109th Congress
| Introduced: | Mar 15, 2005 |
| Sponsor: | Rep. Dennis Cardoza [D-CA] |
| Status: | Introduced (By Rep. Dennis Cardoza [D-CA]) |
| Mar 22, 2005: Executive Comment Requested from Interior. |
Return to Bill Status | Download PDF | Full Text on THOMAS
I
109TH CONGRESS
H. R. 1299
1ST SESSION
To amend the Endangered Species Act of 1973 to reform the process for
designating critical habitat under that Act.
IN THE HOUSE OF REPRESENTATIVES
MARCH 15, 2005
Mr. CARDOZA (for himself, Mr. DOOLITTLE, Mr. JONES of North Carolina,
Mr. BACA, Mr. HERGER, Mr. RADANOVICH, Mr. COSTA, Mr. OTTER, Mr.
CALVERT, Mr. PETERSON of Pennsylvania, Mr. WALDEN of Oregon, Mr.
SIMPSON, Mr. OSBORNE, Mr. REHBERG, Mr. NUNES, Ms. BORDALLO,
and Mr. GARY G. MILLER of California) introduced the following bill;
which was referred to the Committee on Resources
A BILL
To amend the Endangered Species Act of 1973 to reform
the process for designating critical habitat under that Act.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ``Critical Habitat En-
5 hancement Act of 2005''.
6 SEC. 2. DESIGNATION OF CRITICAL HABITAT; STANDARD.
7 (a) IN GENERAL.--Section 4(a) of the Endangered
8 Species Act of 1973 (16 U.S.C. 1533(a)) is amended--
2
1 (1) by redesignating subparagraph (B) of para-
2 graph (3) as paragraph (4);
3 (2) in paragraph (4) (as so redesignated)--
4 (A) by striking ``(i)'' and inserting ``(A)'';
5 (B) by striking ``(ii)'' and inserting ``(B)'';
6 and
7 (C) by striking ``(iii)'' and inserting ``(C)'';
8 and
9 (3) by amending paragraph (3) to read as fol-
10 lows:
11 ``(3)(A)(i) The Secretary shall, by regulation promul-
12 gated in accordance with subsection (b) and to the max-
13 imum extent practicable, prudent, and determinable, issue
14 a final regulation designating any habitat of the species
15 determined to be an endangered species or threatened spe-
16 cies that is critical habitat of the species.
17 ``(ii) The Secretary shall make any designation re-
18 quired under clause (i) by not later than one year after
19 the final approval of a recovery plan for the species under
20 section 4(f), or 3 years after the date of publication of
21 the final regulation implementing a determination that the
22 species is an endangered species or threatened species,
23 whichever is earlier.
24 ``(B) The Secretary shall reconsider any determina-
25 tion that designation of critical habitat of a species is not
HR 1299 IH
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1 practicable, or determinable, during the next review under
2 section 4(c)(2)(A) or at the time of a final approval of
3 a recovery plan for the species under section 4(f).
4 ``(C) The Secretary may, from time-to-time as appro-
5 priate, revise any designation of critical habitat under this
6 paragraph.
7 ``(D) Notwithstanding subparagraphs (A), (B), and
8 (C), any designation of an area as critical habitat shall
9 not apply with respect to any action authorized by--
10 ``(i) a permit under section 10(a) (including any
11 conservation plan or agreement under that section
12 for such a permit) that applies to the area;
13 ``(ii) a written statement under section 7(b)(4);
14 or
15 ``(iii) a land conservation or species manage-
16 ment program of a State, a Federal agency, a feder-
17 ally recognized Indian tribe located within the con-
18 tiguous 48 States, or the Metlakatla Indian Commu-
19 nity that the Secretary determines provides protec-
20 tion for habitat of the species that is substantially
21 equivalent to the protection that would be provided
22 by such designation.
23 ``(E) Nothing in this paragraph shall be construed
24 to authorize a recovery plan to establish regulatory re-
HR 1299 IH
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1 quirements or otherwise to have an effect other than as
2 non-binding guidance.''.
3 (b) CONFORMING AMENDMENT.--Section 4(b)(6)(C)
4 of the Endangered Species Act of 1973 (16 U.S.C.
5 1533(b)(6)(C)) is repealed.
6 SEC. 3. BASIS FOR DETERMINATION.
7 Section 4(b)(2) of the Endangered Species Act of
8 1973 (16 U.S.C. 1533(b)(2)) is amended--
9 (1) by inserting ``(A)'' after ``(2)''; and
10 (2) by adding at the end the following:
11 ``(B) In determining whether an area is critical habi-
12 tat, the Secretary shall seek and, if available, consider in-
13 formation from State and local governments in the vicinity
14 of the area, including local resource data and maps.
15 ``(C) Consideration of economic impact under this
16 paragraph shall include--
17 ``(i) direct, indirect, and cumulative economic
18 costs and benefits, including consideration of
19 changes in revenues received by landowners, the
20 Federal Government, and State and local govern-
21 ments; and
22 ``(ii) costs associated with the preparation of re-
23 ports, surveys, and analyses required to be under-
24 taken, as a consequence of a proposed designation of
25 critical habitat, by landowners seeking to obtain per-
HR 1299 IH
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1 mits or approvals required under Federal, State, or
2 local law.
3 ``(D) In designating critical habitat of a species, the
4 Secretary shall first consider all areas that are known to
5 be within the geographical area determined by field survey
6 data to be occupied by the species.''.
7 SEC. 4. CONTENT OF NOTICES OF PROPOSED DESIGNATION
8 OF CRITICAL HABITAT.
9 Section 4(b)(5)(A) of the Endangered Species Act of
10 1973 (16 U.S.C. 1533(b)(5)(A)) is amended--
11 (1) in clause (i) by striking ``, and'' and insert-
12 ing a semicolon;
13 (2) in clause (ii)--
14 (A) by striking ``and to each'' and insert-
15 ing ``to each''; and
16 (B) by inserting ``, and to the county and
17 any municipality having administrative jurisdic-
18 tion over the area'' after ``to occur''; and
19 (3) by adding at the end the following:
20 ``(iii) with respect to a regulation to des-
21 ignate or revise a designation of critical habi-
22 tat--
23 ``(I) publish maps and coordinates
24 that describe, in detail, the specific areas
25 that meet the definition under section 3 of,
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1 and are designated under section 4(a) as,
2 critical habitat, and all field survey data
3 upon which such designation is based; and
4 ``(II) maintain such maps, coordi-
5 nates, and data on a publicly accessible
6 Internet page of the Department; and
7 ``(iv) include in each of the notices re-
8 quired under this subparagraph a reference to
9 the Internet page referred to in clause
10 (iii)(II);''.
11 SEC. 5. CLARIFICATION OF DEFINITION OF CRITICAL HABI-
12 TAT.
13 Section 3(5) of the Endangered Species Act of 1973
14 (16 U.S.C. 1532(5)) is amended--
15 (1) in subparagraph (A) by striking clauses (i)
16 and (ii) and inserting the following:
17 ``(i) the specific areas--
18 ``(I) that are within the geographical area
19 determined by field survey data to be occupied
20 by the species at the time the areas are des-
21 ignated as critical habitat in accordance with
22 section 4; and
23 ``(II) on which are found those physical
24 and biological features that are necessary to
25 avoid jeopardizing the continued existence of
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1 the species and may require special manage-
2 ment considerations or protection; and
3 ``(ii) areas that are not within the geographical
4 area referred to in clause (i)(I) and that the Sec-
5 retary determines are essential for the survival of
6 the species at the time the areas are designated as
7 critical habitat in accordance with section 4.'';
8 (2) by striking subparagraph (B) and redesig-
9 nating subparagraph (C) as subparagraph (B); and
10 (3) by adding at the end the following:
11 ``(C) For purposes of subparagraph (A)(i) the term
12 `geographical area determined by field survey data to be
13 occupied by the species' means the specific area that, at
14 the time the area is designated as critical habitat in ac-
15 cordance with section 4, is being used by the species for
16 breeding, feeding, sheltering, or another essential behav-
17 ioral pattern.''.
| This factsheet outlines the negative impacts the Cardoza critical habitat bill would have on the critical habitat protections for endangered fish, plants, and wildlife. |
H.R. 1299 – The
Critical Habitat Enhancement Act of 2005
FACT SHEET
The number one threat to endangered
species is loss of habitat.
The Endangered Species Act requires federal wildlife agencies to map
out, publicize and protect "critical habitat" areas necessary for
the recovery of endangered plants and animals. It's a proven strategy:
Species with critical habitat are twice as likely to be recovering as those
without it. Rep. Dennis Cardoza's so-called critical habitat enhancement bill
would reverse this progress by creating a series of loopholes, unattainable
standards, and hollow duties that would eliminate crucial habitat protections.
It is not an enhancement bill, it's a destruction bill.
As habitat protections go, so go
endangered species – forever.
Under current law, it is presumed that critical habitat designations
are “prudent” in all cases outside the very narrow exception where there
is an immediate threat from collecting or poaching. The new language
attempts to give the Secretary broad discretion to ignore the need to protect
a listed species habitat by inserting the word “practicable” into the
current standard, thereby ignoring the essential connection between species
sustainability and habitat conservation. And, because the Fish and
Wildlife Service has taken the position that the designation of critical
habitat is never “practicable” because of budget constraints, this bill
could have the effect of virtually eliminating critical habitat designations
for species.
Abandoning recovery.
The Cardoza bill abandons the primary recovery goal of the Endangered
Species Act by attempting to undermine the Act’s definition of critical
habitat from one that focuses on the eventual recovery of a species to one
that merely tries to avoid extinction. Current law requires that both
occupied and unoccupied habitat essential for the conservation (recovery) of a
species be designated as critical habitat. The Cardoza bill tries to
eliminate this vital goal of the Endangered Species Act by seeking to restrict
critical habitat to that which is habitat necessary to avoid “jeopardizing
the continued existence of a species”. It also tries to undermine
habitat protection by limiting it to areas “determined by field survey data
to be occupied at the time of critical habitat designation”. This
approach could preclude the designation of areas used infrequently or
intermittently by a species such as one that follows a broad migration
pattern, but that are important to the recovery of the species.
Poor substitutes equal less
protection.
H.R. 1299 attempts to substitute a wide range of programs that
frequently provide less protection to a species than designated critical
habitat does. This is particularly true when you consider the requirement to
consult with expert wildlife agencies when a federal project, permit or other
federally funded action might harm a species’ critical habitat. Under
the bill, critical habitat will not apply to areas covered by habitat
conservation plans, incidental take permits, or State, Federal or Tribal land
conservation or species management programs that the Secretary believes
provides substantially equivalent protection as critical habitat. As
Interior Secretary Norton officially believes that critical habitat
designation provides no additional benefits for a species, it would not take
much of a program to provide more “protection” in her eyes.
Source: