INTERAGENCY COOPERATION
SEC. 7. (a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.—(1) The Secretary shall
review other programs administered by him and utilize such programs in furtherance
of the purposes of this Act. All other Federal agencies shall, in consultation
with and with the assistance of the Secretary, utilize their authorities in furtherance
of the purposes of this Act by carrying out programs for the conservation of endangered
species and threatened species listed pursuant to section 4 of this Act.
(2) Each Federal agency shall, in consultation with and with the assistance of the
Secretary, insure that any action authorized, funded, or carried out by such agency
(hereinafter in this section referred to as an “agency action”) is not likely to jeopardize
the continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of habitat of such species which is
determined by the Secretary, after consultation as appropriate with affected States,
to be critical, unless such agency has been granted an exemption for such action by
the Committee pursuant to subsection (h) of this section. In fulfilling the requirements
of this paragraph each agency shall use the best scientific and commercial
data available.
(3) Subject to such guidelines as the Secretary may establish, a Federal agency
shall consult with the Secretary on any prospective agency action at the request of,
and in cooperation with, the prospective permit or license applicant if the applicant
has reason to believe that an endangered species or a threatened species may be
present in the area affected by his project and that implementation of such action
will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any agency action
which is likely to jeopardize the continued existence of any species proposed to be
listed under section 4 or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. This paragraph does not require
a limitation on the commitment of resources as described in subsection (d).
(b) OPINION OF SECRETARY.—(1)(A) Consultation under subsection (a)(2) with respect
to any agency action shall be concluded within the 90-day period beginning on
the date on which initiated or, subject to subparagraph (B), within such other period
of time as is mutually agreeable to the Secretary and the Federal agency.
(B) In the case of an agency action involving a permit or license applicant, the Secretary
and the Federal agency may not mutually agree to conclude consultation within a period exceeding 90 days unless the Secretary, before the close of the 90th day referred
to in subparagraph (A)—
(i) if the consultation period proposed to be agreed to will end before the 150th
day after the date on which consultation was initiated, submits to the applicant
a written statement setting forth—
(I) the reasons why a longer period is required,
(II) the information that is required to complete the consultation, and
(III) the estimated date on which consultation will be completed; or
(ii) if the consultation period proposed to be agreed to will end 150 or more
days after the date on which consultation was initiated, obtains the consent of
the applicant to such period.
The Secretary and the Federal agency may mutually agree to extend a consultation
period established under the preceding sentence if the Secretary, before the close of
such period, obtains the consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded within such period as is
agreeable to the Secretary, the Federal agency, and the applicant concerned.
(3)(A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection
(a), the Secretary shall provide to the Federal agency and the applicant, if
any, a written statement setting forth the Secretary’s opinion, and a summary of the
information on which the opinion is based, detailing how the agency action affects
the species or its critical habitat. If jeopardy or adverse modification is found, the
Secretary shall suggest those reasonable and prudent alternatives which he believes
would not violate subsection (a)(2) and can be taken by the Federal agency or applicant
in implementing the agency action.
(B) Consultation under subsection (a)(3), and an opinion issued by the Secretary
incident to such consultation, regarding an agency action shall be treated respectively
as a consultation under subsection (a)(2), and as an opinion issued after consultation
under such subsection, regarding that action if the Secretary reviews the
action before it is commenced by the Federal agency and finds, and notifies such
agency, that no significant changes have been made with respect to the action and
that no significant change has occurred regarding the information used during the
initial consultation.
(4) If after consultation under subsection (a)(2), the Secretary concludes that—
(A) the agency action will not violate such subsection, or offers reasonable and
prudent alternatives which the Secretary believes would not violate such subsection;
(B) the taking of an endangered species or a threatened species incidental to
the agency action will not violate such subsection; and
(C) if an endangered species or threatened species of a marine mammal is
involved, the taking is authorized pursuant to section 101(a)(5) of the Marine
Mammal Protection Act of 1972;
the Secretary shall provide the Federal agency and the applicant concerned, if any,
with a written statement that—
(i) specifies the impact of such incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the Secretary considers
necessary or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that are necessary
to comply with section 101(a)(5) of the Marine Mammal Protection Act of
1972 with regard to such taking, and (iv) sets forth the terms and conditions (including, but not limited to, reporting
requirements) that must be complied with by the Federal agency or applicant (if
any), or both, to implement the measures specified under clauses (ii) and (iii).
(c) BIOLOGICAL ASSESSMENT.—(1) To facilitate compliance with the requirements
of subsection (a)(2), each Federal agency shall, with respect to any agency action of
such agency for which no contract for construction has been entered into and for
which no construction has begun on the date of enactment of the Endangered Species
Act Amendments of 1978, request of the Secretary information whether any
species which is listed or proposed to be listed may be present in the area of such
proposed action. If the Secretary advises, based on the best scientific and commercial
data available, that such species may be present, such agency shall conduct a
biological assessment for the purpose of identifying any endangered species or threatened
species which is likely to be affected by such action. Such assessment shall be
completed within 180 days after the date on which initiated (or within such other
period as is mutually agreed to by the Secretary and such agency, except that if a
permit or license applicant is involved, the 180-day period may not be extended
unless such agency provides the applicant, before the close of such period, with a
written statement setting forth the estimated length of the proposed extension and
the reasons therefor) and, before any contract for construction is entered into and
before construction is begun with respect to such action. Such assessment may be
undertaken as part of a Federal agency’s compliance with the requirements of section
102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an exemption under subsection (g) of
this section for that action may conduct a biological assessment to identify any endangered
species or threatened species which is likely to be affected by such action.
Any such biological assessment must, however, be conducted in cooperation with the
Secretary and under the supervision of the appropriate Federal agency.
(d) LIMITATION ON COMMITMENT OF RESOURCES.—After initiation of consultation required
under subsection (a)(2), the Federal agency and the permit or license applicant
shall not make any irreversible or irretrievable commitment of resources with
respect to the agency action which has the effect of foreclosing the formulation or
implementation of any reasonable and prudent alternative measures which would
not violate subsection (a)(2).
(e)(1) ESTABLISHMENT OF COMMITTEE.—There is established a committee to be
known as the Endangered Species Committee (hereinafter in this section referred
to as the “Committee”).
(2) The Committee shall review any application submitted to it pursuant to this
section and determine in accordance with subsection (h) of this section whether or
not to grant an exemption from the requirements of subsection (a)(2) of this section
for the action set forth in such application.
(3) The Committee shall be composed of seven members as follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and Atmospheric Administration.
(G) The President, after consideration of any recommendations received pursuant to subsection (g)(2)(B) shall appoint one individual from each affected State,
as determined by the Secretary, to be a member of the Committee for the consideration
of the application for exemption for an agency action with respect to
which such recommendations are made, not later than 30 days after an application
is submitted pursuant to this section.
(4)(A) Members of the Committee shall receive no additional pay on account of
their service on the Committee.
(B) While away from their homes or regular places of business in the performance
of services for the Committee, members of the Committee shall be allowed travel
expenses, including per diem in lieu of subsistence, in the same manner as persons
employed intermittently in the Government service are allowed expenses under section
5703 of title 5 of the United States Code.
(5)(A) Five members of the Committee or their representatives shall constitute a
quorum for the transaction of any function of the Committee, except that, in no case
shall any representative be considered in determining the existence of a quorum for
the transaction of any function of the Committee if that function involves a vote by
the Committee on any matter before the Committee.
(B) The Secretary of the Interior shall be the Chairman of the Committee.
(C) The Committee shall meet at the call of the Chairman or five of its members.
(D) All meetings and records of the Committee shall be open to the public.
(6) Upon request of the Committee, the head of any Federal agency is authorized
to detail, on a nonreimbursable basis, any of the personnel of such agency to the
Committee to assist it in carrying out its duties under this section.
(7)(A) The Committee may for the purpose of carrying out its duties under this
section hold such hearings, sit and act at such times and places, take such testimony,
and receive such evidence, as the Committee deems advisable.
(B) When so authorized by the Committee, any member or agent of the Committee
may take any action which the Committee is authorized to take by this paragraph.
(C) Subject to the Privacy Act, the Committee may secure directly from any Federal
agency information necessary to enable it to carry out its duties under this
section. Upon request of the Chairman of the Committee, the head of such Federal
agency shall furnish such information to the Committee.
(D) The Committee may use the United States mails in the same manner and upon
the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to the Committee on a
reimbursable basis such administrative support services as the Committee may request.
(8) In carrying out its duties under this section, the Committee may promulgate
and amend such rules, regulations, and procedures, and issue and amend such orders
as it deems necessary.
(9) For the purpose of obtaining information necessary for the consideration of an
application for an exemption under this section the Committee may issue subpoenas
for the attendance and testimony of witnesses and the production of relevant papers,
books, and documents.
(10) In no case shall any representative, including a representative of a member
designated pursuant to paragraph (3)(G) of this subsection, be eligible to cast a vote
on behalf of any member.
(f) REGULATIONS.—Not later than 90 days after the date of enactment of the Endangered Species Act Amendments of 1978, the Secretary shall promulgate regulations
which set forth the form and manner in which applications for exemption shall
be submitted to the Secretary and the information to be contained in such applications.
Such regulations shall require that information submitted in an application by
the head of any Federal agency with respect to any agency action include, but not be
limited to —
(1) a description of the consultation process carried out pursuant to subsection
(a)(2) of this section between the head of the Federal agency and the Secretary;
and
(2) a statement describing why such action cannot be altered or modified to
conform with the requirements of subsection (a)(2) of this section.
(g) APPLICATION FOR EXEMPTION AND REPORT TO THE COMMITTEE.—(1) A Federal
agency, the Governor of the State in which an agency action will occur, if any, or a
permit or license applicant may apply to the Secretary for an exemption for an
agency action of such agency if, after consultation under subsection (a)(2), the
Secretary’s opinion under subsection (b) indicates that the agency action would violate
subsection (a)(2). An application for an exemption shall be considered initially
by the Secretary in the manner provided for in this subsection, and shall be considered
by the Committee for a final determination under subsection (h) after a report
is made pursuant to paragraph (5). The applicant for an exemption shall be referred
to as the “exemption applicant” in this section.
(2)(A) An exemption applicant shall submit a written application to the Secretary,
in a form prescribed under subsection (f), not later than 90 days after the completion
of the consultation process; except that, in the case of any agency action involving
a permit or license applicant, such application shall be submitted not later than
90 days after the date on which the Federal agency concerned takes final agency
action with respect to the issuance of the permit or license. For purposes of the
preceding sentence, the term “final agency action” means (i) a disposition by an
agency with respect to the issuance of a permit or license that is subject to administrative
review, whether or not such disposition is subject to judicial review; or (ii) if
administrative review is sought with respect to such disposition, the decision resulting
after such review. Such application shall set forth the reasons why the exemption
applicant considers that the agency action meets the requirements for an exemption
under this subsection.
(B) Upon receipt of an application for exemption for an agency action under paragraph
(1), the Secretary shall promptly (i) notify the Governor of each affected State,
if any, as determined by the Secretary, and request the Governors so notified to
recommend individuals to be appointed to the Endangered Species Committee for
consideration of such application; and (ii) publish notice of receipt of the application
in the Federal Register, including a summary of the information contained in the
application and a description of the agency action with respect to which the application
for exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of an application for exemption,
or within such other period of time as is mutually agreeable to the exemption
applicant and the Secretary—
(A) determine that the Federal agency concerned and the exemption applicant
have—
(i) carried out the consultation responsibilities described in subsection (a)
in good faith and made a reasonable and responsible effort to develop andfairly consider modifications or reasonable and prudent alternatives to the
proposed agency action which would not violate subsection (a)(2);
(ii) conducted any biological assessment required by subsection (c); and
(iii) to the extent determinable within the time provided herein, refrained
from making any irreversible or irretrievable commitment of resources prohibited
by subsection (d); or
(B) deny the application for exemption because the Federal agency concerned
or the exemption applicant have not met the requirements set forth in subparagraph
(A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be considered final agency
action for purposes of chapter 7 of title 5, United States Code.
(4) If the Secretary determines that the Federal agency concerned and the exemption
applicant have met the requirements set forth in paragraph (3)(A)(i), (ii),
and (iii) he shall, in consultation with the Members of the Committee, hold a hearing
on the application for exemption in accordance with sections 554, 555, and 556 (other
than subsection (b)(1) and (2) thereof) of title 5, United States Code, and prepare
the report to be submitted pursuant to paragraph (5).
(5) Within 140 days after making the determinations under paragraph (3) or within
such other period of time as is mutually agreeable to the exemption applicant and
the Secretary, the Secretary shall submit to the Committee a report discussing—
(A) the availability of reasonable and prudent alternatives to the agency action,
and the nature and extent of the benefits of the agency action and of alternative
courses of action consistent with conserving the species or the critical
habitat;
(B) a summary of the evidence concerning whether or not the agency action is
in the public interest and is of national or regional significance;
(C) appropriate reasonable mitigation and enhancement measures which
should be considered by the Committee; and
(D) whether the Federal agency concerned and the exemption applicant refrained
from making any irreversible or irretrievable commitment of resources
prohibited by subsection (d).
(6) To the extent practicable within the time required for action under subsection
(g) of this section, and except to the extent inconsistent with the requirements of this
section, the consideration of any application for an exemption under this section and
the conduct of any hearing under this subsection shall be in accordance with sections
554, 555, and 556 (other than subsection (b)(3) of section 556) of title 5, United
States Code.
(7) Upon request of the Secretary, the head of any Federal agency is authorized to
detail, on a nonreimbursable basis, any of the personnel of such agency to the Secretary
to assist him in carrying out his duties under this section.
(8) All meetings and records resulting from activities pursuant to this subsection
shall be open to the public.
(h) EXEMPTION.—(1) The Committee shall make a final determination whether or
not to grant an exemption within 30 days after receiving the report of the Secretary
pursuant to subsection (g)(5). The Committee shall grant an exemption from the requirements
of subsection (a)(2) for an agency action if, by a vote of not less than five of
its members voting in person—
(A) it determines on the record, based on the report of the Secretary, the record of the hearing held under subsection (g)(4) and on such other testimony or
evidence as it may receive, that—
(i) there are no reasonable and prudent alternatives to the agency action;
(ii) the benefits of such action clearly outweigh the benefits of alternative
courses of action consistent with conserving the species or its critical habitat,
and such action is in the public interest;
(iii) the action is of regional or national significance; and
(iv) neither the Federal agency concerned nor the exemption applicant
made any irreversible or irretrievable commitment of resources prohibited
by subsection (d); and
(B) it establishes such reasonable mitigation and enhancement measures, including,
but not limited to, live propagation, transplantation, and habitat acquisition
and improvement, as are necessary and appropriate to minimize the adverse
effects of the agency action upon the endangered species, threatened species,
or critical habitat concerned.
Any final determination by the Committee under this subsection shall be considered
final agency action for purposes of chapter 7 of title 5 of the United States
Code.
(2)(A) Except as provided in subparagraph (B), an exemption for an agency action
granted under paragraph (1) shall constitute a permanent exemption with respect
to all endangered or threatened species for the purposes of completing such agency
action—
(i) regardless whether the species was identified in the biological assessment;
and
(ii) only if a biological assessment has been conducted under subsection (c)
with respect to such agency action.
(B) An exemption shall be permanent under subparagraph (A) unless—
(i) the Secretary finds, based on the best scientific and commercial data available,
that such exemption would result in the extinction of a species that was not
the subject of consultation under subsection (a)(2) or was not identified in any
biological assessment conducted under subsection (c), and
(ii) the Committee determines within 60 days after the date of the Secretary’s
finding that the exemption should not be permanent.
If the Secretary makes a finding described in clause (i), the Committee shall meet
with respect to the matter within 30 days after the date of the finding.
(i) REVIEW BY SECRETARY OF STATE.—Notwithstanding any other provision of this
Act, the Committee shall be prohibited from considering for exemption any application
made to it, if the Secretary of State, after a review of the proposed agency
action and its potential implications, and after hearing, certifies, in writing, to the
Committee within 60 days of any application made under this section that the granting
of any such exemption and the carrying out of such action would be in violation
of an international treaty obligation or other international obligation of the United
States. The Secretary of State shall, at the time of such certification, publish a copy
thereof in the Federal Register.
(j) Notwithstanding any other provision of this Act, the Committee shall grant an
exemption for any agency action if the Secretary of Defense finds that such exemption
is necessary for reasons of national security.
(k) SPECIAL PROVISIONS.—An exemption decision by the Committee under this
section shall not be a major Federal action for purposes of the National Environ mental Policy Act of 1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental
impact statement which discusses the impacts upon endangered species or threatened
species or their critical habitats shall have been previously prepared with
respect to any agency action exempted by such order.
(l) COMMITTEE ORDERS.—(1) If the Committee determines under subsection (h)
that an exemption should be granted with respect to any agency action, the
Committee shall issue an order granting the exemption and specifying the mitigation
and enhancement measures established pursuant to subsection (h) which shall
be carried out and paid for by the exemption applicant in implementing the
agency action. All necessary mitigation and enhancement measures shall be
authorized prior to the implementing of the agency action and funded concurrently
with all other project features.
(2) The applicant receiving such exemption shall include the costs of such
mitigation and enhancement measures within the overall costs of continuing the
proposed action. Notwithstanding the preceding sentence the costs of such
measures shall not be treated as project costs for the purpose of computing
benefit-cost or other ratios for the proposed action. Any applicant may request
the Secretary to carry out such mitigation and enhancement measures. The costs
incurred by the Secretary in carrying out any such measures shall be paid by the
applicant receiving the exemption. No later than one year after the granting of an
exemption, the exemption applicant shall submit to the Council on Environmental
Quality a report describing its compliance with the mitigation and enhancement
measures prescribed by this section. Such a report shall be submitted annually
until all such mitigation and enhancement measures have been completed. Notice
of the public availability of such reports shall be published in the Federal Register
by the Council on Environmental Quality.
(m) NOTICE.—The 60-day notice requirement of section 11(g) of this Act shall not
apply with respect to review of any final determination of the Committee under
subsection (h) of this section granting an exemption from the requirements of subsection
(a)(2) of this section.
(n) JUDICIAL REVIEW. —Any person, as defined by section 3(13) of this Act, may
obtain judicial review, under chapter 7 of title 5 of the United States Code, of any
decision of the Endangered Species Committee under subsection (h) in the United
States Court of Appeals for (1) any circuit wherein the agency action concerned will
be, or is being, carried out, or (2) in any case in which the agency action will be, or is
being, carried out outside of any circuit, the District of Columbia, by filing in such
court within 90 days after the date of issuance of the decision, a written petition for
review. A copy of such petition shall be transmitted by the clerk of the court to the
Committee and the Committee shall file in the court the record in the proceeding, as
provided in section 2112, of title 28, United States Code. Attorneys designated by
the Endangered Species Committee may appear for, and represent the Committee
in any action for review under this subsection.
(o) Notwithstanding sections 4(d) and 9(a)(1)(B) and (C), sections 101 and 102 of
the Marine Mammal Protection Act of 1972, or any regulation promulgated to implement
any such section—
(1) any action for which an exemption is granted under subsection (h) shall not
be considered to be a taking of any endangered species or threatened species with
respect to any activity which is necessary to carry out such action; and
(2) any taking that is in compliance with the terms and conditions specified in a written statement provided under subsection (b)(4)(iv) shall not be considered
to be a prohibited taking of the species concerned.
(p) EXEMPTIONS IN PRESIDENTIALLY DECLARED DISASTER AREAS.—In any area which has been declared by the President to be a major disaster area under the Disaster Relief and Emergency Assistance Act, the President is authorized to make the determinations required by subsections (g) and (h) of this section for any project for the repair or replacement of a public facility substantially as it existed prior to the disaster under section 405 or 406 of the Disaster Relief and Emergency Assistance Act, and which the President determines (1) is necessary to prevent the recurrence of such a natural disaster and to reduce the potential loss of human life, and (2) to involve an emergency situation which does not allow the ordinary procedures of this section to be followed. Notwithstanding any other provision of this section, the Committee shall accept the determinations of the President under this subsection.
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