§ 1535. — Cooperation with States.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1535]
TITLE 16--CONSERVATION
CHAPTER 35--ENDANGERED SPECIES
Sec. 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 consultation 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 management of any area established for the
conservation of endangered species or threatened species. Any revenues
derived from the administration 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 chapter, 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 certified copy of such a proposed State program, he shall make a
determination whether such program 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 agreement with the State for the purpose of assisting in
implementation of the State program. In order for a State program to be
deemed an adequate and active program for the conservation of endangered
species and threatened species, 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 fish or wildlife determined by the State agency or the
Secretary to be endangered or threatened;
(B) the State agency has established acceptable 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 requested to the Secretary;
(C) the State agency is authorized to conduct investigations to
determine the status and requirements for survival of resident
species of fish and wildlife;
(D) the State agency is authorized to establish 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 participation in designating
resident species of fish or wildlife as endangered or threatened; or
that under the State program--
(i) the requirements set forth in subparagraphs (C), (D), and
(E) of this paragraph are complied with, and
(ii) plans are included under which immediate attention will be
given to those resident species of fish and wildlife which are
determined 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 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 prohibitions set forth in or
authorized pursuant to section 1533(d) of this title or section
1538(a)(1) of this title with respect to the taking of any resident
endangered or threatened species.
(2) In furtherance of the purposes of this chapter 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. Unless he determines, pursuant to this paragraph, that the
State program is not in accordance with this chapter, he shall enter
into a cooperative agreement with the State for the purpose of assisting
in implementation of the State program. In order for a State program to
be deemed an adequate and active program for the conservation 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 endangered or threatened;
(B) the State agency has established acceptable 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 endangered or threatened, and has furnished a
copy of such plan and program together with all pertinent details,
information, and data requested to the Secretary;
(C) the State agency is authorized to conduct investigations to
determine the status and requirements for survival of resident
species of plants; and
(D) provision is made for public participation in designating
resident species of plants as endangered or threatened; or
that under the State program--
(i) the requirements set forth in subparagraphs (C) and (D) of
this paragraph are complied with, and
(ii) plans are included under which immediate attention will be
given to those resident species of plants which are determined 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 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 prohibitions 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 endangered or threatened species.
(d) Allocation of funds
(1) The Secretary is authorized to provide financial 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 or to assist in monitoring 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 section 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 program to restore and
protect an endangered species or threatened species in terms of
survival 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
expenditure is authorized to be made available for expenditure by the
Secretary in conducting programs 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
expected to be derived in connection with the conservation of endangered
or threatened species; (C) the estimated cost of these actions; and (D)
the share of such costs to be borne by the Federal 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 discretion 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,
endangered 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 respecting 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
specifically 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
extent that the taking of any such species is contrary to the law of
such State); or
(B) except for any time within the establishment 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 protect 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 provision of this chapter; but such
prohibition shall expire 90 days after the date of its
imposition unless the Secretary further extends such prohibition
by publishing notice and a statement of justification of such
extension.
(h) Regulations
The Secretary is authorized to promulgate such regulations as may be
appropriate to carry out the provisions of this section relating to
financial 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 Federal aid to
wildlife restoration fund under section 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, Sec. 6, Dec. 28, 1973, 87 Stat. 889; Pub. L. 95-212,
Dec. 19, 1977, 91 Stat. 1493; Pub. L. 95-632, Sec. 10, Nov. 10, 1978, 92
Stat. 3762; Pub. L. 96-246, May 23, 1980, 94 Stat. 348; Pub. L. 97-304,
Secs. 3, 8(b), Oct. 13, 1982, 96 Stat. 1416, 1426; Pub. L. 100-478,
title I, Sec. 1005, Oct. 7, 1988, 102 Stat. 2307.)
References in Text
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 Restoration Account established by section
9504(a)(2)(A) of Title 26, Internal Revenue Code, which section was
enacted 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, Sec. 1005(a), amended par.
(1) generally. Prior to amendment, par. (1) read as follows: ``The
Secretary is authorized to provide financial 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 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; and
``(E) the relative urgency to initiate a program to restore and
protect an endangered species or threatened species in terms of
survival of the species.
So much of any appropriated funds 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
expenditure is authorized to be made available for expenditure by the
Secretary in conducting programs under this section.''
Subsec. (i). Pub. L. 100-478, Sec. 1005(b), added subsec. (i).
1982--Subsec. (d)(2)(i). Pub. L. 97-304, Sec. 3(1), substituted ``75
percent'' for ``66\2/3\ per centum''.
Subsec. (d)(2)(ii). Pub. L. 97-304, Sec. 3(2), substituted ``90
percent'' for ``75 per centum''.
Subsec. (i). Pub. L. 97-304, Sec. 8(b), struck out subsec. (i) which
authorized appropriations to carry out this section 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, redesignated pars. (1) to
(5) as subpars. (A) to (E), respectively, and subpars. (A) and (B) of
subpar. (E), as so redesignated, as cls. (i) and (ii), respectively,
substituted ``paragraph'' for ``subsection'' in provision preceding
subpar. (A), as so redesignated, ``endangered or threatened species of
fish or wildlife'' for ``endangered species or threatened species'' in
subpar. (D), as so redesignated, ``subparagraphs (C), (D), and (E) of
this paragraph'' for ``paragraphs (3), (4), and (5) of this subsection''
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 redesignated, and added par. (2).
1977--Subsec. (c). Pub. L. 95-212, Sec. 1(1), inserted provisions
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 Secretary 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 urgently in need of conservation programs.
Subsec. (i). Pub. L. 95-212, Sec. 1(2), substituted provisions
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.
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 affecting in any manner any
cooperative agreement entered 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.
Section Referred to in Other Sections
This section is referred to in sections 668dd, 1533, 1538, 1540,
1542, 1544 of this title.
