I
107TH CONGRESS
1ST SESSION
H. R. 1404
To amend the Endangered Species Act of 1973 to reform provisions relating
to liability for civil and criminal penalties under that Act.
IN THE HOUSE OF REPRESENTATIVES
APRIL 4, 2001
Mr. THOMAS introduced the following bill; which was referred to the
Committee on Resources
A BILL
To amend the Endangered Species Act of 1973 to reform
provisions relating to liability for civil and criminal pen-
alties under that Act.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Endangered Species Criminal and Civil Penalties Liabil-
ity Reform Act’’.
(b) REFERENCES TO 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 that
section or provision of the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.).
SEC. 2. SPECIFIC INTENT REQUIRED FOR PENALTIES RE-
GARDING TAKINGS OF SPECIES.
Section 9 (16 U.S.C. 1538) is amended by adding
at the end the following:
‘‘(h) SPECIFIC INTENT REQUIRED FOR TAKING.—
For purposes of this section, the term ‘take’ means to—
‘‘(1) knowingly and intentionally perform any
act with the knowledge that the act would constitute
harassing, harming, pursuing, hunting, shooting,
wounding, killing, trapping, capturing, or collecting
an individual member of a species that was present
at the time and location of the act; or
‘‘(2) attempt to engage in conduct described in
paragraph (1).’’.
SEC. 3. REQUIREMENT TO PROVIDE NOTICE AND OPPOR-
TUNITY TO CORRECT VIOLATION.
Section 10 (16 U.S.C. 1540) is amended by adding
at the end the following:
‘‘(k) NOTICE AND OPPORTUNITY TO CORRECT VIO-
LATION.—
‘‘(1) IN GENERAL.—A person shall not be liable
for any criminal or civil penalty for a violation of
this Act committed while conducting an otherwise
lawful activity and not for the purpose of a taking
prohibited by this Act, unless—
‘‘(A) the Secretary provides the person no-
tice of the violation; and
‘‘(B) the person fails to terminate and oth-
erwise correct the activity constituting the viola-
tion by not later than 30 days after the date of
the notice.
‘‘(2) CORRECTIVE ACTION.—A person may cor-
rect an activity for purposes of paragraph (1)(B) by
mitigation, entering into a binding commitment to
carry out mitigation, or other method that is deter-
mined by the Secretary to be reasonably calculated
to restore the species to its status immediately prior
to the activity.’’.
SEC. 4. NO SURPRISES.
Section 10(a) (16 U.S.C. 1539(a)) is amended by
adding at the end the following:
‘‘(3)(A) Each conservation plan developed under this
subsection shall include provisions under which a person
who has entered into, and is in compliance with, the con-
servation plan may not, without their consent, be required
to undertake any additional mitigation measures for spe-
cies covered by the plan if the measures would require pay-
ment of money, or compliance with use, development, or
management restrictions on any land, waters, or water-
related rights, in addition to payments or compliance, re-
spectively, otherwise required under the terms of the plan.
‘‘(B) The provisions required by subparagraph (A)
shall, among other matters, identify—
‘‘(i) modifications to the plan; or
‘‘(ii) additional conservation measures;
if any, that the Secretary may require under extraordinary
circumstances.’’.
SEC. 5. KNOWLEDGE OF ENDANGERED OR THREATENED
STATUS REQUIRED FOR ENFORCEMENT AC-
TIONS.
Section 11 (16 U.S.C. 1540) is further amended by
adding at the end the following:
‘‘(h) KNOWLEDGE OF ENDANGERED OR THREAT-
ENED STATUS REQUIRED.—In any enforcement action or
citizen suit under this Act in which it is alleged that the
defendant acted or failed to act with respect to a member
of a species listed under section 4(c), it is an affirmative
defense to the allegation that the defendant could not rea-
sonably have known that the fish or wildlife or plant con-
cerned is a member of an endangered species or threat-
ened species.’’.
SEC. 6. SAFE HARBOR AGREEMENTS.
Section 10 (16 U.S.C. 1539) is further amended by
adding at the end thereof the following new subsection:
‘‘(m) SAFE HARBOR AGREEMENTS.—
‘‘(1) AGREEMENTS.—
‘‘(A) IN
GENERAL.—The Secretary may
enter into agreements with non-Federal persons
to benefit the conservation of endangered spe-
cies or threatened species by creating, restoring,
or improving habitat or by maintaining cur-
rently unoccupied habitat for endangered spe-
cies or threatened species. Under an agreement,
the Secretary shall permit the person to take
endangered species or threatened species in-
cluded under the agreement on lands or waters
that are subject to the agreement if the taking
is incidental to, and not the purpose of, car-
rying out of an otherwise lawful activity, pro-
vided that the Secretary may not permit
through such agreements any incidental take
below the baseline requirement specified pursu-
ant to subparagraph (B).
‘‘(B) BASELINE.—For each agreement
under this subsection, the Secretary shall estab-
lish a baseline requirement that is mutually
agreed upon by the applicant and the Secretary
at the time of the agreement that will, at a
minimum, maintain existing conditions for the
species covered by the agreement on lands and
waters that are subject to the agreement. The
baseline may be expressed in terms of the abun-
dance or distribution of endangered or threat-
ened species, quantity or quality of habitat, or
such other indicators as appropriate.
‘‘(2) STANDARDS AND GUIDELINES.—The Sec-
retary shall issue standards and guidelines for the
development and approval of safe harbor agreements
in accordance with this subsection.
‘‘(3) FINANCIAL ASSISTANCE.—
‘‘(A) IN
GENERAL.—In cooperation with
the States and subject to the availability of ap-
propriations under section 15(d), the Secretary
may provide a grant of up to $10,000 to any
individual private landowner to assist the land-
owner in carrying out a safe harbor agreement
under this subsection.
‘‘(B) PROHIBITION
ON
ASSISTANCE
FOR
REQUIRED ACTIVITIES.—The Secretary may not
provide assistance under this paragraph for any
action that is required by a permit issued under
this Act or that is otherwise required under this
Act or other Federal law.
‘‘(C) OTHER PAYMENTS.—Grants provided
to an individual private landowner under this
paragraph shall be in addition to, and not af-
fect, the total amount of payments that the
landowner is otherwise eligible to receive under
the Conservation Reserve Program (16 U.S.C.
3831 et seq.), the Wetlands Reserve Program
(16 U.S.C. 3837 et seq.), or the Wildlife Habi-
tat Incentives Program (16 U.S.C. 3836a).’’.
Æ