V: Better Management and Conservation of Listed

Species

Title VI: Habitat Protections

Title VII: State Authority to Protect Endangered and

Threatened Species

Title VIII: Funding of Conservation Measures

Title IX: Miscellaneous Provisions

Endangered Species Conservation and Management Act of 1995 - Amends the Endangered Species Act of 1973 (the Act) to revise: (1) the findings and purposes of the Act to include consideration of economic impacts and property owners' rights while encouraging practices that protect species; and (2) the policy of the Act to prohibit the Federal Government from using or limiting the use of privately owned property when such action diminishes the value of such property without payment of fair market value to the owner of private property.

Title I: Private Property Rights and Voluntary Incentives for Private Property Owners - Amends the Act to prohibit the Government from taking an agency action affecting privately or non-federally owned property under the Act which results in diminishment of value of any portion of that property by 20 percent or more unless compensation is offered in accordance with this title.

Requires: (1) the Federal agency that takes an action that exceeds that amount to compensate the private property owner for the otherwise lawful use or limitation on such use in the amount of the diminution in value of the portion of that property resulting from such use or limitation; (2) the agency, if the diminution in value of a portion of that property is greater than 50 percent, at the option of the owner, to buy that portion and pay fair market value based on the value of the property before the use or limitation was imposed; and (3) that compensation paid reflect the duration of the use or limitation necessary to achieve the purposes of the Act.

Sets forth provisions regarding: (1) procedures for written requests for compensation by the owner; (2) agency negotiations with that owner to reach agreement; (3) choice of remedies; (4) arbitration; (5) civil actions (an owner who prevails in a civil action against the agency shall be entitled to the amount of compensation awarded plus reasonable attorney's fees and other litigation costs); (6) source of payments; (7) availability of appropriations (any U.S. obligation to make such a payment shall be subject to the availability of appropriations); and (8) duty of providing notice to owners of agency actions limiting the use of private property and of procedures for obtaining compensation.

(Sec. 102) Requires the Secretary of the Interior (Secretary), in carrying out the program authorized by the Act, to cooperate to the maximum extent practicable with the States and other non-Federal persons, including by engaging in consultation before acquiring any land or water or interest therein for the purpose of conserving any endangered or threatened species.

Authorizes the Secretary to enter into a cooperative management agreement with any State or local government or non-Federal person for the management of a species listed as endangered or threatened, to be listed, or which is a candidate for listing or for the management or acquisition of an area which provides habitat for a species, subject to specified limitations.

Sets forth provisions regarding: (1) environmental assessments; (2) the effect of listing a species; and (3) violations of such agreements. Specifies that consultation with States pursuant to this section shall not be subject to the Federal Advisory Committee Act (FACA).

(Sec. 103) Authorizes the Secretary to provide grants to certain non-Federal persons for the purpose of conserving, preserving, or improving habitat for any species that is determined to be an endangered or threatened species or for any conservation measures that enhance the survivability of such species, including predator control, upon determining that: (1) the property for which the grant is provided contains habitat that significantly contributes to the protection of the population of the species and has been managed for species protection for a sufficient period of time to significantly contribute to the protection of the species population; and (2) the management of the habitat advances the interest of species protection.

(Sec. 104) Directs the Secretary to initiate a program to provide technical advice and assistance to non-Federal persons who wish to participate in achieving the conservation objective for a species.

(Sec. 105) Specifies that nothing in the Act shall be construed to supersede, abrogate, or otherwise impair any right or authority of a State to allocate or administer quantities of water.

Title II: Improving Ability to Comply With the Endangered Species Act of 1973 - Amends the Act to provide that an activity of a non-Federal person is not a taking of a species if the activity: (1) is consistent with the provisions of a final conservation plan or conservation objective; (2) complies with the terms and conditions of an incidental take permit or a cooperative management agreement; (3) addresses a critical, imminent threat to public health or safety or a catastrophic natural event, or is mandated by any Federal, State, or local government agency for public health or safety purposes; (4) is incidental to, and not the purpose of, carrying out an otherwise lawful activity that consists of on-going maintenance, routine operation or use, and certain emergency repairs, road and right-of-way maintenance, use, and repair, or emergency repair or restoration of any property or non-Federal facility to the condition in which it existed or operated immediately before an emergency or disaster, meeting current standards; or (5) is incidental to, and not the purpose of, carrying out an otherwise lawful activity that occurs in an area of the territorial sea or exclusive economic zone that is not designated as critical habitat and the affected species is not a species of fish.

Makes enforcement provisions and provisions regarding rewards and incidental expenses paid by the Secretary or the Secretary of the Treasury applicable specifically to endangered or threatened species of fish and wildlife.

Specifies that no interpretation, policy, guideline, finding, or other informal determination may be relied upon by the Secretary in the implementation and enforcement of the Act unless such determination has been the subject of a proposed rule, subject to specified requirements. Places the burden on the Secretary to show that a specimen belongs to a species which is determined to be an endangered or threatened species. Bars the Secretary from detaining a specimen for longer than 30 days for the purpose of identification except where the specimen has been substantially changed from its natural appearance, in which case it may be retained for an additional 30 days for identification.

Authorizes civil suits by persons who have suffered or are threatened with economic or other injury resulting from actions by Federal officials with respect to enforcement of the Act under specified circumstances.

(Sec. 202) Defines, for purposes of the Act: (1) "take" to mean to harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in that conduct; and (2) "harm" to mean to take a direct action against any member of an endangered species of fish or wildlife that actually injures or kills a member of the species.

(Sec. 203) Authorizes non-Federal persons to initiate consultation with the Secretary on any prospective activity: (1) to determine if the activity is consistent with a conservation plan or objective; or (2) if the person determines that the activity is inconsistent, to determine whether the activity is likely to jeopardize the continued existence of an endangered or threatened species or to destroy or adversely modify the designated critical habitat of the species in a manner that is likely to jeopardize the continued existence of the species. Bars any person that is not an owner of property from participating in the consultation process with respect to the property without written permission from the owner of the property.

(Sec. 204) Modifies Act requirements regarding incidental take permits to authorize the Secretary to allow certain acts including: (1) the public display or exhibition of living wildlife in a manner which contributes to public education about the ecological role and conservation needs of the affected species; (2) in the case of foreign species, acts consistent with the Convention and with conservation strategies adopted by the foreign nations responsible for the conservation of the species; and (3) acts necessary for the research in, and carrying out of, captive propagation.

Sets forth requirements regarding species conservation plans.

Authorizes the Secretary to assist non-Federal persons in the development of multiple species conservation plans, subject to specified requirements. Directs the Secretary, in cooperation with the States, to develop a process whereby full consideration can be given to State recommendations regarding standards and guidelines for the development and approval of a broad range of multiple species conservation plans. Authorizes and encourages the Secretary and other Federal agencies, in cooperation with the affected States, to provide technical assistance or guidance to any non-Federal person who is developing such a plan.

Requires the Secretary to issue regulations establishing a simple, standardized application form for a permit for a low-impact activity, subject to specified requirements. Directs that regulations under this paragraph treat as a low-impact activity any activity which has no significant effect on the survival of endangered and threatened species.

(Sec. 205) Sets forth provisions regarding: (1) general, research, and educational permits; (2) maintenance of aquatic habitats for listed species; (3) compliance with international requirements and treaties; and (4) incentives for protection of marine species.

(Sec. 209) Authorizes the Secretary of State to enter into international agreements for the conservation of sea turtles.

Title III: Improving Scientific Integrity of Listing Decisions and Procedures - Revises provisions of the Act regarding determinations that a species is endangered or threatened to direct the Secretary to make such determinations based on specified factors, including: (1) the present or threatened loss of its habitat; and (2) the inadequacy of existing Federal, State, and local government regulatory mechanisms.

Requires the Secretary: (1) to make such determinations solely on the basis of the best scientific and commercial data available after conducting a review of the status of the species and after soliciting and fully considering the best scientific and commercial data available concerning the status of a species from any affected State or any interested non-Federal person, taking into account other specified factors; and (2) in making such determinations, to consider the future conservation benefits to be provided to the species under species conservation plans or cooperative management agreements entered into under this Act.

Directs the Secretary to promulgate scientifically valid standards for rendering taxonomic determinations of species and subspecies. Requires such standards to provide that to be eligible for determination as a subspecies under the Act, a subspecies must be reproductively isolated from other subspecific population units and constitute an important component in the evolutionary legacy of the species.

Sets forth or revises provisions regarding: (1) consideration of State recommendations; (2) listing of foreign species; (3) soliciting scientific information; (4) emergency listings; (5) use of the best scientific and commercial data (with proposed regulations to implement determinations based only upon peer-reviewed scientific information obtainable from any source which has been, to the maximum extent feasible, verified by field testing); (6) identifying data used for decisions; and (7) judicial review of determinations.

Requires the Secretary, concurrently with a determination that a species warrants listing as an endangered or threatened species, to issue an analysis of the economic and social effects the listing may have, which shall be published in the Federal Register with the listing determination and shall include: (1) an estimate of the listing's effects on Federal, State, and local expenditures and revenues; and (2) the costs and benefits for the private sector, including lost opportunity costs.

(Sec. 302) Sets forth or revises provisions regarding: (1) peer review (including by defining a "qualified individual" to be a peer reviewer to exclude individuals who actively participated in the prelisting or listing processes or advocated that a listing decision be made and those with a direct financial interest and by requiring that the report of such reviewers be included in the official record of the proposed action and be made available for public review prior to the close of the comment period on the regulation); (2) making data public; (3) improving the petition and designation processes; (4) greater State involvement; (5) monitoring the status of species (limits the use of specified authority by the Secretary to prevent only an imminent threat to the existence of a threatened or endangered species); and (6) petitions to delist species.

(Sec. 308) Revises the Act to require the Secretary to propose to remove a species from the list within 90 days of the date upon which it is determined that: (1) new data or a reinterpretation of prior data indicates that the previous determination was in error; (2) the species is extinct; or (3) the population level target established for the species in a conservation plan under the Act has been achieved.

Title IV: Recognizing Other Federal Action, Laws, and Missions - Amends the Act to direct: (1) the Secretary to review other programs administered by the Secretary and utilize such programs in furtherance of the purposes of the Act; and (2) each Federal agency to ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify any habitat that is designated by the Secretary as critical habitat of the species in a manner that is likely to jeopardize the continued existence of the species.

Sets forth provisions regarding: (1) involvement of applicants for Federal approvals; (2) conferring on candidate species; and (3) limitations on modifications to land management.

Places upon the Secretary the responsibility of demonstrating, based on the best information available at the time of the request for consultation, that a threatened or endangered species or its respective critical habitat is located in the geographic area that would be affected by the proposed action and that such proposed action will jeopardize the continued existence of a threatened or endangered species.

Prohibits the Secretary from issuing an opinion that a proposed action will jeopardize the continued existence of a threatened or endangered species based on the insufficiency of available data on the impact of a proposed action on such species.

Sets forth provisions regarding: (1) resolving conflicts between Federal agencies; (2) procedures for consultation (requires the Secretary, in developing a biological opinion, to solicit and utilize information and advice from the Governor of any State in which is located a species or land that is the subject of the Federal action requiring consultation and provides that, with respect to emergency rules, no additional measures to minimize or mitigate impacts on a species that is a subject of an opinion issued shall be required of a permit applicant or licensee that is in compliance with the opinion and any agreement or permit issued to implement the opinion); and (3) activities prior to completion of consultation.

Requires the Secretary, once a biological opinion has been rendered and the applicant has agreed to the terms and conditions contained therein, to provide to the applicant a written approval which shall guarantee that, as long as the project is pursued consistent with the opinion, the applicant shall not be subject to new or additional requirements for the specific protection of any species beyond those set forth in the opinion. Provides that all public entities shall be bound by the Secretary's approval.

Directs the Secretary, as part of the conservation planning process, to guarantee that as long as the permittee is complying with the terms and conditions of the permit issued, the permittee shall not be subject to new or additional requirements for the specific protection of any species beyond those set forth in the conservation plan. Provides that all public entities shall be bound by this guarantee.

(Sec. 402) Sets forth provisions regarding exemptions from consultation and conferencing requirements.

(Sec. 403) Eliminates the Endangered Species Committee and related provisions.

Title V: Better Management and Conservation of Listed Species - Amends the Act to direct the Secretary to publish a conservation objective and a conservation plan for each species determined to be an endangered or threatened species.

Requires the Secretary: (1) within 30 days after the listing determination, to appoint an assessment and planning team (which shall report to the Secretary within 180 days on the assessment of specified biological, economic, and intergovernmental factors with respect to the listed species); and (2) within 210 days, to review the report to establish a conservation objective for the species and publish in the Federal Register the conservation objective, along with a statement of findings on which the objective was established.

Requires: (1) the chairman of the team to be selected from representatives of participating States or local governments; and (2) the Secretary to provide to provide funding to the team to employ or obtain such technical assistance as necessary, and, upon completion of the assessment, to publish a notice of the availability of the report and allow 30 days for public comment.

(Sec. 502) Directs the Secretary, in the development and implementation of a conservation plan, to accord specified priorities, including to: (1) the development of an integrated plan for two or more endangered or threatened species that are likely to benefit from an integrated conservation plan; and (2) nonregulatory, incentive-based conservation measures and commercial activities that provide a net benefit to the conservation of the species.

Sets forth provisions regarding: (1) publication of a draft plan; (2) contents of such plan; (3) plan preparation procedures; (4) publication of a final plan; (5) participation by other persons; (6) plan revision or amendment; and (7) lack of further procedures or requirements for actions consistent with the conservation plan.

(Sec. 503) Delineates procedures regarding: (1) management prior to publication of a conservation plan; (2) emergency rulemaking protections; (3) suspension of conservation plans or objectives; (4) non-delegation of duties; and (5) review of conservation plans.

(Sec. 504) Authorizes the Secretary to: (1) designate critical habitat of a species determined to be an endangered or threatened species that meets specified requirements utilizing the National Biodiversity Reserve (see Title VI) as a first priority; and (2) revise a critical habitat designation on determining that such habitat does not meet such requirements. Directs the Secretary, upon receiving a written request from a non-Federal person requesting a review of the critical habitat designation on such person's private property, to revise such designation on such property on determining that they meet specified requirements.

Sets forth provisions regarding: (1) deadlines for designation; (2) basis for designation (directs the Secretary to exclude any area from critical habitat which does not meet the definition as set forth in this Act, which is not necessary to achieve the conservation objective for the affected species, for which the Secretary determines that the benefits of exclusion outweigh the benefits of designation (with exceptions), and in the case of property owned by a non-Federal person, where the owner has not given written consent to the designation or has not been compensated); (3) procedure for designation; and (4) judicial review of the critical habitat designation.

Sets forth provisions regarding: (1) the standard for judicial review of decisions regarding conservation objectives or plans; (2) conservation plans for foreign species; and (3) the definition of critical habitat.

(Sec. 505) Authorizes the Secretary to: (1) utilize captive propagation as a means of protecting or conserving an endangered or threatened species; and (2) provide annual grants to non-Federal persons to fund captive propagation programs if the Secretary determines that such a program contributes to enhancement of the population of such a species.

(Sec. 506) Revises provisions regarding experimental populations to require the Secretary, before authorizing the release of a population of endangered or threatened species outside the current range of such species: (1) to identify the precise boundaries of the geographic area for the release and determine whether the release is in the public interest; and (2) in the case of a release of a species of predatory mammal in a unit of the National Park System or the National Wildlife Refuge System, to require that if the species enters private property, measures shall be taken to remove the species from the property and protect the safety and welfare of the public and domestic animals, including livestock, and to provide funding for such measures, including compensation for diminution of property values.

Provides that: (1) any member of an experimental population found outside the geographic area in which the population is released shall not be treated as a threatened species if the member poses a threat to the welfare of the public; and (2) critical habitat shall not be designated under the Act, or if designated prior to this Act, shall be removed from any non-Federal land, for any experimental population determined to be not essential to the continued existence of a species.

Requires the Secretary to determine that a population is not essential to the continued existence of an endangered or threatened species unless the Secretary determines, on the basis of the best available scientific and commercial data, that the loss of one or more of the members of the population will result in the extinction of the species.

Sets forth requirements for releases of such populations, including that: (1) the release occurs only in a unit of the National Park System or the National Wildlife Refuge System; (2) the authorizing regulations identify precisely the geographic area for the release; (3) a release on non-Federal land occurs only with the written consent of the owner of the land; (4) the regulations authorizing the release obligate the Secretary to remove members of the population from non-Federal land at the written request of the landowner and within a reasonable period of time after receiving such a request, not to exceed 90 days; and (5) the regulations authorizing the release of a population determined to not be essential to the survival of a species shall provide that a taking of a member of such population shall not be treated as a taking if it is not knowing, not willful, or incidental to and not the purpose of otherwise lawful activity.

Sets forth provisions regarding: (1) compliance with State laws relating to the species to be released; and (2) determinations regarding populations authorized before this Act's effective date.

(Sec. 507) Revises provisions regarding regulations to protect threatened species to direct the Secretary to issue, concurrently with the regulation that provides for the listing of the species, such regulations as the Secretary deems necessary and advisable to provide for the conservation of such species. Specifies that prohibitions applied to the threatened species shall address the specific circumstances of such species and may not be as restrictive as such prohibition for endangered species.

Requires conservation guidelines to include a system for developing and implementing, on a priority basis, conservation objectives and conservation plans. Directs the Secretary to provide to the public notice of, and opportunity to submit written comments on, any guideline proposed to be established.

(Sec. 508) Directs the Secretary, at the request of a State, to delegate to the State, either under a cooperative management plan or a delegation agreement, the authority to develop and implement conservation objectives and plans for a species or group of species determined to be endangered or threatened unless the Secretary determines that the State lacks authority and capability to carry out the Act's requirements (and, if so, to notify the State's Governor of the specific concerns and measures necessary to address such concerns).

Directs the Secretary to monitor State actions to develop and implement conservation objectives and plans.

Title VI: Habitat Protections - Establishes a National Biological Diversity Reserve composed of units of Federal and State lands designated and managed in accordance with this title.

Directs the Secretary and the Secretary of Agriculture to designate to the Reserve by regulation those units of the national conservation systems within the jurisdiction of the Secretary concerned would contribute to the protection, maintenance, and enhancement of biological diversity.

Directs the Secretary to: (1) designate to the Reserve a unit of State-owned lands that is nominated for designation by the Governor of the State and managed under State law in accordance with this title; (2) designate to the Reserve privately owned land that is nominated for designation by the owner of the land and to remove such land from the Reserve if the owner requests removal; (3) remove from the Reserve a unit designated which the Secretary finds is not managed under State law in accordance with this title; and (4) remove from the Reserve any State-owned lands at the request of the Governor of that State.

Requires: (1) each unit of the Reserve to have as an objective for the management thereof the preservation, maintenance, and enhancement of biological diversity; and (2) the manager of a unit, within one year of its designation to the Reserve, to complete, and the Secretary concerned to make available to the public by notice in the Federal Register, an inventory of the species composing the biological diversity within such unit.

(Sec. 602) Directs the Secretary, and the Secretary of Agriculture with respect to the National Forest System, to establish and implement a program to conserve fish, wildlife, and plants, including those which are determined to be endangered or threatened species. Provides that, to carry out such program, the appropriate Secretary: (1) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of 1956, the Fish and Wildlife Coordination Act, and the Migratory Bird Conservation Act, as appropriate; and (2) is authorized to acquire lands, waters, or interests therein (lands).

(Sec. 603) Directs the Secretary and the Secretary of Agriculture to encourage exchanges of lands within the jurisdiction of each Secretary (other than units of the National Park System and the National Wilderness Preservation System) for lands that are not in Federal ownership and that are affected by this Act. Sets forth provisions regarding the timing of exchanges, environmental assessment, expeditious exchange decisions, applicable law, and valuation of lands acquired.

Title VII: State Authority to Protect Endangered and Threatened Species - Authorizes the Secretary to delegate to a State which establishes and maintains an adequate program for the conservation of endangered and threatened species the authority contained in this Act with respect to species of fish, wildlife, and plants that are residents in the State. Requires the Secretary, within 120 days after receiving a certified copy of a proposed State program, to determine whether such program will be adequate to provide protections to endangered and threatened species in such State, based on specified guidelines. Sets forth provisions regarding: (1) Federal financial assistance to a State which has received such delegation; (2) contents of a delegation agreement; (3) State compliance with this Act; (4) review of State programs; and (5) conflicts between Federal and State laws. Exempts consultation with States regarding this section from the FACA.

(Sec. 702) Directs the Secretary, in any instance in which a State has a program for management of a native species which is the subject of a request for an export permit under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, to act in accordance with the recommendation of the State unless the Secretary makes a finding and publishes a notice in the Federal Register that scientific evidence justifies a contrary conclusion.

Authorizes the State which is subject to such a finding, or any person in that State directly affected because of inability to obtain a permit, to appeal the finding to an administrative law judge or a court. Places the burden on the Secretary to show that the evidence supports a finding contrary to the recommendation of the State.

(Sec. 703) Modifies the Act to preclude the Secretary from proposing a rule that has application in a State until the Secretary and the State have consulted and the State has been given a meaningful opportunity to assist in the development of the rule.

Title VIII: Funding of Conservation Measures - Authorizes appropriations to the Departments of the Interior, Commerce, and Agriculture through FY 2001 to carry out the Act, including for cooperative management agreements, Convention implementation, non-Federal conservation planning, and habitat conservation grants.

(Sec. 802) Directs the Secretary, for any non-Federal person or Federal power marketing administration, to pay half of any direct costs that result from the compliance by the person or administration mandated by a conservation plan or measure that provides protection to a listed species under a plan developed under the Pacific Northwest Electric Power Planning and Conservation Act, including a plan that provides protection to a larger population unit of the same listed species.

Sets forth provisions regarding consultation requirements, incidental take permits, cooperative management agreements, method of cost-sharing, existing cost-sharing agreements, and adjustments to the cost-sharing percentage.

(Sec. 803) Establishes in the Treasury the National Endowment for Fish and Wildlife Trust Fund to be used for payment of compensation to non-Federal property owners, habitat conservation grants, cost sharing requirements, and habitat acquisition.

Title IX: Miscellaneous Provisions - Defines or redefines the following terms for purposes of the Act: (1) "non-Federal person"; and (2) "commercial activity."

(Sec. 902) Directs the Secretary to: (1) identify those species which are listed under the Act as a result of being determined to be a population segment; and (2) review and determine whether or not it is in the national interest to continue to list each such segment. Requires those segments which the Secretary recommends for continued listing to be submitted to the Congress for approval and any segment not determined to be in the national interest to be delisted within 180 days of such determination.

(Sec. 903) Requires the Secretary to publish: (1) a list of all species that were determined to be endangered or threatened species for which no final recovery plans were issued, divided equally into three tiers of priority for preparation of conservation objectives and plans (with any species listed as an endangered or threatened species in more than one State being placed in the first tier of priority); and (2) a conservation objective, draft conservation plan, and final conservation plan for each species within each tier of priority according to a specified timetable.

Sets forth provisions regarding: (1) priority for revision of existing plans (for listed species with recovery plans); (2) a schedule for revision of plans; (3) species for which no conservation plan is required; (4) a prohibition on additional requirements; and (5) existing biological opinions.

(Sec. 904) Provides that conservation plans approved prior to this Act's effective date shall remain in effect if a species to which it applies is listed as endangered or threatened.

(Sec. 905) Deems the Washington County Utah Desert Tortoise Incidental Take Permit Habitat Conservation Plan dated June 1995 to be in compliance with the Act. Requires the Secretary to promptly issue a permit for activities covered by that document.

(Sec. 906) Provides that the taking of a nonlisted species to conserve a listed species is not a violation of any other Federal law unless the species is listed as endangered or threatened, depleted, or a strategic stock.

(Sec. 908) Specifies that nothing in this Act shall be construed to prohibit a certified applicator from applying a registered pesticide at a commercial facility located in critical habitat to prevent, destroy, or repel pests that may pose a public health or safety threat.