[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4555 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 4555

   To amend the Endangered Species Act of 1973 to reform provisions 
 relating to liability for civil and criminal penalties under that Act.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 11, 1998

  Mr. Thomas introduced the following bill; which was referred to the 
                         Committee on Resources

_______________________________________________________________________

                                 A BILL


 
   To amend the Endangered Species Act of 1973 to reform provisions 
 relating to liability for civil and criminal penalties under that Act.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES.

    (a) Short Title.--This Act may be cited as the ``Endangered Species 
Criminal and Civil Penalties Liability Reform Act''.
    (b) References to Endangered Species Act of 1973.--Except as 
otherwise expressly provided, whenever in this Act an amendment or 
repeal is expressed in terms of an amendment to, or repeal of, a 
section or other provision, the reference shall be considered to be 
made to that section or provision of the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).

SEC. 2. SPECIFIC INTENT REQUIRED FOR PENALTIES REGARDING TAKINGS OF 
              SPECIES.

    Section 9 (16 U.S.C. 1538) is amended by adding at the end the 
following:
    ``(h) Specific Intent Required for Taking.--For purposes of this 
section, the term `take' means to--
            ``(1) knowingly and intentionally perform any act with the 
        knowledge that the act would constitute harassing, harming, 
        pursuing, hunting, shooting, wounding, killing, trapping, 
        capturing, or collecting an individual member of a species that 
        was present at the time and location of the act; or
            ``(2) attempt to engage in conduct described in paragraph 
        (1).''.

SEC. 3. REQUIREMENT TO PROVIDE NOTICE AND OPPORTUNITY TO CORRECT 
              VIOLATION.

    Section 10 (16 U.S.C. 1540) is amended by adding at the end the 
following:
    ``(k) Notice and Opportunity To Correct Violation.--
            ``(1) In general.--A person shall not be liable for any 
        criminal or civil penalty for a violation of this Act committed 
        while conducting an otherwise lawful activity and not for the 
        purpose of a taking prohibited by this Act, unless--
                    ``(A) the Secretary provides the person notice of 
                the violation; and
                    ``(B) the person fails to terminate and otherwise 
                correct the activity constituting the violation by not 
                later than 30 days after the date of the notice.
            ``(2) Corrective action.--A person may correct an activity 
        for purposes of paragraph (1)(B) by mitigation, entering into a 
        binding commitment to carry out mitigation, or other method 
        that is determined by the Secretary to be reasonably calculated 
        to restore the species to its status immediately prior to the 
        activity.''.

SEC. 4. NO SURPRISES.

    Section 10(a) (16 U.S.C. 1539(a)) is amended by adding at the end 
the following:
    ``(3)(A) Each conservation plan developed under this subsection 
shall include provisions under which a person who has entered into, and 
is in compliance with, the conservation plan may not, without their 
consent, be required to undertake any additional mitigation measures 
for species covered by the plan if the measures would require payment 
of money, or compliance with use, development, or management 
restrictions on any land, waters, or water-related rights, in addition 
to payments or compliance, respectively, otherwise required under the 
terms of the plan.
    ``(B) The provisions required by subparagraph (A) shall, among 
other matters, identify--
            ``(i) modifications to the plan; or
            ``(ii) additional conservation measures;
if any, that the Secretary may require under extraordinary 
circumstances.''.

SEC. 5. KNOWLEDGE OF ENDANGERED OR THREATENED STATUS REQUIRED FOR 
              ENFORCEMENT ACTIONS.

    Section 11 (16 U.S.C. 1540) is further amended by adding at the end 
the following:
    ``(h) Knowledge of Endangered or Threatened Status Required.--In 
any enforcement action or citizen suit under this Act in which it is 
alleged that the defendant acted or failed to act with respect to a 
member of a species listed under section 4(c), it is an affirmative 
defense to the allegation that the defendant could not reasonably have 
known that the fish or wildlife or plant concerned is a member of an 
endangered species or threatened species.''.

SEC. 6. SAFE HARBOR AGREEMENTS.

    Section 10 (16 U.S.C. 1539) is further amended by adding at the end 
thereof the following new subsection:
    ``(m) Safe Harbor Agreements.--
            ``(1) Agreements.--
                    ``(A) In general.--The Secretary may enter into 
                agreements with non-Federal persons to benefit the 
                conservation of endangered species or threatened 
                species by creating, restoring, or improving habitat or 
                by maintaining currently unoccupied habitat for 
                endangered species or threatened species. Under an 
                agreement, the Secretary shall permit the person to 
                take endangered species or threatened species included 
                under the agreement on lands or waters that are subject 
                to the agreement if the taking is incidental to, and 
                not the purpose of, carrying out of an otherwise lawful 
                activity, provided that the Secretary may not permit 
                through such agreements any incidental take below the 
                baseline requirement specified pursuant to subparagraph 
                (B).
                    ``(B) Baseline.--For each agreement under this 
                subsection, the Secretary shall establish a baseline 
                requirement that is mutually agreed upon by the 
                applicant and the Secretary at the time of the 
                agreement that will, at a minimum, maintain existing 
                conditions for the species covered by the agreement on 
                lands and waters that are subject to the agreement. The 
                baseline may be expressed in terms of the abundance or 
                distribution of endangered or threatened species, 
                quantity or quality of habitat, or such other 
                indicators as appropriate.
            ``(2) Standards and guidelines.--The Secretary shall issue 
        standards and guidelines for the development and approval of 
        safe harbor agreements in accordance with this subsection.
            ``(3) Financial assistance.--
                    ``(A) In general.--In cooperation with the States 
                and subject to the availability of appropriations under 
                section 15(d), the Secretary may provide a grant of up 
                to $10,000 to any individual private landowner to 
                assist the landowner in carrying out a safe harbor 
                agreement under this subsection.
                    ``(B) Prohibition on assistance for required 
                activities.--The Secretary may not provide assistance 
                under this paragraph for any action that is required by 
                a permit issued under this Act or that is otherwise 
                required under this Act or other Federal law.
                    ``(C) Other payments.--Grants provided to an 
                individual private landowner under this paragraph shall 
                be in addition to, and not affect, the total amount of 
                payments that the landowner is otherwise eligible to 
                receive under the Conservation Reserve Program (16 
                U.S.C. 3831 et seq.), the Wetlands Reserve Program (16 
                U.S.C. 3837 et seq.), or the Wildlife Habitat 
                Incentives Program (16 U.S.C. 3836a).''.
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