I 

108TH CONGRESS 

1ST SESSION H. R. 2602

To amend the Endangered Species Act of 1973 to make the authority of 

the Secretary to designate critical habitat discretionary instead of mandatory, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 25, 2003

Mr. OTTER introduced the following bill; which was referred to the Committee 

on Resources 

A BILL

To amend the Endangered Species Act of 1973 to make 

the authority of the Secretary to designate critical habitat discretionary instead of mandatory, and for other 

purposes.

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 ‘‘Scientifically Identi5 fying the Need for Critical Habitat Act’’. 
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1 SEC. 2. DISCRETIONARY AUTHORITY TO DESIGNATE CRIT2 ICAL HABITAT. 

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

4 1973 (16 U.S.C. 1533(a)(3)(A)) is amended to read as 

5 follows: 

6 ‘‘(A) may designate any habitat of a species 

7 that is determined under paragraph (1) to be an en8 dangered species or threatened species as critical 

9 habitat of such species; and ’’. 

10 SEC. 3. SOUND SCIENCE. 

11 (a) BEST SCIENTIFIC AND COMMERCIAL DATA

12 AVAILABLE.—

13 (1) IN GENERAL.—Section 3 of the Endangered 

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

15 (A) by amending the section heading to 

16 read as follows: 

17 ‘‘SEC. 3. DEFINITIONS AND GENERAL PROVISIONS. ’’; 

18 (B) by striking ‘‘For the purposes of this 

19 Act—’’ and inserting the following: 

20 ‘‘(a) DEFINITIONS.—In this Act:’’; and 

21 (C) by adding at the end the following: 

22 ‘‘(b) USE OF CERTAIN DATA.—In any case in which 

23 the Secretary is required by this Act to use the best sci24 entific and commercial data available, the Secretary, in 

25 evaluating comparable data, shall give greater weight to 
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1 scientific or commercial data that is empirical or has been 

2 field-tested or peer-reviewed.’’. 

3 (2) CONFORMING AMENDMENT.—The table of 

4 contents in the first section of the Endangered Spe5 cies Act of 1973 (16 U.S.C. prec. 1531) is amended 

6 by striking the item relating to section 3 and insert7 ing the following:

‘‘Sec. 3. Definitions and general provisions.’’.

8 (b) USE OF SOUND SCIENCE IN LISTING.—Section 

9 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 

10 1533(b)) is amended by adding at the end the following: 

11 ‘‘(9) ESTABLISHMENT OF CRITERIA FOR SCI12 ENTIFIC STUDIES TO SUPPORT LISTING.—Not later 

13 than 1 year after the date of enactment of this para14 graph, the Secretary shall promulgate regulations 

15 that establish criteria that must be met for scientific 

16 and commercial data to be used as the basis of a de17 termination under this section that a species is an 

18 endangered species or a threatened species. 

19 ‘‘(10) FIELD DATA.—

20 ‘‘(A) REQUIREMENT.—The Secretary may 

21 not determine that a species is an endangered 

22 species or a threatened species unless the deter23 mination is supported by data obtained by ob24 servation of the species in the field. 
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1 ‘‘(B) DATA FROM LANDOWNERS.—The 

2 Secretary shall—

3 ‘‘(i) accept and acknowledge receipt of 

4 data regarding the status of a species that 

5 is collected by an owner of land through 

6 observation of the species on the land; and 

7 ‘‘(ii) include the data in the rule8 making record compiled for any determina9 tion that the species is an endangered spe10 cies or a threatened species.’’. 

11 (c) USE OF SOUND SCIENCE IN RECOVERY PLAN12 NING.—Section 4(f) of the Endangered Species Act of 

13 1973 (16 U.S.C. 1533(f)) is amended by adding at the 

14 end the following: 

15 ‘‘(6)(A) The Secretary shall identify and publish in 

16 the Federal Register with the notice of a proposed regula17 tion pursuant to paragraph (5)(A)(i) a description of addi18 tional scientific and commercial data that would assist in 

19 the preparation of a recovery plan and—

20 ‘‘(i) invite any person to submit the data to the 

21 Secretary; and 

22 ‘‘(ii) describe the steps that the Secretary plans 

23 to take for acquiring additional data. 

24 ‘‘(B) Data identified and obtained under subpara25 graph (A)(i) shall be considered by the recovery team and 
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1 the Secretary in the preparation of the recovery plan in 

2 accordance with section 5.’’. 

3 SEC. 4. PEER REVIEW. 

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

5 U.S.C. 1533) is amended by adding at the end the fol6 lowing: 

7 ‘‘(j) INDEPENDENT SCIENTIFIC REVIEW REQUIRE8 MENTS.—

9 ‘‘(1) DEFINITIONS.—In this subsection: 

10 ‘‘(A) ACTION.—The term ‘action’ means—

11 ‘‘(i) the determination that a species 

12 is an endangered species or a threatened 

13 species under subsection (a); 

14 ‘‘(ii) the determination under sub15 section (a) that an endangered species or 

16 a threatened species be removed from any 

17 list published under subsection (c)(1); 

18 ‘‘(iii) the development of a recovery 

19 plan for a threatened species or endan20 gered species under subsection (f); and 

21 ‘‘(iv) the determination that a pro22 posed action is likely to jeopardize the con23 tinued existence of a listed species and the 

24 proposal of any reasonable and prudent al-
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1 ternatives by the Secretary under section 

2 7(b)(3). 

3 ‘‘(B) QUALIFIED INDIVIDUAL.—The term 

4 ‘qualified individual’ means an individual with 

5 expertise in the biological sciences—

6 ‘‘(i) who through publication of peer7 reviewed scientific literature or other 

8 means, has demonstrated scientific exper9 tise on the species or a similar species or 

10 other scientific expertise relevant to the de11 cision of the Secretary under subsection 

12 (a) or (f); 

13 ‘‘(ii) who does not have, or represent 

14 any person with, a conflict of interest with 

15 respect to the determination that is the 

16 subject of the review; 

17 ‘‘(iii) who is not a participant in any 

18 petition or proposed or final determination 

19 before the Secretary; and 

20 ‘‘(iv) who has no direct financial in21 terest, and is not employed by any person 

22 with a direct financial interest, in opposing 

23 the action under consideration. 

24 ‘‘(2) LIST OF INDEPENDENT SCIENTIFIC RE25 VIEWERS.—The Secretary shall solicit recommenda-
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1 tions from the National Academy of Sciences and 

2 develop and maintain a list of qualified reviewers to 

3 participate in independent scientific review actions. 

4 ‘‘(3) APPOINTMENT OF INDEPENDENT SCI5 ENTIFIC REVIEWERS.—(A) Before any action shall 

6 become final, the Secretary shall appoint randomly, 

7 from among the list prepared in accordance with 

8 this section, 3 qualified individuals who shall review 

9 and report to the Secretary on the scientific infor10 mation and analyses on which the proposed action is 

11 based. 

12 ‘‘(B) The selection and activities of the referees 

13 selected pursuant to this section shall not be subject 

14 to the Federal Advisory Committee Act (5 U.S.C. 

15 App.). 

16 ‘‘(C) Reviewers shall be compensated for con17 ducting the independent review. 

18 ‘‘(4) OPINION OF PEER REVIEWERS.—Inde19 pendent reviewers shall provide the Secretary, within 

20 3 months, their opinion regarding all relevant sci21 entific information and assumptions relating to the 

22 taxonomy, population models, and supportive biologi23 cal and ecological information for the species in 

24 question. 
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1 ‘‘(5) FINAL DETERMINATION.—If the referees 

2 have made a recommendation on a proposed action, 

3 the Secretary shall evaluate and consider the infor4 mation that results from the independent scientific 

5 review and include in the final determination—

6 ‘‘(A) a summary of the results of the inde7 pendent scientific review; and 

8 ‘‘(B) in a case in which the recommenda9 tion of a majority of the referees who conducted 

10 the independent scientific review is not followed, 

11 an explanation as to why the recommendation 

12 was not followed. 

13 ‘‘(6) PUBLIC NOTICE.—The report of the peer 

14 reviewers shall be included in the official record of 

15 the proposed action and shall be available for public 

16 review prior to the close of the comment period on 

17 the proposed action.’’. 

18 SEC. 5. IMPROVED RECOVERY PLANNING. 

19 (a) USE OF INFORMATION PROVIDED BY STATES.—

20 Section 7(b)(1) of the Endangered Species Act of 1973 

21 (16 U.S.C. 1536(b)(1)) is amended by adding at the end 

22 the following: 

23 ‘‘(C) USE OF STATE INFORMATION.—In 

24 conducting a consultation under subsection 

25 (a)(2), the Secretary shall actively solicit and 
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1 consider information from the State agency in 

2 each affected State.’’. 

3 (b) OPPORTUNITY TO PARTICIPATE IN CONSULTA4 TIONS.—Section 7(b)(1) of the Endangered Species Act 

5 of 1973 (16 U.S.C. 1536(b)(1)) (as amended by sub6 section (a)) is further amended by adding at the end the 

7 following: 

8 ‘‘(D) OPPORTUNITY TO PARTICIPATE IN

9 CONSULTATIONS.—

10 ‘‘(i) IN GENERAL.—In conducting a 

11 consultation under subsection (a)(2), the 

12 Secretary shall provide any person who has 

13 sought authorization or funding from a 

14 Federal agency for an action that is the 

15 subject of the consultation, the opportunity 

16 to—

17 ‘‘(I) before the development of a 

18 draft biological opinion, submit and 

19 discuss with the Secretary and the 

20 Federal agency information relevant 

21 to the effect of the proposed action on 

22 the species and the availability of rea23 sonable and prudent alternatives (if a 

24 jeopardy opinion is to be issued) that 

25 the Federal agency and the person 
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1 can take to avoid violation of sub2 section (a)(2); 

3 ‘‘(II) receive information, on re4 quest, subject to the exemptions speci5 fied in section 552(b) of title 5, 

6 United States Code, on the status of 

7 the species, threats to the species, and 

8 conservation measures, used by the 

9 Secretary to develop the draft biologi10 cal opinion and the final biological 

11 opinion, including the associated inci12 dental taking statements; and 

13 ‘‘(III) receive a copy of the draft 

14 biological opinion from the Federal 

15 agency and, before issuance of the 

16 final biological opinion, submit com17 ments on the draft biological opinion 

18 and discuss with the Secretary and 

19 the Federal agency the basis for any 

20 finding in the draft biological opinion. 

21 ‘‘(ii) EXPLANATION.—If reasonable 

22 and prudent alternatives are proposed by a 

23 person under clause (i) and the Secretary 

24 does not include the alternatives in the 

25 final biological opinion, the Secretary shall 
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1 explain to the person why those alter2 natives were not included in the opinion. 

3 ‘‘(iii) PUBLIC ACCESS TO INFORMA4 TION.—Comments and other information 

5 submitted to, or received from, any person 

6 (pursuant to clause (i)) who seeks author7 ization or funding for an action shall be 

8 maintained in a file for that action by the 

9 Secretary and shall be made available to 

10 the public (subject to the exemptions speci11 fied in section 552(b) of title 5, United 

12 States Code).’’.

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