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expensive litigation to protect certain basic civil
rights guaranteed by the Constitution.
(5) Since many private property owners do not
have the financial resources or the extensive commit-
ment of time to proceed in litigation against the
Federal Government, a clear Federal policy is need-
ed to guide and direct Federal agencies with respect
to their implementation of environmental laws that
directly impact private property.
(6) While all private property owners should
and must abide by current nuisance laws and should
not use their property in a manner that harms their
neighbors, these laws have traditionally been en-
acted, implemented, and enforced at the State and
local levels where they are best able to protect the
rights of all private property owners and local
citizens.
(7) While traditional pollution control laws are
intended to protect the general public’s health and
physical welfare, current habitat protection pro-
grams are intended to protect the welfare of plant
and animal species, while allowing the recreational
and esthetic opportunities for the public.
(b) PURPOSES.—It is the purpose of this Act to pro-
vide a consistent Federal policy to encourage, support, and
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promote the private ownership of property and to ensure
that the constitutional and legal rights of private property
owners are protected by the Federal Government, its em-
ployees, agents, and representatives.
SEC. 3. PROTECTION OF PRIVATE PROPERTY RIGHTS.
(a) In implementing and enforcing the Acts, each
agency head shall comply with applicable State and tribal
government laws, including laws relating to private prop-
erty rights and privacy; and shall administer and imple-
ment the Acts in a manner that has the least impact on
private property owners’ constitutional and other legal
rights.
(b) Each agency head shall develop and implement
rules and regulations for ensuring that the constitutional
and other legal rights of private property owners are pro-
tected when the agency head makes, or participates with
other agencies in the making of, any final decision that
restricts the use of private property.
SEC. 4. PROPERTY OWNER CONSENT FOR ENTRY.
(a) An agency head may not enter privately-owned
property to collect information regarding the property, un-
less the private property owner has—
(1) consented in writing to that entry;
(2) after providing that consent, been provided
notice of that entry; and
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(3) been notified that any raw data collected
from the property must be made available at no
cost, if requested by the private property owner.
(b) Subsection (a) does not prohibit entry onto prop-
erty for the purpose of obtaining consent or providing no-
tice required under subsection (a).
SEC. 5. RIGHT TO REVIEW AND DISPUTE DATA COLLECTED
FROM PRIVATE PROPERTY.
An agency head may not use data that is collected
on privately-owned property to implement or enforce any
of the Acts, unless—
(1) the agency head has provided to the private
property owner—
(A) access to the information;
(B) a detailed description of the manner in
which the information was collected; and
(C) an opportunity to dispute the accuracy
of the information; and
(2) the agency head has determined that the in-
formation is accurate, if the private property owner
disputes the information pursuant to subparagraph
(C).
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SEC. 6. RIGHT TO AN ADMINISTRATIVE APPEAL OF WET-
LANDS DECISIONS.
Section 404 of the Federal Water Pollution Control
Act (33 U.S.C. 1344) is amended by adding at the end
the following new subsection:
‘‘(u) ADMINISTRATIVE APPEALS.—
‘‘(1) The Secretary or Administrator shall, after
notice and opportunity for public comment, issue
rules to establish procedures to allow private prop-
erty owners or their authorized representatives an
opportunity for an administrative appeal of the fol-
lowing actions under this section:
‘‘(A) A determination of regulatory juris-
diction over a particular parcel of property.
‘‘(B) The denial of a permit.
‘‘(C) The terms and conditions of a permit.
‘‘(D) The imposition of an administrative
penalty.
‘‘(E) The imposition of an order requiring
the private property owner to restore or other-
wise alter the property.
‘‘(2) Rules issued under paragraph (1) shall
provide that any administrative appeal of an action
described in paragraph (1) shall be heard and de-
cided by an official other than the official who took
the action, and shall be conducted at a location
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which is in the vicinity of the property involved in
the action.’’.
SEC. 7. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE
ENDANGERED SPECIES ACT OF 1973.
Section 11 of the Endangered Species Act of 1973
(16 U.S.C. 1540) is amended by adding at the end the
following new subsection:
‘‘(i) ADMINISTRATIVE APPEALS.—
‘‘(1) The Secretary shall, after notice and op-
portunity for public comment, issue rules to estab-
lish procedures to allow private property owners or
their authorized representatives an opportunity for
an administrative appeal of the following actions
under this Act:
‘‘(A) A determination that a particular
parcel of property is critical habitat of a listed
species.
‘‘(B) The denial of a permit for an inciden-
tal take.
‘‘(C) The terms and conditions of an inci-
dental take permit.
‘‘(D) The imposition of an administrative
penalty.
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‘‘(E) The imposition of an order prohibit-
ing or substantially limiting the use of the prop-
erty.
‘‘(2) Rules issued under paragraph (1) shall
provide that any administrative appeal of an action
described in paragraph (1) shall be heard and de-
cided by an official other than the official who took
the action, and shall be conducted at a location
which is in the vicinity of the parcel of property in-
volved in the action.’’.
SEC. 8. COMPENSATION FOR TAKING OF PRIVATE PROP-
ERTY.
(a) ELIGIBILITY.—A private property owner that, as
a consequence of a final qualified agency action of an
agency head, is deprived of 50 percent or more of the fair
market value, or the economically viable use, of the af-
fected portion of the property, as determined by a quali-
fied appraisal expert, is entitled to receive compensation
in accordance with this section.
(b) DEADLINE.—Within 90 days after receipt of a
final decision of an agency head that deprives a private
property owner of fair market value or viable use of prop-
erty for which compensation is required under subsection
(a), the private property owner may submit in writing a
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request to the agency head for compensation in accordance
with subsection (c).
(c) AGENCY HEAD’S OFFER.—The agency head,
within 180 days after the receipt of a request for com-
pensation, shall stay the decision and shall provide to the
private property owner—
(1) an offer to purchase the affected property
of the private property owner at a fair market value
assuming no use restrictions under the Acts; and
(2) an offer to compensate the private property
owner for the difference between the fair market
value of the property without those restrictions and
the fair market value of the property with those re-
strictions.
(d) PRIVATE PROPERTY OWNERS’ RESPONSE.—A
private property owner shall have 60 days after the date
of receipt of the agency head’s offers under subsection (c)
(1) and (2) to accept one of the offers or to reject both
offers. If the private property owner rejects both offers,
the private property owner may submit the matter for ar-
bitration to an arbitrator appointed by the agency head
from a list of arbitrators submitted to the agency head
by the American Arbitration Association. The arbitration
shall be conducted in accordance with the real estate valu-
ation arbitration rules of that association. For purposes
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of this section, an arbitration is binding on the agency
head and a private property owner as to the amount, if
any, of compensation owed to the private property owner
and whether for purposes of this section the private prop-
erty owner has been deprived of fair market value or viable
use of property for which compensation is required under
subsection (a).
(e) JUDGMENT.—A qualified agency action of an
agency head that deprives a private property owner of
property as described in subsection (a), is deemed, at the
option of the private property owner to be a taking under
the Constitution of the United States and a judgment
against the United States if the private property owner—
(1) accepts the agency head’s offer under sub-
section (c); or
(2) submits to arbitration under subsection (d).
(f) PAYMENT.—An agency head shall pay a private
property owner any compensation required under the
terms of an offer of the agency head that is accepted by
the private property owner in accordance with subsection
(d), or under a decision of an arbiter under that sub-
section, by not later than 60 days after the date of the
acceptance or the date of the issuance of the decision, re-
spectively.
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(g) FORM OF PAYMENT.—Payment under this sec-
tion, as that form is agreed to by the agency head and
the private property owner, may be in the form of—
(1) payment of an amount equal to the fair
market value of the property on the day before the
date of the final qualified agency action with respect
to which the property or interest is acquired;
(2) a payment of an amount equal to the reduc-
tion in value; or
(3) conveyance of real property or an interest in
real property having a fair market value equal to
that amount.
(h) OTHER RIGHTS PRESERVED.—This section does
not preempt, alter, or limit the availability of any remedy
for the taking of property or an interest in property that
is available under the Constitution or any other law.
(i) FINAL JUDGMENTS.—When a private property
owner unsuccessfully seeks compensation under this sec-
tion and thereafter files a claim for compensation under
the fifth amendment to the Constitution and is successful
in obtaining a final judgment ordering compensation from
the claims court for that claim, the agency head making
the final agency decision resulting in the taking shall reim-
burse the judgment fund for the amount of the judgment
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against the United States from funds appropriated to the
agency for the 2 fiscal years following payment.
SEC. 9. DEFINITIONS.
For the purpose of this Act the following definitions
apply:
(1) ‘‘The Acts’’ means the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.) and the sec-
tion 404 of the Federal Water Pollution Control Act
(33 U.S.C. 1344).
(2) ‘‘Agency head’’ means the Secretary or Ad-
ministrator with jurisdiction or authority to take a
final agency action under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.) or section 404
of the Federal Water Pollution Control Act (33
U.S.C. 1344).
(3) ‘‘Non-Federal person’’ means a person
other than an officer, employee, agent, department,
or instrumentality of—
(A) the Federal Government; or
(B) a foreign government.
(4) ‘‘Private property owner’’ means a non-Fed-
eral person (other than an officer, employee, agent,
department, or instrumentality of a State, munici-
pality, or political subdivision of a State, or a State,
municipality, or subdivision of a State) that—
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(A) owns property referred to in paragraph
(5) (A) or (B); or
(B) holds property referred to in para-
graph (5)(C).
(5) ‘‘Property’’ means—
(A) land;
(B) any interest in land; and
(C) any proprietary water right.
(6) ‘‘Qualified agency action’’ means an agency
action (as that term is defined in section 551(13) of
title 5, United States Code) that is—
(A) under section 404 of the Federal
Water Pollution Control Act (33 U.S.C. 1344);
or
(B) under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.).
SEC. 10. PRIVATE PROPERTY OWNER PARTICIPATION IN
COOPERATIVE AGREEMENTS.
Section 6 of the Endangered Species Act of 1973 (16
U.S.C. 1535) is amended by adding at the end the follow-
ing new subsection:
‘‘(j) Notwithstanding any other provision of this sec-
tion, when the Secretary enters into a management agree-
ment under subsection (b) with any non-Federal person
that establishes restrictions on the use of property, the
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Secretary shall notify all private property owners or les-
sees of the property that is subject to the management
agreement and shall provide an opportunity for each pri-
vate property owner or lessee to participate in the manage-
ment agreement.’’.
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