I

106TH CONGRESS

2D SESSION H. R. 5594

To amend the Endangered Species Act of 1973 to exempt the Woodrow

Wilson Bridge project from certain provisions of that Act and allow

the bridge and activities elsewhere to proceed in compliance with that

Act, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 27, 2000

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

Committee on Resources

A BILL

To amend the Endangered Species Act of 1973 to exempt

the Woodrow Wilson Bridge project from certain provisions of that Act and allow the bridge and activities

elsewhere to proceed in compliance with that Act, 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 ‘‘Endangered Species

5 Act Amendments of 2000’’.
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1 SEC. 2. CLARIFICATION OF TAKE DEFINITION.

2 Section 3(19) of the Endangered Species Act of 1973

3 (16 U.S.C. 1532(19)) is amended to read as follows:

4 ‘‘(19)(A) The term ‘take’ means to harm, pur5 sue, hunt, shoot, wound, kill, trap, capture, or col6 lect, or to attempt to engage in that conduct.

7 ‘‘(B) In subparagraph (A), the term ‘harm’

8 means an action that proximately and foreseeably

9 kills or physically injures an identifiable member of

10 an endangered species.’’.

11 SEC. 3. ENSURING PUBLIC SAFETY, EXEMPTING THE WOOD12 ROW WILSON BRIDGE, AND TARGETING REG13 ULATORY AUTHORITY.

14 Section 7(a) of the Endangered Species Act of 1973

15 (16 U.S.C. 1536(a)) is amended by adding at the end the

16 following:

17 ‘‘(5) ACTIONS EXEMPT FROM CONSULTATION

18 AND CONFERENCING.—Consultation and confer19 encing under paragraphs (2) and (4) is not required

20 for any agency action that—

21 ‘‘(A) is consistent with an incidental taking

22 permit issued under section 10(a)(1)(B);

23 ‘‘(B) addresses a critical, imminent threat

24 to public health or safety or a catastrophic nat25 ural event or compliance with Federal, State, or

26 local safety or public health requirements;
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1 ‘‘(C) consists of routine operation, mainte2 nance, rehabilitation, repair, or replacement to

3 a Federal or non-Federal project or facility,

4 including—

5 ‘‘(i) the Woodrow Wilson Bridge

6 project in Maryland and Virginia; and

7 ‘‘(ii) operation of a project or facility

8 in accordance with a previously issued

9 Federal license, permit, or other authoriza10 tion; or

11 ‘‘(D) permits activities that occur on pri12 vate land.

13 ‘‘(6) ACTIONS NOT PROHIBITED.—An agency

14 action shall not constitute a taking of a species pro15 hibited by this Act or any regulation issued under

16 this Act if the action is consistent with—

17 ‘‘(A) an incidental taking permit issued

18 under section 10(b)(1)(A); or

19 ‘‘(B) the terms and conditions specified in

20 a written statement provided under subsection

21 (b)(3) of this section.’’.

22 SEC. 4. STANDARDS FOR RENDERING TAXONOMIC DETER23 MINATIONS OF SPECIES AND SUBSPECIES.

24 Section 4(b)(1) (15 U.S.C. 1533(b)(1)) is amended

25 by adding at the end the following:
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1 ‘‘(C) Within 18 months after the date of the enact2 ment of the Endangered Species Act Amendments of

3 2000, the Secretary shall promulgate scientifically valid

4 standards for rendering taxonomic determinations of spe5 cies and subspecies. The standards shall provide that to

6 be eligible for determination as a subspecies under this

7 Act, a subspecies must be reproductively isolated from

8 other subspecific population units and must constitute a

9 distinct component in the genetic makeup of the species.’’.

10 SEC. 5. COMPENSATION FOR FEDERAL TAKINGS OF PRI11 VATE PROPERTY.

12 (a) IN GENERAL.—Section 13 of the Endangered

13 Species Act of 1973 (87 Stat. 902) is amended to read

14 as follows:

15 ‘‘RIGHT TO COMPENSATION

16 ‘‘SEC. 13. (a) PROHIBITION.—No agency may take

17 an action under this Act affecting privately owned prop18 erty that results in the diminishment of the value of any

19 portion of that property by an amount equal to or greater

20 than 25 percent of the value of that portion unless com21 pensation is offered in accordance with this section.

22 ‘‘(b) COMPENSATION FOR DIMINISHMENT.—Any

23 agency that takes an action referred to in subsection (a)—

24 ‘‘(1) shall compensate the property owner for

25 the diminution in value of any portion of that prop26 erty resulting from the action; or
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1 ‘‘(2) at the option of the owner, shall buy that

2 portion of the property by paying the fair market

3 value of the portion, determined based on the value

4 of the property before the diminution and without

5 regard to the presence on the property of a species

6 listed under section 4(c), or the use of the property

7 by such a species.

8 ‘‘(c) REQUEST OF OWNER.—A property owner seek9 ing compensation under this section shall make a written

10 request for compensation to the agency whose action

11 would limit the otherwise lawful use of property. The re12 quest shall, at a minimum, identify the affected portion

13 of the property, the nature of the diminution, and the

14 amount of compensation claimed.

15 ‘‘(d) CHOICE OF REMEDIES.—If the parties have not

16 reached an agreement on compensation within 180 days

17 after the written request is made, the owner may elect

18 binding arbitration through alternative dispute resolution

19 or seek compensation due under this section in a civil ac20 tion. The parties may by mutual agreement extend the pe21 riod of negotiation on compensation beyond the 180-day

22 period without loss of remedy to the owner under this sec23 tion. In the event the extension period lapses the owner

24 may elect binding arbitration through alternative dispute
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1 resolution or seek compensation due under this section in

2 a civil action.

3 ‘‘(e) ALTERNATIVE DISPUTE RESOLUTION.—

4 ‘‘(1) IN GENERAL.—In the administration of

5 this section—

6 ‘‘(A) arbitration procedures shall be in ac7 cordance with the alternative dispute resolution

8 procedures established by the American Arbi9 tration Association; and

10 ‘‘(B) in no event shall arbitration be a con11 dition precedent or an administrative procedure

12 to be exhausted before the filing of a civil action

13 under this section.

14 ‘‘(2) REVIEW OF ARBITRATION.—

15 ‘‘(A) APPEAL OF DECISION.—Appeal from

16 arbitration decisions shall be to the United

17 States District Court for the district in which

18 the property is located or the United States

19 Court of Federal Claims in the manner pre20 scribed by law for the claim under this section.

21 ‘‘(B) RULES OF ENFORCEMENT OF

22 AWARD.—The provisions of title 9, United

23 States Code (relating to arbitration), shall

24 apply to enforcement of awards rendered under

25 this section.
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1 ‘‘(f) CIVIL ACTION.—An owner who prevails in a civil

2 action against any agency pursuant to this section shall

3 be entitled to, and such agency shall be liable for, just

4 compensation, plus reasonable attorney’s fees and other

5 litigation costs, including appraisal fees.

6 ‘‘(g) SOURCE OF PAYMENTS.—Any payment made

7 under this section shall be paid from the responsible agen8 cy’s annual appropriation supporting the agency’s activi9 ties giving rise to the claim for compensation. If insuffi10 cient funds are available to the agency in the fiscal year

11 in which the award becomes final the agency shall pay the

12 award from appropriations available in the next fiscal

13 year.

14 ‘‘(h) DEFINITIONS.—For the purposes of this

15 section—

16 ‘‘(1) the term ‘agency’ has the meaning given

17 that term in section 551 of title 5, United States

18 Code;

19 ‘‘(2) the term ‘agency action’ means any action

20 or decision taken by any agency that at the time of

21 such action or decision adversely affects private

22 property rights;

23 ‘‘(3) the term ‘fair market value’ means the

24 likely price at which property would change hands,

25 in a competitive and open market under all condi-
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1 tions requisite to fair sale, between a willing buyer

2 and willing seller, neither being under any compul3 sion to buy or sell and both having reasonable

4 knowledge of relevant facts, prior to occurrence of

5 the agency action;

6 ‘‘(4) the term ‘just compensation’—

7 ‘‘(A) means compensation equal to the full

8 extent of a property owner’s loss, including the

9 fair market value of the private property taken,

10 whether the taking is by physical occupation or

11 through regulation, exaction, or other means;

12 and

13 ‘‘(B) shall include compounded interest

14 calculated from the date of the taking until the

15 date the United States tenders payment;

16 ‘‘(5) the term ‘owner’ means the owner or pos17 sessor of property or rights in property at the time

18 the taking occurs, including when—

19 ‘‘(A) the statute, regulation, rule, order,

20 guideline, policy, or action is passed or promul21 gated; or

22 ‘‘(B) the permit, license, authorization, or

23 governmental permission is denied or sus24 pended;
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1 ‘‘(6) the term ‘property’ means land, an interest

2 in land, proprietary water rights, and any personal

3 property that is subject to use by the Federal Gov4 ernment or to a restriction on use;

5 ‘‘(7) the term ‘private property’ or ‘property’

6 means all interests constituting real property, as de7 fined by Federal or State law, protected under the

8 fifth amendment to the United States Constitution,

9 any applicable Federal or State law, or this section,

10 and more specifically constituting—

11 ‘‘(A) real property, whether vested or

12 unvested, including—

13 ‘‘(i) estates in fee, life estates, estates

14 for years, or otherwise;

15 ‘‘(ii) inchoate interests in real prop16 erty such as remainders and future inter17 ests;

18 ‘‘(iii) personalty that is affixed to or

19 appurtenant to real property;

20 ‘‘(iv) easements;

21 ‘‘(v) leaseholds;

22 ‘‘(vi) recorded liens; and

23 ‘‘(vii) contracts or other security in24 terests in, or related to, real property;
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1 ‘‘(B) the right to use water or the right to

2 receive water, including any recorded liens on

3 such water right; or

4 ‘‘(C) rents, issues, and profits of land, in5 cluding minerals, timber, fodder, crops, oil and

6 gas, coal, or geothermal energy.’’.

7 (b) CONFORMING AMENDMENT.—The table of con8 tents at the end of the first section is amended by striking

9 the item relating to section 13 and inserting the following:

‘‘Sec. 13. Right to compensation.’’.

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