I
105TH CONGRESS
1ST SESSION
H. R. 2894
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
NOVEMBER 7, 1997
Mr. HERGER (for himself and Mr. POMBO) 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 CONFERENC-
ING; RELOCATION REQUIREMENT.—Section 7 of the En-
dangered Species Act of 1973 (16 U.S.C. 1536) is amend-
ed—
(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 the members of any threatened species or
endangered species of plant or animal that the Secretary
determines would be taken 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 conferenc-
ing under section 7(a)(2) and (4), respectively, regarding
the action.’’.
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