I

106TH CONGRESS

1ST SESSION H. R. 496

To amend the Endangered Species Act of 1973 to reform provisions relating

to liability for civil and criminal penalties under that Act.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 2, 1999

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

Committee on Resources

A BILL

To amend the Endangered Species Act of 1973 to reform

provisions relating to liability for civil and criminal penalties under that Act.

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; REFERENCES.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Endangered Species Criminal and Civil Penalties Liabil6 ity Reform Act’’.

7 (b) REFERENCES TO ENDANGERED SPECIES ACT OF

8 1973.—Except as otherwise expressly provided, whenever

9 in this Act an amendment or repeal is expressed in terms

10 of an amendment to, or repeal of, a section or other provi-
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1 sion, the reference shall be considered to be made to that

2 section or provision of the Endangered Species Act of

3 1973 (16 U.S.C. 1531 et seq.).

4 SEC. 2. SPECIFIC INTENT REQUIRED FOR PENALTIES RE5 GARDING TAKINGS OF SPECIES.

6 Section 9 (16 U.S.C. 1538) is amended by adding

7 at the end the following:

8 ‘‘(h) SPECIFIC INTENT REQUIRED FOR TAKING.—

9 For purposes of this section, the term ‘take’ means to—

10 ‘‘(1) knowingly and intentionally perform any

11 act with the knowledge that the act would constitute

12 harassing, harming, pursuing, hunting, shooting,

13 wounding, killing, trapping, capturing, or collecting

14 an individual member of a species that was present

15 at the time and location of the act; or

16 ‘‘(2) attempt to engage in conduct described in

17 paragraph (1).’’.

18 SEC. 3. REQUIREMENT TO PROVIDE NOTICE AND OPPOR19 TUNITY TO CORRECT VIOLATION.

20 Section 10 (16 U.S.C. 1540) is amended by adding

21 at the end the following:

22 ‘‘(k) NOTICE AND OPPORTUNITY TO CORRECT VIO23 LATION.—

24 ‘‘(1) IN GENERAL.—A person shall not be liable

25 for any criminal or civil penalty for a violation of
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1 this Act committed while conducting an otherwise

2 lawful activity and not for the purpose of a taking

3 prohibited by this Act, unless—

4 ‘‘(A) the Secretary provides the person no5 tice of the violation; and

6 ‘‘(B) the person fails to terminate and oth7 erwise correct the activity constituting the viola8 tion by not later than 30 days after the date of

9 the notice.

10 ‘‘(2) CORRECTIVE ACTION.—A person may cor11 rect an activity for purposes of paragraph (1)(B) by

12 mitigation, entering into a binding commitment to

13 carry out mitigation, or other method that is deter14 mined by the Secretary to be reasonably calculated

15 to restore the species to its status immediately prior

16 to the activity.’’.

17 SEC. 4. NO SURPRISES.

18 Section 10(a) (16 U.S.C. 1539(a)) is amended by

19 adding at the end the following:

20 ‘‘(3)(A) Each conservation plan developed under this

21 subsection shall include provisions under which a person

22 who has entered into, and is in compliance with, the con23 servation plan may not, without their consent, be required

24 to undertake any additional mitigation measures for spe25 cies covered by the plan if the measures would require pay-
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1 ment of money, or compliance with use, development, or

2 management restrictions on any land, waters, or water3 related rights, in addition to payments or compliance, re4 spectively, otherwise required under the terms of the plan.

5 ‘‘(B) The provisions required by subparagraph (A)

6 shall, among other matters, identify—

7 ‘‘(i) modifications to the plan; or

8 ‘‘(ii) additional conservation measures;

9 if any, that the Secretary may require under extraordinary

10 circumstances.’’.

11 SEC. 5. KNOWLEDGE OF ENDANGERED OR THREATENED

12 STATUS REQUIRED FOR ENFORCEMENT AC13 TIONS.

14 Section 11 (16 U.S.C. 1540) is further amended by

15 adding at the end the following:

16 ‘‘(h) KNOWLEDGE OF ENDANGERED OR THREAT17 ENED STATUS REQUIRED.—In any enforcement action or

18 citizen suit under this Act in which it is alleged that the

19 defendant acted or failed to act with respect to a member

20 of a species listed under section 4(c), it is an affirmative

21 defense to the allegation that the defendant could not rea22 sonably have known that the fish or wildlife or plant con23 cerned is a member of an endangered species or threat24 ened species.’’.
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1 SEC. 6. SAFE HARBOR AGREEMENTS.

2 Section 10 (16 U.S.C. 1539) is further amended by

3 adding at the end thereof the following new subsection:

4 ‘‘(m) SAFE HARBOR AGREEMENTS.—

5 ‘‘(1) AGREEMENTS.—

6 ‘‘(A) IN GENERAL.—The Secretary may

7 enter into agreements with non-Federal persons

8 to benefit the conservation of endangered spe9 cies or threatened species by creating, restoring,

10 or improving habitat or by maintaining cur11 rently unoccupied habitat for endangered spe12 cies or threatened species. Under an agreement,

13 the Secretary shall permit the person to take

14 endangered species or threatened species in15 cluded under the agreement on lands or waters

16 that are subject to the agreement if the taking

17 is incidental to, and not the purpose of, carry18 ing out of an otherwise lawful activity, provided

19 that the Secretary may not permit through such

20 agreements any incidental take below the base21 line requirement specified pursuant to subpara22 graph (B).

23 ‘‘(B) BASELINE.—For each agreement

24 under this subsection, the Secretary shall estab25 lish a baseline requirement that is mutually

26 agreed upon by the applicant and the Secretary
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1 at the time of the agreement that will, at a

2 minimum, maintain existing conditions for the

3 species covered by the agreement on lands and

4 waters that are subject to the agreement. The

5 baseline may be expressed in terms of the abun6 dance or distribution of endangered or threat7 ened species, quantity or quality of habitat, or

8 such other indicators as appropriate.

9 ‘‘(2) STANDARDS AND GUIDELINES.—The Sec10 retary shall issue standards and guidelines for the

11 development and approval of safe harbor agreements

12 in accordance with this subsection.

13 ‘‘(3) FINANCIAL ASSISTANCE.—

14 ‘‘(A) IN GENERAL.—In cooperation with

15 the States and subject to the availability of ap16 propriations under section 15(d), the Secretary

17 may provide a grant of up to $10,000 to any

18 individual private landowner to assist the land19 owner in carrying out a safe harbor agreement

20 under this subsection.

21 ‘‘(B) PROHIBITION ON ASSISTANCE FOR

22 REQUIRED ACTIVITIES.—The Secretary may not

23 provide assistance under this paragraph for any

24 action that is required by a permit issued under
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1 this Act or that is otherwise required under this

2 Act or other Federal law.

3 ‘‘(C) OTHER PAYMENTS.—Grants provided

4 to an individual private landowner under this

5 paragraph shall be in addition to, and not af6 fect, the total amount of payments that the

7 landowner is otherwise eligible to receive under

8 the Conservation Reserve Program (16 U.S.C.

9 3831 et seq.), the Wetlands Reserve Program

10 (16 U.S.C. 3837 et seq.), or the Wildlife Habi11 tat Incentives Program (16 U.S.C. 3836a).’’.

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