```

[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1837 Introduced in House (IH)]

109th CONGRESS
  1st Session
                                H. R. 1837

To amend the Endangered Species Act of 1973 to establish limitations on 
      the designation of critical habitat, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             April 26, 2005

 Mr. Flake (for himself, Mr. Hayworth, Mr. Renzi, Mr. Shadegg, and Mr. 
Franks of Arizona) introduced the following bill; which was referred to 
                       the Committee on Resources

_______________________________________________________________________

                                 A BILL

 
To amend the Endangered Species Act of 1973 to establish limitations on 
      the designation of critical habitat, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. LIMITATION ON DESIGNATION OF CRITICAL HABITAT.

    Section 4(b)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1533(b)(2)) is amended by adding at the end the following: ``The 
Secretary shall not designate as critical habitat any habitat located 
within the high water mark of a water storage reservoir, water 
diversion structure, canal, or other artificial water delivery 
facility, if such habitat is periodically created and destroyed as a 
result of fluctuations in water levels caused by operation of the water 
storage reservoir, water diversion structure, canal, or other 
artificial water delivery facility.''.

SEC. 2. CONSIDERATIONS IN DETERMINING LIKELIHOOD OF DESTRUCTION OR 
              ADVERSE MODIFICATION OF THE CRITICAL HABITAT.

    Section 7(b)(3) of the Endangered Species Act of 1973 (16 U.S.C. 
1536(b)(3)) is amended by adding at the end the following:
    ``(C) In determining whether a Federal agency action is likely to 
result in the destruction or adverse modification of the critical 
habitat of a species, the Secretary shall consider the offsetting 
effects of habitat conservation measures proposed to be implemented as 
part of the action, including the protection and management of 
alternative habitat, whether or not designated as critical habitat, 
that has or is likely to develop the primary constituent elements of 
critical habitat.''.

SEC. 3. AMENDMENTS RELATING TO INCIDENTAL TAKE PERMITS.

    Section 10(a) of the Endangered Species Act of 1973 (16 U.S.C. 
1539(a)) is amended by adding at the end of paragraph (2) the 
following:
                    ``(D) The requirements of paragraph (2)(B)(ii) 
                shall be deemed satisfied if the Secretary finds that 
                the minimization and mitigation measures proposed to be 
                implemented are rationally related to the level of take 
                under the plan.''.

SEC. 4. EXEMPTION FROM LIABILITY FOR TAKE OF LISTED AQUATIC SPECIES.

    Section 10 of the Endangered Species Act of 1973 (16 U.S.C. 1539) 
is amended by adding at the end the following:
    ``(k) Exemption From Liability for Take of Listed Aquatic 
Species.--The operator of a water storage reservoir, water diversion 
structure, canal, or other artificial water delivery facility shall not 
be in violation of section 9(a) by reason of any take of any aquatic 
species listed under section 4(c) that results from predation, 
competition, or other adverse effects attributable to non-native 
aquatic species introduced by another person into the river basin in 
which the water storage reservoir, water diversion structure, canal, or 
other artificial water delivery facility is located.''.
                                 <all>
```