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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 with-
out 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 Com-
mittee 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 list-
ing 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 pri-
vate citizens, 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
Improvement Act of 1993’’.
SEC. 2. INSERTING A PUBLIC INTEREST DETERMINATION
IN LISTING DECISION.
(a) IN GENERAL.—Section 4(a)(1) of the Endan-
gered Species Act of 1973 (16 U.S.C. 1533(a)(1)) is
amended to read as follows:
‘‘SEC. 4. (a) IN GENERAL.—(1) The Secretary shall
by regulation promulgated in accordance with subsection
(b) of this section determine that a species is an endan-
gered species or a threatened species if the Secretary de-
termines the following:
‘‘(A) That the species warrants listing as an en-
dangered species or a threatened species because of
any of the following factors:
‘‘(i) The past or present destruction, modi-
fication, or curtailment of its habitat or range.
‘‘(ii) Overutilization for commercial, rec-
reational, scientific, or educational purposes.
‘‘(iii) Disease or predation.
‘‘(iv) The inadequacy of existing regulatory
mechanisms.
‘‘(v) Other natural or manmade factors af-
fecting its continued existence.
‘‘(B) That the listing of the species is in the
public interest after considering the following fac-
tors:
‘‘(i) The technical practicability of recover-
ing the species.
‘‘(ii) The biological significance of the spe-
cies.
‘‘(iii) The quality of available data on the
species.
‘‘(iv) The direct and indirect costs to the
public and private sectors, including public serv-
ice and employment, which may be imposed by
the application of the protections of this Act to
such species.
‘‘(v) The impacts on the use and value of
non-Federal property which may result from
application of the protections of this Act to
such species.
retary. The panel shall be selected by the Inspector Gen-
eral of the department of the Secretary without the advice
or consent of the Secretary or any official of any agency
advising the Secretary on the determination. The Sec-
retary shall consider the report of the panel prior to mak-
ing a determination, shall make the report available to the
public, and shall provide a response to the report in the
preamble to the final rule setting forth the determina-
tion.’’.
SEC. 4. AVOIDING BIAS.
Section 4(b) of the Endangered Species Act of 1973
(16 U.S.C. 1533(b)), as amended by section 3 of this Act,
is further amended by adding at the end thereof the
following paragraph (11):
‘‘(10) No person who advises the Secretary on, or
otherwise participates formally in procedures leading to,
a determination pursuant to subsection (a)(1), or the in-
stitution with which such person is employed, shall receive
any grant or other funding under or pursuant to this Act
or any other authority of the Secretary to study, conduct
research on, undertake conservation activities for, or oth-
erwise address the species which is the subject of such de-
termination.’’.
SEC. 5. ESTIMATION OF NUMBER OF A SPECIES.
Section 4(b) of the Endangered Species Act of 1973
(16 U.S.C. 1533(b)), as amended by sections 3 and 4 of
this Act, is further amended by adding at the end the
following new paragraph:
‘‘(11)(A) The Secretary shall determine and publish
in the Federal Register with each proposed rule under
subsection (a)(1) an estimate of the number of the species
that is the subject of the rule.
‘‘(B) The estimate published under subparagraph (A)
for a species—
‘‘(i) shall be periodically reviewed and revised
by the Secretary to reflect changes in the number of
the species; and
‘‘(ii) shall be used by the Secretary to make de-
terminations under subsection (c)(2)(B).’’.
SEC. 6. APPLYING THE EMERGENCY LISTING PROCESS TO
EMERGENCY SITUATIONS.
Section 4(b)(7) of the Endangered Species Act of
1973 (16 U.S.C. 1533(b)(7)) is amended by striking ‘‘a
significant risk to the well-being’’ and inserting in lieu
thereof ‘‘an immediate threat of extinction’’.
SEC. 7. LIMITING APPLICATION OF TAKE PROHIBITION
PRIOR TO COMPLETION OF A RECOVERY
PLAN.
Section 9(a) of the Endangered Species Act of 1973
(16 U.S.C. 1538(a)) is amended by inserting at the end
thereof a new paragraph (3) as follows:
‘‘(3) For purposes of paragraph (1)(B) of this sub-
section and any regulation applying such paragraph to a
threatened species pursuant to section 4(d) of this Act,
the terms ‘‘harm’’ and ‘‘harass’’ in the definition of ‘‘take’’
in section 3(19) of this Act shall apply only to such species
which are subject to a recovery plan issued under section
4(f) of this Act.’’.
SEC. 8. ELIMINATING CITIZEN SUITS AGAINST PRIVATE
PARTIES.
Section 11(g) of the Endangered Species Act of 1973
(16 U.S.C. 1540(g)) is amended—
(1) in paragraph (1)(A) by striking ‘‘any per-
son, including the United States and any other gov-
ernmental instrumentality or agency (to the extent
permitted by the eleventh amendment to the Con-
stitution), who’’ and inserting in lieu thereof ‘‘the
United States, or any instrumentality or agency
thereof, which’’;
(2) in the first sentence following subparagraph
(C) of paragraph (1) by striking ‘‘or the citizenship
of the parties’’; and
(3) in paragraph (3) by striking ‘‘(A)’’ and sub-
paragraph (B).
SEC. 9. COMPENSATION FOR DIMINUTION IN VALUE OF
PRIVATE PROPERTY RIGHTS.
(a) IN GENERAL.—The Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) is amended by adding at
the end thereof the following:
‘‘SEC. 19. COMPENSATION FOR DIMINUTION IN VALUE OF
PRIVATE PROPERTY RIGHTS.
‘‘(a) IN GENERAL.—The head of any Federal agency
who takes an action under this Act, or regulations issued
pursuant to this Act, shall compensate the owner of pri-
vate property for any diminution in value caused by the
action. Action may cause the diminution in value of pri-
vate property—
‘‘(1) even though the action results in less than
a complete deprivation of all use or value or of all
separate distinct interests in the same private prop-
erty; and
‘‘(2) even if the action is temporary in nature.
‘‘(b) DUTY OF FEDERAL AGENCY HEADS.—The head
of each Federal agency shall, at the time of issuing regula-
tions or undertaking any activity under this Act, deter-
mine whether such regulations or activity results in the
diminution in value of private property such that such
diminution is compensable under this section.
‘‘(c) COMPENSATION.—(1) Within 60 days after the
date of issuance of any such regulation or the taking of
any such action which results in a diminution in value of
private property which is compensable under this section,
the head of the Federal agency concerned shall make an
offer of compensation to the owner of the private property
affected. Any offer made under this paragraph shall be
effective for one year.
‘‘(2) Such owner may reject the offer and, within one
year after such rejection, file a claim for compensation in
the United States Claims Court for a determination of the
value of the property affected. In addition to awarding fair
market value for the property affected, the court may
award reasonable attorney’s fees and expenses of litiga-
tion.
‘‘(3) In any case in which the property affected in-
volves lands, such owner, in lieu of a claim under para-
graph (2), may exchange in accordance with applicable
Federal law lands affected by such law, regulation, or
activity.
‘‘(4) Such owner may also accept such compensation
as may be available under other laws for tax benefits, min-
eral rights credits, and comparable offers for value by the
United States.
‘‘(5) Any cash settlement or judgment from the Unit-
ed States Claims Court pursuant to paragraph (2) shall
be paid as a matter of right from the land and water con-
servation fund established by section 2 of the Land and
Water Conservation Fund Act of 1965 (16 U.S.C.
460l–5).’’.
(b) EFFECTIVE DATE.—The amendment made by
subsection (a) shall apply to any activity of the United
States Government after the date of enactment of this Act.
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