I 
109TH CONGRESS 
1ST SESSION H. R. 1837 
To amend the Endangered Species Act of 1973 to establish limitations on 
the designation of critical habitat, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
APRIL 26, 2005 
Mr. FLAKE (for himself, Mr. HAYWORTH, Mr. RENZI, Mr. SHADEGG, and Mr. 
FRANKS of Arizona) introduced the following bill; which was referred to 
the Committee on Resources 
A BILL 
To amend the Endangered Species Act of 1973 to establish 
limitations on the designation of critical habitat, 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. LIMITATION ON DESIGNATION OF CRITICAL 
HABITAT. 
Section 4(b)(2) of the Endangered Species Act of 
1973 (16 U.S.C. 1533(b)(2)) is amended by adding at the 
end the following: ‘‘The Secretary shall not designate as 
critical habitat any habitat located within the high water 
mark of a water storage reservoir, water diversion struc-
ture, canal, or other artificial water delivery facility, if 
such habitat is periodically created and destroyed as a re-
sult of fluctuations in water levels caused by operation of 
the water storage reservoir, water diversion structure, 
canal, or other artificial water delivery facility.’’. 
SEC. 2. CONSIDERATIONS IN DETERMINING LIKELIHOOD 
OF DESTRUCTION OR ADVERSE MODIFICA-
TION OF THE CRITICAL HABITAT. 
Section 7(b)(3) of the Endangered Species Act of 
1973 (16 U.S.C. 1536(b)(3)) is amended by adding at the 
end the following: 
‘‘(C) In determining whether a Federal agency action 
is likely to result in the destruction or adverse modifica-
tion of the critical habitat of a species, the Secretary shall 
consider the offsetting effects of habitat conservation 
measures proposed to be implemented as part of the ac-
tion, including the protection and management of alter-
native habitat, whether or not designated as critical habi-
tat, that has or is likely to develop the primary constituent 
elements of critical habitat.’’. 
SEC. 3. AMENDMENTS RELATING TO INCIDENTAL TAKE 
PERMITS. 
Section 10(a) of the Endangered Species Act of 1973 
(16 U.S.C. 1539(a)) is amended by adding at the end of 
paragraph (2) the following:
‘‘(D) The requirements of paragraph 
(2)(B)(ii) shall be deemed satisfied if the Sec-
retary finds that the minimization and mitiga-
tion measures proposed to be implemented are 
rationally related to the level of take under the 
plan.’’. 
SEC. 4. EXEMPTION FROM LIABILITY FOR TAKE OF LISTED 
AQUATIC SPECIES. 
Section 10 of the Endangered Species Act of 1973 
(16 U.S.C. 1539) is amended by adding at the end the 
following: 
‘‘(k) EXEMPTION FROM LIABILITY FOR TAKE OF 
LISTED AQUATIC SPECIES.—The operator of a water stor-
age reservoir, water diversion structure, canal, or other ar-
tificial water delivery facility shall not be in violation of 
section 9(a) by reason of any take of any aquatic species 
listed under section 4(c) that results from predation, com-
petition, or other adverse effects attributable to non-native 
aquatic species introduced by another person into the river 
basin in which the water storage reservoir, water diversion 
structure, canal, or other artificial water delivery facility 
is located.’’. 
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