II

106TH CONGRESS

1ST SESSION S. 1100

To amend the Endangered Species Act of 1973 to provide that the designation

of critical habitat for endangered and threatened species be required

as part of the development of recovery plans for those species.

IN THE SENATE OF THE UNITED STATES

MAY 20, 1999

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

A BILL

To amend the Endangered Species Act of 1973 to provide

that the designation of critical habitat for endangered

and threatened species be required as part of the development of recovery plans for those species.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. RECOVERY PLANS AND CRITICAL HABITAT

4 DESIGNATIONS.

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

6 1531 et seq.) is amended—

7 (1) by inserting after section 4 the following:
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1 ‘‘RECOVERY PLANS AND CRITICAL HABITAT

2 DESIGNATIONS

3 ‘‘SEC. 4A.’’;

4 (2) by moving subsection (f) of section 4 to ap5 pear at the end of section 4A (as added by para6 graph (1)); and

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

8 (2))—

9 (A) by striking ‘‘(f)(1) RECOVERY

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

11 ‘‘(a) IN GENERAL.—The’’;

12 (B) by redesignating paragraphs (2)

13 through (5) as subsections (b) through (e), re14 spectively;

15 (C) in subsection (b) (as so redesig16 nated)—

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

18 and inserting the following:

19 ‘‘(b) RECOVERY TEAMS.—

20 ‘‘(1) IN GENERAL.—The Secretary’’; and

21 (ii) by adding at the end the fol22 lowing:

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

24 than 60 days after the date of publication under sec25 tion 4 of a final determination that a species is a
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1 threatened species or endangered species, the Sec2 retary, in cooperation with any State affected by the

3 determination, shall—

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

5 recovery plan for the species; or

6 ‘‘(B) after public notice and opportunity

7 for comment, determine that a recovery team

8 shall not be appointed.’’; and

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

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

11 an endangered species or a threatened species after the

12 date of enactment of this subsection for which the Sec13 retary is required to develop a recovery plan under sub14 section (a), the Secretary shall publish—

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

16 the publication under section 4 of the final regula17 tion containing the listing determination, a draft re18 covery plan; and

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

20 publication under section 4 of the final regulation

21 containing the listing determination, a final recovery

22 plan.’’.
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1 SEC. 2. CRITICAL HABITAT DESIGNATIONS.

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

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

4 by adding at the end the following:

5 ‘‘(g) CRITICAL HABITAT DESIGNATIONS.—

6 ‘‘(1) RECOMMENDATION OF THE RECOVERY

7 TEAM.—

8 ‘‘(A) RECOVERY TEAM APPOINTED.—Not

9 later than nine months after the date of publi10 cation under section 4 of a final regulation con11 taining a listing determination for a species, the

12 recovery team (if a recovery team has been ap13 pointed for the species) shall provide the Sec14 retary with a description of any habitat of the

15 species that is recommended for designation as

16 critical habitat pursuant to this subsection and

17 any recommendations for special management

18 considerations or protection that are specific to

19 the habitat.

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

21 a recovery team is not appointed by the Sec22 retary, the Secretary shall perform all duties of

23 the recovery team required under this section.

24 ‘‘(2) DESIGNATION BY THE SECRETARY.—The

25 Secretary, to the maximum extent prudent and de26 terminable, shall by regulation designate any habitat
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1 that is considered to be critical habitat of an endan2 gered species or a threatened species that is indige3 nous to the United States or waters with respect to

4 which the United States exercises sovereign rights

5 or jurisdiction.

6 ‘‘(A) DESIGNATION.—

7 ‘‘(i) PROPOSAL.—Concurrently with

8 publication of a draft recovery plan, the

9 Secretary, after consultation and in co10 operation with the recovery team, shall

11 publish in the Federal Register a proposed

12 regulation, based on the draft recovery

13 plan for the species, that designates crit14 ical habitat for the species.

15 ‘‘(ii) PROMULGATION.—Concurrently

16 with publication of a final recovery plan,

17 the Secretary, after consultation and in co18 operation with the recovery team, shall

19 publish a final regulation, based on the

20 final recovery plan for the species, that

21 designates critical habitat for the species.

22 ‘‘(B) OTHER DESIGNATIONS.—If a recov23 ery plan is not developed under this section for

24 an endangered species or a threatened species,

25 the Secretary shall publish a final critical habi-
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1 tat determination for the endangered species or

2 threatened species not later than three years

3 after making a determination that the species is

4 an endangered species or a threatened species.

5 ‘‘(C) ADDITIONAL AUTHORITY.—The Sec6 retary may publish a regulation designating

7 critical habitat for an endangered species or a

8 threatened species concurrently with the final

9 regulation implementing the determination that

10 the species is endangered or threatened if the

11 Secretary determines that designation of such

12 habitat at the time of listing is essential to

13 avoid the imminent extinction of the species.

14 ‘‘(3) FACTORS TO BE CONSIDERED.—The des15 ignation of critical habitat shall be made on the

16 basis of the best scientific and commercial data

17 available and after taking into consideration the eco18 nomic impact, impacts to military training and oper19 ations, and any other relevant impact, of specifying

20 any particular area as critical habitat. The Secretary

21 shall describe the economic impacts and other rel22 evant impacts that are to be considered under this

23 subsection in the publication of any proposed regula24 tion designating critical habitat.
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1 ‘‘(4) EXCLUSIONS.—The Secretary may exclude

2 any area from critical habitat for a species if the

3 Secretary determines that the benefits of the exclu4 sion outweigh the benefits of designating the area as

5 part of the critical habitat, unless the Secretary de6 termines that the failure to designate the area as

7 critical habitat will result in the extinction of the

8 species.

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

10 time-to-time and as appropriate, revise a designa11 tion. Each area designated as critical habitat before

12 the date of enactment of this subsection shall con13 tinue to be considered so designated, until the des14 ignation is revised in accordance with this sub15 section.

16 ‘‘(6) PETITIONS.—

17 ‘‘(A) DETERMINATION THAT REVISION

18 MAY BE WARRANTED.—To the maximum extent

19 practicable, not later than 90 days after receiv20 ing the petition of an interested person under

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

22 revise a critical habitat designation, the Sec23 retary shall make a finding as to whether the

24 petition presents substantial scientific or com25 mercial information indicating that the revision
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1 may be warranted. The Secretary shall prompt2 ly publish the finding in the Federal Register.

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

4 later than one year after receiving a petition

5 that is found under subparagraph (A) to

6 present substantial information indicating that

7 the requested revision may be warranted, the

8 Secretary shall determine how to proceed with

9 the requested revision, and shall promptly pub10 lish notice of the intention in the Federal Reg11 ister.

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

13 Any regulation to designate critical habitat or imple14 ment a requested revision shall be proposed and pro15 mulgated in accordance with paragraphs (4), (5),

16 and (6) of section 4(b) in the same manner as a reg17 ulation to implement a determination with respect to

18 listing a species.’’.

19 (b) CITIZEN SUITS.—Section 11(g) of the Endan20 gered Species Act of 1973 (16 U.S.C. 1540(g)) is

21 amended—

22 (1) in paragraph (1)(C), by inserting ‘‘or sec23 tion 4A’’ after ‘‘section 4’’; and

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

25 following:
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1 ‘‘(D) ACTIONS RELATING TO CRITICAL

2 HABITAT DESIGNATION.—With respect to an

3 action relating to an alleged violation of section

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

5 Secretary as critical habitat, no action may be

6 commenced independently of an action relating

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

8 of section 4A.’’.

9 (c) PLANS FOR PREVIOUSLY LISTED SPECIES.—

10 (1) IN GENERAL.—In the case of species in11 cluded in the list published under section 4(c) of the

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

13 1533(c)) before the date of enactment of this Act,

14 and for which no final recovery plan was developed

15 before the date of enactment of this Act, the Sec16 retary of the Interior or the Secretary of Commerce,

17 as appropriate, shall develop a final recovery plan in

18 accordance with the requirements of section 4A of

19 the Endangered Species Act of 1973, including the

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

21 less than one-half of the species not later than 36

22 months after the date of enactment of this Act and

23 for all species not later than 60 months after such

24 date.
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1 (2) DESIGNATIONS OF CRITICAL HABITAT.—

2 The Secretary of the Interior or the Secretary of

3 Commerce, as appropriate, shall review and revise as

4 necessary any designation of critical habitat for a

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

6 recovery plan for the species and in accordance with

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

8 1973.

9 (d) CONFORMING AMENDMENTS.—

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

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

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

13 it is listed in accordance with the provisions of

14 section 4 of this Act,’’; and

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

16 it is listed in accordance with the provisions of

17 section 4 of this Act’’.

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

19 1973 (16 U.S.C. 1533) (as amended by section

20 1(2)) is amended—

21 (A) in subsection (a), by striking para22 graph (3);

23 (B) in subsection (b)—

24 (i) by striking paragraph (2);
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1 (ii) in paragraph (3), by striking sub2 paragraph (D);

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

4 designation, or revision referred to in sub5 section (a)(1) or (3),’’ and inserting ‘‘re6 ferred to in subsection (a)(1),’’;

7 (iv) in paragraph (6)—

8 (I) by striking ‘‘(6)(A)’’ and all

9 that follows through the end of sub10 paragraph (A) and inserting the fol11 lowing:

12 ‘‘(6) FINAL REGULATIONS.—

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

14 period beginning on the date on which general

15 notice is published in accordance with para16 graph (5)(A)(i) regarding a proposed regula17 tion, the Secretary shall publish in the Federal

18 Register—

19 ‘‘(i) a final regulation to implement

20 the determination;

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

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

23 or

24 ‘‘(iii) notice that the proposed regula25 tion is being withdrawn under subpara-
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1 graph (B)(ii), together with the finding on

2 which the withdrawal is based.’’;

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

4 striking ‘‘or revision’’;

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

6 striking ‘‘or revision concerned, a

7 finding that the revision should not be

8 made,’’; and

9 (IV) by striking subparagraph

10 (C); and

11 (v) by redesignating paragraph (8) as

12 paragraph (2) and moving that paragraph

13 to appear after paragraph (1);

14 (C) in subsection (c)(1)—

15 (i) in the second sentence, by insert16 ing ‘‘designated’’ before ‘‘critical habitat’’;

17 and

18 (ii) in the third sentence, by striking

19 ‘‘determinations, designations, and revi20 sions’’ and inserting ‘‘determinations’’;

21 (D) by redesignating subsections (g)

22 through (i) as subsections (f) through (h), re23 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.’’.

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