I

104TH CONGRESS

1ST SESSION H. R. 1714

To amend the Endangered Species Act of 1973 to require that species

which are being considered for listing under that Act or are currently

listed under that Act are expeditiously reviewed for listing or continued

listing, respectively, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MAY 25, 1995

Mr. DOOLEY introduced the following bill; which was read twice and referred

to the Committee on Resources

A BILL

To amend the Endangered Species Act of 1973 to require

that species which are being considered for listing under

that Act or are currently listed under that Act are expeditiously reviewed for listing or continued listing, respectively, 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 Relisting Act of 1995’’.
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1 SEC. 2. REQUIREMENT TO REVIEW SPECIES.

2 (a) REQUIREMENT.—Section 4 of the Endangered

3 Species Act of 1973 (16 U.S.C. 1533) is amended by add4 ing at the end the following new subsection:

5 ‘‘(j) PETITION AND REVIEW REQUIRED FOR CER6 TAIN SPECIES TO BE LISTED.—

7 ‘‘(1) IN GENERAL.—After the end of the 12-

8 month period beginning on the date of enactment of

9 the Endangered Species Relisting Act of 1995, a

10 covered species shall not be considered to be an en11 dangered species or threatened species for purposes

12 of this Act and shall not be included or considered

13 to be included in any list published under subsection

14 (c) unless before the end of such 12-month period

15 either—

16 ‘‘(A) in the case of a species described in

17 paragraph (4)(A), a petition is filed under sec18 tion 553(e) of title 5, United States Code, to

19 relist that species on such list and the review of

20 such petition is completed by the Secretary ac21 cording to the criteria set forth in subsection

22 (k); or

23 ‘‘(B) in response to a petition or on the

24 Secretary’s own initiative, the Secretary deter25 mines in accordance with paragraph (2) that

26 the species is certain to become extinct, or will
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1 be placed on an irreversible course to extinction,

2 over the 24-month period beginning on the date

3 of the determination.

4 ‘‘(2) EMERGENCY LISTING REQUIREMENTS.—

5 ‘‘(A) A determination under paragraph

6 (1)(B) must be based on the best scientific and

7 commercial data available, and must be subject

8 to comment, after publication in the Federal

9 Register, for a period of 60 days, prior to tak10 ing effect.

11 ‘‘(B) The Secretary may utilize informa12 tion contained in a recovery plan developed

13 prior to the date of the enactment of the En14 dangered Species Relisting Act of 1995 with re15 spect to a species, in making a determination

16 under paragraph (1)(B).

17 ‘‘(C) A determination of the Secretary

18 under paragraph (1)(B)—

19 ‘‘(i) shall be published in the Federal

20 Register;

21 ‘‘(ii) shall contain a response to all

22 comments filed under subparagraph (B);

23 and

24 ‘‘(iii) shall be subject to judicial re25 view.
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1 ‘‘(D) After the end of the 24-month period

2 beginning on the date the Secretary publishes a

3 determination under paragraph (1)(B) for a

4 species, the species shall not be considered to be

5 an endangered species or threatened species for

6 purposes of this Act and shall not be included

7 or considered to be included in any list pub8 lished under subsection (c), unless before the

9 end of that period the Secretary determines in

10 accordance with subsections (a), (b), and (c) to

11 add the species to such a list.

12 ‘‘(3) ANNUAL REPORTS.—Not later than 1 year

13 after the date of the enactment of the Endangered

14 Species Relisting Act of 1995 and annually there15 after, the Secretary shall submit a report to the

16 Congress on the implementation of this subsection,

17 including on progress made in considering petitions

18 referred to in paragraph (1) (A) and (B).

19 ‘‘(4) COVERED SPECIES DEFINED.—In this sub20 section the term ‘covered species’ means a species—

21 ‘‘(A) which on the date of enactment of the

22 Endangered Species Relisting Act of 1995 is in23 cluded in a list published under subsection (c);

24 or
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1 ‘‘(B) for which a notice is published under

2 subsection (b)(5)(A)(i) before that date of en3 actment.’’.

4 (b) CONFORMING AMENDMENT.—Section 4(b)(3)(A)

5 of such Act (16 U.S.C. 1533(b)(3)(A)) is amended in the

6 first sentence by inserting ‘‘, to relist a species on,’’ after

7 ‘‘add a species to,’’.

8 SEC. 3. PEER REVIEW REQUIREMENT.

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

10 U.S.C. 1533) is further amended by adding at the end

11 the following new subsection:

12 ‘‘(k) PEER REVIEW REQUIREMENTS.—

13 ‘‘(1) REQUIREMENTS.—The Secretary—

14 ‘‘(A) may not take any action described in

15 paragraph (2) based on any data, result, or de16 termination unless the data, result, or deter17 mination has undergone peer review in accord18 ance with subparagraph (B); and

19 ‘‘(B) shall submit to peer review, by at

20 least 3 independent reviewers selected by the

21 Secretary from among individuals recommended

22 by the National Academy of Sciences—

23 ‘‘(i) all data, results, and determina24 tions that are the basis of an action de25 scribed in paragraph (2), and
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1 ‘‘(ii) all data that is timely submitted

2 to the Secretary by any person likely to be

3 affected by an action described in para4 graph (2), and that the Secretary deter5 mines to be of substantial scientific value.

6 ‘‘(2) ACTIONS DESCRIBED.—The actions re7 ferred to in paragraph (1) are the following:

8 ‘‘(A) The inclusion of a species in, reten9 tion of a species on, or removal of a species

10 from a list published under subsection (c).

11 ‘‘(B) The development, revision, approval,

12 or implementation of a recovery plan under sub13 section (f).

14 ‘‘(3) PUBLICATION.—The Secretary shall pub15 lish—

16 ‘‘(A) the results of any peer review con17 ducted under paragraph (1); and

18 ‘‘(B) in the case of peer review conducted

19 under paragraph (1) for an action described in

20 paragraph (2), all other materials that are rel21 evant to the decision to take the action.

22 ‘‘(4) OBTAINING RECOMMENDATIONS.—The

23 Secretary shall—

24 ‘‘(A) take appropriate action to obtain

25 from the National Academy of Sciences rec-
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1 ommendations of individuals to perform peer

2 review under paragraph (1)(B); and

3 ‘‘(B) in the case of economic analyses, con4 sult with appropriate scientific board to obtain

5 recommendations of individuals with economic

6 expertise to perform peer review under para7 graph (1)(B).’’.

8 SEC. 4. DEADLINE FOR DEVELOPMENT OF RECOVERY

9 PLANS.

10 Section 4(f) of the Endangered Species Act of 1973

11 (16 U.S.C. 1533(f)) is amended by adding at the end the

12 following new paragraph:

13 ‘‘(6) The Secretary shall—

14 ‘‘(A) begin developing a recovery plan re15 quired for a species under paragraph (1) and

16 publish notice of the intent of the Secretary to

17 develop such a plan, before the end of the 30-

18 day period beginning on the date the Secretary

19 publishes notice of the listing of the species

20 under subsection (c); and

21 ‘‘(B) issue such a plan in final form, or

22 submit to the appropriate committees of the

23 Congress the reasons why such a plan has not

24 been issued, before the end of the 12-month pe-
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1 riod beginning on the date of publication of

2 such notice.

3 ‘‘(7)(A) Any person affected by the listing of a species

4 under subsection (c) may submit a proposed recovery plan

5 for the species to the Secretary. The Secretary, in the no6 tice required under paragraph (6)(A), shall encourage sub7 mission of such proposed recovery plans.

8 ‘‘(B) For any species for which one or more proposed

9 recovery plans are submitted under subparagraph (A) that

10 would adequately promote the conservation and survival

11 of a species, the Secretary shall adopt as the final recovery

12 plan required for the species under this subsection the pro13 posed plan that, among all proposed plans submitted,

14 would—

15 ‘‘(i) impose the lowest costs on persons affected

16 by the plan;

17 ‘‘(ii) to the greatest extent possible, apply to

18 more than one species; and

19 ‘‘(iii) not result in a prohibition of use of the

20 land or water for other purposes.’’.

21 SEC. 5 INCIDENTAL TAKE IN COURSE OF NORMAL ACTIVI22 TIES.

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

24 U.S.C. 1533) is further amended by adding at the end

25 the following new subsection:
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1 ‘‘(l) INCIDENTAL TAKE.—

2 ‘‘(1) IN GENERAL.—Notwithstanding the provi3 sions of section 9(a), a taking that occurs in the

4 course of an activity described in paragraph (2) is

5 not prohibited by this Act if the taking is de minimis

6 in nature and merely incidental to the activity.

7 ‘‘(2) COVERED ACTIVITIES.—The activities re8 ferred to in paragraph (1) are the following:

9 ‘‘(A) Any action by a State or local govern10 ment agency to respond to, prevent, or mitigate

11 an emergency.

12 ‘‘(B) Operation, repair, or minor alteration

13 of an existing facility.

14 ‘‘(C) Construction of a minor structure ad15 jacent to an existing facility.

16 ‘‘(D) Clearing of land adjacent to an exist17 ing structure to comply with a fire code, or to

18 reasonably protect property.

19 ‘‘(E) Use of land for agricultural produc20 tion, or, if previously zoned for agricultural pro21 duction, for any use not more intensive than

22 agricultural activity.

23 ‘‘(F) Any action reasonably needed to pro24 tect a human from injury or death.
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1 ‘‘(G) Any other lawful activity that is ap2 proved by a State or local government.’’.

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