I 

109TH CONGRESS 

1ST SESSION H. R. 1299

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

designating critical habitat under that Act. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 15, 2005

Mr. CARDOZA (for himself, Mr. DOOLITTLE, Mr. JONES of North Carolina, 

Mr. BACA, Mr. HERGER, Mr. RADANOVICH, Mr. COSTA, Mr. OTTER, Mr. 

CALVERT, Mr. PETERSON of Pennsylvania, Mr. WALDEN of Oregon, Mr. 

SIMPSON, Mr. OSBORNE, Mr. REHBERG, Mr. NUNES, Ms. BORDALLO, 

and Mr. GARY G. MILLER of California) introduced the following bill; 

which was referred to the Committee on Resources 

A BILL

To amend the Endangered Species Act of 1973 to reform 

the process for designating critical habitat 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. 

4 This Act may be cited as the ‘‘Critical Habitat En5 hancement Act of 2005’’. 

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—
2

•HR 1299 IH 

1 (1) by redesignating subparagraph (B) of para2 graph (3) as paragraph (4); 

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

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

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

6 and 

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

8 and 

9 (3) by amending paragraph (3) to read as fol10 lows: 

11 ‘‘(3)(A)(i) The Secretary shall, by regulation promul12 gated in accordance with subsection (b) and to the max13 imum extent practicable, prudent, and determinable, issue 

14 a final regulation designating any habitat of the species 

15 determined to be an endangered species or threatened spe16 cies that is critical habitat of the species. 

17 ‘‘(ii) The Secretary shall make any designation re18 quired under clause (i) by not later than one year after 

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

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

21 the final regulation implementing a determination that the 

22 species is an endangered species or threatened species, 

23 whichever is earlier. 

24 ‘‘(B) The Secretary shall reconsider any determina25 tion that designation of critical habitat of a species is not 
3

•HR 1299 IH 

1 practicable, or determinable, during the next review under 

2 section 4(c)(2)(A) or at the time of a final approval of 

3 a recovery plan for the species under section 4(f). 

4 ‘‘(C) The Secretary may, from time-to-time as appro5 priate, revise any designation of critical habitat under this 

6 paragraph. 

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

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

9 not apply with respect to any action authorized by—

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

11 conservation plan or agreement under that section 

12 for such a permit) that applies to the area; 

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

14 or 

15 ‘‘(iii) a land conservation or species manage16 ment program of a State, a Federal agency, a feder17 ally recognized Indian tribe located within the con18 tiguous 48 States, or the Metlakatla Indian Commu19 nity that the Secretary determines provides protec20 tion for habitat of the species that is substantially 

21 equivalent to the protection that would be provided 

22 by such designation. 

23 ‘‘(E) Nothing in this paragraph shall be construed 

24 to authorize a recovery plan to establish regulatory re-
4

•HR 1299 IH 

1 quirements or otherwise to have an effect other than as 

2 non-binding guidance.’’. 

3 (b) CONFORMING AMENDMENT.—Section 4(b)(6)(C) 

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

5 1533(b)(6)(C)) is repealed. 

6 SEC. 3. BASIS FOR DETERMINATION. 

7 Section 4(b)(2) of the Endangered Species Act of 

8 1973 (16 U.S.C. 1533(b)(2)) is amended—

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

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

11 ‘‘(B) In determining whether an area is critical habi12 tat, the Secretary shall seek and, if available, consider in13 formation from State and local governments in the vicinity 

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

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

16 paragraph shall include—

17 ‘‘(i) direct, indirect, and cumulative economic 

18 costs and benefits, including consideration of 

19 changes in revenues received by landowners, the 

20 Federal Government, and State and local govern21 ments; and 

22 ‘‘(ii) costs associated with the preparation of re23 ports, surveys, and analyses required to be under24 taken, as a consequence of a proposed designation of 

25 critical habitat, by landowners seeking to obtain per-
5

•HR 1299 IH 

1 mits or approvals required under Federal, State, or 

2 local law. 

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

4 Secretary shall first consider all areas that are known to 

5 be within the geographical area determined by field survey 

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

7 SEC. 4. CONTENT OF NOTICES OF PROPOSED DESIGNATION 

8 OF CRITICAL HABITAT. 

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

10 1973 (16 U.S.C. 1533(b)(5)(A)) is amended—

11 (1) in clause (i) by striking ‘‘, and’’ and insert12 ing a semicolon; 

13 (2) in clause (ii)—

14 (A) by striking ‘‘and to each’’ and insert15 ing ‘‘to each’’; and 

16 (B) by inserting ‘‘, and to the county and 

17 any municipality having administrative jurisdic18 tion over the area’’ after ‘‘to occur’’; and 

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

20 ‘‘(iii) with respect to a regulation to des21 ignate or revise a designation of critical habi22 tat—

23 ‘‘(I) publish maps and coordinates 

24 that describe, in detail, the specific areas 

25 that meet the definition under section 3 of, 
6

•HR 1299 IH 

1 and are designated under section 4(a) as, 

2 critical habitat, and all field survey data 

3 upon which such designation is based; and 

4 ‘‘(II) maintain such maps, coordi5 nates, and data on a publicly accessible 

6 Internet page of the Department; and 

7 ‘‘(iv) include in each of the notices re8 quired under this subparagraph a reference to 

9 the Internet page referred to in clause 

10 (iii)(II);’’. 

11 SEC. 5. CLARIFICATION OF DEFINITION OF CRITICAL HABI12 TAT. 

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

14 (16 U.S.C. 1532(5)) is amended—

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

16 and (ii) and inserting the following: 

17 ‘‘(i) the specific areas—

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

19 determined by field survey data to be occupied 

20 by the species at the time the areas are des21 ignated as critical habitat in accordance with 

22 section 4; and 

23 ‘‘(II) on which are found those physical 

24 and biological features that are necessary to 

25 avoid jeopardizing the continued existence of 
7

•HR 1299 IH 

1 the species and may require special manage2 ment considerations or protection; and 

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

4 area referred to in clause (i)(I) and that the Sec5 retary determines are essential for the survival of 

6 the species at the time the areas are designated as 

7 critical habitat in accordance with section 4.’’; 

8 (2) by striking subparagraph (B) and redesig9 nating subparagraph (C) as subparagraph (B); and 

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

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

12 ‘geographical area determined by field survey data to be 

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

14 the time the area is designated as critical habitat in ac15 cordance with section 4, is being used by the species for 

16 breeding, feeding, sheltering, or another essential behav17 ioral pattern.’’.

Æ