I 
109TH CONGRESS 
1ST SESSION H. R. 2779 
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, 2005 
Mr. HERGER 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, mainte-
nance, or repair of Federal or non-Federal manmade 
flood control levees. 
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 ‘‘Species Rescue Act’’.
SEC. 2. RELOCATION OF MEMBERS OF ENDANGERED SPE-
CIES 
AND 
THREATENED 
SPECIES 
THAT 
WOULD BE TAKEN IN THE COURSE OF RE-
CONSTRUCTION, MAINTENANCE, OR REPAIR 
OF MANMADE FLOOD CONTROL LEVEES. 
(a) EXPEDITED
CONSULTATION
AND
CONFER-
ENCING; RELOCATION REQUIREMENT.—Section 7 of the 
Endangered Species Act of 1973 (16 U.S.C. 1536) is 
amended— 
(1) in subsection (a)(2), by inserting ‘‘, except 
in the case of an agency action flood control action 
(as defined in subsection (b)(5)(B)) for which con-
sultation and conferencing is completed in accord-
ance with subsection (b),’’ after ‘‘threatened species 
or’’; 
(2) in subsection (b)(4) by striking the matter 
preceding subparagraph (A) and inserting the fol-
lowing: 
‘‘(4) If after consultation under subsection (a)(2) of 
this section regarding an agency action, other than an 
agency flood control action (as defined in paragraph 
(5)(B)), the Secretary concludes that—’’; and 
(3) by adding at the end of subsection (b) the 
following: 
‘‘(5)(A) Notwithstanding paragraph (1)(A), consulta-
tion under subsection (a)(2) and conferencing under sub-
section (a)(4) regarding an agency flood control action 
shall be concluded within the 60-day period beginning on 
the date on which initiated. 
‘‘(B) For purposes of this paragraph, the term ‘agen-
cy flood control action’ means an agency action consisting 
of the authorization, funding, or carrying out by an agency 
of reconstruction, maintenance, or repair of a Federal or 
non-Federal manmade flood control levee— 
‘‘(i) based on a determination that— 
‘‘(I) there exists or is likely to exist in the 
future high water; 
‘‘(II) the levee is likely to fail in the period 
of such high water unless the levee is recon-
structed, maintained, or repaired; and 
‘‘(III) such a levee failure would pose se-
vere public health and safety risks, place per-
sons residing in areas protected by the levee at 
risk, or cause extensive flooding and significant 
economic damages, including loss of life, prop-
erty, or habitat; or 
‘‘(ii) to address an imminent threat from a cat-
astrophic natural event. 
‘‘(C) Promptly after conclusion of consultation and 
conferencing regarding an agency flood control action, the 
Secretary shall provide the Federal agency and the appli-
cant concerned, if any, a written statement that specifies 
the impact of the action on endangered species and threat-
ened species. 
‘‘(D) Not later than 60 days after the conclusion of 
consultation and conferencing regarding an agency flood 
control action, the Secretary, acting through the United 
States Fish and Wildlife Service, any other Federal land 
management agency, the National Marine Fisheries Serv-
ice, or a State conservation agency, shall relocate from the 
flood control levee with respect to which the action will 
be carried out— 
‘‘(i) the members of any threatened species or 
endangered species of plant or animal that the Sec-
retary determines would be taken in the course of 
the action; and 
‘‘(ii) any plant or other natural material that 
the Secretary considers to be suitable habitat, or a 
component of suitable habitat, for such species and 
that the Secretary determines would be damaged, 
destroyed, or removed in the course of the action. 
‘‘(E) Except as provided in subparagraph (D), the 
Secretary may not require a non-Federal person to carry 
out under this section any measures to minimize or miti-
gate the impacts of an agency flood control action for
which consultation and conferencing is carried out under 
subsections (a)(2) and (a)(4), respectively.’’. 
(b) LIMITATION ON PROHIBITION OF TAKINGS.— 
Section 9(a) of such Act (16 U.S.C. 1538(a)) is amended 
by adding at the end the following new paragraph: 
‘‘(3) This subsection shall not be construed as prohib-
iting any activity that is authorized, funded, or carried out 
as part of an agency flood control action (as defined in 
section 7(b)(5)(B)) after the 60-day period beginning on 
the date of the completion of consultation and confer-
encing under section 7(a)(2) and (4), respectively, regard-
ing the action.’’. 
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