I 

109TH CONGRESS 

1ST SESSION H. R. 2779 

To amend the Endangered Species Act of 1973 to enable Federal agencies 

responsible for the preservation of threatened species and endangered 

species to rescue and relocate members of any of those species that 

would be taken in the course of certain reconstruction, maintenance, 

or repair of Federal or non-Federal manmade flood control levees. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 7, 2005 

Mr. HERGER introduced the following bill; which was referred to the 

Committee on Resources 

A BILL 

To amend the Endangered Species Act of 1973 to enable 

Federal agencies responsible for the preservation of 

threatened species and endangered species to rescue and 

relocate members of any of those species that would 

be taken in the course of certain reconstruction, maintenance, or repair of Federal or non-Federal manmade 

flood control levees. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Species Rescue Act’’. 
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1 SEC. 2. RELOCATION OF MEMBERS OF ENDANGERED SPE2 CIES AND THREATENED SPECIES THAT 

3 WOULD BE TAKEN IN THE COURSE OF RE4 CONSTRUCTION, MAINTENANCE, OR REPAIR 

5 OF MANMADE FLOOD CONTROL LEVEES. 

6 (a) EXPEDITED CONSULTATION AND CONFER7 ENCING; RELOCATION REQUIREMENT.—Section 7 of the 

8 Endangered Species Act of 1973 (16 U.S.C. 1536) is 

9 amended— 

10 (1) in subsection (a)(2), by inserting ‘‘, except 

11 in the case of an agency action flood control action 

12 (as defined in subsection (b)(5)(B)) for which con13 sultation and conferencing is completed in accord14 ance with subsection (b),’’ after ‘‘threatened species 

15 or’’; 

16 (2) in subsection (b)(4) by striking the matter 

17 preceding subparagraph (A) and inserting the fol18 lowing: 

19 ‘‘(4) If after consultation under subsection (a)(2) of 

20 this section regarding an agency action, other than an 

21 agency flood control action (as defined in paragraph 

22 (5)(B)), the Secretary concludes that—’’; and 

23 (3) by adding at the end of subsection (b) the 

24 following: 

25 ‘‘(5)(A) Notwithstanding paragraph (1)(A), consulta26 tion under subsection (a)(2) and conferencing under sub-
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1 section (a)(4) regarding an agency flood control action 

2 shall be concluded within the 60-day period beginning on 

3 the date on which initiated. 

4 ‘‘(B) For purposes of this paragraph, the term ‘agen5 cy flood control action’ means an agency action consisting 

6 of the authorization, funding, or carrying out by an agency 

7 of reconstruction, maintenance, or repair of a Federal or 

8 non-Federal manmade flood control levee— 

9 ‘‘(i) based on a determination that— 

10 ‘‘(I) there exists or is likely to exist in the 

11 future high water; 

12 ‘‘(II) the levee is likely to fail in the period 

13 of such high water unless the levee is recon14 structed, maintained, or repaired; and 

15 ‘‘(III) such a levee failure would pose se16 vere public health and safety risks, place per17 sons residing in areas protected by the levee at 

18 risk, or cause extensive flooding and significant 

19 economic damages, including loss of life, prop20 erty, or habitat; or 

21 ‘‘(ii) to address an imminent threat from a cat22 astrophic natural event. 

23 ‘‘(C) Promptly after conclusion of consultation and 

24 conferencing regarding an agency flood control action, the 

25 Secretary shall provide the Federal agency and the appli-
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1 cant concerned, if any, a written statement that specifies 

2 the impact of the action on endangered species and threat3 ened species. 

4 ‘‘(D) Not later than 60 days after the conclusion of 

5 consultation and conferencing regarding an agency flood 

6 control action, the Secretary, acting through the United 

7 States Fish and Wildlife Service, any other Federal land 

8 management agency, the National Marine Fisheries Serv9 ice, or a State conservation agency, shall relocate from the 

10 flood control levee with respect to which the action will 

11 be carried out— 

12 ‘‘(i) the members of any threatened species or 

13 endangered species of plant or animal that the Sec14 retary determines would be taken in the course of 

15 the action; and 

16 ‘‘(ii) any plant or other natural material that 

17 the Secretary considers to be suitable habitat, or a 

18 component of suitable habitat, for such species and 

19 that the Secretary determines would be damaged, 

20 destroyed, or removed in the course of the action. 

21 ‘‘(E) Except as provided in subparagraph (D), the 

22 Secretary may not require a non-Federal person to carry 

23 out under this section any measures to minimize or miti24 gate the impacts of an agency flood control action for 
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1 which consultation and conferencing is carried out under 

2 subsections (a)(2) and (a)(4), respectively.’’. 

3 (b) LIMITATION ON PROHIBITION OF TAKINGS.— 

4 Section 9(a) of such Act (16 U.S.C. 1538(a)) is amended 

5 by adding at the end the following new paragraph: 

6 ‘‘(3) This subsection shall not be construed as prohib7 iting any activity that is authorized, funded, or carried out 

8 as part of an agency flood control action (as defined in 

9 section 7(b)(5)(B)) after the 60-day period beginning on 

10 the date of the completion of consultation and confer11 encing under section 7(a)(2) and (4), respectively, regard12 ing the action.’’. 

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