I 111th CONGRESS 2d Session H. R. 5531 IN THE HOUSE OF REPRESENTATIVES June 15, 2010 Mr. Herger introduced the following bill; which was referred to the Committee on Natural Resources A BILL To amend the Endangered Species Act of 1973 to enable Federal agencies responsible for the preservation of threatened species and endangered species to rescue and relocate members of any of those species that would be taken in the course of certain reconstruction, maintenance, or repair of Federal or non-Federal manmade flood control levees.

1.

Short title

This Act may be cited as the Species Rescue Act.

2.

Relocation of members of endangered species and threatened species that would be taken in the course of reconstruction, maintenance, or repair of manmade flood control levees

(a)

Expedited consultation and conferencing; relocation requirement

Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) is amended— (1)in subsection (a)(2), by inserting , except in the case of an agency action flood control action (as defined in subsection (b)(5)(B)) for which consultation and conferencing is completed in accordance with subsection (b), after threatened species or; (2)in subsection (b)(4) by striking the matter preceding subparagraph (A) and inserting the following: (4)If after consultation under subsection (a)(2) of this section regarding an agency action, other than an agency flood control action (as defined in paragraph (5)(B)), the Secretary concludes that— ; and (3)by adding at the end of subsection (b) the following: (5)(A)Notwithstanding paragraph (1)(A), consultation under subsection (a)(2) and conferencing under subsection (a)(4) regarding an agency flood control action shall be concluded within the 60-day period beginning on the date on which initiated. (B)For purposes of this paragraph, the term agency flood control action means an agency action consisting of the authorization, funding, or carrying out by an agency of reconstruction, maintenance, or repair of a Federal or non-Federal manmade flood control levee— (i)based on a determination that— (I)there exists or is likely to exist in the future high water; (II)the levee is likely to fail in the period of such high water unless the levee is reconstructed, maintained, or repaired; and (III)such a levee failure would pose severe public health and safety risks, place persons residing in areas protected by the levee at risk, or cause extensive flooding and significant economic damages, including loss of life, property, or habitat; or (ii)to address an imminent threat from a catastrophic natural event. (C)Promptly after conclusion of consultation and conferencing regarding an agency flood control action, the Secretary shall provide the Federal agency and the applicant concerned, if any, a written statement that specifies the impact of the action on endangered species and threatened species. (D)Not later than 60 days after the conclusion of consultation and conferencing regarding an agency flood control action, the Secretary, acting through the United States Fish and Wildlife Service, any other Federal land management agency, the National Marine Fisheries Service, or a State conservation agency, shall relocate from the flood control levee with respect to which the action will be carried out— (i)the members of any threatened species or endangered species of plant or animal that the Secretary determines would be taken in the course of the action; and (ii)any plant or other natural material that the Secretary considers to be suitable habitat, or a component of suitable habitat, for such species and that the Secretary determines would be damaged, destroyed, or removed in the course of the action. (E)Except as provided in subparagraph (D), the Secretary may not require a non-Federal person to carry out under this section any measures to minimize or mitigate the impacts of an agency flood control action for which consultation and conferencing is carried out under subsections (a)(2) and (a)(4), respectively. . (b)

Limitation on prohibition of takings

Section 9(a) of such Act (16 U.S.C. 1538(a)) is amended by adding at the end the following new paragraph: (3)This subsection shall not be construed as prohibiting any activity that is authorized, funded, or carried out as part of an agency flood control action (as defined in section 7(b)(5)(B)) after the 60-day period beginning on the date of the completion of consultation and conferencing under section 7(a) (2) and (4), respectively, regarding the action. .