16 U.S.C. § 1535 — Cooperation with States

Page 1919 TITLE 16—CONSERVATION § 1535 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1982 AMENDMENT Pub. L. 97–304, § 2(b), Oct. 13, 1982, 96 Stat. 1416, pro- vided that: ‘‘(1) Any petition filed under section 4(c)(2) of the En- dangered Species Act of 1973 [subsec. (c)(2) of this sec- tion] (as in effect on the day before the date of the en- actment of this Act [Oct. 13, 1982]) and any regulation proposed under section 4(f) of such Act of 1973 [subsec. (f) of this section] (as in effect on such day) that is pending on such date of enactment [Oct. 13, 1982] shall be treated as having been filed or proposed on such date of enactment under section 4(b) of such Act of 1973 [sub- sec. (b) of this section] (as amended by subsection (a)); and the procedural requirements specified in such sec- tion 4(b) [subsec. (b) of this section] (as so amended) re- garding such petition or proposed regulation shall be deemed to be complied with to the extent that like re- quirements under such section 4 [this section] (as in ef- fect before the date of the enactment of this Act) were complied with before such date of enactment. ‘‘(2) Any regulation proposed after, or pending on, the date of the enactment of this Act [Oct. 13, 1982] to des- ignate critical habitat for a species that was deter- mined before such date of enactment to be endangered or threatened shall be subject to the procedures set forth in section 4 of such Act of 1973 [this section] (as amended by subsection (a)) for regulations proposing revisions to critical habitat instead of those for regula- tions proposing the designation of critical habitat. ‘‘(3) Any list of endangered species or threatened spe- cies (as in effect under section 4(c) of such Act of 1973 [subsec. (c) of this section] on the day before the date of the enactment of this Act [Oct. 13, 1982]) shall re- main in effect unless and until determinations regard- ing species and designations and revisions of critical habitats that require changes to such list are made in accordance with subsection (b)(5) of such Act of 1973 [subsec. (b)(5) of this section] (as added by subsection (a)). ‘‘(4) Section 4(a)(3)(A) of such Act of 1973 [subsec. (a)(3)(A) of this section] (as added by subsection (a)) shall not apply with respect to any species which was listed as an endangered species or a threatened species before November 10, 1978.’’ ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treat- ed as referring to Committee on Resources of House of Representatives in case of provisions relating to fish- eries, wildlife, international fishing agreements, ma- rine affairs (including coastal zone management) ex- cept for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. § 1534. Land acquisition (a) Implementation of conservation program; au- thorization of Secretary and Secretary of Ag- riculture The Secretary, and the Secretary of Agri- culture with respect to the National Forest Sys- tem, shall establish and implement a program to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species pursuant to section 1533 of this title. To carry out such a program, the ap- propriate Secretary— (1) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of 1956, as amended [16 U.S.C. 742a et seq.], the Fish and Wildlife Coordination Act, as amended [16 U.S.C. 661 et seq.], and the Migra- tory Bird Conservation Act [16 U.S.C. 715 et seq.], as appropriate; and (2) is authorized to acquire by purchase, do- nation, or otherwise, lands, waters, or interest therein, and such authority shall be in addi- tion to any other land acquisition authority vested in him. (b) Availability of funds for acquisition of lands, waters, etc. Funds made available pursuant to chapter 2003 of title 54 may be used for the purpose of acquir- ing lands, waters, or interests therein under sub- section (a) of this section. (Pub. L. 93–205, § 5, Dec. 28, 1973, 87 Stat. 889; Pub. L. 95–632, § 12, Nov. 10, 1978, 92 Stat. 3766; Pub. L. 113–287, § 5(d)(32), Dec. 19, 2014, 128 Stat. 3267.) Editorial Notes REFERENCES IN TEXT The Fish and Wildlife Act of 1956, as amended, re- ferred to in subsec. (a)(1), is act Aug. 8, 1956, ch. 1036, 70 Stat. 119, which is classified generally to sections 742a to 742d and 742e to 742j–2 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 742a of this title and Tables. The Fish and Wildlife Coordination Act, as amended, referred to in subsec. (a)(1), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, which is classified generally to sections 661 to 666c–1 of this title. For complete classification of this Act to the Code, see section 661(a) of this title, Short Title note set out under section 661 of this title, and Tables. The Migratory Bird Conservation Act, referred to in subsec. (a)(1), is act Feb. 18, 1929, ch. 257, 45 Stat. 1222, which is classified generally to subchapter III (§ 715 et seq.) of chapter 7 of this title. For complete classifica- tion of this Act to the Code, see section 715 of this title and Tables. AMENDMENTS 2014—Subsec. (b). Pub. L. 113–287 substituted ‘‘chapter 2003 of title 54’’ for ‘‘the Land and Water Conservation Fund Act of 1965, as amended,’’. 1978—Subsec. (a). Pub. L. 95–632, among other changes in text preceding par. (1), inserted reference to the Sec- retary of Agriculture with respect to the National For- est System and substituted the establishment and im- plementation of a plan to conserve plants for the estab- lishment and implementation of a plan to conserve plants which were concluded in Appendices to the Con- vention. § 1535. Cooperation with States (a) Generally In carrying out the program authorized by this chapter, the Secretary shall cooperate to the maximum extent practicable with the States. Such cooperation shall include consulta- tion with the States concerned before acquiring any land or water, or interest therein, for the purpose of conserving any endangered species or threatened species. (b) Management agreements The Secretary may enter into agreements with any State for the administration and man- Page 1920 TITLE 16—CONSERVATION § 1535 agement of any area established for the con- servation of endangered species or threatened species. Any revenues derived from the adminis- tration of such areas under these agreements shall be subject to the provisions of section 715s of this title. (c) Cooperative agreements (1) In furtherance of the purposes of this chap- ter, the Secretary is authorized to enter into a cooperative agreement in accordance with this section with any State which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species. Within one hundred and twenty days after the Secretary receives a cer- tified copy of such a proposed State program, he shall make a determination whether such pro- gram is in accordance with this chapter. Unless he determines, pursuant to this paragraph, that the State program is not in accordance with this chapter, he shall enter into a cooperative agree- ment with the State for the purpose of assisting in implementation of the State program. In order for a State program to be deemed an ade- quate and active program for the conservation of endangered species and threatened species, the Secretary must find, and annually there- after reconfirm such finding, that under the State program— (A) authority resides in the State agency to conserve resident species of fish or wildlife de- termined by the State agency or the Secretary to be endangered or threatened; (B) the State agency has established accept- able conservation programs, consistent with the purposes and policies of this chapter, for all resident species of fish or wildlife in the State which are deemed by the Secretary to be endangered or threatened, and has furnished a copy of such plan and program together with all pertinent details, information, and data re- quested to the Secretary; (C) the State agency is authorized to con- duct investigations to determine the status and requirements for survival of resident spe- cies of fish and wildlife; (D) the State agency is authorized to estab- lish programs, including the acquisition of land or aquatic habitat or interests therein, for the conservation of resident endangered or threatened species of fish or wildlife; and (E) provision is made for public participa- tion in designating resident species of fish or wildlife as endangered or threatened; or that under the State program— (i) the requirements set forth in subpara- graphs (C), (D), and (E) of this paragraph are complied with, and (ii) plans are included under which imme- diate attention will be given to those resident species of fish and wildlife which are deter- mined by the Secretary or the State agency to be endangered or threatened and which the Secretary and the State agency agree are most urgently in need of conservation pro- grams; except that a cooperative agreement entered into with a State whose program is deemed adequate and active pursuant to clause (i) and this clause shall not affect the applicability of prohibitions set forth in or au- thorized pursuant to section 1533(d) of this title or section 1538(a)(1) of this title with re- spect to the taking of any resident endangered or threatened species. (2) In furtherance of the purposes of this chap- ter the Secretary is authorized to enter into a cooperative agreement in accordance with this section with any State which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species of plants. Within one hundred and twenty days after the Secretary receives a certified copy of such a proposed State program, he shall make a determination whether such program is in accordance with this chapter. Un- less he determines, pursuant to this paragraph, that the State program is not in accordance with this chapter, he shall enter into a coopera- tive agreement with the State for the purpose of assisting in implementation of the State pro- gram. In order for a State program to be deemed an adequate and active program for the con- servation of endangered species of plants and threatened species of plants, the Secretary must find, and annually thereafter reconfirm such finding, that under the State program— (A) authority resides in the State agency to conserve resident species of plants determined by the State agency or the Secretary to be en- dangered or threatened; (B) the State agency has established accept- able conservation programs, consistent with the purposes and policies of this chapter, for all resident species of plants in the State which are deemed by the Secretary to be en- dangered or threatened, and has furnished a copy of such plan and program together with all pertinent details, information, and data re- quested to the Secretary; (C) the State agency is authorized to con- duct investigations to determine the status and requirements for survival of resident spe- cies of plants; and (D) provision is made for public participa- tion in designating resident species of plants as endangered or threatened; or that under the State program— (i) the requirements set forth in subpara- graphs (C) and (D) of this paragraph are com- plied with, and (ii) plans are included under which imme- diate attention will be given to those resident species of plants which are determined by the Secretary or the State agency to be endan- gered or threatened and which the Secretary and the State agency agree are most urgently in need of conservation programs; except that a cooperative agreement entered into with a State whose program is deemed adequate and active pursuant to clause (i) and this clause shall not affect the applicability of prohibi- tions set forth in or authorized pursuant to section 1533(d) or section 1538(a)(1) of this title with respect to the taking of any resident en- dangered or threatened species. (d) Allocation of funds (1) The Secretary is authorized to provide fi- nancial assistance to any State, through its re- spective State agency, which has entered into a Page 1921 TITLE 16—CONSERVATION § 1535 cooperative agreement pursuant to subsection (c) of this section to assist in development of programs for the conservation of endangered and threatened species or to assist in moni- toring the status of candidate species pursuant to subparagraph (C) of section 1533(b)(3) of this title and recovered species pursuant to section 1533(g) of this title. The Secretary shall allocate each annual appropriation made in accordance with the provisions of subsection (i) of this sec- tion to such States based on consideration of— (A) the international commitments of the United States to protect endangered species or threatened species; (B) the readiness of a State to proceed with a conservation program consistent with the objectives and purposes of this chapter; (C) the number of endangered species and threatened species within a State; (D) the potential for restoring endangered species and threatened species within a State; (E) the relative urgency to initiate a pro- gram to restore and protect an endangered species or threatened species in terms of sur- vival of the species; (F) the importance of monitoring the status of candidate species within a State to prevent a significant risk to the well being of any such species; and (G) the importance of monitoring the status of recovered species within a State to assure that such species do not return to the point at which the measures provided pursuant to this chapter are again necessary. So much of the annual appropriation made in accordance with provisions of subsection (i) of this section allocated for obligation to any State for any fiscal year as remains unobligated at the close thereof is authorized to be made available to that State until the close of the succeeding fiscal year. Any amount allocated to any State which is unobligated at the end of the period during which it is available for expendi- ture is authorized to be made available for ex- penditure by the Secretary in conducting pro- grams under this section. (2) Such cooperative agreements shall provide for (A) the actions to be taken by the Secretary and the States; (B) the benefits that are ex- pected to be derived in connection with the con- servation of endangered or threatened species; (C) the estimated cost of these actions; and (D) the share of such costs to be borne by the Fed- eral Government and by the States; except that— (i) the Federal share of such program costs shall not exceed 75 percent of the estimated program cost stated in the agreement; and (ii) the Federal share may be increased to 90 percent whenever two or more States having a common interest in one or more endangered or threatened species, the conservation of which may be enhanced by cooperation of such States, enter jointly into an agreement with the Secretary. The Secretary may, in his discretion, and under such rules and regulations as he may prescribe, advance funds to the State for financing the United States pro rata share agreed upon in the cooperative agreement. For the purposes of this section, the non-Federal share may, in the dis- cretion of the Secretary, be in the form of money or real property, the value of which will be determined by the Secretary, whose decision shall be final. (e) Review of State programs Any action taken by the Secretary under this section shall be subject to his periodic review at no greater than annual intervals. (f) Conflicts between Federal and State laws Any State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endan- gered species or threatened species is void to the extent that it may effectively (1) permit what is prohibited by this chapter or by any regulation which implements this chapter, or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this chapter or in any regulation which implements this chapter. This chapter shall not otherwise be construed to void any State law or regulation which is intended to conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any State law or regulation re- specting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined. (g) Transition (1) For purposes of this subsection, the term ‘‘establishment period’’ means, with respect to any State, the period beginning on December 28, 1973, and ending on whichever of the following dates first occurs: (A) the date of the close of the 120-day period following the adjournment of the first regular session of the legislature of such State which commences after December 28, 1973, or (B) the date of the close of the 15-month period following December 28, 1973. (2) The prohibitions set forth in or authorized pursuant to sections 1533(d) and 1538(a)(1)(B) of this title shall not apply with respect to the taking of any resident endangered species or threatened species (other than species listed in Appendix I to the Convention or otherwise spe- cifically covered by any other treaty or Federal law) within any State— (A) which is then a party to a cooperative agreement with the Secretary pursuant to subsection (c) of this section (except to the ex- tent that the taking of any such species is contrary to the law of such State); or (B) except for any time within the establish- ment period when— (i) the Secretary applies such prohibition to such species at the request of the State, or (ii) the Secretary applies such prohibition after he finds, and publishes his finding, that an emergency exists posing a significant risk to the well-being of such species and that the prohibition must be applied to pro- tect such species. The Secretary’s finding and publication may be made without regard to the public hearing or comment provisions of section 553 of title 5 or any other provi- Page 1922 TITLE 16—CONSERVATION § 1536 sion of this chapter; but such prohibition shall expire 90 days after the date of its im- position unless the Secretary further ex- tends such prohibition by publishing notice and a statement of justification of such ex- tension. (h) Regulations The Secretary is authorized to promulgate such regulations as may be appropriate to carry out the provisions of this section relating to fi- nancial assistance to States. (i) Appropriations (1) To carry out the provisions of this section for fiscal years after September 30, 1988, there shall be deposited into a special fund known as the cooperative endangered species conservation fund, to be administered by the Secretary, an amount equal to 5 percent of the combined amounts covered each fiscal year into the Fed- eral aid to wildlife restoration fund under sec- tion 669b of this title, and paid, transferred, or otherwise credited each fiscal year to the Sport Fishing Restoration Account established under 1016 of the Act of July 18, 1984. (2) Amounts deposited into the special fund are authorized to be appropriated annually and allocated in accordance with subsection (d) of this section. (Pub. L. 93–205, § 6, Dec. 28, 1973, 87 Stat. 889; Pub. L. 95–212, Dec. 19, 1977, 91 Stat. 1493; Pub. L. 95–632, § 10, Nov. 10, 1978, 92 Stat. 3762; Pub. L. 96–246, May 23, 1980, 94 Stat. 348; Pub. L. 97–304, §§ 3, 8(b), Oct. 13, 1982, 96 Stat. 1416, 1426; Pub. L. 100–478, title I, § 1005, Oct. 7, 1988, 102 Stat. 2307.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’ or ‘‘This Act’’, meaning Pub. L. 93–205, Dec. 28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and Tables. The Sport Fishing Restoration Account established under section 1016 of the Act of July 18, 1984, referred to in subsec. (i)(1), probably means the Sport Fish Res- toration Account established by section 9504(a)(2)(A) of Title 26, Internal Revenue Code, which section was en- acted by section 1016(a) of Pub. L. 98–369, div. A, title X, July 18, 1984, 98 Stat. 1019. AMENDMENTS 1988—Subsec. (d)(1). Pub. L. 100–478, § 1005(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘The Secretary is authorized to provide finan- cial assistance to any State, through its respective State agency, which has entered into a cooperative agreement pursuant to subsection (c) of this section to assist in development of programs for the conservation of endangered and threatened species. The Secretary shall make an allocation of appropriated funds to such States based on consideration of— ‘‘(A) the international commitments of the United States to protect endangered species or threatened species; ‘‘(B) the readiness of a State to proceed with a con- servation program consistent with the objectives and purposes of this chapter; ‘‘(C) the number of endangered species and threat- ened species within a State; ‘‘(D) the potential for restoring endangered species and threatened species within a State; and ‘‘(E) the relative urgency to initiate a program to restore and protect an endangered species or threat- ened species in terms of survival of the species. So much of any appropriated funds allocated for obliga- tion to any State for any fiscal year as remains unobli- gated at the close thereof is authorized to be made available to that State until the close of the succeeding fiscal year. Any amount allocated to any State which is unobligated at the end of the period during which it is available for expenditure is authorized to be made available for expenditure by the Secretary in con- ducting programs under this section.’’ Subsec. (i). Pub. L. 100–478, § 1005(b), added subsec. (i). 1982—Subsec. (d)(2)(i). Pub. L. 97–304, § 3(1), sub- stituted ‘‘75 percent’’ for ‘‘662⁄3 per centum’’. Subsec. (d)(2)(ii). Pub. L. 97–304, § 3(2), substituted ‘‘90 percent’’ for ‘‘75 per centum’’. Subsec. (i). Pub. L. 97–304, § 8(b), struck out subsec. (i) which authorized appropriations to carry out this sec- tion of $10,000,000 through the period ending Sept. 30, 1977, $12,000,000 for the period Oct. 1, 1977, through Sept. 30, 1980, and $12,000,000 for the period Oct. 1, 1980, through Sept. 30, 1982. See section 1542(b) of this title. 1980—Subsec. (i). Pub. L. 96–246 in par. (2) substituted ‘‘$12,000,000’’ for ‘‘$16,000,000’’ and ‘‘1980’’ for ‘‘1981’’, and added par. (3). 1978—Subsec. (c). Pub. L. 95–632 designated existing provision as par. (1), and in par. (1) as so designated, re- designated pars. (1) to (5) as subpars. (A) to (E), respec- tively, and subpars. (A) and (B) of subpar. (E), as so re- designated, as cls. (i) and (ii), respectively, substituted ‘‘paragraph’’ for ‘‘subsection’’ in provision preceding subpar. (A), as so redesignated, ‘‘endangered or threat- ened species of fish or wildlife’’ for ‘‘endangered species or threatened species’’ in subpar. (D), as so redesig- nated, ‘‘subparagraphs (C), (D), and (E) of this para- graph’’ for ‘‘paragraphs (3), (4), and (5) of this sub- section’’ in cl. (i) of subpar. (E), as so redesignated, ‘‘clause (i) and this clause’’ for ‘‘subparagraph (A) and this subparagraph’’ in cl. (ii) of subpar. (E), as so redes- ignated, and added par. (2). 1977—Subsec. (c). Pub. L. 95–212, § 1(1), inserted provi- sions that States in which the State fish and wildlife agencies do not possess the broad authority to conserve all resident species of fish and wildlife which the Sec- retary determines to be threatened or endangered may nevertheless qualify for cooperative agreement funds if they satisfy all other requirements and have plans to devote immediate attention to those species most ur- gently in need of conservation programs. Subsec. (i). Pub. L. 95–212, § 1(2), substituted provi- sions authorizing appropriations of $10,000,000 to cover the period ending Sept. 30, 1977, and $16,000,000 to cover the period beginning Oct. 1, 1977, and ending Sept. 30, 1981, for provisions authorizing appropriations of not to exceed $10,000,000 through the fiscal year ending June 30, 1977. Statutory Notes and Related Subsidiaries COOPERATIVE AGREEMENTS WITH STATES UNAFFECTED BY 1981 AMENDMENT OF MARINE MAMMAL PROTECTION ACT Nothing in the amendment of section 1379 of this title by section 4(a) of Pub. L. 97–58 to be construed as af- fecting in any manner any cooperative agreement en- tered into by a State under subsec. (c) of this section before, on, or after Oct. 9, 1981, see section 4(b) of Pub. L. 97–58, set out as a note under section 1379 of this title. § 1536. Interagency cooperation (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 chapter. All other Federal agencies shall, in consultation with and with the assistance of the Secretary,