IB 

Union Calendar No. 480

108TH CONGRESS 

2D SESSION H. R. 2933

[Report No. 108–786] 

To amend the Endangered Species Act of 1973 to reform the process for 

designating critical habitat under that Act. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 25, 2003

Mr. CARDOZA (for himself, Mr. DOOLEY of California, Mr. CARSON of Oklahoma, Mr. NUNES, Mr. BACA, Mr. STENHOLM, Mr. HALL, Mr. BERRY, 

Mr. ROSS, Mr. DOOLITTLE, Mr. RADANOVICH, Mr. HERGER, Mr. PETERSON of Minnesota, Mr. ALEXANDER, Mr. ORTIZ, Mr. HUNTER, Mr. CALVERT, and Mr. YOUNG of Alaska) introduced the following bill; which was 

referred to the Committee on Resources 

NOVEMBER 19, 2004

Additional sponsors: Mr. ISAKSON, Mrs. CUBIN, Mr. KLINE, Mr. OSBORNE, 

Mr. JONES of North Carolina, Mr. RENZI, Mr. WALDEN of Oregon, Mr. 

PEARCE, Mr. REHBERG, Mr. PETERSON of Pennsylvania, and Mr. FLAKE

NOVEMBER 19, 2004 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

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

[For text of introduced bill, see copy of bill as introduced on July 25, 2003] 

A BILL

To amend the Endangered Species Act of 1973 to reform 

the process for designating critical habitat under that Act.
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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 ‘‘Critical Habitat Reform 

5 Act of 2004’’. 

6 SEC. 2. DESIGNATION OF CRITICAL HABITAT; STANDARD. 

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

8 Species Act of 1973 (16 U.S.C. 1533(a)) is amended—

9 (1) by redesignating subparagraph (B) of para10 graph (3) as paragraph (4); 

11 (2) in paragraph (4) (as so redesignated)—

12 (A) by striking ‘‘(i)’’ and inserting ‘‘(A)’’; 

13 (B) by striking ‘‘(ii)’’ and inserting ‘‘(B)’’; 

14 and 

15 (C) by striking ‘‘(iii)’’ and inserting ‘‘(C)’’; 

16 and 

17 (3) by amending paragraph (3) to read as fol18 lows: 

19 ‘‘(3)(A)(i) The Secretary shall, by regulation promul20 gated in accordance with subsection (b) and to the max21 imum extent practicable, prudent, and determinable, issue 

22 a final regulation designating any habitat of the species 

23 determined to be an endangered species or threatened spe24 cies that is critical habitat of the species.
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1 ‘‘(ii) The Secretary shall make any designation re2 quired under clause (i) by not later than one year after 

3 the final approval of a recovery plan for the species under 

4 section 4(f), or 3 years after the date of publication of the 

5 final regulation implementing a determination that the spe6 cies is an endangered species or threatened species, which7 ever is earlier.

8 ‘‘(B) The Secretary shall reconsider any determination 

9 that designation of critical habitat of a species is not prac10 ticable, or determinable, during the next review under sec11 tion 4(c)(2)(A) or at the time of a final approval of a recov12 ery plan for the species under section 4(f). 

13 ‘‘(C) The Secretary may, from time-to-time as appro14 priate, revise any designation of critical habitat under this 

15 paragraph. 

16 ‘‘(D) Notwithstanding subparagraphs (A), (B), and 

17 (C), any designation of an area as critical habitat shall 

18 not apply with respect to any action authorized by—

19 ‘‘(i) a permit under section 10(a) (including any 

20 conservation plan or agreement under that section for 

21 such a permit) that applies to the area;

22 ‘‘(ii) a written statement under section 7(b)(4); 

23 or 

24 ‘‘(iii) a land conservation or species management 

25 program of a State, a Federal agency, a federally rec-
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1 ognized Indian tribe located within the contiguous 48 

2 States, or the Metlakatla Indian Community that the 

3 Secretary determines provides protection for habitat 

4 of the species that is substantially equivalent to the 

5 protection that would be provided by such designa6 tion. 

7 ‘‘(E) Nothing in this paragraph shall be construed to 

8 authorize a recovery plan to establish regulatory require9 ments or otherwise to have an effect other than as non-bind10 ing guidance.’’. 

11 (b) CONFORMING AMENDMENT.—Section 4(b)(6)(C) of 

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

13 1533(b)(6)(C)) is repealed. 

14 SEC. 3. BASIS FOR DETERMINATION. 

15 Section 4(b)(2) of the Endangered Species Act of 1973 

16 (16 U.S.C. 1533(b)(2)) is amended—

17 (1) by inserting ‘‘(A)’’ after ‘‘(2)’’; and 

18 (2) by adding at the end the following: 

19 ‘‘(B) In determining whether an area is critical habi20 tat, the Secretary shall seek and, if available, consider infor21 mation from State and local governments in the vicinity 

22 of the area, including local resource data and maps. 

23 ‘‘(C) Consideration of economic impact under this 

24 paragraph shall include—
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1 ‘‘(i) direct, indirect, and cumulative economic 

2 costs and benefits, including consideration of changes 

3 in revenues received by landowners, the Federal Gov4 ernment, and State and local governments; and 

5 ‘‘(ii) costs associated with the preparation of re6 ports, surveys, and analyses required to be under7 taken, as a consequence of a proposed designation of 

8 critical habitat, by landowners seeking to obtain per9 mits or approvals required under Federal, State, or 

10 local law. 

11 ‘‘(D) In designating critical habitat of a species, the 

12 Secretary shall first consider all areas that are known to 

13 be within the geographical area determined by field survey 

14 data to be occupied by the species.’’. 

15 SEC. 4. CONTENT OF NOTICES OF PROPOSED DESIGNATION 

16 OF CRITICAL HABITAT. 

17 Section 4(b)(5)(A) of the Endangered Species Act of 

18 1973 (16 U.S.C. 1533(b)(5)(A)) is amended—

19 (1) in clause (i) by striking ‘‘, and’’ and insert20 ing a semicolon; 

21 (2) in clause (ii)—

22 (A) by striking ‘‘and to each’’ and inserting 

23 ‘‘to each’’; and 
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1 (B) by inserting ‘‘, and to the county and 

2 any municipality having administrative juris3 diction over the area’’ after ‘‘to occur’’; and 

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

5 ‘‘(iii) with respect to a regulation to des6 ignate or revise a designation of critical habi7 tat—

8 ‘‘(I) publish maps and coordinates that 

9 describe, in detail, the specific areas that 

10 meet the definition under section 3 of, and 

11 are designated under section 4(a) as, crit12 ical habitat, and all field survey data upon 

13 which such designation is based; and 

14 ‘‘(II) maintain such maps, coordinates, 

15 and data on a publicly accessible Internet 

16 page of the Department; and 

17 ‘‘(iv) include in each of the notices required 

18 under this subparagraph a reference to the Inter19 net page referred to in clause (iii)(II);’’. 

20 SEC. 5. CLARIFICATION OF DEFINITION OF CRITICAL HABI21 TAT. 

22 Section 3(5) of the Endangered Species Act of 1973 

23 (16 U.S.C. 1532(5)) is amended—

24 (1) in subparagraph (A) by striking clauses (i) 

25 and (ii) and inserting the following: 
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1 ‘‘(i) the specific areas—

2 ‘‘(I) that are within the geographical area 

3 determined by field survey data to be occupied 

4 by the species at the time the areas are des5 ignated as critical habitat in accordance with 

6 section 4; and 

7 ‘‘(II) on which are found those physical and 

8 biological features that are necessary to avoid 

9 jeopardizing the continued existence of the spe10 cies and may require special management con11 siderations or protection; and 

12 ‘‘(ii) areas that are not within the geographical 

13 area referred to in clause (i)(I) and that the Sec14 retary determines are essential for the survival of the 

15 species at the time the areas are designated as critical 

16 habitat in accordance with section 4.’’; 

17 (2) by striking subparagraph (B) and redesig18 nating subparagraph (C) as subparagraph (B); and 

19 (3) by adding at the end the following: 

20 ‘‘(C) For purposes of subparagraph (A)(i) the term 

21 ‘geographical area determined by field survey data to be 

22 occupied by the species’ means the specific area that, at the 

23 time the area is designated as critical habitat in accordance 

24 with section 4, is being used by the species for breeding, 
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1 feeding, sheltering, or another essential behavioral pat2 tern.’’. 

Union Calendar No. 480

108TH CONGRESS 

2D SESSION H. R. 2933

[Report No. 108–786] 

A BILL

To amend the Endangered Species Act of 1973 to 

reform the process for designating critical habitat under that Act. 

NOVEMBER 19, 2004

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, 

and ordered to be printed