[Congressional Record Volume 145, Number 74 (Thursday, May 20, 1999)]
[Senate]
[Pages S5761-S5763]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CHAFEE (for himself, Mr. Crap, and Mr. Domenici):
  S. 1100. 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; to the Committee on Environment and Public 
Works.


                      critical habitat legislation

  Mr. CHAFEE. Mr. President, I am pleased to introduce a bill, together 
with my distinguished colleagues, Senators Domenici and Crapo, to 
address one of the most problematic, controversial and misunderstood 
provisions of the Endangered Species Act of 1973. This is the provision 
relating to the designation of critical habitat for endangered or 
threatened species.
  As I have often said, the key to protecting our nation's fish and 
wildlife is to protect the habitat on which those species depend. This 
is particularly true for endangered and threatened species, which often 
fall into such precarious condition precisely because of habitat loss 
and degradation. This makes habitat protection for those species all 
the more vital. It is thus terribly ironic that the provisions in the 
ESA relating to habitat are those that present the most problems. My 
bill goes a long way to fix those problems. It is virtually identical 
to the critical habitat provisions contained in S. 1180 from the last 
Congress, which was approved by the Environment and Public Works 
Committee by a vote of 15 to 3, with strong bipartisan support.
  Landowners fear that critical habitat imposes severe restrictions on 
use of their own lands; the Secretary frequently does not designate 
critical habitat to avoid these controversies; and environmental groups 
often bring lawsuits over this failure to designate. Of almost 1,200 
species listed by the Fish and Wildlife Service, only 113--nine 
percent--have critical habitat designated. Indeed, of the 256 species 
listed since April 1996, the Service has designated critical habitat 
for only two. As a result, numerous lawsuits have been brought against 
the Service in recent years. Currently, 15 active lawsuits are pending, 
with six already decided--all against the Secretary--and prospective 
challenges for another 40 species are on the horizon.
  These statistics underscore the problems with the existing law with 
respect to critical habitat designations. The root of these problems 
lies in the fact that designation of critical habitat requires 
knowledge of the conservation needs of the species as well as an 
assessment of the economic impacts of the designation, neither of which 
is generally known, or can be determined, at the time of listing.
  Designation of critical habitat is more appropriate in the context of 
developing a recovery plan for a listed species, because the recovery 
plan specifically addresses the conservation needs of the species and 
provides for an estimate of the costs for recovery actions. Indeed, 
numerous individuals and organizations, including the National Research 
Council, have suggested that the requirement to designate critical 
habitat be moved from the time of listing to the time of recovery plan 
development.
  As for recovery plans, the Secretary is required to develop and 
implement recovery plans for listed species. However, there is no 
deadline for the Secretary to do so. Less than 70 percent of listed 
species are covered in a recovery plan, and 56 percent of those species 
without plans have been listed for longer than one year. These 
statistics underscore the need for a mandatory deadline for developing 
recovery plans.
  The bill that I introduce today would move the requirement to 
designate critical habitat from the time of listing to the time of 
recovery plan development. The bill would also require that a recovery 
team be appointed, unless the Secretary states otherwise through notice 
and comment. The bill would also provide a deadline for development of 
recovery plans, no later than 36 months after listing. In the event 
that the designation is necessary to avoid the imminent extinction of 
the species, the bill allows the Secretary to designate critical 
habitat concurrently with listing. A new provision would be added to 
the citizen suit section that would require any lawsuit challenging the 
actual designation of critical habitat to be brought in conjunction 
with a suit challenging the recovery plan on which the designation is 
based. Other than these changes, the critical habitat provisions would 
remain virtually the same as in existing law.
  Let me say that I do not have any desire to open the broader question 
of reauthorization of the ESA. I believe that this bill addresses a 
narrow fix in a way that answers the complaints of both environmental 
groups and the regulated community. I do not advocate the inclusion of 
other issues not related to critical habitat. There may be another time 
and vehicle for that, but this is not the time, and this bill should 
not be the vehicle.
  In closing, I would like to express my sincere gratitude to the 
distinguished Senator from New Mexico for his cooperation on this 
issue, and for his decision to work on this bill together in lieu of 
offering a rider on the recent supplemental appropriations bill. I know 
this issue is of no great importance to the constituents in his home 
State, and I am pleased to work with him to find a resolution.
  I ask unanimous consent that a copy of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1100

       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

[[Page S5762]]

     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''.

[[Page S5763]]

       (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.''.

  Mr. DOMENICI. Mr. President, just a few weeks ago I rose to speak and 
share with my fellow Senators an extraordinary exchange that occurred 
between myself and Interior Secretary Babbitt regarding the failings of 
the Endangered Species Act in a situation on the Rio Grande River in 
New Mexico. I told you that the Secretary's remarks were significant 
because they acknowledged that this law, however well intentioned, is 
not working.
  I felt Secretary Babbitt's testimony before the Senate Interior 
Appropriations Subcommittee could open the door to significant reform 
of the Endangered Species Act, permitting all parties to work together. 
I pledged to begin serious work on improving the Endangered Species 
Act, and I am immensely pleased today to be cosponsoring this bill with 
Senators Chafee and Crapo to do just that.
  I was in the Senate to vote in favor of the Endangered Species Act, 
but the courts are implementing it in a cart before the horse fashion 
never contemplated by the Congress. The focus of saving species should 
be on planning recovery, not using premature habitat designation as a 
hammer on the heads of humans sharing that habitat. We want to protect 
endangered species, but we don't want to unnecessarily hurt people. 
Tying critical habitat designation to recovery plan implementation is 
logical, defensible, and the right thing to do. This legislation goes 
directly to the heart of this issue.
  The protection of endangered species is supposed to be accomplished 
by first figuring out the necessary habitat for survival, then 
designating that critical habitat. But the Endangered Species Act and 
the courts are rushing the process. According to Interior Secretary 
Bruce Babbitt, recent litigation will ``strait jacket'' the federal 
government into prematurely designating the critical habitat for, in 
one case, the Rio Grande silvery minnow.
  People in D.C. tend to forget that the western United States is the 
arid, ``great American desert.'' Western rivers and streams are 
primarily supported by melting snow pack. They change annually from 
roaring torrents in April to bare trickles in June, to dried up river 
beds in August. The Rio Grande, despite its ``big river'' title, is no 
exception to this cyclical flow. As a child, I often walked across the 
dry riverbed in Albuquerque.
  This will be a very dry year in the normally arid New Mexico. The 
historical hydrographic record shows that between 1899 and 1936, long 
before Albuquerque grew, or the Middle Rio Grande Conservancy District 
started to farm, the Rio Grande was dry twenty percent of the time in 
August as measured at the San Marcial Gauge.

  Now, the U.S. Fish and Wildlife Service, prodded by various groups, 
are claiming a ``new'' water demand on the river for the silvery 
minnow. They should assert the interest in the water needed for the 
minnow, but the demand isn't new. The issue, however, is how should 
that interest be asserted and what the need really is. And, once known, 
how do we continue to address the human water needs, and at what cost?
  I believe something is terribly wrong in the way the courts are 
handling this situation because you may have to close down a river to 
human users without knowing the habitat needs for an endangered 
species. The Secretary of Interior is required to base critical habitat 
designation on the best scientific data available, after taking into 
consideration the economic impact of that designation.
  I asked Secretary Babbitt whether the Interior Department had 
sufficient data to determine the true water needs to sustain the 
silvery minnow in the Rio Grande, and to make an accurate economic and 
social assessment of what a critical habitat designation would mean to 
existing water rights owners. Babbitt testified that his department 
does not have sufficient information, but that it has no choice but to 
act because of federal court orders.
  The U.S. Supreme Court has unanimously agreed that the best 
scientific and commercial data available must be used to designate a 
critical habitat. Designation of critical habitat is more appropriate 
in the context of a final recovery plan for an endangered species, 
because that plan must specifically address conservation needs and 
costs of recovery. This bill will move the requirement to designate 
habitat from the time of listing to the time of recovery plan 
development.
  The quantity of water needed by the Rio Grande silvery minnow is 
unknown. The Fish and Wildlife Service has conceded that there has 
never been a thorough study of the economic consequences of providing 
water as a critical habitat for the minnow.
  While we all want the silvery minnow and other endangered species to 
have their critical habitat, the Fish and Wildlife Service and the 
Bureau of Reclamation acknowledge that they do not know what the 
``critical habitat'' is or should be. Were the consequences of 
designation insignificant, a guesstimate might be acceptable. However, 
as noted by the Bureau of Reclamation, a designation requiring year-
round continuous flows on a river that has never produced such flows 
could have a ``profound effect on downstream water users.''
  We must not try to cure the problem of endangered species with 
premature, uninformed, unscientific critical habitat designation, the 
validity of which has not been substantiated by adequate economic, 
scientific and social research. When the scientific facts on the 
possible side effects of a drug are unknown, the Food and Drug 
Administration does not authorize the sale of that drug. Likewise, the 
Endangered Species Act should not permit designation of critical 
habitat until we have scientifically determined that the habitat 
designation will be helpful to the species and does not impose 
unnecessary social and economic side effects.

  It is abundantly clear that a complete environmental analysis of a 
critical habitat designation is an absolute necessity. Senator Chafee, 
Senator Crapo, and I are now addressing this illogical and unworkable 
current situation with this bill. I thank them for their leadership on 
the Environment Committee. We will be working with the administration, 
and I encourage all my fellow Senators to participate in this limited, 
local and necessary endangered Species Act reform.
  This bill will now tie designation of critical habitat to the 
development of recovery plans for endangered and threatened species, as 
it should be. Federal agencies should not have their hands tied by 
premature designation, forced by litigation. If we want to save 
species, as was and is the intent of the Endangered Species Act, then 
we have to plan how to recover them.
  Recovery plans require objective and measurable criteria for saving 
species, specific descriptions of management actions, and cost 
estimates for those actions. This bill will create a mandatory deadline 
for developing final, comprehensive recovery plans. Critical habitat 
will now be designated in conjunction with those plans.
  These changes will go towards achieving the original goal of the 
Endangered Species Act. I am very proud to be a part of this historic 
legislation, and I anticipate a bipartisan group, along with the 
administration, feels as I do. The time has come for common-sense 
reform to the Endangered Species Act.
                                 ______