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Title II — Enhancing the Federal-State conservation partnership

S. 4589 · 116th Congress · Sep 16, 2020 · Lineage

II Enhancing the Federal-State conservation partnership

Sec. 201 Definitions

(a)
In general— Section 3 of the Endangered Species Act of 1973 (16 U.S.C. 1532) is amended—
(1)
by striking the section designation and heading and all that follows through “purposes of this Act—” in the matter preceding paragraph (1) and inserting the following:

“3. Definitions

“In this Act:”

(2)
by redesignating paragraphs (1), (2) through (4), (5), (6) through (9), (10), (12) through (14), and (15) through (21) as paragraphs (2), (4) through (6), (8), (10) through (13), (15), (17) through (19), and (22) through (28), respectively;
(3)
by inserting before paragraph (2) (as so redesignated) the following:

“(1) Affected party—The term affected party means any unit of State, Tribal, or local government the rights of which may be affected by a determination made under section 4(a) in an action brought under section 11(g)(1)(C), including property rights.”

(4)
by inserting after paragraph (2) (as so redesignated) the following:

“(3) Appropriately qualified scientist or other qualified person—The term appropriately qualified scientist or other qualified person—

“(A) has the meaning given the term by the Secretary in the rulemaking under section 201(c)(2) of the Endangered Species Act Amendments of 2020; and

“(B) includes a person with, at a minimum, expertise regarding a species, closer relatives of a species, or the ecosystem on which a species depends.”

(5)
by inserting after paragraph (6) (as so redesignated) the following:

“(7) Covered settlement—The term covered settlement means a consent decree or a settlement agreement in an action brought under section 11(g)(1)(C).”

(6)
by inserting after paragraph (8) (as so redesignated) the following:

“(9) Eligible State agency—The term eligible State agency—

“(A) has the meaning given the term by the Secretary in the rulemaking under section 201(c)(2) of the Endangered Species Act Amendments of 2020; and

“(B) means a State agency of an impacted State that, at a minimum, demonstrates adequate authority and capability to develop and implement recovery plans and implementation plans, as applicable.”

(7)
by inserting after paragraph (13) (as so redesignated) the following:

“(14) Impacted State—The term impacted State, with respect to a threatened species or endangered species, means any State in which the threatened species or endangered species, as applicable, is believed to occur.”

(8)
by inserting after paragraph (15) (as so redesignated) the following:

“(16) Party with a direct interest in the land in which the relevant species is believed to occur—The term party with a direct interest in the land in which the relevant species is believed to occur—

“(A) has the meaning given the term by the Secretary in the rulemaking under section 201(c)(2) of the Endangered Species Act Amendments of 2020; and

“(B) includes—

“(i) if a recovery team is established, each member of the recovery team;

“(ii) if a recovery team is not established, appropriately qualified scientists and other qualified people who conduct the development of a recovery plan; and

“(iii) parties who—

“(I) own, lease, or otherwise hold a legal interest in land in which the relevant species is believed to occur;

“(II) operate agricultural, energy, natural resource extraction, or other productive activities on the land in which the relevant species is believed to occur; and

“(III) conduct land, habitat, and conservation activities on the land in which the relevant species is believed to occur.”

(9)
by inserting after paragraph (19) (as so redesignated) the following:

“(20) Recovery plan—The term recovery plan means a plan for the conservation and recovery of a threatened species or an endangered species that—

“(A) incorporates the best scientific and commercial data available; and

“(B) includes a description of the criteria and measures that will be used to monitor implementation.

“(21) Recovery team—The term recovery team means a team established by the Secretary under section 4(f)(5)(B) for the purpose of developing, implementing, monitoring, and revising a recovery plan.”

(b)
Conforming amendments—
(1)
Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)) is amended—
(A)
in paragraph (2), in the first sentence, by inserting “and commercial” after “scientific”; and
(B)
in paragraph (7), in the third sentence of the undesignated matter following subparagraph (B), by striking “best appropriate data available to him” and inserting “best scientific and commercial data available”.
(2)
Section 7(n) of the Endangered Species Act of 1973 (16 U.S.C. 1536(n)) is amended, in the first sentence, by striking “, as defined by section 3(13) of this Act,”.
(3)
Section 10(j)(2)(B) of the Endangered Species Act of 1973 (16 U.S.C. 1539(j)(2)(B)) is amended by striking “best available information” and inserting “best scientific and commercial data available”.
(c)
Definition regulations—
(1)
Sense of Congress— It is the sense of Congress that, for purposes of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)—
(A)
any comment submitted to the Secretary of the Interior by a State (as defined in section 3 of that Act (16 U.S.C. 1532)) should be afforded full and fair consideration by the Secretary; and
(B)
consultation with States to the maximum extent possible, as required by that Act (as amended by this Act), should be subject to a higher standard than the “maximum extent practicable” consultation standard in effect on the day before the date of enactment of this Act.
(2)
Regulations— Not later than 180 days after the date of enactment of this Act, the Secretary of the Interior and the Secretary of Commerce shall initiate a rulemaking to define, for purposes of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)—
(A)
the term full and fair consideration, in accordance with the sense of Congress expressed in paragraph (1)(A);
(B)
the term maximum extent possible, with respect to consultation with States, in accordance with the sense of Congress expressed in paragraph (1)(B); and
(C)
the terms appropriately qualified scientist or other qualified person, eligible State agency, and party with a direct interest in the land in which the relevant species is believed to occur, in accordance with section 3 of that Act (16 U.S.C. 1532) (as amended by subsection (a)).

Sec. 202 State-Federal consultation relating to conservation and recovery of wildlife

(a)
Findings, purposes, and policy— Section 2 of the Endangered Species Act of 1973 (16 U.S.C. 1531) is amended—
(1)
in subsection (a)—
(A)
by redesignating paragraphs (4) and (5) as paragraphs (5) and (6), respectively; and
(B)
by inserting after paragraph (3) the following:

“(4) the States possess broad police powers and authorities for the conservation and management of fish and wildlife within State borders;”

(2)
in subsection (c)—
(A)
by striking the subsection designation and heading and all that follows through “that all Federal” in paragraph (1) and inserting the following:

“(c) Policy—It is the policy of Congress that—

“(1) all Federal”

(B)
in paragraph (1), by striking the period at the end and inserting a semicolon;
(C)
in paragraph (2)—
(i)
by striking the period at the end and inserting “; and”; and
(ii)
by striking the paragraph designation and all that follows through “that Federal agencies” and inserting the following:

“(3) Federal agencies”

(D)
by inserting before paragraph (3) (as so redesignated) the following:

“(2) the Federal agency authority for conservation and management of fish and wildlife authorized by this Act should be exercised in conjunction with the existing authorities of the States for the conservation and management of fish and wildlife;”

(E)
by adding at the end the following:

“(4) Congress supports conservation actions to preclude the need to list species as threatened species or endangered species under this Act.”

(b)
Action on receipt of petition To list— Section 4(b)(3)(A) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)(3)(A)) is amended—
(1)
in the third sentence, by striking “The Secretary” and inserting the following:

“(iii) Publication of findings—The Secretary”

(2)
in the second sentence, by striking “If such a petition is found to present such information” and inserting the following:

“(ii) Review of species status—If a petition under clause (i) is found to present the information described in that clause”

(3)
by striking “(3)(A) To” and inserting the following:

“(3) Petitions from interested persons

“(A) Action by secretary

“(i) In general—To”

(4)
by adding at the end the following:

“(iv) Notification to States and Indian Tribes

“(I) In general—If a petition is filed under clause (i), the Secretary shall—

“(aa) not later than 15 days after the date of receipt of the petition—

“(AA) provide to the Governor and the State agency of each impacted State and to each Indian Tribe with jurisdiction over land in which the species covered by the petition is believed to occur, a notification of receipt of the petition and a copy of the petition; and

“(BB) make a copy of the petition publicly available on the internet; and

“(bb) solicit comments from the Governor, State agency, and Indian Tribe, as applicable, to be submitted to the Secretary by not later than the date that is 60 days after the date of receipt of the notification, regarding whether the petitioned action may be warranted.

“(II) Consideration of State and Tribal comments—Before the date of publication under this subparagraph of a determination that a petitioned action may be warranted, the Secretary shall give full and fair consideration to any State or Tribal comments submitted by the deadline described in subclause (I)(bb).”

(c)
State and Tribal participation in regulatory process— Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) is amended—
(1)
in subsection (b)—
(A)
in paragraph (5)(A)—
(i)
in clause (i), by striking “, and” at the end and inserting “; and”; and
(ii)
in clause (ii)—
(I)
by striking “give” and inserting “provide”;
(II)
by striking “to the State agency in each State” and inserting the following: “to, and invite the comment of—

“(I) the Governor and the State agency of each impacted State;

“(II) each Indian Tribe with jurisdiction over land”

(III)
in subclause (II) (as so designated), by striking “occur, and to each” and inserting the following: “occur; and

“(III) each”

(IV)
in subclause (III) (as so designated), by striking “occur, and invite” and all that follows through the semicolon at the end and inserting “occur;”; and
(B)
in paragraph (7)(B), by striking “the State agency in each State in which such species” and inserting “the Governor and State agency of each impacted State, and to each Indian Tribe with jurisdiction over land in which the species”; and
(2)
by striking subsection (i) and inserting the following:

“(i) Jurisdiction—If, in the case of any regulation proposed by the Secretary pursuant to this section, a Governor, State agency, or Indian Tribe to which a notice of the proposed regulation was provided under subsection (b)(5)(A)(ii) or section 6(a)(2)(C) submits to the Secretary comments disagreeing with all or part of the proposed regulation, and the Secretary issues a final regulation that is in conflict with those comments, or if the Secretary fails to adopt a regulation pursuant to an action petitioned by a Governor, State agency, or Indian Tribe under subsection (b)(3), the Secretary shall submit to the Governor, State agency, or Indian Tribe a written justification for the failure to adopt regulations consistent with the relevant comments or petition.”

Sec. 203 Recovery of threatened and endangered species

(a)
In general— Section 4(a) of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)) is amended—
(1)
by striking the subsection designation and heading and all that follows through “The Secretary” in paragraph (1) and inserting the following:

“(a) Determination by Secretary

“(1) In general—The Secretary”

(2)
in paragraph (1)—
(A)
in each of subparagraphs (A) through (C), by striking the semicolon at the end of the subparagraph and inserting a period;
(B)
in subparagraph (A), by striking “(A) the” and inserting the following:

“(A) The”

(C)
in subparagraph (B), by striking “(B) overutilization” and inserting the following:

“(B) Overutilization”

(D)
in subparagraph (C), by striking “(C) disease” and inserting the following:

“(C) Disease”

(E)
in subparagraph (D)—
(i)
by striking “(D) the” and inserting the following:

“(D) The”

(ii)
by striking “; or” at the end and inserting a period; and
(F)
in subparagraph (E), by striking “(E) other” and inserting the following:

“(E) Other”

(3)
by adding at the end the following:

“(4) Recovery goals

“(A) In general—The Secretary shall initiate a status review to determine whether to delist or downlist, as applicable, a threatened species or endangered species in accordance with paragraph (5) if the species achieves the recovery goals described in the recovery plan for the species, which shall include criteria established by the Secretary, in consultation with impacted States.

“(B) Requirements—The recovery goals required under subparagraph (A) shall—

“(i) be based on the best scientific and commercial data available, including all information taken into consideration in the determination to list an applicable species; and

“(ii) to the maximum extent practicable, be expressed using objective and measurable biological criteria.

“(C) Modifications

“(i) In general—With the agreement of, at a minimum, 3/4 of the representatives of State agencies from each impacted State participating as members of a recovery team, the recovery team may propose to the Secretary a modification of a recovery goal required under this paragraph based on new science, new technology, new management practices, new resources, or any other development that materially changes the underlying best scientific and commercial data available based on which the goal was established.

“(ii) Approval by Secretary—Not later than 90 days after the Secretary receives a proposed modification under clause (i), the Secretary shall—

“(I) approve the proposed modification; or

“(II) reject the proposed modification.

“(iii) Explanation—If the Secretary rejects a proposed modification under clause (ii)(II), the Secretary shall provide a detailed, comprehensive, written explanation of the rejection to—

“(I) the recovery team for the species, if applicable;

“(II) each applicable State agency of an impacted State;

“(III) the Committees on Appropriations and Environment and Public Works of the Senate; and

“(IV) the Committees on Appropriations and Natural Resources of the House of Representatives.

“(iv) No notice and comment required—Section 553 of title 5, United States Code, shall not apply to a modification approved by the Secretary under clause (ii)(I).

“(v) Modifications not proposed by a recovery team

“(I) Modifications by the Secretary—Subject to subclauses (II) and (III), if a recovery team for a threatened species or endangered species does not propose a modification under this subparagraph, the Secretary may modify a recovery goal based on—

“(aa) new science;

“(bb) new technology;

“(cc) new management practices;

“(dd) new resources; or

“(ee) any other development that materially changes the underlying best scientific and commercial data available under which the recovery goal was established.

“(II) Explanation—Before making a modification under subclause (I), the Secretary shall provide a detailed, comprehensive, written explanation of the proposal to—

“(aa) the recovery team for the species;

“(bb) each applicable State agency of an impacted State;

“(cc) the Committees on Appropriations and Environment and Public Works of the Senate; and

“(dd) the Committees on Appropriations and Natural Resources of the House of Representatives.

“(III) Timing—The Secretary may not make a modification under subclause (I) less than 30 days after the date on which the Secretary provides the explanation under subclause (II).

“(IV) No recovery team—If there is no recovery team established for a threatened species or endangered species, the Secretary may modify a recovery goal based on any of the factors described in items (aa) through (ee) of subclause (I).

“(D) Effect—Nothing in this paragraph requires a recovery goal to be achieved in order for the Secretary to delist or downlist a threatened species or endangered species under this section.”

(b)
Recovery and implementation— Section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)) is amended—
(1)
in paragraph (1)—
(A)
in subparagraph (B), by redesignating clauses (i) through (iii) as subclauses (I) through (III), respectively, and indenting the subclauses appropriately;
(B)
by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively, and indenting the clauses appropriately;
(C)
in the matter preceding clause (i) (as so redesignated), in the second sentence, by striking “in developing and implementing” and inserting “in ensuring the development of”; and
(D)
by adding at the end the following:

“(B) Participants—The Secretary shall ensure that the development of a recovery plan—

“(i) is conducted by appropriately qualified scientists and other qualified people, including representatives of—

“(I) the United States Fish and Wildlife Service or the National Marine Fisheries Service, as applicable;

“(II) other relevant Federal land and wildlife management agencies;

“(III) the State agency from each impacted State;

“(IV) other relevant State and local land, natural resources, water, and wildlife management agencies from each impacted State; and

“(V) relevant Indian Tribes, or Tribal land, natural resources, water, and wildlife management agencies, that have management authority over land in which the relevant species is believed to occur; and

“(ii) may be informed by feedback from parties with a direct interest in the land in which the relevant species is believed to occur, including, as applicable, those parties described in paragraph (2)(C), specifically with regard to any practical consideration affecting the implementation of a recovery plan.”

(2)
by striking the subsection designation and heading and all that follows through ““recovery plans”)” and inserting the following:

“(f) Recovery and implementation

“(1) Recovery plans

“(A) In general—The Secretary shall ensure the development of recovery plans”

(3)
in paragraph (2)—
(A)
in the first sentence, by striking “in developing and implementing” and inserting “in ensuring the development of”; and
(B)
by striking the second sentence;
(4)
in paragraph (3), by striking “Committee on Merchant Marine and Fisheries” and inserting “Committee on Natural Resources”;
(5)
in paragraph (5), by striking “paragraph (4)” and inserting “subparagraph (E)”;
(6)
by redesignating paragraphs (2) through (5) as subparagraphs (C) through (F), respectively, and indenting the subparagraphs appropriately; and
(7)
by adding at the end the following:

“(2) Implementation plans

“(A) In general—The Secretary shall ensure the development of implementation plans for the purpose of implementing recovery plans established under paragraph (1) for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless the Secretary finds that such an implementation plan will not promote the conservation of the species.

“(B) Requirements—The Secretary, in ensuring the development of an implementation plan, shall, to the maximum extent practicable—

“(i) give priority to the endangered species or threatened species, without regard to taxonomic classification, that are most likely to benefit from the implementation plan, particularly species that are, or may be, in conflict with construction or other development projects or other forms of economic activity;

“(ii) incorporate into the implementation plan—

“(I) a description of such site-specific management actions as may be necessary to achieve the goal of the implementation plan for the conservation and survival of the species;

“(II) a description of such research, captive propagation, or experimental actions as may be necessary to achieve the goal of the implementation plan for the conservation and survival of the species;

“(III) a description of such habitat protection or conservation actions as may be necessary to achieve the goal of the implementation plan for the conservation and survival of the species; and

“(IV) a description of any other actions as may be necessary to achieve the goal of the implementation plan for the conservation and survival of the species; and

“(iii) provide estimates of the time required and the cost to carry out the measures needed to achieve the goal of the implementation plan and to achieve intermediate steps towards that goal.

“(C) Participants—The Secretary shall ensure that the development of an implementation plan is conducted by parties with a direct interest in the land in which the relevant species is believed to occur, including—

“(i) appropriately qualified scientists and other qualified people who conduct the development of a recovery plan under paragraph (1); and

“(ii) as applicable, representatives of—

“(I) private and public landowners;

“(II) agricultural production;

“(III) energy production;

“(IV) natural resource commodity groups and user industries;

“(V) homebuilders;

“(VI) water resources groups;

“(VII) outdoor recreation groups;

“(VIII) environmental groups; and

“(IX) land, habitat, and wildlife conservation groups.

“(D) Modifications—The eligible State agency that is designated by the Secretary as the leader of the development of an implementation plan shall amend or modify the implementation plan as frequently as appropriate to reflect changes in species conservation status, conservation opportunities, new research, and changes to the best scientific and commercial data available regarding conservation strategies.

“(E) No notice and comment required—Section 553 of title 5, United States Code, shall not apply to the development, amendment, or modification of an implementation plan.

“(3) Implementation—The Secretary shall ensure the timely implementation of, as applicable, a recovery plan established under paragraph (1) or an implementation plan established under paragraph (2).

“(4) State leadership

“(A) In general—In carrying out this subsection—

“(i) in accordance with subparagraphs (B) and (C), the Secretary shall provide to each impacted State the opportunity—

“(I) to lead recovery planning, implementation planning, and implementation under paragraphs (1), (2), and (3), respectively;

“(II) to expedite threatened species or endangered species recovery by supporting State-level initiatives and partnerships; and

“(III) to increase flexibility and feasibility for the applicability of recovery plans under paragraph (1) and implementation plans under paragraph (2); and

“(ii) the Secretary shall—

“(I) consult, to the maximum extent possible, with impacted States, including Governors, State agencies, and local land, natural resources, water, and wildlife management agencies of impacted States; and

“(II) give full and fair consideration to any comments or recommendations received from an impacted State.

“(B) No recovery team or implementation team established

“(i) In general—The Secretary, in consultation with the States, shall promulgate regulations governing a process by which, in a case in which a recovery team or implementation team is not established for a threatened species or endangered species under paragraph (5) or (6), respectively, the Secretary shall provide to an eligible State agency of an impacted State the opportunity—

“(I) to develop a recovery plan under paragraph (1) or an implementation plan under paragraph (2), as applicable; and

“(II) to implement that recovery plan or implementation plan, as applicable.

“(ii) Requirements—The regulations promulgated under clause (i) shall include guidelines, criteria, and a process that—

“(I) the Secretary shall follow when determining that—

“(aa) a State agency shall be authorized as an eligible State agency;

“(bb) an eligible State agency shall be designated as the leader of the development of a recovery plan or implementation plan, as applicable, including in cases in which 2 or more eligible State agencies request to serve as the leader;

“(cc) an eligible State agency shall be designated as the leader of the implementation of a recovery plan or implementation plan, as applicable, including in cases in which 2 or more eligible State agencies request to serve as the leader; and

“(dd) the authorization of a State agency as an eligible State agency shall be withdrawn;

“(II) an eligible State agency that is designated as the leader of—

“(aa) the development of a recovery plan shall follow in order to cooperate with each impacted State and participant described in paragraph (1)(B);

“(bb) the development of an implementation plan shall follow in order to cooperate with each impacted State and participant described in paragraph (2)(C); or

“(cc) the implementation of a recovery plan or implementation plan, as applicable, shall follow in order to cooperate with each impacted State and participant described in paragraph (1)(B) or (2)(C), as applicable;

“(III) the Secretary or a designee of the Secretary, in consultation with each impacted State, shall follow when serving as the leader of the development of a recovery plan or implementation plan, as applicable, in any case in which—

“(aa) no eligible State agency requests to serve as the leader; or

“(bb) no eligible State agency is designated by the Secretary as the leader; and

“(IV) the Secretary or a designee of the Secretary, in consultation with each impacted State, shall follow when serving as the leader of the implementation of a recovery plan or implementation plan, as applicable, in any case in which—

“(aa) no eligible State agency requests to serve as the leader; or

“(bb) no eligible State agency is designated by the Secretary as the leader.

“(C) Recovery team or implementation team established

“(i) In general—In a case in which a recovery team or implementation team is established for a threatened species or endangered species under paragraph (5) or (6), as applicable, the Secretary shall provide to each impacted State the opportunity to lead the recovery team or implementation team, as applicable.

“(ii) Responsibilities—An impacted State that leads a recovery team or implementation team under clause (i) shall be responsible for—

“(I) developing a recovery plan or implementation plan, as applicable; and

“(II) implementing a recovery plan or implementation plan, as applicable.

“(5) Recovery teams

“(A) In general—If a species is included on the list of threatened species or endangered species under this section, an impacted State may request the establishment of a recovery team with respect to the applicable threatened species or endangered species and shall submit that request to the Secretary.

“(B) Establishment—Not later than the deadline for the establishment of a recovery team in the schedule promulgated under paragraph (8)(A)(i), the Secretary shall establish a science-based recovery team for the species, if—

“(i) an impacted State, acting alone or in conjunction with another impacted State, submits to the Secretary a request to establish the recovery team; or

“(ii) in the case of such a species with respect to which more than 1 impacted State exists, the Secretary determines that establishing a recovery team would promote the conservation and recovery of the species.

“(C) Membership

“(i) In general—The members of a recovery team—

“(I) shall be appointed by the Secretary;

“(II) shall be composed solely of appropriately qualified scientists and other qualified people; and

“(III) shall include representatives of—

“(aa) the United States Fish and Wildlife Service or the National Marine Fisheries Service, as applicable;

“(bb) other relevant Federal land and wildlife management agencies;

“(cc) the State agency from each impacted State, unless the impacted State elects not to participate in the recovery team;

“(dd) other relevant State and local land, natural resources, water, and wildlife management agencies from each impacted State, nominated by the Governor of the impacted State, unless the impacted State elects not to participate in the recovery team; and

“(ee) relevant Indian Tribes, or Tribal land, natural resources, and wildlife management agencies, that have management authority over land in which the relevant species is believed to occur, unless the Indian Tribe elects not to participate in the recovery team.

“(ii) Composition

“(I) In general—The Secretary, in consultation with the States, shall promulgate regulations governing the composition of a recovery team, including—

“(aa) criteria that the Secretary shall follow when determining the number of members of a recovery team, including the number of representatives of each of the Federal Government, participating State governments, and other appropriately qualified scientists and other qualified people, which shall be reasonably balanced;

“(bb) a process by which the Secretary shall fill a vacancy on the recovery team; and

“(cc) a quorum requirement that a recovery team shall meet in order to conduct business that requires, at a minimum, the presence of 1/3 of the representatives of the State agencies from participating impacted States.

“(iii) Leadership—The Secretary, in consultation with the States, shall promulgate regulations governing the leadership of a recovery team, including—

“(I) a process by which the Secretary shall provide to each impacted State the opportunity to lead a recovery team; and

“(II) a process by which the Secretary or a designee of the Secretary, in consultation with each impacted State, shall lead a recovery team if—

“(aa) no impacted State submits a request to lead a recovery team; or

“(bb) no impacted State is otherwise designated by the Secretary to lead a recovery team.

“(D) Duties—A recovery team shall—

“(i) lead the development of a recovery plan;

“(ii) not later than the deadline for issuing a final recovery plan in the schedule promulgated under paragraph (8)(A)(ii), issue a final recovery plan;

“(iii) if an implementation team is not established to implement the final recovery plan, implement the final recovery plan;

“(iv) if an implementation team is established to implement the final recovery plan, lead the implementation team, including in the implementation of the final recovery plan;

“(v) propose modifications to the recovery plan in accordance with subsection (a)(4)(C)(i), including associated recovery goals; and

“(vi) recommend delisting or downlisting (as those terms are defined in subsection (a)(5)(A)) once the established recovery plan criteria for the species have been satisfied, in accordance with subsection (a)(5)(B)(ii)(II), or uplisting (as that term is defined in subsection (a)(5)(A)), as applicable.

“(E) Administration—A recovery team shall be conducted in accordance with paragraph (7).

“(6) Implementation teams

“(A) In general—If a species is included on the list of threatened species or endangered species under this section and the Secretary establishes a recovery team under paragraph (5), an impacted State may request the establishment of an implementation team with respect to the applicable threatened species or endangered species and shall submit that request to the Secretary.

“(B) Establishment—At the same time the Secretary establishes a recovery team under paragraph (5), the Secretary shall establish an implementation team for the species, if—

“(i) an impacted State, acting alone or in conjunction with another impacted State, submits to the Secretary a request to establish an implementation team; or

“(ii) in the case of such a species with respect to which more than 1 impacted State exists, the Secretary determines that establishing an implementation team would promote the conservation and recovery of the species.

“(C) Membership

“(i) In general—The members of an implementation team—

“(I) shall be appointed by the Secretary;

“(II) shall be composed solely of parties with a direct interest in the land in which the species is believed to occur;

“(III) shall include each member of a recovery team established under paragraph (5); and

“(IV) shall include, as applicable, representatives of—

“(aa) private and public landowners;

“(bb) agricultural production;

“(cc) energy production;

“(dd) natural resource commodity groups and user industries;

“(ee) homebuilders;

“(ff) water resources groups;

“(gg) outdoor recreation groups;

“(hh) environmental groups; and

“(ii) land, habitat, and wildlife conservation groups.

“(D) Composition—The Secretary, in consultation with the States, shall promulgate regulations governing the composition of an implementation team, including—

“(i) criteria that the Secretary shall follow when determining the number of members of an implementation team, including the number of representatives of each of the landowners, regulated industries, environmental groups, wildlife conservation groups, and other parties with a direct interest in the land in which the species is believed to occur, which shall be reasonably balanced;

“(ii) a process by which the Secretary shall fill a vacancy on the implementation team; and

“(iii) a quorum requirement that a recovery team shall meet in order to conduct business that requires, at a minimum, the presence of 1/3 of each of the representatives of—

“(I) the State agencies from participating impacted States; and

“(II) the parties with a direct interest in the land in which the species is believed to occur who are not members of a recovery team under paragraph (5).

“(E) Leadership—The leader of an implementation team shall be the leader of the applicable recovery team, as designated under paragraph (5)(C)(iii).

“(F) Duties—An implementation team shall—

“(i) provide feedback solicited by the recovery team established under paragraph (5) in order to aid the recovery team in fulfilling the duties of the recovery team, including developing and implementing a recovery plan and associated recovery goals, specifically with regard to any practical considerations affecting the implementation of a recovery plan;

“(ii) lead the development of an implementation plan;

“(iii) at the same time that a recovery team issues a final recovery plan, issue a final implementation plan;

“(iv) amend or modify the implementation plan in accordance with paragraph (2)(D); and

“(v) lead the implementation of the implementation plan, including the implementation of the final recovery plan.

“(G) Administration—An implementation team shall be conducted in accordance with paragraph (7).

“(7) Administration of recovery teams and implementation teams

“(A) Remote participation—Any member of a recovery team or an implementation team may participate in a meeting of the recovery team or implementation team, as applicable, through the use of—

“(i) teleconferencing; or

“(ii) any other remote business telecommunications method that allows each participating member to simultaneously hear each other participating member during the meeting.

“(B) Effect of election not to participate

“(i) Permissible activities—An impacted State, or an Indian Tribe or a Tribal agency, that elects not to participate in a recovery team or implementation team may provide to the recovery team or implementation team, as applicable, data, written comments, and other information to aid the recovery team or implementation team, as applicable, in carrying out the duties of the recovery team or implementation team, as applicable.

“(ii) Prohibited activities—Except as provided in clause (i), if an impacted State, or an Indian Tribe or a Tribal agency, elects not to participate in a recovery team or implementation team, the impacted State, Indian Tribe, or Tribal agency, as applicable, may not participate in the activities of the recovery team or implementation team, as applicable, in carrying out the duties of the recovery team or implementation team, as applicable, including for purposes of establishing a quorum or voting.

“(C) Savings clause

“(i) Impacted States—The participation on or leadership of a recovery team or implementation team by an impacted State does not infringe on or otherwise limit the authority of the impacted State within the borders of that impacted State.

“(ii) Indian Tribes—The participation on a recovery team or implementation team by an Indian Tribe or Tribal agency does not infringe on or otherwise limit the authority of the Indian Tribe or Tribal agency, as applicable, within the land over which the Indian Tribe or Tribal agency, as applicable, has management authority.

“(D) Administrative cost reduction—A recovery team or implementation team, as applicable, shall, to the maximum extent practicable, minimize the administrative costs of the recovery team or implementation team, as applicable, including by encouraging the use of remotely participating in meetings of the recovery team or implementation team, as applicable, as described in subparagraph (A) to reduce travel costs.

“(E) FACA—The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to a recovery team or an implementation team.

“(8) Schedule

“(A) In general—As part of a rulemaking to list a species as a threatened species or an endangered species under this section, the Secretary, in consultation with the States, shall promulgate a schedule that contains—

“(i) a date by which a recovery team or implementation team, as applicable, for the species shall be established under paragraph (5) or (6), as applicable, which shall be not later than 2 years after the date on which the final rule listing the species as threatened or endangered is published in the Federal Register; and

“(ii) a date by which a recovery plan or implementation plan, as applicable, for the species shall be established under paragraph (1) or (2), as applicable, which shall be not later than 5 years after the date on which the final rule listing the species as threatened or endangered is published in the Federal Register.

“(B) Timeliness—A schedule under subparagraph (A) shall ensure the establishment of a recovery team, implementation team, recovery plan, or implementation plan, as applicable, as expeditiously as possible.

“(C) Extension of the schedule—The Secretary may extend a date contained in a schedule under subparagraph (A) by not more than 30 months, in which case the Secretary shall publish a written explanation for the extension in the Federal Register.”

Sec. 204 Delisting, downlisting, and uplisting

(a)
In general— Section 4(a) of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)) (as amended by section 203(a)(3)) is amended by adding at the end the following:

“(5) Delisting, downlisting, and uplisting

“(A) Definitions—In this paragraph:

“(i) Delist—The term delist means to remove a species from the list of threatened species or endangered species, as applicable, under this subsection.

“(ii) Downlist—The term downlist means to move a species included on the list of endangered species under this subsection to the list of threatened species under this subsection.

“(iii) Uplist—The term uplist means to move a species included on the list of threatened species under this subsection to the list of endangered species under this subsection.

“(B) Determination by secretary

“(i) Status review—The Secretary shall conduct a review of the status of a threatened species or endangered species in accordance with this subparagraph and paragraph (4)(A) for purposes of delisting, downlisting, or uplisting the species, as applicable.

“(ii) Initiation

“(I) In general—The Secretary shall initiate a status review under clause (i) or paragraph (4)(A), as applicable, by not later than 30 days after the earlier of—

“(aa) the date on which the Secretary determines that the applicable recovery goals required under paragraph (4)(A) are achieved with respect to the species;

“(bb) the date on which the Secretary receives from the recovery team for the species a report that—

“(AA) describes the means by which the recovery goals required under paragraph (4)(A) have been achieved with respect to the species; and

“(BB) recommends the delisting or downlisting of the species, as applicable; and

“(cc) the date on which the Secretary receives from the recovery team for the species a report that recommends the uplisting of the species.

“(II) Petitions to delist, downlist, or uplist and acting on initiative of the Secretary

“(aa) In general

“(AA) Petition—Nothing in this subsection affects the ability of an interested person to submit to the Secretary a petition to delist, downlist, or uplist a threatened species or an endangered species in accordance with this subsection and subsection (b).

“(BB) Secretary's initiative—The Secretary may, on the initiative of the Secretary and in addition to the required status review under subclause (I), delist, downlist, or uplist a threatened species or endangered species in accordance with this subsection and subsection (b).

“(bb) Criteria to be used—If the Secretary initiates a review to delist or downlist a threatened species or endangered species under item (aa), the determination of the Secretary shall be based on the factors identified in paragraph (1), irrespective of whether the recovery goals described in paragraph (4)(A) have been achieved.

“(iii) Determination—Not later than 90 days after the date on which a status review is initiated pursuant to clause (i), the Secretary shall determine whether to delist, downlist, or uplist, as applicable, the species that is the subject of the status review.

“(iv) Action on determination

“(I) Positive determination—On determining to delist, downlist, or uplist a species under clause (iii), the Secretary shall publish in the Federal Register, by not later than 1 year after the date of the determination, a final regulation to delist, downlist, or uplist the species that is the subject of the determination.

“(II) Negative determination—On determining not to delist, downlist, or uplist a species under clause (iii), the Secretary shall publish in the Federal Register, by not later than 90 days after the date of the determination, a detailed, comprehensive written explanation of the determination.

“(v) Monitoring requirements—If the Secretary delists a threatened species or an endangered species as described in this subparagraph, the monitoring period described in subsection (g) shall begin on the date on which a final regulation to delist the species is published in the Federal Register.

“(C) Judicial review—Until the expiration of the applicable monitoring period under subsection (g), in accordance with clause (ii)(II) or (iv)(I) of subparagraph (B)—

“(i) a determination of the Secretary to delist a species under subparagraph (B) shall not be considered to be a final agency action for purposes of chapter 7 of title 5, United States Code; and

“(ii) no judicial review of the determination may commence.”

(b)
Conforming amendment— Section 10(f)(5) of the Endangered Species Act of 1973 (16 U.S.C. 1539(f)(5)) is amended, in the undesignated matter following subparagraph (B), by striking the second sentence.

Sec. 205 Cooperation with States and Indian Tribes

Section 6 of the Endangered Species Act of 1973 (16 U.S.C. 1535) is amended—
(1)
in subsection (a)—
(A)
in the second sentence, by striking “Such cooperation shall include consultation with the States concerned” and inserting the following:

“(2) Inclusions—The consultation required under this subsection shall—

“(A) be based on the best scientific and commercial data available;

“(B) include consultation with each impacted State”

(B)
by striking the subsection designation and heading and all that follows through the first sentence and inserting the following:

“(a) Requirement

“(1) In general—In carrying out this Act, the Secretary shall—

“(A) consult to the maximum extent possible with the States; and

“(B) acknowledge and respect the primary authority of State agencies to manage fish and wildlife within State borders, except as otherwise provided in this Act with respect to an exercise by the Secretary of specific authority to manage a threatened species or an endangered species.”

(2)
in subsection (b), in the first sentence, by striking “may” and inserting “shall offer to”;
(3)
in subsection (c)—
(A)
in paragraph (2), by striking “(2) In furtherance of the purposes of this Act, the Secretary is authorized” and inserting the following:

“(3) Plants—In furtherance of the purposes of this Act, the Secretary shall offer”

(B)
in paragraph (3) (as so redesignated)—
(i)
in subparagraph (D), by indenting clauses (i) and (ii) appropriately; and
(ii)
by indenting subparagraphs (A) through (D) appropriately;
(C)
by striking the subsection designation and heading and all that follows through “authorized” in the first sentence of paragraph (1) and inserting the following:

“(c) Cooperative agreements

“(1) Definition of State—In this subsection, the term State includes—

“(A) an Indian tribe (as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304)); and

“(B) a Native Corporation (as defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602)).

“(2) Authorization—In furtherance of the purposes of this Act, the Secretary shall offer”

(D)
in paragraph (2) (as so redesignated)—
(i)
in subparagraph (E), by indenting clauses (i) and (ii) appropriately; and
(ii)
by indenting subparagraphs (A) through (E) appropriately;
(4)
in subsection (h), by striking “relating to financial assistance” and inserting the following:

“(1) fulfilling the obligation of the Secretary to carry out this Act in consultation with the States; and

“(2) the provision of financial assistance”

(5)
in subsection (i)(1), by striking “the Sport Fishing Restoration Account established under 1016 of the Act of July 18, 1984” and inserting “the Sport Fish Restoration and Boating Trust Fund established by section 9504(a) of the Internal Revenue Code of 1986”.

Sec. 206 State consultation regarding experimental populations

Section 10(j) of the Endangered Species Act of 1973 (16 U.S.C. 1539(j)) is amended—
(1)
in paragraph (1), by striking “(1) For purposes of” and inserting the following:

“(1) Definition of experimental population—In”

(2)
in paragraph (2)—
(A)
by striking “(2)(A) The Secretary” and inserting the following:

“(2) Authorization of releases

“(A) In general—Subject to subparagraphs (B) and (C), the Secretary”

(B)
in subparagraph (C)—
(i)
by striking “subparagraph (B)” each place it appears and inserting “subparagraph (C)”;
(ii)
by indenting clauses (i) and (ii) appropriately; and
(iii)
by striking “(C) For the purposes” and inserting the following:

“(D) Treatment as threatened species—For the purposes”

(C)
in subparagraph (B) (as amended by section 201(b)(3)), by striking “(B) Before” and inserting the following:

“(B) Requirements

“(i) In general—The Secretary shall in good faith negotiate with the State agency of each impacted State in which an experimental population is authorized to be released under this paragraph an agreement with respect to the management authority of the experimental population, including—

“(I) the boundaries of the area in which the experimental population is authorized to be released;

“(II) the ideal population size of the experimental population;

“(III) the processes related to supplemental introductions of the experimental population;

“(IV) circumstances in which takings of the experimental population are authorized;

“(V) the role of the experimental population with respect to the continued existence of an endangered species or threatened species;

“(VI) the conditions under which the Secretary would authorize the removal of an experimental population from the impacted State;

“(VII) controls to mitigate against losses generated by the experimental population, such as the relocation, translocation, removal, or taking of a member of the experimental population that depredates on livestock; and

“(VIII) Federal compensation for losses generated by the experimental population, such as when a member of the experimental population depredates on livestock.

“(ii) Management plan

“(I) In general—If the Secretary cannot, after good faith negotiations, reach an agreement under clause (i) with a State agency, the Secretary shall develop a plan with respect to the management authority of the experimental population that addresses each requirement described in subclauses (I) through (VIII) of that clause.

“(II) Requirement—In developing a plan under subclause (I), the Secretary shall—

“(aa) solicit input with respect to the plan from each impacted State and the State agency of each impacted State; and

“(bb) give full and fair consideration to any input with respect to the plan from each impacted State and the State agency of each impacted State.

“(iii) Agreement or plan for each impacted State—For each release of an experimental population authorized under this paragraph, the Secretary shall, for each impacted State in which the experimental population is authorized to be released, have a separate—

“(I) agreement under clause (i); or

“(II) management plan under clause (ii)(I).

“(C) Identification and determination—Before”

Sec. 207 State participation in settlements

Section 11(g)(2)(C) of the Endangered Species Act of 1973 (16 U.S.C. 1540(g)(2)(C)) is amended—
(1)
by striking “(C) No action may be commenced under subparagraph (1)(C) of this section prior to sixty” and inserting the following:

“(C) Settlement actions

“(i) Timing

“(I) In general—Except as provided in subclause (II), no action may be commenced under paragraph (1)(C) before the date that is 60”

(2)
by striking “Secretary; except that such action may be brought” and inserting the following:

“(II) Exception for emergencies—Notwithstanding subclause (I), an action may be commenced under paragraph (1)(C)”

(3)
by adding at the end the following:

“(ii) Participation by States

“(I) In general—In preparing or entering into a settlement (including a covered settlement) or other agreement relating to an action under paragraph (1)(C), the Secretary shall provide notice to, consult with, and otherwise take appropriate actions to include, each impacted State.

“(II) Effect of clause—Nothing in this clause limits the ability of any other party to participate in a settlement described in subclause (I).”