I 
108TH CONGRESS 
1ST SESSION H. R. 2602
To amend the Endangered Species Act of 1973 to make the authority of 
the Secretary to designate critical habitat discretionary instead of manda-
tory, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JUNE 25, 2003
Mr. OTTER introduced the following bill; which was referred to the Committee 
on Resources 
A BILL 
To amend the Endangered Species Act of 1973 to make 
the authority of the Secretary to designate critical habi-
tat discretionary instead of mandatory, 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 ‘‘Scientifically Identi-
fying the Need for Critical Habitat Act’’.
SEC. 2. DISCRETIONARY AUTHORITY TO DESIGNATE CRIT-
ICAL HABITAT. 
Section 4(a)(3) of the Endangered Species Act of 
1973 (16 U.S.C. 1533(a)(3)(A)) is amended to read as 
follows: 
‘‘(A) may designate any habitat of a species 
that is determined under paragraph (1) to be an en-
dangered species or threatened species as critical 
habitat of such species; and ’’. 
SEC. 3. SOUND SCIENCE. 
(a) BEST
SCIENTIFIC
AND
COMMERCIAL
DATA 
AVAILABLE.—
(1) IN GENERAL.—Section 3 of the Endangered 
Species Act of 1973 (16 U.S.C. 1532) is amended—
(A) by amending the section heading to 
read as follows: 
‘‘SEC. 3. DEFINITIONS AND GENERAL PROVISIONS. ’’; 
(B) by striking ‘‘For the purposes of this 
Act—’’ and inserting the following: 
‘‘(a) DEFINITIONS.—In this Act:’’; and 
(C) by adding at the end the following: 
‘‘(b) USE OF CERTAIN DATA.—In any case in which 
the Secretary is required by this Act to use the best sci-
entific and commercial data available, the Secretary, in 
evaluating comparable data, shall give greater weight to
the Secretary in the preparation of the recovery plan in 
accordance with section 5.’’. 
SEC. 4. PEER REVIEW. 
Section 4 of the Endangered Species Act of 1973 (16 
U.S.C. 1533) is amended by adding at the end the fol-
lowing: 
‘‘(j) INDEPENDENT SCIENTIFIC REVIEW REQUIRE-
MENTS.—
‘‘(1) DEFINITIONS.—In this subsection: 
‘‘(A) ACTION.—The term ‘action’ means—
‘‘(i) the determination that a species 
is an endangered species or a threatened 
species under subsection (a); 
‘‘(ii) the determination under sub-
section (a) that an endangered species or 
a threatened species be removed from any 
list published under subsection (c)(1); 
‘‘(iii) the development of a recovery 
plan for a threatened species or endan-
gered species under subsection (f); and 
‘‘(iv) the determination that a pro-
posed action is likely to jeopardize the con-
tinued existence of a listed species and the 
proposal of any reasonable and prudent al-
ternatives by the Secretary under section 
7(b)(3). 
‘‘(B) QUALIFIED INDIVIDUAL.—The term 
‘qualified individual’ means an individual with 
expertise in the biological sciences—
‘‘(i) who through publication of peer-
reviewed scientific literature or other 
means, has demonstrated scientific exper-
tise on the species or a similar species or 
other scientific expertise relevant to the de-
cision of the Secretary under subsection 
(a) or (f); 
‘‘(ii) who does not have, or represent 
any person with, a conflict of interest with 
respect to the determination that is the 
subject of the review; 
‘‘(iii) who is not a participant in any 
petition or proposed or final determination 
before the Secretary; and 
‘‘(iv) who has no direct financial in-
terest, and is not employed by any person 
with a direct financial interest, in opposing 
the action under consideration. 
‘‘(2) LIST OF INDEPENDENT SCIENTIFIC RE-
VIEWERS.—The Secretary shall solicit recommenda-
tions from the National Academy of Sciences and 
develop and maintain a list of qualified reviewers to 
participate in independent scientific review actions. 
‘‘(3) APPOINTMENT
OF
INDEPENDENT
SCI-
ENTIFIC REVIEWERS.—(A) Before any action shall 
become final, the Secretary shall appoint randomly, 
from among the list prepared in accordance with 
this section, 3 qualified individuals who shall review 
and report to the Secretary on the scientific infor-
mation and analyses on which the proposed action is 
based. 
‘‘(B) The selection and activities of the referees 
selected pursuant to this section shall not be subject 
to the Federal Advisory Committee Act (5 U.S.C. 
App.). 
‘‘(C) Reviewers shall be compensated for con-
ducting the independent review. 
‘‘(4) OPINION
OF
PEER
REVIEWERS.—Inde-
pendent reviewers shall provide the Secretary, within 
3 months, their opinion regarding all relevant sci-
entific information and assumptions relating to the 
taxonomy, population models, and supportive biologi-
cal and ecological information for the species in 
question.
‘‘(5) FINAL DETERMINATION.—If the referees 
have made a recommendation on a proposed action, 
the Secretary shall evaluate and consider the infor-
mation that results from the independent scientific 
review and include in the final determination—
‘‘(A) a summary of the results of the inde-
pendent scientific review; and 
‘‘(B) in a case in which the recommenda-
tion of a majority of the referees who conducted 
the independent scientific review is not followed, 
an explanation as to why the recommendation 
was not followed. 
‘‘(6) PUBLIC NOTICE.—The report of the peer 
reviewers shall be included in the official record of 
the proposed action and shall be available for public 
review prior to the close of the comment period on 
the proposed action.’’. 
SEC. 5. IMPROVED RECOVERY PLANNING. 
(a) USE OF INFORMATION PROVIDED BY STATES.—
Section 7(b)(1) of the Endangered Species Act of 1973 
(16 U.S.C. 1536(b)(1)) is amended by adding at the end 
the following: 
‘‘(C) USE
OF
STATE
INFORMATION.—In 
conducting a consultation under subsection 
(a)(2), the Secretary shall actively solicit and
consider information from the State agency in 
each affected State.’’. 
(b) OPPORTUNITY TO PARTICIPATE IN CONSULTA-
TIONS.—Section 7(b)(1) of the Endangered Species Act 
of 1973 (16 U.S.C. 1536(b)(1)) (as amended by sub-
section (a)) is further amended by adding at the end the 
following: 
‘‘(D) OPPORTUNITY
TO
PARTICIPATE
IN 
CONSULTATIONS.—
‘‘(i) IN
GENERAL.—In conducting a 
consultation under subsection (a)(2), the 
Secretary shall provide any person who has 
sought authorization or funding from a 
Federal agency for an action that is the 
subject of the consultation, the opportunity 
to—
‘‘(I) before the development of a 
draft biological opinion, submit and 
discuss with the Secretary and the 
Federal agency information relevant 
to the effect of the proposed action on 
the species and the availability of rea-
sonable and prudent alternatives (if a 
jeopardy opinion is to be issued) that 
the Federal agency and the person