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106TH CONGRESS

1ST SESSION H. R. 2017

To amend the Endangered Species Act of 1973 to enable Federal agencies

responsible for the preservation of threatened species and endangered

species to rescue and relocate members of any of those species that

would be taken in the course of certain reconstruction, maintenance,

or repair of Federal or non-Federal manmade flood control levees.

IN THE HOUSE OF REPRESENTATIVES

JUNE 7, 1999

Mr. HERGER (for himself and Mr. POMBO) introduced the following bill; which

was referred to the Committee on Resources

A BILL

To amend the Endangered Species Act of 1973 to enable

Federal agencies responsible for the preservation of

threatened species and endangered species to rescue and

relocate members of any of those species that would

be taken in the course of certain reconstruction, maintenance, or repair of Federal or non-Federal manmade

flood control levees.

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 ‘‘Species Rescue Act’’.
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1 SEC. 2. RELOCATION OF MEMBERS OF ENDANGERED SPE2 CIES AND THREATENED SPECIES THAT

3 WOULD BE TAKEN IN THE COURSE OF RE4 CONSTRUCTION, MAINTENANCE, OR REPAIR

5 OF MANMADE FLOOD CONTROL LEVEES.

6 (a) EXPEDITED CONSULTATION AND CONFER7 ENCING; RELOCATION REQUIREMENT.—Section 7 of the

8 Endangered Species Act of 1973 (16 U.S.C. 1536) is

9 amended—

10 (1) in subsection (a)(2), by inserting ‘‘, except

11 in the case of an agency action flood control action

12 (as defined in subsection (b)(5)(B)) for which con13 sultation and conferencing is completed in accord14 ance with subsection (b),’’ after ‘‘threatened species

15 or’’;

16 (2) in subsection (b)(4) by striking the matter

17 preceding subparagraph (A) and inserting the fol18 lowing:

19 ‘‘(4) If after consultation under subsection (a)(2) of

20 this section regarding an agency action, other than an

21 agency flood control action (as defined in paragraph

22 (5)(B)), the Secretary concludes that—’’; and

23 (3) by adding at the end of subsection (b) the

24 following:

25 ‘‘(5)(A) Notwithstanding paragraph (1)(A), consulta26 tion under subsection (a)(2) and conferencing under sub-
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1 section (a)(4) regarding an agency flood control action

2 shall be concluded within the 60-day period beginning on

3 the date on which initiated.

4 ‘‘(B) For purposes of this paragraph, the term ‘agen5 cy flood control action’ means an agency action consisting

6 of the authorization, funding, or carrying out by an agency

7 of reconstruction, maintenance, or repair of a Federal or

8 non-Federal manmade flood control levee—

9 ‘‘(i) based on a determination that—

10 ‘‘(I) there exists or is likely to exist in the

11 future high water;

12 ‘‘(II) the levee is likely to fail in the period

13 of such high water unless the levee is recon14 structed, maintained, or repaired; and

15 ‘‘(III) such a levee failure would pose se16 vere public health and safety risks, place per17 sons residing in areas protected by the levee at

18 risk, or cause extensive flooding and significant

19 economic damages, including loss of life, prop20 erty, or habitat; or

21 ‘‘(ii) to address an imminent threat from a cat22 astrophic natural event.

23 ‘‘(C) Promptly after conclusion of consultation and

24 conferencing regarding an agency flood control action, the

25 Secretary shall provide the Federal agency and the appli-
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1 cant concerned, if any, a written statement that specifies

2 the impact of the action on endangered species and threat3 ened species.

4 ‘‘(D) Not later than 60 days after the conclusion of

5 consultation and conferencing regarding an agency flood

6 control action, the Secretary, acting through the United

7 States Fish and Wildlife Service, any other Federal land

8 management agency, the National Marine Fisheries Serv9 ice, or a State conservation agency, shall relocate from the

10 flood control levee with respect to which the action will

11 be carried out the members of any threatened species or

12 endangered species of plant or animal that the Secretary

13 determines would be taken in the course of the action.

14 ‘‘(E) Except as provided in subparagraph (D), the

15 Secretary may not require a non-Federal person to carry

16 out under this section any measures to minimize or miti17 gate the impacts of an agency flood control action for

18 which consultation and conferencing is carried out under

19 subsections (a)(2) and (a)(4), respectively.’’.

20 (b) LIMITATION ON PROHIBITION OF TAKINGS.—

21 Section 9(a) of such Act (16 U.S.C. 1538(a)) is amended

22 by adding at the end the following new paragraph:

23 ‘‘(3) This subsection shall not be construed as prohib24 iting any activity that is authorized, funded, or carried out

25 as part of an agency flood control action (as defined in
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1 section 7(b)(5)(B)) after the 60-day period beginning on

2 the date of the completion of consultation and confer3 encing under section 7(a)(2) and (4), respectively, regard4 ing the action.’’.

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