Calendar No. 237

106TH CONGRESS

1ST SESSION S. 1100

[Report No. 106–126]

A BILL

To amend the Endangered Species Act of 1973 to

those species.part of the development of recovery plans forendangered and threatened species be required asprovide that the designation of critical habitat for

JULY 28, 1999

Reported with an amendment
II

Calendar No. 237

106TH CONGRESS

1ST SESSION S. 1100

[Report No. 106–126]

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

JULY 28, 1999

Reported by Mr. CHAFEE, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. RECOVERY PLANS AND CRITICAL HABITAT

2 DESIGNATIONS.

3 The Endangered Species Act of 1973 (16 U.S.C.

4 1531 et seq.) is amended—

5 (1) by inserting after section 4 the following:

6 ‘‘RECOVERY PLANS AND CRITICAL HABITAT

7 DESIGNATIONS

8 ‘‘SEC. 4A.’’;

9 (2) by moving subsection (f) of section 4 to ap10 pear at the end of section 4A (as added by para11 graph (1)); and

12 (3) in section 4A (as amended by paragraph

13 (2))—

14 (A) by striking ‘‘(f)(1) RECOVERY

15 PLANS.—The’’ and inserting the following:

16 ‘‘(a) IN GENERAL.—The’’;

17 (B) by redesignating paragraphs (2)

18 through (5) as subsections (b) through (e), re19 spectively;

20 (C) in subsection (b) (as so redesig21 nated)—

22 (i) by striking ‘‘(b) The Secretary’’

23 and inserting the following:

24 ‘‘(b) RECOVERY TEAMS.—

25 ‘‘(1) IN GENERAL.—The Secretary’’; and
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1 (ii) by adding at the end the fol2 lowing:

3 ‘‘(2) APPOINTMENT OF A TEAM.—Not later

4 than 60 days after the date of publication under sec5 tion 4 of a final determination that a species is a

6 threatened species or endangered species, the Sec7 retary, in cooperation with any State affected by the

8 determination, shall—

9 ‘‘(A) appoint a recovery team to develop a

10 recovery plan for the species; or

11 ‘‘(B) after public notice and opportunity

12 for comment, determine that a recovery team

13 shall not be appointed.’’; and

14 (D) by adding at the end the following:

15 ‘‘(f) SCHEDULE.—For each species determined to be

16 an endangered species or a threatened species after the

17 date of enactment of this subsection for which the Sec18 retary is required to develop a recovery plan under sub19 section (a), the Secretary shall publish—

20 ‘‘(1) not later than 18 months after the date of

21 the publication under section 4 of the final regula22 tion containing the listing determination, a draft re23 covery plan; and

24 ‘‘(2) not later than 3 years after the date of

25 publication under section 4 of the final regulation
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1 containing the listing determination, a final recovery

2 plan.’’.

3 SEC. 2. CRITICAL HABITAT DESIGNATIONS.

4 (a) IN GENERAL.—Section 4A of the Endangered

5 Species Act of 1973 (as added by section 1) is amended

6 by adding at the end the following:

7 ‘‘(g) CRITICAL HABITAT DESIGNATIONS.—

8 ‘‘(1) RECOMMENDATION OF THE RECOVERY

9 TEAM.—

10 ‘‘(A) RECOVERY TEAM APPOINTED.—Not

11 later than nine months after the date of publi12 cation under section 4 of a final regulation con13 taining a listing determination for a species, the

14 recovery team (if a recovery team has been ap15 pointed for the species) shall provide the Sec16 retary with a description of any habitat of the

17 species that is recommended for designation as

18 critical habitat pursuant to this subsection and

19 any recommendations for special management

20 considerations or protection that are specific to

21 the habitat.

22 ‘‘(B) NO RECOVERY TEAM APPOINTED.—If

23 a recovery team is not appointed by the Sec24 retary, the Secretary shall perform all duties of

25 the recovery team required under this section.
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1 ‘‘(2) DESIGNATION BY THE SECRETARY.—The

2 Secretary, to the maximum extent prudent and de3 terminable, shall by regulation designate any habitat

4 that is considered to be critical habitat of an endan5 gered species or a threatened species that is indige6 nous to the United States or waters with respect to

7 which the United States exercises sovereign rights

8 or jurisdiction.

9 ‘‘(A) DESIGNATION.—

10 ‘‘(i) PROPOSAL.—Concurrently with

11 publication of a draft recovery plan, the

12 Secretary, after consultation and in co13 operation with the recovery team, shall

14 publish in the Federal Register a proposed

15 regulation, based on the draft recovery

16 plan for the species, that designates crit17 ical habitat for the species.

18 ‘‘(ii) PROMULGATION.—Concurrently

19 with publication of a final recovery plan,

20 the Secretary, after consultation and in co21 operation with the recovery team, shall

22 publish a final regulation, based on the

23 final recovery plan for the species, that

24 designates critical habitat for the species.
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1 ‘‘(B) OTHER DESIGNATIONS.—If a recov2 ery plan is not developed under this section for

3 an endangered species or a threatened species,

4 the Secretary shall publish a final critical habi5 tat determination for the endangered species or

6 threatened species not later than three years

7 after making a determination that the species is

8 an endangered species or a threatened species.

9 ‘‘(C) ADDITIONAL AUTHORITY.—The Sec10 retary may publish a regulation designating

11 critical habitat for an endangered species or a

12 threatened species concurrently with the final

13 regulation implementing the determination that

14 the species is endangered or threatened if the

15 Secretary determines that designation of such

16 habitat at the time of listing is essential to

17 avoid the imminent extinction of the species.

18 ‘‘(3) FACTORS TO BE CONSIDERED.—The des19 ignation of critical habitat shall be made on the

20 basis of the best scientific and commercial data

21 available and after taking into consideration the eco22 nomic impact, impacts to military training and oper23 ations, and any other relevant impact, of specifying

24 any particular area as critical habitat. The Secretary

25 shall describe the economic impacts and other rel-
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1 evant impacts that are to be considered under this

2 subsection in the publication of any proposed regula3 tion designating critical habitat.

4 ‘‘(4) EXCLUSIONS.—The Secretary may exclude

5 any area from critical habitat for a species if the

6 Secretary determines that the benefits of the exclu7 sion outweigh the benefits of designating the area as

8 part of the critical habitat, unless the Secretary de9 termines that the failure to designate the area as

10 critical habitat will result in the extinction of the

11 species.

12 ‘‘(5) REVISIONS.—The Secretary may, from

13 time-to-time and as appropriate, revise a designa14 tion. Each area designated as critical habitat before

15 the date of enactment of this subsection shall con16 tinue to be considered so designated, until the des17 ignation is revised in accordance with this sub18 section.

19 ‘‘(6) PETITIONS.—

20 ‘‘(A) DETERMINATION THAT REVISION

21 MAY BE WARRANTED.—To the maximum extent

22 practicable, not later than 90 days after receiv23 ing the petition of an interested person under

24 section 553(e) of title 5, United States Code, to

25 revise a critical habitat designation, the Sec-
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1 retary shall make a finding as to whether the

2 petition presents substantial scientific or com3 mercial information indicating that the revision

4 may be warranted. The Secretary shall prompt5 ly publish the finding in the Federal Register.

6 ‘‘(B) NOTICE OF PROPOSED ACTION.—Not

7 later than one year after receiving a petition

8 that is found under subparagraph (A) to

9 present substantial information indicating that

10 the requested revision may be warranted, the

11 Secretary shall determine how to proceed with

12 the requested revision, and shall promptly pub13 lish notice of the intention in the Federal Reg14 ister.

15 ‘‘(7) PROPOSED AND FINAL REGULATIONS.—

16 Any regulation to designate critical habitat or imple17 ment a requested revision shall be proposed and pro18 mulgated in accordance with paragraphs (4), (5),

19 and (6) of section 4(b) in the same manner as a reg20 ulation to implement a determination with respect to

21 listing a species.’’.

22 (b) CITIZEN SUITS.—Section 11(g) of the Endan23 gered Species Act of 1973 (16 U.S.C. 1540(g)) is

24 amended—
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1 (1) in paragraph (1)(C), by inserting ‘‘or sec2 tion 4A’’ after ‘‘section 4’’; and

3 (2) in paragraph (2), by adding at the end the

4 following:

5 ‘‘(D) ACTIONS RELATING TO CRITICAL

6 HABITAT DESIGNATION.—With respect to an

7 action relating to an alleged violation of section

8 4A(g) concerning the area designated by the

9 Secretary as critical habitat, no action may be

10 commenced independently of an action relating

11 to an alleged violation of subsection (a) or (f)

12 of section 4A.’’.

13 (c) PLANS FOR PREVIOUSLY LISTED SPECIES.—

14 (1) IN GENERAL.—In the case of species in15 cluded in the list published under section 4(c) of the

16 Endangered Species Act of 1973 (16 U.S.C.

17 1533(c)) before the date of enactment of this Act,

18 and for which no final recovery plan was developed

19 before the date of enactment of this Act, the Sec20 retary of the Interior or the Secretary of Commerce,

21 as appropriate, shall develop a final recovery plan in

22 accordance with the requirements of section 4A of

23 the Endangered Species Act of 1973, including the

24 priorities of subsection (a)(1) of that section, for not

25 less than one-half of the species not later than 36
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1 months after the date of enactment of this Act and

2 for all species not later than 60 months after such

3 date.

4 (2) DESIGNATIONS OF CRITICAL HABITAT.—

5 The Secretary of the Interior or the Secretary of

6 Commerce, as appropriate, shall review and revise as

7 necessary any designation of critical habitat for a

8 species described in paragraph (1) based on the final

9 recovery plan for the species and in accordance with

10 section 4A(g) of the Endangered Species Act of

11 1973.

12 (d) CONFORMING AMENDMENTS.—

13 (1) Section 3(5)(A) of the Endangered Species

14 Act of 1973 (16 U.S.C. 1532(5)(A)) is amended—

15 (A) in clause (i), by striking ‘‘, at the time

16 it is listed in accordance with the provisions of

17 section 4 of this Act,’’; and

18 (B) in clause (ii), by striking ‘‘at the time

19 it is listed in accordance with the provisions of

20 section 4 of this Act’’.

21 (2) Section 4 of the Endangered Species Act of

22 1973 (16 U.S.C. 1533) (as amended by section

23 1(2)) is amended—

24 (A) in subsection (a), by striking para25 graph (3);
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1 (B) in subsection (b)—

2 (i) by striking paragraph (2);

3 (ii) in paragraph (3), by striking sub4 paragraph (D);

5 (iii) in paragraph (5), by striking ‘‘,

6 designation, or revision referred to in sub7 section (a)(1) or (3),’’ and inserting ‘‘re8 ferred to in subsection (a)(1),’’;

9 (iv) in paragraph (6)—

10 (I) by striking ‘‘(6)(A)’’ and all

11 that follows through the end of sub12 paragraph (A) and inserting the fol13 lowing:

14 ‘‘(6) FINAL REGULATIONS.—

15 ‘‘(A) IN GENERAL.—Within the one-year

16 period beginning on the date on which general

17 notice is published in accordance with para18 graph (5)(A)(i) regarding a proposed regula19 tion, the Secretary shall publish in the Federal

20 Register—

21 ‘‘(i) a final regulation to implement

22 the determination;

23 ‘‘(ii) notice that the one-year period is

24 being extended under subparagraph (B)(i);

25 or
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1 ‘‘(iii) notice that the proposed regula2 tion is being withdrawn under subpara3 graph (B)(ii), together with the finding on

4 which the withdrawal is based.’’;

5 (II) in subparagraph (B)(i), by

6 striking ‘‘or revision’’;

7 (III) in subparagraph (B)(iii), by

8 striking ‘‘or revision concerned, a

9 finding that the revision should not be

10 made,’’; and

11 (IV) by striking subparagraph

12 (C); and

13 (v) by redesignating paragraph (8) as

14 paragraph (2) and moving that paragraph

15 to appear after paragraph (1);

16 (C) in subsection (c)(1)—

17 (i) in the second sentence, by insert18 ing ‘‘designated’’ before ‘‘critical habitat’’;

19 and

20 (ii) in the third sentence, by striking

21 ‘‘determinations, designations, and revi22 sions’’ and inserting ‘‘determinations’’;

23 (D) by redesignating subsections (g)

24 through (i) as subsections (f) through (h), re25 spectively; and
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1 (E) in subsection (g)(4) (as so redesig2 nated), by striking ‘‘subsection (f) of this sec3 tion’’ and inserting ‘‘section 4A’’.

4 (3) Section 4A of the Endangered Species Act

5 of 1973 (as added by section 1) is amended—

6 (A) in subsection (a)—

7 (i) in the first sentence—

8 (I) by striking ‘‘this subsection’’

9 and inserting ‘‘this section’’; and

10 (II) by striking ‘‘this section’’

11 and inserting ‘‘section 4’’;

12 (ii) by redesignating subparagraphs

13 (A) and (B) as paragraphs (1) and (2), re14 spectively; and

15 (iii) in paragraph (2) (as so redesig16 nated)—

17 (I) by redesignating clauses (i)

18 through (iii) as subparagraphs (A)

19 through (C), respectively; and

20 (II) in subparagraph (B) (as so

21 redesignated), by striking ‘‘the provi22 sions of this section’’ and inserting

23 ‘‘section 4’’;

24 (B) in subsection (c), by striking ‘‘this sec25 tion’’ and inserting ‘‘section 4’’; and
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1 (C) in subsection (e), by striking ‘‘para2 graph (4)’’ and inserting ‘‘subsection (d)’’.

3 (4) Section 6(d)(1) of the Endangered Species

4 Act of 1973 (16 U.S.C. 1535(d)(1)) is amended in

5 the first sentence by striking ‘‘section 4(g)’’ and in6 serting ‘‘section 4(f)’’.

7 (5) Section 10(f)(5) of the Endangered Species

8 Act of 1973 (16 U.S.C. 1539(f)(5)) is amended by

9 striking the last sentence.

10 (6) Section 104(c)(4)(A)(ii)(I) of the Marine

11 Mammal Protection Act of 1972 (16 U.S.C.

12 1374(c)(4)(A)(ii)(I)) is amended by striking ‘‘section

13 4(f)’’ and inserting ‘‘section 4A’’.

14 (7) Section 115(b)(2) of the Marine Mammal

15 Protection Act of 1972 (16 U.S.C. 1383b(b)(2)) is

16 amended by striking ‘‘section 4(f) of the Endangered

17 Species Act of 1973 (16 U.S.C. 1533(f))’’ and in18 serting ‘‘section 4A of the Endangered Species Act

19 of 1973’’.

20 (8) Section 118(f)(11) of the Marine Mammal

21 Protection Act of 1972 (16 U.S.C. 1387(f)(11)) is

22 amended by striking ‘‘section 4’’ and inserting ‘‘sec23 tion 4A’’.

24 (9) The table of contents in the first section of

25 the Endangered Species Act of 1973 (16 U.S.C.
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1 prec. 1531) is amended by inserting after the item

2 relating to section 4 the following:

‘‘Sec. 4A. Recovery plans and critical habitat designations.’’.

3 SECTION 1. RECOVERY PLANS.

4 Section 4(f) of the Endangered Species Act of 1973 (16

5 U.S.C. 1533(f)) is amended—

6 (1) in the first sentence of paragraph (1), by

7 striking ‘‘species.’’ and inserting ‘‘species, or that the

8 species is not indigenous to the United States or wa9 ters with respect to which the United States exercises

10 sovereign rights or jurisdiction.’’;

11 (2) in paragraph (2)—

12 (A) by striking ‘‘(2) The Secretary’’ and in13 serting the following:

14 ‘‘(2) RECOVERY TEAMS.—

15 ‘‘(A) IN GENERAL.—The Secretary’’; and

16 (B) by adding at the end the following:

17 ‘‘(B) APPOINTMENT OF A TEAM.—Not later

18 than 120 days after the date of publication

19 under subsection (b) of a final determination

20 that a species is an endangered species or a

21 threatened species, the Secretary, in cooperation

22 with any State affected by the determination,

23 shall—

24 ‘‘(i) appoint a recovery team to develop

25 a recovery plan for the species; or
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1 ‘‘(ii) after public notice and oppor2 tunity for comment, determine that a recov3 ery team shall not be appointed.

4 ‘‘(C) NO RECOVERY TEAM APPOINTED.—If a

5 recovery team is not appointed by the Secretary,

6 the Secretary shall perform all duties of the re7 covery team required under this subsection.

8 ‘‘(D) COMPOSITION OF RECOVERY TEAM.—

9 Each recovery team shall include the Secretary

10 and at least 1 representative from each affected

11 State that chooses to participate, and shall have

12 balanced representation among constituencies

13 with an interest in the species and its recovery

14 and with an interest in the economic or social

15 impacts of recovery, including Federal agencies,

16 tribal governments, local governments, academic

17 institutions, private individuals (including land18 owners), conservation and other organizations,

19 and commercial enterprises. When a recovery

20 plan or critical habitat designation will have a

21 significant impact on private land, the Secretary

22 shall invite at least one landowner or one rep23 resentative of an organization representing land24 owners to serve on the recovery team. The recov25 ery team members shall be selected for their
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1 knowledge of the species or for their expertise in

2 the elements of the recovery plan or its imple3 mentation.’’;

4 (3) in the second sentence of paragraph (4), by

5 inserting before the period at the end the following:

6 ‘‘and shall, when the Secretary publishes a final re7 covery plan, respond to comments received during the

8 comment period’’; and

9 (4) by adding at the end the following:

10 ‘‘(6) SCHEDULE.—For each species determined

11 to be an endangered species or a threatened species

12 after the date of enactment of this paragraph for

13 which the Secretary is required to develop a recovery

14 plan under paragraph (1), the Secretary shall

15 publish—

16 ‘‘(A) not later than 18 months after the date

17 of publication under subsection (b) of the final

18 regulation containing the listing determination,

19 a draft recovery plan; and

20 ‘‘(B) not later than 30 months after the date

21 of publication under subsection (b) of the final

22 regulation containing the listing determination,

23 a final recovery plan.’’.
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1 SEC. 2. CRITICAL HABITAT DESIGNATIONS.

2 (a) IN GENERAL.—Section 4(f) of the Endangered Spe3 cies Act of 1973 (16 U.S.C. 1533(f)) (as amended by section

4 1(4)) is amended by adding at the end the following:

5 ‘‘(7) CRITICAL HABITAT DESIGNATIONS.—

6 ‘‘(A) IN GENERAL.—The Secretary, to the

7 extent prudent, shall designate any habitat that

8 is considered to be critical habitat of an endan9 gered species or a threatened species that is in10 digenous to the United States or waters with re11 spect to which the United States exercises sov12 ereign rights or jurisdiction.

13 ‘‘(i) DESIGNATION.—

14 ‘‘(I) PROPOSAL.—As part of a

15 draft recovery plan, the Secretary,

16 after consultation and in cooperation

17 with the recovery team, shall designate

18 proposed critical habitat for the spe19 cies.

20 ‘‘(II) FINAL.—As part of a final

21 recovery plan, the Secretary, after con22 sultation and in cooperation with the

23 recovery team, shall designate critical

24 habitat for the species.

25 ‘‘(ii) OTHER DESIGNATIONS.—If the

26 Secretary determines that a recovery plan
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1 will not promote the conservation of an en2 dangered species or a threatened species, the

3 Secretary shall publish in the Federal Reg4 ister, in accordance with paragraphs (4),

5 (5), and (6) of subsection (b), a regulation

6 designating critical habitat for the species

7 not later than three years after making a

8 determination that the species is an endan9 gered species or a threatened species.

10 ‘‘(iii) ADDITIONAL AUTHORITY.—The

11 Secretary shall, after providing public no12 tice and opportunity for comment, designate

13 critical habitat for an endangered species or

14 a threatened species concurrently with the

15 final regulation implementing the deter16 mination that the species is an endangered

17 species or a threatened species if the Sec18 retary determines that designation of such

19 habitat at the time of listing is essential to

20 avoid the imminent extinction of the spe21 cies. Such designation, in addition to re22 sponses to comments received by the Sec23 retary, shall be published in the Federal

24 Register and shall be considered to be a

25 final agency action for the purposes of judi-
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1 cial review. The recovery team and the Sec2 retary shall review and revise, as appro3 priate, the designation during the develop4 ment of the recovery plan for the species.

5 ‘‘(B) FACTORS TO BE CONSIDERED.—The

6 designation of critical habitat shall be made on

7 the basis of the best scientific and commercial

8 data available and after taking into consider9 ation the economic impact, impacts to military

10 training and operations, and any other relevant

11 impact, of specifying any particular area as

12 critical habitat. The Secretary shall describe in

13 the draft and final recovery plans (or in the pro14 posed and final regulations) the economic im15 pacts and other relevant impacts considered

16 under this paragraph in any designation of crit17 ical habitat.

18 ‘‘(C) EXCLUSIONS.—The Secretary may ex19 clude any area from critical habitat for a species

20 if the Secretary determines that the benefits of

21 the exclusion outweigh the benefits of designating

22 the area as part of the critical habitat, unless the

23 Secretary determines, based on the best scientific

24 and commercial data available, that the failure
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1 to designate the area as critical habitat will re2 sult in the extinction of the species.

3 ‘‘(D) ADDITIONAL INFORMATION.—At the

4 time that the Secretary determines that a species

5 is an endangered species or a threatened species,

6 the Secretary shall—

7 ‘‘(i) publish a description of additional

8 scientific and commercial data that would

9 assist in the preparation of a recovery plan

10 and designation of critical habitat;

11 ‘‘(ii) invite any person to submit data

12 to the Secretary; and

13 ‘‘(iii) describe the steps that the recov14 ery team and the Secretary will take to ac15 quire additional data.

16 ‘‘(E) CIVIL ACTIONS.—In accordance with

17 section 11(g), any person may bring a civil ac18 tion against the Secretary regarding the designa19 tion of critical habitat for a species.’’.

20 (b) PREVIOUSLY LISTED SPECIES.—

21 (1) RECOVERY PLANS.—

22 (A) DEVELOPMENT OF RECOVERY PLANS.—

23 In the case of species included on the lists pub24 lished under section 4(c) of the Endangered Spe25 cies Act of 1973 (16 U.S.C. 1533(c)) before the
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1 date of enactment of this Act, and for which no

2 final recovery plan was developed before the date

3 of enactment of this Act, the Secretary of the In4 terior or the Secretary of Commerce, as appro5 priate (referred to in this subsection as ‘‘the Sec6 retary’’), shall develop a final recovery plan, in

7 accordance with the requirements of section 4 of

8 the Endangered Species Act of 1973 (16 U.S.C.

9 1533), for not less than one-half of the species not

10 later than 36 months after the date of enactment

11 of this Act and for all species not later than 60

12 months after such date.

13 (B) REVISION OF RECOVERY PLANS.—In the

14 case of species included on the lists published

15 under section 4(c) of the Endangered Species Act

16 of 1973 (16 U.S.C. 1533(c)) before the date of en17 actment of this Act, the Secretary shall publish,

18 not later than 270 days after the date of enact19 ment of this Act, a list of the species for which

20 the Secretary will revise recovery plans developed

21 prior to the date of enactment of this Act, and

22 a schedule established under subparagraph (D)

23 for revising the plans.

24 (C) PRIORITY RANKING SYSTEM.—
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1 (i) IN GENERAL.—Not later than 270

2 days after the date of enactment of this Act,

3 the Secretary of the Interior and the Sec4 retary of Commerce each shall, after pro5 viding notice and an opportunity for public

6 comment, develop and implement a priority

7 ranking system for the development and re8 vision of recovery plans to carry out section

9 4(f) of the Endangered Species Act of 1973

10 (16 U.S.C. 1533(f)) and this subsection in

11 the most efficient and effective manner

12 practicable.

13 (ii) CRITERIA FOR PRIORITIES.—In

14 developing the priority ranking system, the

15 Secretary shall be consistent with the cri16 teria set forth in section 4(f)(1)(A) of the

17 Endangered Species Act of 1973 (16 U.S.C.

18 1533(f)(1)(A)) and shall take into account

19 the scientifically based biological needs of

20 the species.

21 (D) SCHEDULE.—In establishing the sched22 ule for revising recovery plans for species identi23 fied on the list established under subparagraph

24 (B), the Secretary shall require that recovery

25 plans for—
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(i) 1 1 ⁄3 of the species on the list be com2 pleted not later than 4 years after the date

3 of enactment of this Act;

(ii) 2 4 ⁄3 of the species on the list be com5 pleted not later than 7 years after the date

6 of enactment of this Act; and

7 (iii) all species on the list be completed

8 not later than 10 years after the date of en9 actment of this Act.

10 (E) CIVIL ACTIONS.—No person may bring

11 a civil action, under title 5, United States Code,

12 or under the Endangered Species Act of 1973 (16

13 U.S.C. 1531 et seq.), alleging failure to develop

14 a recovery plan or to designate critical habitat

15 for—

16 (i) any species included on the lists

17 published under section 4(c) of the Endan18 gered Species Act of 1973 (16 U.S.C.

19 1533(c)) before the date that is 270 days

20 after the date of enactment of this Act;

21 (ii) any species for which a recovery

22 plan is required to be developed under sub23 paragraph (A) before the date that is 60

24 months after the date of enactment of this

25 Act; or
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1 (iii) any species on the list established

2 under subparagraph (B) before the date on

3 which the recovery plan and designation are

4 required to be completed in accordance with

5 the schedule established under subparagraph

6 (D).

7 (2) CRITICAL HABITAT DESIGNATIONS.—

8 (A) CRITICAL HABITAT DESIGNATED.—The

9 Secretary shall review, and revise as necessary,

10 any designation of critical habitat for a species

11 described in paragraph (1)(A) based on, and as

12 part of, the final recovery plan for the species,

13 under section 4(f)(7) of the Endangered Species

14 Act of 1973 (16 U.S.C. 1533(f)(7)) and in ac15 cordance with the schedule established under

16 paragraph (1)(D). Each area designated as crit17 ical habitat before the date of enactment of this

18 Act shall continue to be considered so designated,

19 until the designation is revised in accordance

20 with this subsection, at which point the regula21 tion designating critical habitat that was pro22 mulgated before the date of enactment of this Act

23 shall be withdrawn.

24 (B) CRITICAL HABITAT NOT DESIGNATED.—
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1 (i) IN GENERAL.—Except as provided

2 in clause (ii), if the Secretary has not des3 ignated critical habitat for a species de4 scribed in paragraph (1)(A) because the

5 Secretary determined that designation was

6 not prudent or that critical habitat was not

7 determinable, or for any other reason, the

8 Secretary shall designate critical habitat for

9 the species as part of the development or re10 vision of the recovery plan for the species in

11 accordance with section 4(f)(7) of the En12 dangered Species Act of 1973 (16 U.S.C.

13 1533(f)(7)), and in accordance with the

14 schedule established under paragraph

15 (1)(D).

16 (ii) DESIGNATION REQUIRED BY

17 COURT.—Clause (i) shall not apply in a

18 case in which a court has issued an order

19 prior to the date of enactment of this Act re20 manding to the Secretary a decision, or

21 mandating a schedule for the Secretary to

22 make a decision, or a case in which a court

23 issues an order in an action for which a

24 complaint was filed before July 1, 1999, re25 garding the designation of critical habitat,
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1 although such designations are subject to re2 visions required under subparagraph (A).

3 Nothing in this clause affects the right of

4 any party to appeal a court order relating

5 to a designation of critical habitat.

6 (c) CONFORMING AMENDMENTS.—

7 (1) Section 3(5)(A) of the Endangered Species

8 Act of 1973 (16 U.S.C. 1532(5)(A)) is amended—

9 (A) in clause (i), by striking ‘‘, at the time

10 it is listed in accordance with the provisions of

11 section 4 of this Act,’’; and

12 (B) in clause (ii), by striking ‘‘at the time

13 it is listed in accordance with the provisions of

14 section 4 of this Act’’.

15 (2) Section 4 of the Endangered Species Act of

16 1973 (16 U.S.C. 1533) is amended—

17 (A) in subsection (a), by striking paragraph

18 (3);

19 (B) in subsection (b)—

20 (i) by striking paragraph (2);

21 (ii) in paragraph (3), by striking sub22 paragraph (D);

23 (iii) in paragraph (5), by striking ‘‘,

24 designation, or revision referred to in sub-
28

•S 1100 RS

1 section (a)(1) or (3),’’ and inserting ‘‘re2 ferred to in subsection (a)(1),’’;

3 (iv) in paragraph (6)—

4 (I) by striking ‘‘(6)(A)’’ and all

5 that follows through the end of sub6 paragraph (A) and inserting the fol7 lowing:

8 ‘‘(6) FINAL REGULATIONS.—

9 ‘‘(A) IN GENERAL.—Within the one-year pe10 riod beginning on the date on which general no11 tice is published in accordance with paragraph

12 (5)(A)(i) regarding a proposed regulation, the

13 Secretary shall publish in the Federal Register—

14 ‘‘(i) a final regulation to implement

15 the determination;

16 ‘‘(ii) notice that the one-year period is

17 being extended under subparagraph (B)(i);

18 or

19 ‘‘(iii) notice that the proposed regula20 tion is being withdrawn under subpara21 graph (B)(ii), together with the finding on

22 which the withdrawal is based.’’;

23 (II) in subparagraph (B)(i), by

24 striking ‘‘or revision’’;
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•S 1100 RS

1 (III) in subparagraph (B)(iii), by

2 striking ‘‘or revision concerned, a find3 ing that the revision should not be

4 made,’’; and

5 (IV) by striking subparagraph

6 (C); and

7 (v) by redesignating paragraph (8) as

8 paragraph (2) and moving that paragraph

9 to appear after paragraph (1); and

10 (C) in subsection (c)(1)—

11 (i) in the second sentence, by inserting

12 ‘‘designated’’ before ‘‘critical habitat’’; and

13 (ii) in the third sentence, by striking

14 ‘‘determinations, designations, and revi15 sions’’ and inserting ‘‘determinations’’.

16 (3) Section 10(f)(5) of the Endangered Species

17 Act of 1973 (16 U.S.C. 1539(f)(5)) is amended by

18 striking the last sentence.

19 SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

20 There are authorized to be appropriated to carry out

21 this Act, the amendments made by this Act, and section

22 4(f) of the Endangered Species Act of 1973 (16 U.S.C.

23 1533(f))—

24 (1) to the Secretary of the Interior—

25 (A) $42,000,000 for fiscal year 2000;
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1 (B) $46,000,000 for fiscal year 2001;

2 (C) $50,000,000 for fiscal year 2002;

3 (D) $55,000,000 for fiscal year 2003; and

4 (E) $60,000,000 for fiscal year 2004; and

5 (2) to the Secretary of Commerce, $30,000,000

6 for each of fiscal years 2000 through 2004.