I

103D CONGRESS

1ST SESSION H. R. 1992

To amend the Endangered Species Act of 1973 to ensure that listing of

species is in the public interest, that species are listed only on basis

of actual threats, not speculative future threats to their existence, that

listing of species and designation of their critical habitat will be subject

to blind peer review, that persons conducting listing processes do not

benefit economically from a listing decision, that emergency listing without full public and scientific community participation will occur only

in emergency situations, that incidental take prosecutions will occur

only after a recovery plan has been prepared which provides guidance

as to what constitutes a take, and that the Act does not encourage

suits between private citizens, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MAY 5, 1993

Mr. SMITH of Oregon (for himself, Mrs. VUCANOVICH, Mr. YOUNG of Alaska,

Mr. SKEEN, Mr. DOOLITTLE, Mr. HERGER, Mr. ROBERTS, Mr. TAYLOR

of North Carolina, Mr. PACKARD, Mr. HANCOCK, Mr. BOEHNER, and Mr.

HANSEN) introduced the following bill; which was referred to the Committee on Merchant Marine and Fisheries

A BILL

To amend the Endangered Species Act of 1973 to ensure

that listing of species is in the public interest, that

species are listed only on basis of actual threats, not

speculative future threats to their existence, that listing

of species and designation of their critical habitat will

be subject to blind peer review, that persons conducting

listing processes do not benefit economically from a listing decision, that emergency listing without full public
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and scientific community participation will occur only

in emergency situations, that incidental take prosecutions

will occur only after a recovery plan has been prepared

which provides guidance as to what constitutes a take,

and that the Act does not encourage suits between private citizens, 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 Improvement Act of 1993’’.

6 SEC. 2. INSERTING A PUBLIC INTEREST DETERMINATION

7 IN LISTING DECISION.

8 (a) IN GENERAL.—Section 4(a)(1) of the Endan9 gered Species Act of 1973 (16 U.S.C. 1533(a)(1)) is

10 amended to read as follows:

11 ‘‘SEC. 4. (a) IN GENERAL.—(1) The Secretary shall

12 by regulation promulgated in accordance with subsection

13 (b) of this section determine that a species is an endan14 gered species or a threatened species if the Secretary de15 termines the following:

16 ‘‘(A) That the species warrants listing as an en17 dangered species or a threatened species because of

18 any of the following factors:

19 ‘‘(i) The past or present destruction, modi20 fication, or curtailment of its habitat or range.
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1 ‘‘(ii) Overutilization for commercial, rec2 reational, scientific, or educational purposes.

3 ‘‘(iii) Disease or predation.

4 ‘‘(iv) The inadequacy of existing regulatory

5 mechanisms.

6 ‘‘(v) Other natural or manmade factors af7 fecting its continued existence.

8 ‘‘(B) That the listing of the species is in the

9 public interest after considering the following fac10 tors:

11 ‘‘(i) The technical practicability of recover12 ing the species.

13 ‘‘(ii) The biological significance of the spe14 cies.

15 ‘‘(iii) The quality of available data on the

16 species.

17 ‘‘(iv) The direct and indirect costs to the

18 public and private sectors, including public serv19 ice and employment, which may be imposed by

20 the application of the protections of this Act to

21 such species.

22 ‘‘(v) The impacts on the use and value of

23 non-Federal property which may result from

24 application of the protections of this Act to

25 such species.
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1 ‘‘(vi) The impacts on the environment and

2 other species which may result from the appli3 cation of the protections of this Act to such

4 species.

5 ‘‘(vii) The scientific and other benefits

6 which may result from the application of the

7 protections of this Act to such species.

8 ‘‘(viii) Any other beneficial or adverse ef9 fects which may result from the application of

10 the protections of this Act to such species.’’.

11 (b) CONFORMING AMENDMENT.—Section 4(b)(1)(A)

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

13 1533(b)(1)(A)) is amended by striking ‘‘subsection

14 (a)(1)’’ and inserting in lieu thereof ‘‘subsection

15 (a)(1)(A)’’.

16 SEC. 3. REQUIRING BLIND PEER REVIEW.

17 Section 4(b) of the Endangered Species Act of 1973

18 (16 U.S.C. 1533(b)) is amended by adding at the end

19 thereof the following new paragraph:

20 ‘‘(9) Prior to making any determination pursuant to

21 subsection (a)(1), the Secretary shall submit for peer re22 view all information on and analyses of the species or habi23 tat upon which such determination will be made to a panel

24 of experts who are not employed by, under contract to,

25 or recipients of grants from the department of the Sec-
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1 retary. The panel shall be selected by the Inspector Gen2 eral of the department of the Secretary without the advice

3 or consent of the Secretary or any official of any agency

4 advising the Secretary on the determination. The Sec5 retary shall consider the report of the panel prior to mak6 ing a determination, shall make the report available to the

7 public, and shall provide a response to the report in the

8 preamble to the final rule setting forth the determina9 tion.’’.

10 SEC. 4. AVOIDING BIAS.

11 Section 4(b) of the Endangered Species Act of 1973

12 (16 U.S.C. 1533(b)), as amended by section 3 of this Act,

13 is further amended by adding at the end thereof the

14 following paragraph (11):

15 ‘‘(10) No person who advises the Secretary on, or

16 otherwise participates formally in procedures leading to,

17 a determination pursuant to subsection (a)(1), or the in18 stitution with which such person is employed, shall receive

19 any grant or other funding under or pursuant to this Act

20 or any other authority of the Secretary to study, conduct

21 research on, undertake conservation activities for, or oth22 erwise address the species which is the subject of such de23 termination.’’.
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1 SEC. 5. ESTIMATION OF NUMBER OF A SPECIES.

2 Section 4(b) of the Endangered Species Act of 1973

3 (16 U.S.C. 1533(b)), as amended by sections 3 and 4 of

4 this Act, is further amended by adding at the end the

5 following new paragraph:

6 ‘‘(11)(A) The Secretary shall determine and publish

7 in the Federal Register with each proposed rule under

8 subsection (a)(1) an estimate of the number of the species

9 that is the subject of the rule.

10 ‘‘(B) The estimate published under subparagraph (A)

11 for a species—

12 ‘‘(i) shall be periodically reviewed and revised

13 by the Secretary to reflect changes in the number of

14 the species; and

15 ‘‘(ii) shall be used by the Secretary to make de16 terminations under subsection (c)(2)(B).’’.

17 SEC. 6. APPLYING THE EMERGENCY LISTING PROCESS TO

18 EMERGENCY SITUATIONS.

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

20 1973 (16 U.S.C. 1533(b)(7)) is amended by striking ‘‘a

21 significant risk to the well-being’’ and inserting in lieu

22 thereof ‘‘an immediate threat of extinction’’.
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1 SEC. 7. LIMITING APPLICATION OF TAKE PROHIBITION

2 PRIOR TO COMPLETION OF A RECOVERY

3 PLAN.

4 Section 9(a) of the Endangered Species Act of 1973

5 (16 U.S.C. 1538(a)) is amended by inserting at the end

6 thereof a new paragraph (3) as follows:

7 ‘‘(3) For purposes of paragraph (1)(B) of this sub8 section and any regulation applying such paragraph to a

9 threatened species pursuant to section 4(d) of this Act,

10 the terms ‘‘harm’’ and ‘‘harass’’ in the definition of ‘‘take’’

11 in section 3(19) of this Act shall apply only to such species

12 which are subject to a recovery plan issued under section

13 4(f) of this Act.’’.

14 SEC. 8. ELIMINATING CITIZEN SUITS AGAINST PRIVATE

15 PARTIES.

16 Section 11(g) of the Endangered Species Act of 1973

17 (16 U.S.C. 1540(g)) is amended—

18 (1) in paragraph (1)(A) by striking ‘‘any per19 son, including the United States and any other gov20 ernmental instrumentality or agency (to the extent

21 permitted by the eleventh amendment to the Con22 stitution), who’’ and inserting in lieu thereof ‘‘the

23 United States, or any instrumentality or agency

24 thereof, which’’;
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1 (2) in the first sentence following subparagraph

2 (C) of paragraph (1) by striking ‘‘or the citizenship

3 of the parties’’; and

4 (3) in paragraph (3) by striking ‘‘(A)’’ and sub5 paragraph (B).

6 SEC. 9. COMPENSATION FOR DIMINUTION IN VALUE OF

7 PRIVATE PROPERTY RIGHTS.

8 (a) IN GENERAL.—The Endangered Species Act of

9 1973 (16 U.S.C. 1531 et seq.) is amended by adding at

10 the end thereof the following:

11 ‘‘SEC. 19. COMPENSATION FOR DIMINUTION IN VALUE OF

12 PRIVATE PROPERTY RIGHTS.

13 ‘‘(a) IN GENERAL.—The head of any Federal agency

14 who takes an action under this Act, or regulations issued

15 pursuant to this Act, shall compensate the owner of pri16 vate property for any diminution in value caused by the

17 action. Action may cause the diminution in value of pri18 vate property—

19 ‘‘(1) even though the action results in less than

20 a complete deprivation of all use or value or of all

21 separate distinct interests in the same private prop22 erty; and

23 ‘‘(2) even if the action is temporary in nature.

24 ‘‘(b) DUTY OF FEDERAL AGENCY HEADS.—The head

25 of each Federal agency shall, at the time of issuing regula-
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1 tions or undertaking any activity under this Act, deter2 mine whether such regulations or activity results in the

3 diminution in value of private property such that such

4 diminution is compensable under this section.

5 ‘‘(c) COMPENSATION.—(1) Within 60 days after the

6 date of issuance of any such regulation or the taking of

7 any such action which results in a diminution in value of

8 private property which is compensable under this section,

9 the head of the Federal agency concerned shall make an

10 offer of compensation to the owner of the private property

11 affected. Any offer made under this paragraph shall be

12 effective for one year.

13 ‘‘(2) Such owner may reject the offer and, within one

14 year after such rejection, file a claim for compensation in

15 the United States Claims Court for a determination of the

16 value of the property affected. In addition to awarding fair

17 market value for the property affected, the court may

18 award reasonable attorney’s fees and expenses of litiga19 tion.

20 ‘‘(3) In any case in which the property affected in21 volves lands, such owner, in lieu of a claim under para22 graph (2), may exchange in accordance with applicable

23 Federal law lands affected by such law, regulation, or

24 activity.
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1 ‘‘(4) Such owner may also accept such compensation

2 as may be available under other laws for tax benefits, min3 eral rights credits, and comparable offers for value by the

4 United States.

5 ‘‘(5) Any cash settlement or judgment from the Unit6 ed States Claims Court pursuant to paragraph (2) shall

7 be paid as a matter of right from the land and water con8 servation fund established by section 2 of the Land and

9 Water Conservation Fund Act of 1965 (16 U.S.C.

10 460l–5).’’.

11 (b) EFFECTIVE DATE.—The amendment made by

12 subsection (a) shall apply to any activity of the United

13 States Government after the date of enactment of this Act.

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