[House Report 108-786]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-786

======================================================================



 
                  CRITICAL HABITAT REFORM ACT OF 2004

                                _______
                                

 November 19, 2004.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Pombo, from the Committee on Resources, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2933]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 2933) to amend the Endangered Species Act of 1973 to 
reform the process for designating critical habitat under that 
Act, having considered the same, report favorably thereon with 
an amendment and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Critical Habitat Reform Act of 2004''.

SEC. 2. DESIGNATION OF CRITICAL HABITAT; STANDARD.

  (a) In General.--Section 4(a) of the Endangered Species Act of 1973 
(16 U.S.C. 1533(a)) is amended--
          (1) by redesignating subparagraph (B) of paragraph (3) as 
        paragraph (4);
          (2) in paragraph (4) (as so redesignated)--
                  (A) by striking ``(i)'' and inserting ``(A)'';
                  (B) by striking ``(ii)'' and inserting ``(B)''; and
                  (C) by striking ``(iii)'' and inserting ``(C)''; and
          (3) by amending paragraph (3) to read as follows:
  ``(3)(A)(i) The Secretary shall, by regulation promulgated in 
accordance with subsection (b) and to the maximum extent practicable, 
prudent, and determinable, issue a final regulation designating any 
habitat of the species determined to be an endangered species or 
threatened species that is critical habitat of the species.
  ``(ii) The Secretary shall make any designation required under clause 
(i) by not later than one year after the final approval of a recovery 
plan for the species under section 4(f), or 3 years after the date of 
publication of the final regulation implementing a determination that 
the species is an endangered species or threatened species, whichever 
is earlier.
  ``(B) The Secretary shall reconsider any determination that 
designation of critical habitat of a species is not practicable, or 
determinable, during the next review under section 4(c)(2)(A) or at the 
time of a final approval of a recovery plan for the species under 
section 4(f).
  ``(C) The Secretary may, from time-to-time as appropriate, revise any 
designation of critical habitat under this paragraph.
  ``(D) Notwithstanding subparagraphs (A), (B), and (C), any 
designation of an area as critical habitat shall not apply with respect 
to any action authorized by--
          ``(i) a permit under section 10(a) (including any 
        conservation plan or agreement under that section for such a 
        permit) that applies to the area;
          ``(ii) a written statement under section 7(b)(4); or
          ``(iii) a land conservation or species management program of 
        a State, a Federal agency, a federally recognized Indian tribe 
        located within the contiguous 48 States, or the Metlakatla 
        Indian Community that the Secretary determines provides 
        protection for habitat of the species that is substantially 
        equivalent to the protection that would be provided by such 
        designation.
  ``(E) Nothing in this paragraph shall be construed to authorize a 
recovery plan to establish regulatory requirements or otherwise to have 
an effect other than as non-binding guidance.''.
  (b) Conforming Amendment.--Section 4(b)(6)(C) of the Endangered 
Species Act of 1973 (16 U.S.C. 1533(b)(6)(C)) is repealed.

SEC. 3. BASIS FOR DETERMINATION.

  Section 4(b)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1533(b)(2)) is amended--
          (1) by inserting ``(A)'' after ``(2)''; and
          (2) by adding at the end the following:
  ``(B) In determining whether an area is critical habitat, the 
Secretary shall seek and, if available, consider information from State 
and local governments in the vicinity of the area, including local 
resource data and maps.
  ``(C) Consideration of economic impact under this paragraph shall 
include--
          ``(i) direct, indirect, and cumulative economic costs and 
        benefits, including consideration of changes in revenues 
        received by landowners, the Federal Government, and State and 
        local governments; and
          ``(ii) costs associated with the preparation of reports, 
        surveys, and analyses required to be undertaken, as a 
        consequence of a proposed designation of critical habitat, by 
        landowners seeking to obtain permits or approvals required 
        under Federal, State, or local law.
  ``(D) In designating critical habitat of a species, the Secretary 
shall first consider all areas that are known to be within the 
geographical area determined by field survey data to be occupied by the 
species.''.

SEC. 4. CONTENT OF NOTICES OF PROPOSED DESIGNATION OF CRITICAL HABITAT.

  Section 4(b)(5)(A) of the Endangered Species Act of 1973 (16 U.S.C. 
1533(b)(5)(A)) is amended--
          (1) in clause (i) by striking ``, and'' and inserting a 
        semicolon;
          (2) in clause (ii)--
                  (A) by striking ``and to each'' and inserting ``to 
                each''; and
                  (B) by inserting ``, and to the county and any 
                municipality having administrative jurisdiction over 
                the area'' after ``to occur''; and
          (3) by adding at the end the following:
                  ``(iii) with respect to a regulation to designate or 
                revise a designation of critical habitat--
                          ``(I) publish maps and coordinates that 
                        describe, in detail, the specific areas that 
                        meet the definition under section 3 of, and are 
                        designated under section 4(a) as, critical 
                        habitat, and all field survey data upon which 
                        such designation is based; and
                          ``(II) maintain such maps, coordinates, and 
                        data on a publicly accessible Internet page of 
                        the Department; and
                  ``(iv) include in each of the notices required under 
                this subparagraph a reference to the Internet page 
                referred to in clause (iii)(II);''.

SEC. 5. CLARIFICATION OF DEFINITION OF CRITICAL HABITAT.

  Section 3(5) of the Endangered Species Act of 1973 (16 U.S.C. 
1532(5)) is amended--
          (1) in subparagraph (A) by striking clauses (i) and (ii) and 
        inserting the following:
          ``(i) the specific areas--
                  ``(I) that are within the geographical area 
                determined by field survey data to be occupied by the 
                species at the time the areas are designated as 
                critical habitat in accordance with section 4; and
                  ``(II) on which are found those physical and 
                biological features that are necessary to avoid 
                jeopardizing the continued existence of the species and 
                may require special management considerations or 
                protection; and
          ``(ii) areas that are not within the geographical area 
        referred to in clause (i)(I) and that the Secretary determines 
        are essential for the survival of the species at the time the 
        areas are designated as critical habitat in accordance with 
        section 4.'';
          (2) by striking subparagraph (B) and redesignating 
        subparagraph (C) as subparagraph (B); and
          (3) by adding at the end the following:
  ``(C) For purposes of subparagraph (A)(i) the term `geographical area 
determined by field survey data to be occupied by the species' means 
the specific area that, at the time the area is designated as critical 
habitat in accordance with section 4, is being used by the species for 
breeding, feeding, sheltering, or another essential behavioral 
pattern.''.

                          Purpose of the Bill

    The purpose of H.R. 2933 is to amend the Endangered Species 
Act of 1973 to reform the process for designating critical 
habitat under that act.

                  Background and Need for Legislation

    Born of the best intentions, the Endangered Species Act of 
1973 (ESA, 16 U.S.C. 1531 et seq.) has failed to live up to its 
promise, and species are more threatened today than ever 
before. The current system is broken and in need of 
strengthening and updating to protect, conserve and recover 
America's species for the future. While the ESA has many unique 
provisions designed to recover threatened and endangered 
species, H.R. 2933 focuses primarily on the process by which 
the Secretary of the Interior and the Secretary of Commerce 
designates critical habitat for the species in question.
    Prior to 1966, authority for wildlife protection rested 
primarily with the States, except where the wildlife was highly 
migratory or where wildlife was taken in violation of State or 
federal law was transported across State boundaries. In 
response to a concern that various species had become or were 
in danger of becoming extinct, the federal government began to 
enact legislation protecting endangered and threatened fish, 
wildlife and plants. Congress' efforts culminated in 1973 with 
the passage of the ESA (Public Law 93-205) which has become our 
Nation's strictest and most stringent environmental law. In 
conjunction with the Convention on International Trade in 
Endangered Species of Wild Flora and Fauna, the ESA embodies a 
rigid and comprehensive approach to species protection in the 
United States and throughout the world.
    The ESA was enacted with the intent to protect and preserve 
species that have been identified as threatened or endangered. 
Over the past 30 years more than 1800 species have been listed 
for protection. Under the ESA, the Secretary of the Interior, 
though U.S. Fish and Wildlife Service (FWS), has responsibility 
for plants, wildlife and inland fishes. The Secretary of 
Commerce, through the National Marine Fisheries Service (NMFS), 
is responsible for implementing the ESA with respect to ocean-
going fish and marine animals. In addition, the Department of 
Agriculture's Animal and Plant Health Inspection Service 
oversees the import and export of endangered species from 
foreign countries through the Nation's ports.

                     CRITICAL HABITAT UNDER THE ESA

    At the time a species is listed, FWS or NMFS is required to 
designate critical habitat for the species under section 4 of 
the ESA. Critical habitat is designated to alert the public and 
governmental units to the habitat needs of the species. The 
only exception to this rule is where the relevant Secretary 
finds that it is not prudent to do so. However, the failure to 
designate critical habitat has resulted in numerous lawsuits 
against FWS and NMFS. While it is theoretically mandatory, 
critical habitat has not been designated for all listed 
species.
    Additionally, the Committee notes that FWS has been unable 
to comply with certain deadlines imposed by the ESA for 
completing critical habitat designations, and in response, 
litigation has overtaken the critical habitat program. 
Currently, there are 12 active critical habitat lawsuits 
against FWS for approximately 25 species, 11 Notices of Intent 
to Sue specific to critical habitat for approximately 20 
species, and FWS is complying with 16 court orders involving 
critical habitat for 32 species. This has rendered the program 
bankrupt, as compliance with these court actions consumes 
nearly the entire listing program budget. This rampant 
litigation is preventing FWS from actually working to protect 
species, including those with the greatest risk of extinction. 
Moreover, litigation and court orders take precedence over 
implementing recovery actions.
    Current law requires the relevant Secretary to designate 
critical habitat ``to the maximum extent prudent and 
determinable'' within one year of the listing of a threatened 
or endangered species. This provision has caused two major 
problems. First, at least FWS has routinely stated that one 
year is not sufficient time to review all of the pertinent 
field survey data and scientific information to make an 
informed decision as to what land is necessary for critical 
habitat. By giving the Secretary additional time to formulate a 
decision, the decision will be less vulnerable to litigation. 
Second, the courts have defined ``prudent'' and 
``determinable'' as allowing very little discretion to the 
Secretary when designating critical habitat. Therefore, adding 
the term ``practicable'' puts decisions back in the hands of 
the Secretary.
    The term ``practicable'' is currently used in the ESA. H.R. 
2933 simply adds the frequently used term to the section of the 
law specific to designating critical habitat. This inclusion is 
not radical or unprecedented given the wide use of the term in 
the ESA and in other environmental laws, such as the Marine 
Mammal Protection Act, Clean Water Act, and Clean Air Act. This 
term has been defined by the courts in the context of these 
other laws in a number of cases dating back over 30 years. A 
survey of the cases shows that the courts and the statutes use 
the word ``practicable'' according to its generally known 
meaning: capable of being affected, done or executed; feasible; 
or capable of being used for a specific purpose.
    Additionally, under current law, the Secretary must 
designate critical habitat unless it is: (1) not determinable; 
or (2) not prudent to do so. The ESA does not give the 
Secretary an opportunity to revisit an initial ``not prudent'' 
determination (although the Secretary must revisit a 
determination that critical habitat was not determinable at the 
time of listing.). Accordingly, the bill does not give the 
Secretary another opportunity to revisit ``not prudent,'' 
because that is not within the current law.
    In summary, H.R. 2933 aims to strengthen and update the 
critical habitat process by focusing on how FWS designates 
critical habitat for a species in question, bringing common 
sense to the ESA. H.R. 2933 tightens and defines the critical 
habitat designation process to reduce the amount of litigation 
by private interests against FWS. The legislation provides 
State and local governments as well as landowners more input 
and participation in the designation process. It requires the 
Secretary of the Interior to designate critical habitat for a 
species within one year of the approval of a recovery plan or 
three years from the date of publication of the final 
regulation determining that the species is endangered or 
threatened, whichever is earlier. It rewards actions in areas 
already subject to a habitat conservation plan or a State, 
federal or tribal land conservation program by not allowing the 
Secretary to designate such areas as critical habitat, in turn 
eliminating overlapping critical habitat designation and 
therefore making available limited resources for other species. 
Additionally, it moves the ESA's current economic impact 
analysis requirement to be done before a critical habitat 
designation. Finally, it requires FWS to evaluate local data 
when considering designating an area critical habitat and 
limits the designation of critical habitat to the maximum 
extent ``practicable, prudent and determinable.''

                            Committee Action

    H.R. 2933 was introduced on July 25, 2003, by Congressman 
Dennis A. Cardoza (D-CA). The bill was referred to the 
Committee on Resources. On April 28, 2004, the Full Resources 
Committee held a hearing on the bill. On July 21, 2004, the 
Full Resources Committee met to consider the bill. Congressman 
Cardoza offered an amendment in the nature of a substitute to 
make technical changes. Congressman Nick J. Rahall II (D-WV) 
offered a substitute amendment to the amendment in the nature 
of a substitute to, among other things, provide criteria, 
standards and deadlines for designation of critical habitat and 
the development of recovery plans. A point of order was 
sustained against the amendment. Mr. Rahall offered a second 
substitute amendment to require designation of critical habitat 
for all species listed under the ESA. It was not adopted by a 
roll call vote of 14-30, as follows:


    Congressman Joe Baca (D-CA) offered an amendment to the 
amendment in the nature of a substitute which provided that the 
designation of critical habitat will not apply to any action 
authorized by tribal species management programs. It was 
adopted by voice vote. The Cardoza amendment in the nature of a 
substitute as amended was then adopted by voice vote. The bill 
as amended was then ordered favorably reported to the House of 
Representatives by a roll call vote of 28-14, as follows:



                      Section-by-Section Analysis


Section 1. Short title

    The bill is to be cited as the ``Critical Habitat Reform 
Act of 2004.''

Section 2. Designation of critical habitat; standard

    This section amends section 4 of the ESA to require the 
relevant Secretary to the maximum extent practicable, prudent, 
and determinable to designate critical habitat for a species 
within one year of the approval of a recovery plan or three 
years from the date of publication of the final regulation 
determining that the species is endangered or threatened, 
whichever is earlier. The section further requires the 
Secretary to review a determination that critical habitat is 
either not practicable or not determinable during the next five 
year review period or at the time a recovery plan is 
established.
    The language will still strongly encourage the development 
of recovery plans while providing additional time for the 
Service to make the best informed decision as to what land 
should be designated as critical habitat for the species in 
question. Subsection (E) was added to clarify that recovery 
plans are intended to be non-binding guidance documents. 
Currently, the Secretary is under a general duty to develop a 
recovery plan but federal courts are in unanimous agreement 
that the contents of a recovery plan are discretionary.
    This section prohibits the Secretary from designating an 
area as critical habitat of a species if the area is already 
subject to permit under section 10(a), a written statement 
under section 7(b)(4) or a land conservation or species 
management program of a State, a federal agency, a federally 
recognized Indian tribe located within the contiguous 48 
States, or the Metlakatla Indian Community. Currently, the 
Secretary is allowed to exempt habitat conservation plans but 
action on other conservation plans are unclear. H.R. 2933 will 
codify and expand current practices as common sense would 
dictate that areas already under protection of conservation 
plans should not have overlapping critical habitat designation. 
In addition, by exempting these areas, H.R. 2933 encourages 
greater use and creation of these plans, which have proven to 
be useful incentive tools for land conservation and species 
recovery.

Section 3. Basis for determination

    This section requires the economic impact analysis done 
before a critical habitat designation to consider direct, 
indirect, and cumulative economic costs and benefits, including 
the consideration of changes in revenues received by 
landowners, the federal government, and State and local 
governments as a result of a critical habitat designation as 
well as to include costs associated with the preparation of 
reports, surveys and analyses for landowners seeking to obtain 
approval from state, federal or local permitting agencies. It 
also encourages the Secretary to first consider areas that are 
currently occupied by the species for inclusion when 
designating critical habitat.
    Under current law the Secretary is required to consider 
economic impact of a proposed designation but in practice the 
Secretary has routinely overlooked clear indications that the 
designation would result in major property value loss. The 
expanded definition of ``economic impact'' provides the 
Secretary with a more accurate picture of the costs and 
benefits associated with proposed critical habitat designations 
and will provide the Secretary with greater tools in a 
determination as to whether the proposed designation is 
economically feasible.

Section 4. Content of notices of proposed designation of critical 
        habitat

    This section requires the Secretary to consider local 
resource data, including maps, when considering areas for 
possible critical habitat designation. Currently, the Secretary 
generally does not seek to obtain information from local 
governments or landowners which, in many instances, is more 
accurate than the Secretary's resource information.
    The section further requires the Secretary to publish maps 
and coordinates that describe, in detail, the specific areas 
that are designated as critical habitat and maintain these maps 
on a publicly accessible Internet page and include on any 
notices of designations or listings a reference to the Internet 
page. Currently, if the Secretary provides maps of a proposed 
critical habitat designation they are either so general or so 
difficult to read that landowners and local governments often 
have a difficult time determining whether their land falls 
within the proposal. Detailed maps will help those on the 
ground understand their requirements under a proposed critical 
habitat designation.

Section 5. Clarification of definition of critical habitat

    This section more clearly defines critical habitat to be 
the specific areas within the geographical area determined by 
field survey data to be occupied by the species at the time the 
areas are designated as critical habitat in accordance with ESA 
section 4 and on which are found those physical or biological 
features that are necessary to avoid jeopardizing the continued 
existence of the species and may require special management 
considerations. Area designated can also include areas that are 
not within the geographical area determined by field survey 
data to be occupied by the species if the Secretary determines 
those areas are essential for the survival of the species.
    Current law contains certain qualifiers for designation 
that have been widely interpreted by the courts and provide 
little guidance to local governments or landowners. Tightening 
the definitions will provide for less ambiguity for the 
designation process.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that Rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. This bill does 
not authorize funding and therefore, clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives does not 
apply.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 2933--Critical Habitat Reform Act of 2004

    Summary: Under the Endangered Species Act (ESA), certain 
species of plants and animals are listed as threatened or 
endangered based on assessments of the risk of their 
extinction. The act generally requires federal agencies to 
designate habitat that is critical to the recovery of such 
species. H.R. 2933 would amend current law to alter the process 
for designating such habitat.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing H.R. 2933 would cost $2 million in 
2005 and $12 million over the next five years. The bill would 
not affect direct spending or revenues. H.R. 2933 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 2933 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2005     2006     2007     2008     2009
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level......................................        2        2        2        3        3
Estimated Outlays..................................................        2        2        2        3        3
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: Under the ESA, the U.S. Fish and 
Wildlife Service (USFWS) and the National Marine Fisheries 
Service (NMFS) designate habitat that is critical to the 
recovery of threatened or endangered species. Based on 
information from those agencies, CBO estimates that spending 
for designating critical habitat will total about $10 million 
in fiscal year 2004. That amount includes the cost of 
biological surveys of species' habitat requirements, analysis 
of the direct economic impact of potential designations, 
efforts to inform and involve the public in the designation 
process, and administrative expenses.
    H.R. 2933 would amend the ESA to alter the process for 
designating critical habitat for threatened and endangered 
species. The bill would change the definition of critical 
habitat to include more specific criteria, specify new 
deadlines for designating critical habitat, require federal 
agencies to conduct broader economic analyses of the impact of 
designating critical habitat, and direct those agencies to 
consider input from state and local governments.
    Based on information from the USFWS and the NMFS, CBO 
estimates that implementing H.R. 2933 would cost $2 million in 
2005 and $12 million over the 2005-2009 period, assuming 
appropriation of the necessary amounts. That estimated includes 
$1 million in 2005 and $7 million over the next five years for 
the cost of broader economic analyses of critical habitat 
designations. The estimate also includes $1 million a year for 
increased administrative costs to the agencies.
    Intergovernmental and private-sector impact: H.R. 2933 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate prepared by: Federal Costs: Megan Carroll. Impact 
on State, Local, and Tribal governments: Marjorie Miller. 
Impact on the Private Sector: Amina Masood.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

ENDANGERED SPECIES ACT OF 1973

           *       *       *       *       *       *       *



                              DEFINITIONS

  Sec. 3. For the purposes of this Act--
  (1) * * *

           *       *       *       *       *       *       *

  (5)(A) The term ``critical habitat'' for a threatened or 
endangered species means--
          [(i) the specific areas within the geographical area 
        occupied by the species, at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, on which are found those physical or biological 
        features (I) essential to the conservation of the 
        species and (II) which may require special management 
        considerations or protection; and
          [(ii) specific areas outside the geographical area 
        occupied by the species at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, upon a determination by the Secretary that such 
        areas are essential for the conservation of the 
        species.
  [(B) Critical habitat may be established for those species 
now listed as threatened or endangered species for which no 
critical habitat has heretofore been established as set forth 
in subparagraph (A) of this paragraph.]
          (i) the specific areas--
                  (I) that are within the geographical area 
                determined by field survey data to be occupied 
                by the species at the time the areas are 
                designated as critical habitat in accordance 
                with section 4; and
                  (II) on which are found those physical and 
                biological features that are necessary to avoid 
                jeopardizing the continued existence of the 
                species and may require special management 
                considerations or protection; and
          (ii) areas that are not within the geographical area 
        referred to in clause (i)(I) and that the Secretary 
        determines are essential for the survival of the 
        species at the time the areas are designated as 
        critical habitat in accordance with section 4.
  [(C)] (B) Except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire 
geographical area which can be occupied by the threatened or 
endangered species.
  (C) For purposes of subparagraph (A)(i) the term 
``geographical area determined by field survey data to be 
occupied by the species'' means the specific area that, at the 
time the area is designated as critical habitat in accordance 
with section 4, is being used by the species for breeding, 
feeding, sheltering, or another essential behavioral pattern.

           *       *       *       *       *       *       *


       DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

  Sec. 4. (a) General.--(1) * * *

           *       *       *       *       *       *       *

  [(3)(A) The Secretary, by regulation promulgated in 
accordance with subsection (b) and to the maximum extent 
prudent and determinable--
          [(i) shall, concurrently with making a determination 
        under paragraph (1) that a species is an endangered 
        species or a threatened species, designate any habitat 
        of such species which is then considered to be critical 
        habitat; and
          [(ii) may, from time-to-time thereafter as 
        appropriate, revise such designation.]
  (3)(A)(i) The Secretary shall, by regulation promulgated in 
accordance with subsection (b) and to the maximum extent 
practicable, prudent, and determinable, issue a final 
regulation designating any habitat of the species determined to 
be an endangered species or threatened species that is critical 
habitat of the species.
  (ii) The Secretary shall make any designation required under 
clause (i) by not later than one year after the final approval 
of a recovery plan for the species under section 4(f), or 3 
years after the date of publication of the final regulation 
implementing a determination that the species is an endangered 
species or threatened species, whichever is earlier.
  (B) The Secretary shall reconsider any determination that 
designation of critical habitat of a species is not 
practicable, or determinable, during the next review under 
section 4(c)(2)(A) or at the time of a final approval of a 
recovery plan for the species under section 4(f).
  (C) The Secretary may, from time-to-time as appropriate, 
revise any designation of critical habitat under this 
paragraph.
  (D) Notwithstanding subparagraphs (A), (B), and (C), any 
designation of an area as critical habitat shall not apply with 
respect to any action authorized by--
          (i) a permit under section 10(a) (including any 
        conservation plan or agreement under that section for 
        such a permit) that applies to the area;
          (ii) a written statement under section 7(b)(4); or
          (iii) a land conservation or species management 
        program of a State, a Federal agency, a federally 
        recognized Indian tribe located within the contiguous 
        48 States, or the Metlakatla Indian Community that the 
        Secretary determines provides protection for habitat of 
        the species that is substantially equivalent to the 
        protection that would be provided by such designation.
  (E) Nothing in this paragraph shall be construed to authorize 
a recovery plan to establish regulatory requirements or 
otherwise to have an effect other than as non-binding guidance.
  [(B)(i)] (4)(A) The Secretary shall not designate as critical 
habitat any lands or other geographical areas owned or 
controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources 
management plan prepared under section 101 of the Sikes Act (16 
U.S.C. 670a), if the Secretary determines in writing that such 
plan provides a benefit to the species for which critical 
habitat is proposed for designation.
  [(ii)] (B) Nothing in this paragraph affects the requirement 
to consult under section 7(a)(2) with respect to an agency 
action (as that term is defined in that section).
  [(iii)] (C) Nothing in this paragraph affects the obligation 
of the Department of Defense to comply with section 9, 
including the prohibition preventing extinction and taking of 
endangered species and threatened species.
  (b) Basis for Determinations.--(1) * * *
  (2)(A) The Secretary shall designate critical habitat, and 
make revisions thereto, under subsection (a)(3) on the basis of 
the best scientific data available and after taking into 
consideration the economic impact, the impact on national 
security, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude 
any area from critical habitat if he determines that the 
benefits of such exclusion outweight the benefits of specifying 
such area as part of the critical habitat, unless he 
determines, based on the best scientific and commercial data 
available, that the failure to designate such area as critical 
habitat will result in the extinction of the species concerned.
  (B) In determining whether an area is critical habitat, the 
Secretary shall seek and, if available, consider information 
from State and local governments in the vicinity of the area, 
including local resource data and maps.
  (C) Consideration of economic impact under this paragraph 
shall include--
          (i) direct, indirect, and cumulative economic costs 
        and benefits, including consideration of changes in 
        revenues received by landowners, the Federal 
        Government, and State and local governments; and
          (ii) costs associated with the preparation of 
        reports, surveys, and analyses required to be 
        undertaken, as a consequence of a proposed designation 
        of critical habitat, by landowners seeking to obtain 
        permits or approvals required under Federal, State, or 
        local law.
  (D) In designating critical habitat of a species, the 
Secretary shall first consider all areas that are known to be 
within the geographical area determined by field survey data to 
be occupied by the species.

           *       *       *       *       *       *       *

  (5) With respect to any regulation proposed by the Secretary 
to implement a determination, designation, or revision referred 
to in subsection (a)(1) or (3), the Secretary shall--
          (A) not less than 90 days before the effective date 
        of the regulation--
                  (i) publish a general notice and the complete 
                text of the proposed regulation in the Federal 
                Register[, and];
                  (ii) give actual notice of the proposed 
                regulation (including the complete text of the 
                regulation) to the State agency in each State 
                in which the species is believed to occur, 
                [and] to each county or equivalent jurisdiction 
                in which the species is believed to occur, and 
                to the county and any municipality having 
                administrative jurisdiction over the area, and 
                invite the comment of such agency, and each 
                such jurisdiction, thereon;
                  (iii) with respect to a regulation to 
                designate or revise a designation of critical 
                habitat--
                          (I) publish maps and coordinates that 
                        describe, in detail, the specific areas 
                        that meet the definition under section 
                        3 of, and are designated under section 
                        4(a) as, critical habitat, and all 
                        field survey data upon which such 
                        designation is based; and
                          (II) maintain such maps, coordinates, 
                        and data on a publicly accessible 
                        Internet page of the Department; and
                  (iv) include in each of the notices required 
                under this subparagraph a reference to the 
                Internet page referred to in clause (iii)(II);

           *       *       *       *       *       *       *

  (6)(A) * * *

           *       *       *       *       *       *       *

  [(C) A final regulation designating critical habitat of an 
endangered species or a threatened species shall be published 
concurrently with the final regulation implementing the 
determination that such species is endangered or threatened, 
unless the Secretary deems that--
          [(i) it is essential to the conservation of such 
        species that the regulation implementing such 
        determination be promptly published; or
          [(ii) critical habitat of such species is not then 
        determinable, in which case the Secretary, with respect 
        to the proposed regulation to designate such habitat, 
        may extend the one-year period specified in 
        subparagraph (A) by not more than one additional year, 
        but not later than the close of such additional year 
        the Secretary must publish a final regulation, based on 
        such data as may be available at that time, 
        designating, to the maximum extent prudent, such 
        habitat.]

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    For more than 30 years the Endangered Species Act (ESA) has 
stood as one of the great achievements of American 
environmental conservation, leading to similar laws in other 
countries, and demonstrating that great nations can 
simultaneously maintain economic prosperity, military 
preparedness, and environmental values. The ESA establishes the 
policy of Congress that all Federal departments and agencies 
shall seek to conserve endangered species and threatened 
species. Unfortunately H.R. 2933 would undermine this 
fundamental policy by weakening the critical habitat provisions 
in the ESA, making it virtually impossible for endangered and 
threatened species to recover.
    When a species is listed as endangered or threatened, the 
Secretary of the Interior or Commerce is required to designate 
critical habitat; this a geographic area essential to the 
recovery of a species, such as food sources and spaces for 
birds to nest and fish to spawn.
    There are two key conservation benefits that stem from 
critical habitat designation. First, Federal agencies under the 
consultation requirements in Section 7(a)(2) of the ESA must 
ensure that activities they undertake, approve or fund do not 
result in the destruction or adverse modification of habitat. 
Second, a critical habitat designation can enable a species to 
return to an area where it once lived; this area is called 
unoccupied habitat. For most species, recovery will likely 
require that the population expand into areas not presently 
occupied.
Deadlines for critical habitat designations and recovery plans
    We support the change in H.R. 2933 to allow the Secretary 
to determine critical habitat within three years after a 
species is listed as endangered or threatened. However, H.R. 
2933 does not include deadlines for the issuance of recovery 
plans and fails to address the backlog of species without 
critical habitat designations and/or recovery plans. Of the 
1,265 listed U.S. species today, only 451 have designated 
critical habitat and only 1,021 have approved recovery plans.
Definition of critical habitat
    The ESA defines critical habitat as a specific area 
essential to the conservation of the species, including areas 
occupied and unoccupied by the species. The term conservation 
means recovery, according to the definition in Section 3 of the 
ESA.
    By striking essential to the conservation of the species, 
H.R. 2933 would wipe out the link established in conservation 
biology between critical habitat and species recovery. Animals 
which are adaptable to different environments do not need the 
protections of the ESA; but those which have evolved specific 
needs cannot survive without it. In any area given area where 
there is a 90 percent loss in habitat, about 50 percent of the 
species will die, according to conservation biologists.
    Under H.R. 2933, critical habitat designation for occupied 
species would be limited only to those areas determined by 
field data survey to be necessary to avoid jeopardizing the 
continued existence of the species. H.R. 2933 would only allow 
critical habitat designation on unoccupied areas if the 
Secretary determines it is essential for the survival of the 
species. Instead of promoting species recovery, H.R. 2933 would 
limit critical habitat to those instances when it would keep a 
species alive, and in most cases would virtually eliminate the 
change of species recovery. This is like saying that cancer 
patients can only be given the medicines they need to stay 
alive on life-support systems, but not the medicines they need 
to recover their health. The change in the definition of 
critical habitat under H.R. 2933 is a far cry from the purpose 
of the ESA to provide a means whereby the ecosystems upon which 
endangered species and threatened species depend may be 
conserved.
    H.R. 2933 would require the Secretary to use field data to 
define the geographical area occupied by the species. While it 
makes sense for the Secretary to use field data to define 
occupied areas, we are concerned that species will suffer in 
those situations when the Secretary does not have the resources 
to hire field surveyors, and as a result, no field data is 
available.
Exemptions to critical habitat designation
    H.R. 2933 would require the Secretary to designate critical 
habitat to the maximum extend practicable, prudent and 
determinable. While prudent and determinable are defined in the 
ESA and case law, no definition of practicable is provided. The 
change in H.R. 2933 would make designation discretionary, and 
unlikely to occur given the slim budget for the endangered 
species program at the Fish and Wildlife Service.
    H.R. 2933 also would prohibit critical habitat designation 
on any area subject to a State or Federal land conservation 
program providing protection substantially equivalent to 
critical habitat. Because the bill does not define 
substantially equivalent, programs like the Department of 
Agriculture's Conservation Reserve Program, could fall under 
this exemption even though its purpose is not species recovery. 
For a person with high blood pressure and salt restrictions, 
two diets might appear substantially equivalent, but the 
difference between a high salt diet and no salt diet could be 
fatal.
    H.R. 2933 also would allow actions covered by incidental 
take permits issued under Section 7 and Section 10 of the ESA 
to not be subject to critical habitat designations. It is 
already the policy of the Bush Administration to exclude from 
critical habitat designations areas that the Secretary 
determines are already managed to provide for the conservation 
of the species. However, H.R. 2933 would undermine existing law 
and policy by eliminating the Secretary's existing discretion 
to review the plans to ensure that they adequate provide for 
the recovery of species.

                               CONCLUSION

    Harmed by decades of human activities, endangered and 
threatened species will not recover overnight, but populations 
of many species are stabilizing or increasing in number. As of 
September 30, 2000, 98 percent of listed species are known to 
survive and 39 percent are stabilized or moving towards 
recovery, according to the Fish and Wildlife Service.
    While ESA critics often cite the relatively small number of 
species which have been saved from extinction, species which 
include the American peregrine falcon and the gray whale, a 
more important measure of success may be the species which have 
not become extinct.
    ``Fewer species have become extinct than would have without 
the ESA,'' according to the National Research Council in its 
1995 report, Science and the Endangered Species Act. This is a 
significant accomplishment. All of us would lament the Bald 
Eagle if it had been allowed to pass into the ever growing list 
of magnificent creatures with whom we have shared the earth, 
and which will never be seen again.
    We are open to statutory amendments or regulatory actions 
that genuinely promote species conservation, but H.R. 2933 
would do the opposite. If enacted, we would expect the number 
of species extinctions to rise dramatically over time. This 
would be a tragic failure of our responsibilities as citizens 
of the United States and as stewards of God's creatures.

                                   Nick Rahall.
                                   George Miller.
                                   Jay Inslee.
                                   Raul M. Grijalva.

                                  
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