Sec. 5. Cost accounting
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The Endangered Species Act of 1973 is amended by inserting after section 12 ( 16 U.S.C. 1541 ) the following: In this section: The term direct costs includes— Federal agency obligations related to the cost of any study; capital, operation, maintenance, and replacement costs; and staffing costs. The term indirect costs includes foregone power generation costs and replacement power costs, including the net costs of any transmission of power. Except with respect to intrastate endangered species or intrastate threatened species regulated by a Governor of a State under section 4(j), the Administrator of the Bonneville Power Administration, the Administrator of the Southeastern Power Administration, the Administrator of the Southwestern Power Administration, and the Administrator of the Western Area Power Administration shall each include in a monthly billing statement submitted to each customer of the respective Administration the share of the direct and indirect costs to the customer incurred by the Administration related to complying with this Act.
The Director of the Bureau of Reclamation shall assist the administrators described in paragraph
(1)with identifying the costs described in that paragraph. Not later than January 30 of each year, each of the administrators described in subsection (b)(1), in coordination with the Director of the Bureau of Reclamation, shall submit to the Committee on Environment of the Senate and the Committee on Natural Resources of the House of Representatives a report estimating the costs described in subsection (b)(1)— with respect to the Western Area Power Administration, on a project-by-project basis; and with respect to the each of the Administrations described in subsection (b)(1) (except the Western Power Administration), on a systemwide basis. Any owner or lessee of any real property may submit to the Secretary of the Interior an application that includes any proposed use of the real property. Not later than 90 days after the date on which the application described in paragraph
(1)is submitted, the Secretary of the Interior shall submit to the owner or lessee in writing a determination as to whether the proposed use will violate any provision of this Act. If the Secretary of the Interior fails to respond before the expiration of the 90-day period described in subparagraph (A), the proposed use shall be considered to not violate any provision of this Act. It is an affirmative defense to any civil penalty assessed under section 11 or to any civil action, civil suit, or prosecution brought under that section that the owner or lessee of real property reasonably relied on a determination, including a determination that resulted under paragraph (2)(B), that a proposed use will not violate any provision of this Act. If the Secretary of the Interior determines that a proposed use will violate a provision of this Act, the owner or lessee of the real property may seek compensation in accordance with subsection (b). In this subsection: The term agency action means any action taken by the Director of the United States Fish and Wildlife Service in accordance with this Act that diminishes the fair market value of any real property by not less than 50 percent with respect to the intended use of the real property. The term agency action does not include any action taken with respect to intrastate endangered species or intrastate threatened species regulated by a Governor of a State under section 4(j). The term lessee means a lessee of any real property affected by an agency action. The term owner means an owner of any real property affected by an agency action. Except as provided in paragraph (3)(B), not later than 180 days after the date on which an agency action takes place, the Secretary shall pay an owner or lessee an amount equal to 150 percent of the fair market value of the real property determined in accordance with paragraph (3). The fair market value described in paragraph
(2)shall be determined by 2 licensed independent appraisers of whom— 1 shall be chosen by the Secretary; and 1 shall be chosen by the owner or lessee. If the appraisers chosen under subparagraph
(A)fail to agree on the same fair market value, the Secretary and the owner shall jointly select an additional licensed independent appraiser to determine the fair market value. The licensed independent appraiser described in clause
(i)shall determine the fair market value not later than 270 days after the date on which the agency action takes place. The Secretary shall be responsible for all costs relating to the determination of fair market value made under this paragraph. .
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