I 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. LIMITATION ON DESIGNATION OF CRITICAL 

4 HABITAT. 

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

6 1973 (16 U.S.C. 1533(b)(2)) is amended by adding at the 

7 end the following: ‘‘The Secretary shall not designate as 

8 critical habitat any habitat located within the high water 

9 mark of a water storage reservoir, water diversion struc-
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1 ture, canal, or other artificial water delivery facility, if 

2 such habitat is periodically created and destroyed as a re3 sult of fluctuations in water levels caused by operation of 

4 the water storage reservoir, water diversion structure, 

5 canal, or other artificial water delivery facility.’’. 

6 SEC. 2. CONSIDERATIONS IN DETERMINING LIKELIHOOD 

7 OF DESTRUCTION OR ADVERSE MODIFICA8 TION OF THE CRITICAL HABITAT. 

9 Section 7(b)(3) of the Endangered Species Act of 

10 1973 (16 U.S.C. 1536(b)(3)) is amended by adding at the 

11 end the following: 

12 ‘‘(C) In determining whether a Federal agency action 

13 is likely to result in the destruction or adverse modifica14 tion of the critical habitat of a species, the Secretary shall 

15 consider the offsetting effects of habitat conservation 

16 measures proposed to be implemented as part of the ac17 tion, including the protection and management of alter18 native habitat, whether or not designated as critical habi19 tat, that has or is likely to develop the primary constituent 

20 elements of critical habitat.’’. 

21 SEC. 3. AMENDMENTS RELATING TO INCIDENTAL TAKE 

22 PERMITS. 

23 Section 10(a) of the Endangered Species Act of 1973 

24 (16 U.S.C. 1539(a)) is amended by adding at the end of 

25 paragraph (2) the following: 
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1 ‘‘(D) The requirements of paragraph 

2 (2)(B)(ii) shall be deemed satisfied if the Sec3 retary finds that the minimization and mitiga4 tion measures proposed to be implemented are 

5 rationally related to the level of take under the 

6 plan.’’. 

7 SEC. 4. EXEMPTION FROM LIABILITY FOR TAKE OF LISTED 

8 AQUATIC SPECIES. 

9 Section 10 of the Endangered Species Act of 1973 

10 (16 U.S.C. 1539) is amended by adding at the end the 

11 following: 

12 ‘‘(k) EXEMPTION FROM LIABILITY FOR TAKE OF

13 LISTED AQUATIC SPECIES.—The operator of a water stor14 age reservoir, water diversion structure, canal, or other ar15 tificial water delivery facility shall not be in violation of 

16 section 9(a) by reason of any take of any aquatic species 

17 listed under section 4(c) that results from predation, com18 petition, or other adverse effects attributable to non-native 

19 aquatic species introduced by another person into the river 

20 basin in which the water storage reservoir, water diversion 

21 structure, canal, or other artificial water delivery facility 

22 is located.’’. 

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