[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1100 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                S. 1100

    To amend the Endangered Species Act of 1973 to provide that the 
 designation of critical habitat for endangered and threatened species 
  be required as part of the development of recovery plans for those 
                                species.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 20, 1999

 Mr. Chafee (for himself, Mr. Crapo, and Mr. Domenici) introduced the 
 following bill; which was read twice and referred to the Committee on 
                      Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
    To amend the Endangered Species Act of 1973 to provide that the 
 designation of critical habitat for endangered and threatened species 
  be required as part of the development of recovery plans for those 
                                species.

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

SECTION 1. RECOVERY PLANS AND CRITICAL HABITAT DESIGNATIONS.

    The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) is 
amended--
            (1) by inserting after section 4 the following:

           ``recovery plans and critical habitat designations

    ``Sec. 4A.'';
            (2) by moving subsection (f) of section 4 to appear at the 
        end of section 4A (as added by paragraph (1)); and
            (3) in section 4A (as amended by paragraph (2))--
                    (A) by striking ``(f)(1) Recovery Plans.--The'' and 
                inserting the following:
    ``(a) In General.--The'';
                    (B) by redesignating paragraphs (2) through (5) as 
                subsections (b) through (e), respectively;
                    (C) in subsection (b) (as so redesignated)--
                            (i) by striking ``(b) The Secretary'' and 
                        inserting the following:
    ``(b) Recovery Teams.--
            ``(1) In general.--The Secretary''; and
                            (ii) by adding at the end the following:
            ``(2) Appointment of a team.--Not later than 60 days after 
        the date of publication under section 4 of a final 
        determination that a species is a threatened species or 
        endangered species, the Secretary, in cooperation with any 
        State affected by the determination, shall--
                    ``(A) appoint a recovery team to develop a recovery 
                plan for the species; or
                    ``(B) after public notice and opportunity for 
                comment, determine that a recovery team shall not be 
                appointed.''; and
                    (D) by adding at the end the following:
    ``(f) Schedule.--For each species determined to be an endangered 
species or a threatened species after the date of enactment of this 
subsection for which the Secretary is required to develop a recovery 
plan under subsection (a), the Secretary shall publish--
            ``(1) not later than 18 months after the date of the 
        publication under section 4 of the final regulation containing 
        the listing determination, a draft recovery plan; and
            ``(2) not later than 3 years after the date of publication 
        under section 4 of the final regulation containing the listing 
        determination, a final recovery plan.''.

SEC. 2. CRITICAL HABITAT DESIGNATIONS.

    (a) In General.--Section 4A of the Endangered Species Act of 1973 
(as added by section 1) is amended by adding at the end the following:
    ``(g) Critical Habitat Designations.--
            ``(1) Recommendation of the recovery team.--
                    ``(A) Recovery team appointed.--Not later than nine 
                months after the date of publication under section 4 of 
                a final regulation containing a listing determination 
                for a species, the recovery team (if a recovery team 
                has been appointed for the species) shall provide the 
                Secretary with a description of any habitat of the 
                species that is recommended for designation as critical 
                habitat pursuant to this subsection and any 
                recommendations for special management considerations 
                or protection that are specific to the habitat.
                    ``(B) No recovery team appointed.--If a recovery 
                team is not appointed by the Secretary, the Secretary 
                shall perform all duties of the recovery team required 
                under this section.
            ``(2) Designation by the secretary.--The Secretary, to the 
        maximum extent prudent and determinable, shall by regulation 
        designate any habitat that is considered to be critical habitat 
of an endangered species or a threatened species that is indigenous to 
the United States or waters with respect to which the United States 
exercises sovereign rights or jurisdiction.
                    ``(A) Designation.--
                            ``(i) Proposal.--Concurrently with 
                        publication of a draft recovery plan, the 
                        Secretary, after consultation and in 
                        cooperation with the recovery team, shall 
                        publish in the Federal Register a proposed 
                        regulation, based on the draft recovery plan 
                        for the species, that designates critical 
                        habitat for the species.
                            ``(ii) Promulgation.--Concurrently with 
                        publication of a final recovery plan, the 
                        Secretary, after consultation and in 
                        cooperation with the recovery team, shall 
                        publish a final regulation, based on the final 
                        recovery plan for the species, that designates 
                        critical habitat for the species.
                    ``(B) Other designations.--If a recovery plan is 
                not developed under this section for an endangered 
                species or a threatened species, the Secretary shall 
                publish a final critical habitat determination for the 
                endangered species or threatened species not later than 
                three years after making a determination that the 
                species is an endangered species or a threatened 
                species.
                    ``(C) Additional authority.--The Secretary may 
                publish a regulation designating critical habitat for 
                an endangered species or a threatened species 
                concurrently with the final regulation implementing the 
                determination that the species is endangered or 
                threatened if the Secretary determines that designation 
                of such habitat at the time of listing is essential to 
                avoid the imminent extinction of the species.
            ``(3) Factors to be considered.--The designation of 
        critical habitat shall be made on the basis of the best 
        scientific and commercial data available and after taking into 
        consideration the economic impact, impacts to military training 
        and operations, and any other relevant impact, of specifying 
        any particular area as critical habitat. The Secretary shall 
        describe the economic impacts and other relevant impacts that 
        are to be considered under this subsection in the publication 
        of any proposed regulation designating critical habitat.
            ``(4) Exclusions.--The Secretary may exclude any area from 
        critical habitat for a species if the Secretary determines that 
        the benefits of the exclusion outweigh the benefits of 
        designating the area as part of the critical habitat, unless 
        the Secretary determines that the failure to designate the area 
        as critical habitat will result in the extinction of the 
        species.
            ``(5) Revisions.--The Secretary may, from time-to-time and 
        as appropriate, revise a designation. Each area designated as 
        critical habitat before the date of enactment of this 
        subsection shall continue to be considered so designated, until 
        the designation is revised in accordance with this subsection.
            ``(6) Petitions.--
                    ``(A) Determination that revision may be 
                warranted.--To the maximum extent practicable, not 
                later than 90 days after receiving the petition of an 
                interested person under section 553(e) of title 5, 
                United States Code, to revise a critical habitat 
                designation, the Secretary shall make a finding as to 
                whether the petition presents substantial scientific or 
                commercial information indicating that the revision may 
                be warranted. The Secretary shall promptly publish the 
                finding in the Federal Register.
                    ``(B) Notice of proposed action.--Not later than 
                one year after receiving a petition that is found under 
                subparagraph (A) to present substantial information 
                indicating that the requested revision may be 
                warranted, the Secretary shall determine how to proceed 
                with the requested revision, and shall promptly publish 
                notice of the intention in the Federal Register.
            ``(7) Proposed and final regulations.--Any regulation to 
        designate critical habitat or implement a requested revision 
        shall be proposed and promulgated in accordance with paragraphs 
        (4), (5), and (6) of section 4(b) in the same manner as a 
        regulation to implement a determination with respect to listing 
        a species.''.
    (b) Citizen Suits.--Section 11(g) of the Endangered Species Act of 
1973 (16 U.S.C. 1540(g)) is amended--
            (1) in paragraph (1)(C), by inserting ``or section 4A'' 
        after ``section 4''; and
            (2) in paragraph (2), by adding at the end the following:
                    ``(D) Actions relating to critical habitat 
                designation.--With respect to an action relating to an 
                alleged violation of section 4A(g) concerning the area 
                designated by the Secretary as critical habitat, no 
                action may be commenced independently of an action 
                relating to an alleged violation of subsection (a) or 
                (f) of section 4A.''.
    (c) Plans for Previously Listed Species.--
            (1) In general.--In the case of species included in the 
        list published under section 4(c) of the Endangered Species Act 
        of 1973 (16 U.S.C. 1533(c)) before the date of enactment of 
        this Act, and for which no final recovery plan was developed 
        before the date of enactment of this Act, the Secretary of the 
        Interior or the Secretary of Commerce, as appropriate, shall 
        develop a final recovery plan in accordance with the 
        requirements of section 4A of the Endangered Species Act of 
        1973, including the priorities of subsection (a)(1) of that 
        section, for not less than one-half of the species not later 
        than 36 months after the date of enactment of this Act and for 
        all species not later than 60 months after such date.
            (2) Designations of critical habitat.--The Secretary of the 
        Interior or the Secretary of Commerce, as appropriate, shall 
        review and revise as necessary any designation of critical 
        habitat for a species described in paragraph (1) based on the 
        final recovery plan for the species and in accordance with 
        section 4A(g) of the Endangered Species Act of 1973.
    (d) Conforming Amendments.--
            (1) Section 3(5)(A) of the Endangered Species Act of 1973 
        (16 U.S.C. 1532(5)(A)) is amended--
                    (A) in clause (i), by striking ``, at the time it 
                is listed in accordance with the provisions of section 
                4 of this Act,''; and
                    (B) in clause (ii), by striking ``at the time it is 
                listed in accordance with the provisions of section 4 
                of this Act''.
            (2) Section 4 of the Endangered Species Act of 1973 (16 
        U.S.C. 1533) (as amended by section 1(2)) is amended--
                    (A) in subsection (a), by striking paragraph (3);
                    (B) in subsection (b)--
                            (i) by striking paragraph (2);
                            (ii) in paragraph (3), by striking 
                        subparagraph (D);
                            (iii) in paragraph (5), by striking ``, 
                        designation, or revision referred to in 
                        subsection (a)(1) or (3),'' and inserting 
                        ``referred to in subsection (a)(1),'';
                            (iv) in paragraph (6)--
                                    (I) by striking ``(6)(A)'' and all 
                                that follows through the end of 
                                subparagraph (A) and inserting the 
                                following:
            ``(6) Final regulations.--
                    ``(A) In general.--Within the one-year period 
                beginning on the date on which general notice is 
                published in accordance with paragraph (5)(A)(i) 
                regarding a proposed regulation, the Secretary shall 
                publish in the Federal Register--
                            ``(i) a final regulation to implement the 
                        determination;
                            ``(ii) notice that the one-year period is 
                        being extended under subparagraph (B)(i); or
                            ``(iii) notice that the proposed regulation 
                        is being withdrawn under subparagraph (B)(ii), 
                        together with the finding on which the 
                        withdrawal is based.'';
                                    (II) in subparagraph (B)(i), by 
                                striking ``or revision'';
                                    (III) in subparagraph (B)(iii), by 
                                striking ``or revision concerned, a 
                                finding that the revision should not be 
                                made,''; and
                                    (IV) by striking subparagraph (C); 
                                and
                            (v) by redesignating paragraph (8) as 
                        paragraph (2) and moving that paragraph to 
                        appear after paragraph (1);
                    (C) in subsection (c)(1)--
                            (i) in the second sentence, by inserting 
                        ``designated'' before ``critical habitat''; and
                            (ii) in the third sentence, by striking 
                        ``determinations, designations, and revisions'' 
                        and inserting ``determinations'';
                    (D) by redesignating subsections (g) through (i) as 
                subsections (f) through (h), respectively; and
                    (E) in subsection (g)(4) (as so redesignated), by 
                striking ``subsection (f) of this section'' and 
                inserting ``section 4A''.
            (3) Section 4A of the Endangered Species Act of 1973 (as 
        added by section 1) is amended--
                    (A) in subsection (a)--
                            (i) in the first sentence--
                                    (I) by striking ``this subsection'' 
                                and inserting ``this section''; and
                                    (II) by striking ``this section'' 
                                and inserting ``section 4'';
                            (ii) by redesignating subparagraphs (A) and 
                        (B) as paragraphs (1) and (2), respectively; 
                        and
                            (iii) in paragraph (2) (as so 
                        redesignated)--
                                    (I) by redesignating clauses (i) 
                                through (iii) as subparagraphs (A) 
                                through (C), respectively; and
                                    (II) in subparagraph (B) (as so 
                                redesignated), by striking ``the 
                                provisions of this section'' and 
                                inserting ``section 4'';
                    (B) in subsection (c), by striking ``this section'' 
                and inserting ``section 4''; and
                    (C) in subsection (e), by striking ``paragraph 
                (4)'' and inserting ``subsection (d)''.
            (4) Section 6(d)(1) of the Endangered Species Act of 1973 
        (16 U.S.C. 1535(d)(1)) is amended in the first sentence by 
        striking ``section 4(g)'' and inserting ``section 4(f)''.
            (5) Section 10(f)(5) of the Endangered Species Act of 1973 
        (16 U.S.C. 1539(f)(5)) is amended by striking the last 
        sentence.
            (6) Section 104(c)(4)(A)(ii)(I) of the Marine Mammal 
        Protection Act of 1972 (16 U.S.C. 1374(c)(4)(A)(ii)(I)) is 
        amended by striking ``section 4(f)'' and inserting ``section 
        4A''.
            (7) Section 115(b)(2) of the Marine Mammal Protection Act 
        of 1972 (16 U.S.C. 1383b(b)(2)) is amended by striking 
        ``section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 
        1533(f))'' and inserting ``section 4A of the Endangered Species 
        Act of 1973''.
            (8) Section 118(f)(11) of the Marine Mammal Protection Act 
        of 1972 (16 U.S.C. 1387(f)(11)) is amended by striking 
        ``section 4'' and inserting ``section 4A''.
            (9) The table of contents in the first section of the 
        Endangered Species Act of 1973 (16 U.S.C. prec. 1531) is 
        amended by inserting after the item relating to section 4 the 
        following:

``Sec. 4A. Recovery plans and critical habitat designations.''.
                                 <all>