To amend the Endangered Species Act of 1973 to reform the process for designating critical habitat under that Act.

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

To amend the Endangered Species Act of 1973 to reform the process for designating critical habitat under that Act.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Critical Habitat Enhancement Act of 2005'.

SEC. 2. DESIGNATION OF CRITICAL HABITAT; STANDARD.

(a) In General- Section 4(a) of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)) is amended--

(1) by redesignating subparagraph (B) of paragraph (3) as paragraph (4);

(2) in paragraph (4) (as so redesignated)--

(A) by striking `(i)' and inserting `(A)';

(B) by striking `(ii)' and inserting `(B)'; and

(C) by striking `(iii)' and inserting `(C)'; and

(3) by amending paragraph (3) to read as follows:

`(3)(A)(i) The Secretary shall, by regulation promulgated in accordance with subsection (b) and to the maximum extent practicable, prudent, and determinable, issue a final regulation designating any habitat of the species determined to be an endangered species or threatened species that is critical habitat of the species.

`(ii) The Secretary shall make any designation required under clause (i) by not later than one year after the final approval of a recovery plan for the species under section 4(f), or 3 years after the date of publication of the final regulation implementing a determination that the species is an endangered species or threatened species, whichever is earlier.

`(B) The Secretary shall reconsider any determination that designation of critical habitat of a species is not practicable, or determinable, during the next review under section 4(c)(2)(A) or at the time of a final approval of a recovery plan for the species under section 4(f).

`(C) The Secretary may, from time-to-time as appropriate, revise any designation of critical habitat under this paragraph.

`(D) Notwithstanding subparagraphs (A), (B), and (C), any designation of an area as critical habitat shall not apply with respect to any action authorized by--

`(i) a permit under section 10(a) (including any conservation plan or agreement under that section for such a permit) that applies to the area;

`(ii) a written statement under section 7(b)(4); or

`(iii) a land conservation or species management program of a State, a Federal agency, a federally recognized Indian tribe located within the contiguous 48 States, or the Metlakatla Indian Community that the Secretary determines provides protection for habitat of the species that is substantially equivalent to the protection that would be provided by such designation.

`(E) Nothing in this paragraph shall be construed to authorize a recovery plan to establish regulatory requirements or otherwise to have an effect other than as non-binding guidance.'.

(b) Conforming Amendment- Section 4(b)(6)(C) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)(6)(C)) is repealed.

SEC. 3. BASIS FOR DETERMINATION.

Section 4(b)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)(2)) is amended--

(1) by inserting `(A)' after `(2)'; and

(2) by adding at the end the following:

`(B) In determining whether an area is critical habitat, the Secretary shall seek and, if available, consider information from State and local governments in the vicinity of the area, including local resource data and maps.

`(C) Consideration of economic impact under this paragraph shall include--

`(i) direct, indirect, and cumulative economic costs and benefits, including consideration of changes in revenues received by landowners, the Federal Government, and State and local governments; and

`(ii) costs associated with the preparation of reports, surveys, and analyses required to be undertaken, as a consequence of a proposed designation of critical habitat, by landowners seeking to obtain permits or approvals required under Federal, State, or local law.

`(D) In designating critical habitat of a species, the Secretary shall first consider all areas that are known to be within the geographical area determined by field survey data to be occupied by the species.'.

SEC. 4. CONTENT OF NOTICES OF PROPOSED DESIGNATION OF CRITICAL HABITAT.

Section 4(b)(5)(A) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)(5)(A)) is amended--

(1) in clause (i) by striking `, and' and inserting a semicolon;

(2) in clause (ii)--

(A) by striking `and to each' and inserting `to each'; and

(B) by inserting `, and to the county and any municipality having administrative jurisdiction over the area' after `to occur'; and

(3) by adding at the end the following:

`(iii) with respect to a regulation to designate or revise a designation of critical habitat--

`(I) publish maps and coordinates that describe, in detail, the specific areas that meet the definition under section 3 of, and are designated under section 4(a) as, critical habitat, and all field survey data upon which such designation is based; and

`(II) maintain such maps, coordinates, and data on a publicly accessible Internet page of the Department; and

`(iv) include in each of the notices required under this subparagraph a reference to the Internet page referred to in clause (iii)(II);'.

SEC. 5. CLARIFICATION OF DEFINITION OF CRITICAL HABITAT.

Section 3(5) of the Endangered Species Act of 1973 (16 U.S.C. 1532(5)) is amended--

(1) in subparagraph (A) by striking clauses (i) and (ii) and inserting the following:

`(i) the specific areas--

`(I) that are within the geographical area determined by field survey data to be occupied by the species at the time the areas are designated as critical habitat in accordance with section 4; and

`(II) on which are found those physical and biological features that are necessary to avoid jeopardizing the continued existence of the species and may require special management considerations or protection; and

`(ii) areas that are not within the geographical area referred to in clause (i)(I) and that the Secretary determines are essential for the survival of the species at the time the areas are designated as critical habitat in accordance with section 4.';

(2) by striking subparagraph (B) and redesignating subparagraph (C) as subparagraph (B); and

(3) by adding at the end the following:

`(C) For purposes of subparagraph (A)(i) the term `geographical area determined by field survey data to be occupied by the species' means the specific area that, at the time the area is designated as critical habitat in accordance with section 4, is being used by the species for breeding, feeding, sheltering, or another essential behavioral pattern.'.

END