I
103D CONGRESS
2D SESSION
H. R. 3978
To amend the Endangered Species Act of 1973 to provide for the conservation
of threatened species and endangered species, to assure balanced consid-
eration of scientific, economic, and social factors in the implementation
of the Act, to provide for scientific peer review of determinations made
under the Act, to provide private property protections, to remove obsolete
provisions, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 8, 1994
Mr. POMBO 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 provide
for the conservation of threatened species and endan-
gered species, to assure balanced consideration of sci-
entific, economic, and social factors in the implementa-
tion of the Act, to provide for scientific peer review
of determinations made under the Act, to provide private
property protections, to remove obsolete provisions, and
for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Endangered Species
Management Act of 1994’’.
SEC. 2. AMENDMENT OF ENDANGERED SPECIES ACT OF
1973.
Except as otherwise expressly provided, whenever in
this Act an amendment or repeal is expressed in terms
of an amendment to, or repeal of, a section or other provi-
sion, the reference shall be considered to be made to a
section or other provision of the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.).
SEC. 3. FINDINGS AND PURPOSES OF ENDANGERED SPE-
CIES ACT OF 1973.
(a) 
FINDINGS.—Section 
2(a)(1) 
(16 
U.S.C.
1531(a)(1)) is amended to read as follows:
‘‘(1) various species of fish, wildlife, and plants
in the United States have been rendered extinct be-
cause of inadequate conservation practices and natu-
ral processes;’’.
(b) PURPOSES.—Section 2(b) (16 U.S.C. 1531(b)) is
amended to read as follows:
‘‘(b) PURPOSES.—The purposes of this Act are to
provide a feasible and practical means whereby ecosystems
upon which endangered species and threatened species di-
rectly depend may be conserved, to provide a program for
the conservation of such endangered species and threat-
ened species taking into account the economic and social
consequences of such program, and to take such steps as
may be practicable to achieve the purposes of the treaties
and conventions set forth in subsection (a).’’.
SEC. 4. DEFINITIONS.
Section 3 (16 U.S.C. 1532) is amended—
(1) in paragraph (5) by striking ‘‘(5)(A)’’ and
all that follows through the end of subparagraph (A)
and inserting the following:
‘‘(5)(A) The term ‘critical habitat’ for a threat-
ened species or endangered species means the spe-
cific areas within the geographical area occupied by
a species, at the time it is listed in accordance with
section 4, on which are found those physical or bio-
logical features—
‘‘(i) essential to the persistence of the spe-
cies over the 50-year period beginning on the
date of that listing or the 5-generation period
beginning on that date, whichever is shorter;
and
‘‘(ii) which may require special manage-
ment considerations or protection.’’;
(2) in paragraph (5)(B) and (C) by striking
‘‘threatened or’’ each place it occurs;
(3) by redesignating paragraphs (7), (8), (9),
(10), (12), (13), (14), (15), (16), (17), (18), (19),
(20), and (21) and any reference thereto as para-
graphs (8), (9), (10), (11), (14), (15), (16), (18),
(19), (20), (21), (22), (24), and (25), respectively;
(4) in paragraph (6) by—
(A) inserting ‘‘(A)’’ after ‘‘(6)’’; and
(B) adding at the end the following:
‘‘(B) The term ‘species of national interest’
means an endangered species or a threatened species
that is determined by the Secretary to be in the na-
tional interest to protect.’’;
(5) by inserting after paragraph (6) the follow-
ing:
‘‘(7) The term ‘feasible’ means capable of being
accomplished in a successful manner within a rea-
sonable period of time, taking into account eco-
nomic, environmental, social, and technological fac-
tors.’’;
(6) by inserting after paragraph (11), as redes-
ignated by paragraph (2) of this section, the follow-
ing:
‘‘(12) The term ‘interested person’ means a
person who is able to demonstrate personal and im-
mediate harm from a Government action or inaction
affecting the environment.
‘‘(13) The term ‘isolated populations’ means
populations which, although few in number in a par-
ticular habitat, are of a species which is not other-
wise threatened or endangered in the United States,
Canada, or Mexico.’’;
(7) by inserting after paragraph (16), as redes-
ignated by paragraph (2) of this section, the follow-
ing:
‘‘(17) The term ‘public property’ means prop-
erty of any kind which is owned, leased, or held by
permit, license, or easement by any State or local
government or unit thereof.’’;
(8) by amending paragraph (19), as redesig-
nated by paragraph (2) of this section, to read as
follows:
‘‘(19) The term ‘species’ means the minimum
taxonomic units of fish or wildlife or plants which—
‘‘(A) normally reproduce sexually but
are—
‘‘(i) biologically incapable of both
interbreeding 
and 
producing 
offspring
which can survive to maturity and repro-
duce under natural conditions, or
‘‘(ii) statistically distinguishable at a
percentage of nuclear genetic loci to be de-
termined by the Secretary for each family
of organisms that is not less than 2 per-
cent; or
‘‘(B) normally reproduce asexually and are
statistically distinguishable at a percentage of
nuclear genetic loci to be determined by the
Secretary for each family of organisms that is
not less than 2 percent.’’; and
(9) by inserting after paragraph (22), as redes-
ignated by paragraph (2) of this section, the follow-
ing:
‘‘(23) The term ‘taking of private or public
property’ means the foreclosure of any use of private
property or public property that is otherwise allowed
under Federal, State, and local law, that—
‘‘(A) is caused by—
‘‘(i) the inclusion of a species in a list
published under section 4(c);
‘‘(ii) the designation of critical habitat
under section 4(a)(3);
‘‘(iii) the implementation of a recovery
plan under section 4(f); or
‘‘(iv) any other activity that is author-
ized or required by this Act; and
‘‘(B) by itself or in combination with other
such foreclosures of use so caused, reduces the
fair market value of the property by 25 percent
or more.’’.
SEC. 5. ISOLATED POPULATIONS; DESIGNATION OF CRITI-
CAL HABITAT; LISTING OF SPECIES; RECOV-
ERY PLANS.
(a) ISOLATED
POPULATIONS.—Section 4(a) (16
U.S.C. 1533(a)) is amended by adding at the end the fol-
lowing:
‘‘(4) ISOLATED POPULATIONS.—The Secretary
may not determine that an isolated population of a
species is an endangered species or threatened spe-
cies, if the species is not otherwise an endangered
species or threatened species.’’.
(b) DESIGNATION OF CRITICAL HABITAT.—Section
4(a)(3) (16 U.S.C. 1533(a)(3)) is amended—
(1) in the matter preceding subparagraph (A),
by striking ‘‘and to the maximum extent prudent
and determinable’’;
(2) in subparagraph (A)—
(A) by striking ‘‘concurrently with’’ and in-
serting ‘‘concurrently with and as a condition
for’’; and
(B) by striking ‘‘and’’ after the semicolon
at the end;
(3) by redesignating subparagraph (B) and any
reference thereto, as subparagraph (C); and
(4) by inserting after subparagraph (A) the fol-
lowing:
‘‘(B) shall also concurrently with making such
a determination, issue a report delineating all direct
and indirect economic and social impacts of delinea-
tion of proposed critical habitat to the areas affected
and to the Nation; and’’.
(c) BASIS FOR DETERMINATIONS.—Section 4(b) (16
U.S.C. 1533(b)) is amended—
(1) in paragraph (1)(B) by striking the mate-
rial preceding clause (i) and inserting the following:
‘‘(B) The Secretary may not list a species as an
endangered species or threatened species pursuant
to subsection (c) unless—
‘‘(i) the Secretary has prepared a report
that includes—
‘‘(I) the complete file of scientific data
and collection methodology which has been
developed in conjunction with the listing;
‘‘(II) details of a recovery plan for the
species, including scientific data and pro-
jected costs; and
‘‘(III) the complete file of data and
collection methodology which has been de-
veloped in conjunction with any critical
habitat designation for the species;
‘‘(ii) after the report is prepared under
clause (i), scientific data supporting the listing
has been reviewed by a scientific peer review
panel consisting of 3 members appointed by the
Secretary from among 6 nominees submitted by
the President of the National Academy of
Sciences from the Academy’s membership who
have not otherwise participated in the listing
(including research used as the basis for the
listing), and recommendations of the panel are
submitted to the Secretary; and
‘‘(iii) after the submittal of the rec-
ommendations under clause (ii), the Secretary
publishes notices of intent to list for 5 consecu-
tive days in a newspaper of general circulation
in each area of the United States where the
species is believed to occur, including a state-
ment of justification for the listing and a de-
scription of possible direct and indirect social
and economic impacts of the listing; and
‘‘(iv) after the publication of notices in ac-
cordance with clause (iii), the Secretary con-
ducts public hearings on the listing in each area
of the United States where the species is be-
lieved to occur.
‘‘(C) The Secretary may not list any species as
an endangered species or threatened species pursu-
ant to subsection (c) if 90 percent or more of its ex-
isting geographic range or its population is outside
the borders of the United States and its territories
and possessions, unless the species has been—’’;
(2) in clause (ii) of subparagraph (C) (as in-
serted by paragraph (2) of this subsection) by strik-
ing ‘‘by any State agency’’;
(3) in paragraph (2)—
(A) in the first sentence by striking ‘‘the
economic impact’’ and inserting ‘‘the economic
and social impact’’; and
(B) in the second sentence by striking ‘‘,
unless he determines,’’ and all that follows
through the end of the paragraph and inserting
a period;
(4) in paragraph (3)—
(A) by striking ‘‘(3)(A)’’ and all that fol-
lows through the end of subparagraph (A) and
inserting the following:
‘‘(3)(A) Within 120 days after receiving the pe-
tition of an interested person to add a species to, or
to remove a species from, either of the lists pub-
lished under subsection (c), the Secretary shall—
‘‘(i) convene a panel of 3 scientists with
appropriate expertise appointed by the Director
of the United States Fish and Wildlife Service
to evaluate and make recommendations on the
petition;
‘‘(ii) conduct at least 1 public hearing in
each area where the species is believed to occur
on information provided in the petition and the
evaluation of that information by the scientific
panel under clause (i), utilizing the criteria in-
dicated in subsection (b)(3)(B)(iv); and
‘‘(iii) make a finding regarding whether
the scientific, commercial, economic, and social
information indicates that the action petitioned
for may be warranted.
If the Secretary finds that the action petitioned for
may be warranted, the Secretary shall promptly
commence a review of the status of the species con-
cerned in accordance with subsection (b)(1)(B). The
Secretary shall promptly publish each finding made
under this subparagraph in the Federal Register.’’;
(B) in subparagraph (B)—
(i) in the matter preceding clause (i),
by striking ‘‘Within 12 months’’ and in-
serting ‘‘Within 24 months’’; and
(ii) by striking clause (ii) and all that
follows through the material preceding
subclause (I) of clause (iii), and inserting
the following:
‘‘(ii) The petitioned action is tech-
nically warranted under the criteria of this
Act, but it is not in the national interest
to list it because of countervailing social or
economic consequences.
‘‘(iii) The petitioned action is war-
ranted and in the national interest, in
which case the Secretary shall promptly
publish in the Federal Register a general
notice and the complete text of a proposed
regulation to implement such action in ac-
cordance with paragraph (5).
‘‘(iv) The petitioned action is war-
ranted, but that—’’;
(C) in subparagraph (C), by amending
clause (ii) to read as follows:
‘‘(ii) Any negative finding described in sub-
paragraph (A) and any finding described in
subparagraph (B)(i), (ii), or (iv) shall be sub-
ject to an administrative appeal by any inter-
ested person under procedures which shall be
established by the Secretary. Any judicial re-
view of such a finding may occur only after
such an administrative appeal, and shall be
based solely upon the record of the administra-
tive appeal.’’;
(D) in subparagraph (D)—
(i) in clause (i) by striking ‘‘within 90
days’’ and inserting ‘‘within 180 days’’;
and
(ii) in clause (ii), by striking ‘‘Within
12 months’’ and inserting ‘‘Within 24
months’’; and
(E) by adding at the end the following:
‘‘(E) REIMBURSEMENT OF COSTS OF SCI-
ENTIFIC RESEARCH.—The Secretary, subject to
the availability of appropriations, may provide
reimbursement to any interested person for
costs incurred in performing or procuring sci-
entific research the results of which are used by
the Secretary to find, pursuant to a petition
under section 553(e) of title 5, United States
Code, that—
‘‘(i) the addition of a species to a list
published under subsection (c) is not war-
ranted; or
‘‘(ii) the removal of a species from a
list published under subsection (c) is war-
ranted.’’;
(5) in paragraph (5)—
(A) in subparagraph (A), by striking ‘‘not
less than 90 days’’ and inserting ‘‘not less than
120 days’’; and
(B) by amending subparagraph (E) to read
as follows:
‘‘(E) promptly, following publication of
general notice, hold at least 1 public hearing on
the proposed regulation in each city and each
county affected by the regulation, utilizing the
criteria indicated in subsection (b)(3)(B)(iv).’’;
and
(6) in paragraph (6)—
(A) in subparagraph (A), by striking
‘‘Within the one-year period’’ and inserting
‘‘Within the 24-month period’’; and
(B) by amending subparagraph (C) to read
as follows:
‘‘(C) A final regulation designating critical
habitat of an endangered species or a threatened
species shall be published concurrently with the final
regulation adding the species to a list under sub-
section (c).’’.
(d) LISTING OF SPECIES.—
(1) 
REQUIREMENT
FOR
LISTING.—Section
4(c)(1) (16 U.S.C. 1533(c)(1)) is amended—
(A) by striking ‘‘endangered species’’ and
inserting ‘‘endangered species that is a species
of national interest,’’;
(B) by striking ‘‘threatened species’’ and
inserting ‘‘threatened species that is a species
of national interest’’; and
(C) by adding at the end the following:
‘‘(3) SPECIES
OF
NATIONAL
INTEREST.—The
Secretary or Secretary of Commerce, as applicable,
shall determine for purposes of this subsection, with-
in the 24-month period applicable under subsection
(b)(6)(A) and based on the best scientific, economic,
social, and commercial data available, whether the
species is a species of national interest.’’.
(2) REMOVAL OF LISTED SPECIES.—A species
that on the date of the enactment of this Act is on
a list published under section 4(c)(1) of the Endan-
gered Species Act of 1973 may be removed from the
list only in accordance with the procedures and re-
quirements for removal established by the Act, as
amended by this Act.
(e) RECOVERY PLANS.—Section 4(f)(1) is amended
in the material preceding subparagraph (A) by inserting
after ‘‘promote the conservation of the species’’ the follow-
ing: ‘‘, that the costs associated with such a plan are an
unreasonable allocation of available resources, or that the
social and economic impacts in the area of the United
States in which such a plan would be implemented are
onerous’’.
SEC. 6. COMPENSATION FOR TAKINGS AND DEVALUATION
OF PROPERTY.
(a) COMPENSATION
REQUIRED.—Section 5 (16
U.S.C. 1534) is amended—
(1) by amending the section heading to read as
follows:
‘‘LAND ACQUISITION; COMPENSATION FOR TAKING OF
PRIVATE OR PUBLIC PROPERTY’’; and
(2) by adding at the end the following:
‘‘(c) COMPENSATION FOR TAKING OF PRIVATE OR
PUBLIC PROPERTY.—The Secretary shall pay just com-
pensation for any taking of private or public property to
the owner of the property, including for damages incurred
by the owner as a result of such taking.’’.
(b) CLERICAL AMENDMENT.—The table of contents
in the first section is amended by striking the item relating
to section 5 and inserting the following:
‘‘Sec. 5. Land acquisition; compensation for taking of private or public prop-
erty.’’.
SEC. 7. COOPERATION WITH STATES.
(a) GENERAL COOPERATIVE AGREEMENTS.—Section
6(c)(1) (16 U.S.C. 1535(c)(1)) is amended—
(1) in the matter preceding subparagraph (A)—
(A) by striking ‘‘the Secretary is author-
ized to enter’’ and inserting ‘‘the Secretary may
enter’’; and
(B) by striking ‘‘he shall enter’’ and insert-
ing ‘‘the Secretary may enter’’;
(2) in subparagraph (A), by striking ‘‘the State
agency or’’;
(3) in subparagraph (B), by inserting ‘‘and’’
after the semicolon at the end;
(4) by striking subparagraphs (C) and (E), and
redesignating subparagraph (D) and any reference
thereto as subparagraph (C);
(5) in subparagraph (C), (as redesignated by
paragraph (4) of this subsection) by striking ‘‘and’’
after the semicolon at the end and inserting ‘‘or’’;
and
(6) in the matter following subparagraph (C)
(as redesignated by paragraph (4) of this sub-
section)—
(A) by striking ‘‘paragraphs (3), (4), and
(5) of this subsection are’’ and inserting ‘‘sub-
paragraph (C) is’’; and
(B) by striking ‘‘or the State agency’’.
(b) COOPERATIVE AGREEMENTS FOR PLANTS.—Sec-
tion 6(c)(2) (16 U.S.C. 1535(c)(2)) is amended—
(1) in the matter preceding subparagraph (A),
in the third sentence, by striking ‘‘he shall enter’’
and inserting ‘‘the Secretary may enter’’;
(2) in subparagraph (A)—
(A) by striking ‘‘the State agency or’’; and
(B) by inserting ‘‘and’’ after the semicolon
at the end;
(3) in subparagraph (B), by inserting ‘‘or’’
after the semicolon at the end;
(4) by striking subparagraphs (C) and (D); and
(5) in the matter following subparagraph (B)—
(A) by striking ‘‘that under the State pro-
gram—’’ and all that follows through ‘‘(ii)
plans’’ and inserting ‘‘that under the State pro-
gram plans’’;
(B) by striking ‘‘or the State agency’’; and
(C) by striking ‘‘pursuant to clause (i) and
this clause’’ and inserting ‘‘pursuant to this
matter following subparagraph (B)’’.
(c) ALLOCATION OF FUNDS.—Section 6(d)(1) (16
U.S.C. 1535(d)(1)) is amended—
(1) by striking subparagraphs (C), and (D),
and by redesignating subparagraphs (E), (F), and
(G) and any reference thereto in order as subpara-
graphs (C), (D), and (E); and
(2) in the matter following subparagraph (E)
(as redesignated by paragraph (1) of this sub-
section) by striking ‘‘subsection (i)’’ and inserting
‘‘subsection (h)’’.
(d) REPEAL OF TRANSITION PROVISIONS.—
(1) REPEAL.—Subsection (g) of section 6 (16
U.S.C. 1535(d)) is repealed.
(2) CONFORMING
AMENDMENT.—Subsections
(h) and (i) of section 6 (16 U.S.C. 1535(h), (i)) and
any reference thereto are redesignated in order as
subsections (g) and (h).
SEC. 8. INTERAGENCY COOPERATION.
(a) FEDERAL AGENCY ACTIONS.—Section 7(a)(2)
(16 U.S.C. 1536(a)(2)) is amended—
(1) in the first sentence by striking ‘‘which is
determined by the Secretary, after consultation as
appropriate with affected States,’’ and inserting
‘‘which has been determined by the Secretary’’; and
(2) in the second sentence by inserting ‘‘, eco-
nomic, social,’’ after ‘‘best scientific’’.
(b) OPINION OF SECRETARY.—Subsection (b) of sec-
tion 7 (16 U.S.C. 1536(b)) is amended by—
(1) striking ‘‘(1)(A)’’ and all that follows
through the end of paragraph (1); and
(2) inserting after and below the heading for
the subsection the following:
‘‘(1) IN GENERAL.—
‘‘(A) DEADLINE FOR CONCLUSION OF CON-
SULTATION.—Consultation 
under 
subsection
(a)(2) with respect to any agency action shall
be concluded within the 90-day period begin-
ning on the date on which initiated.
‘‘(B) FAILURE TO CONCLUDE CONSULTA-
TION.—If a consultation is not concluded in the
period specified in subparagraph (A), the Sec-
retary is deemed to have—
‘‘(i) issued an opinion under para-
graph (3) that the action—
‘‘(I) is not likely to jeopardize the
continued existence of any endangered
species or threatened species, as appli-
cable, and
‘‘(II) is not likely to result in the
destruction or adverse modification of
critical habitat of such a species; and
‘‘(ii) made the conclusions described
in subparagraphs (A), (B), and (C) of
paragraph (4).’’.
(c) BIOLOGICAL ASSESSMENT.—Section 7(c)(1) (16
U.S.C. 1536(c)(1)) is amended in the first sentence by
striking ‘‘has begun on’’ and inserting ‘‘was begun on or
before’’.
(d) LIMITATION ON COMMITMENT OF RESOURCES.—
Section 7(d) (16 U.S.C. 1536(d)) is amended to read as
follows:
‘‘(d) 
LIMITATION
ON
COMMITMENT
OF
RE-
SOURCES.—The Secretary may not specify as a reasonable
and prudent alternative under subsection (b)(4)(C)(ii),
and may not set forth as a term or condition under sub-
section (b)(4)(C)(iii), any action which is likely to result
in a taking of public or private property or substantial
social or economic impact, unless—
‘‘(1) a report has been prepared by the Sec-
retary, that includes—
‘‘(A) the complete file of scientific data
and collection methodology which have been de-
veloped by the Secretary supporting the action;
‘‘(B) a recovery plan for the species con-
cerned, including scientific data and a descrip-
tion of the projected costs of implementing the
recovery plan; and
‘‘(C) the complete file of data and collec-
tion methodology which have been developed in
conjunction with any designation of critical
habitat of the species concerned;
‘‘(2) scientific data supporting the action have
been reviewed by a scientific peer review panel con-
sisting of 3 members appointed by the Secretary
from among nominees submitted by the President of
the National Academy of Sciences;
‘‘(3) the panel submits recommendations on the
action to the Secretary; and
‘‘(4) the Secretary conducts public hearings on
the action in each area of the United States in which
the species is believed to occur, after publication of
notices describing the proposed alternative, term or
condition, as applicable (including statements of jus-
tification therefor and a description of possible di-
rect and indirect social and economic impacts), for
5 consecutive days in a newspaper of general circula-
tion in each area of the United States in which the
species is believed to occur.’’.
(e) COMMUNICATIONS BETWEEN PRESIDENT
AND
MEMBERS OF ENDANGERED SPECIES COMMITTEE.—Sec-
tion 7(e)(5) (16 U.S.C. 1536(e)(5)) is amended by adding
at the end the following:
‘‘(E) Communications between the Presi-
dent and any member of the Committee shall
not constitute ex parte communications.’’.
(f) EXEMPTION REGULATIONS.—Section 7(f) (16
U.S.C. 1536(f)) is amended in the first sentence by strik-
ing ‘‘Not later’’ and all that follows through ‘‘regulations’’
and inserting the following: ‘‘The Secretary may, from
time to time, promulgate or amend regulations’’.