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115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-838
======================================================================
FEDERALLY INTEGRATED SPECIES HEALTH ACT
_______
July 18, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3916]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 3916) to amend the Endangered Species Act of
1973 to vest in the Secretary of the Interior functions under
that Act with respect to species of fish that spawn in fresh or
estuarine waters and migrate to ocean waters, and species of
fish that spawn in ocean waters and migrate to fresh waters,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federally Integrated Species Health
Act'' or the ``FISH Act''.
SEC. 2. TRANSFER OF FUNCTIONS WITH RESPECT TO ANADROMOUS SPECIES AND
CATADROMOUS SPECIES.
(a) Transfer of Functions.--All functions with respect to anadromous
species and catadromous species under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) that were vested in the Secretary of
Commerce or the National Marine Fisheries Service immediately before
the enactment of this Act are transferred to the Secretary of the
Interior.
(b) Conforming Amendments.--The Endangered Species Act of 1973 is
amended--
(1) in section 3(15) (16 U.S.C. 1532(15))--
(A) by inserting ``(A)'' after ``(15)''; and
(B) by adding at the end the following:
``(B) Notwithstanding subparagraph (A), with respect to anadromous
species and catadromous species, the term `Secretary' means the
Secretary of the Interior.''; and
(2) in section 3 (16 U.S.C. 1532) by adding at the end the
following:
``(22) The term `anadromous species' means a species of fish that
spawn in fresh or estuarine waters and that migrate to ocean waters.
``(23) The term `catadromous species' means a species of fish that
spawn in ocean waters and migrate to fresh waters.''.
SEC. 3. MISCELLANEOUS PROVISIONS.
(a) References.--Any reference in any other Federal law, Executive
order, rule, regulation, or delegation of authority, or any document of
or pertaining to a department or office from which a function is
transferred by this Act--
(1) to the head of such department or office is deemed to
refer to the Secretary of the Interior; or
(2) to such department or office is deemed to refer to the
Department of the Interior.
(b) Exercise of Authorities.--Except as otherwise provided by law,
the Secretary of the Interior may, for purposes of performing the
functions transferred by this Act, exercise all authorities under the
Endangered Species Act of 1973 that were available with respect to the
performance of that function immediately before the effective date of
the transfer of the function under this Act.
(c) Savings Provisions.--
(1) Legal documents.--All orders, determinations, rules,
regulations, permits, grants, loans, contracts, agreements,
certificates, licenses, and privileges--
(A) that have been issued, made, granted, or allowed
to become effective by the Secretary of Commerce, any
officer or employee of the Department of Commerce, or
any other Government official in the performance of any
function that is transferred by this Act, or by a court
of competent jurisdiction with respect to such
performance; and
(B) that are in effect on the effective date of this
Act (or become effective after such date pursuant to
their terms as in effect on such effective date),
shall continue in effect according to their terms until
modified, terminated, superseded, set aside, or revoked in
accordance with law by the President, any other authorized
official, a court of competent jurisdiction, or operation of
law.
(2) Proceedings.--
(A) In general.--This Act shall not affect any
proceedings or any application for any benefits,
service, license, permit, certificate, or financial
assistance pending on the date of the enactment of this
Act before an office transferred by this Act. Such
proceedings and applications shall be continued. Orders
shall be issued in such proceedings, appeals shall be
taken therefrom, and payments shall be made pursuant to
such orders, as if this Act had not been enacted, and
orders issued in any such proceeding shall continue in
effect until modified, terminated, superseded, or
revoked by a duly authorized official, by a court of
competent jurisdiction, or by operation of law.
(B) Limitation.--Nothing in this paragraph shall be
considered to prohibit the discontinuance or
modification of any such proceeding under the same
terms and conditions and to the same extent that such
proceeding could have been discontinued or modified if
this Act had not been enacted.
(3) Suits.--This Act shall not affect suits commenced before
the date of the enactment of this Act, and in all such suits,
proceeding shall be had, appeals taken, and judgments rendered
in the same manner and with the same effect as if this Act had
not been enacted.
(4) Nonabatement of actions.--No suit, action, or other
proceeding commenced by or against the Department of Commerce
or the Secretary of Commerce, or by or against any individual
in the official capacity of such individual as an officer or
employee of the Department of Commerce, shall abate by reason
of the enactment of this Act.
(5) Continuance of suits.--If any Government officer in the
official capacity of such officer is party to a suit with
respect to a function of the officer, and under this Act such
function is transferred to any other officer or office, then
such suit shall be continued with the other officer or the head
of such other office, as applicable, substituted or added as a
party.
(6) Administrative procedure and judicial review.--Except as
otherwise provided by this Act, any statutory requirements
relating to notice, hearings, action upon the record, or
administrative or judicial review that apply to any function
transferred by this Act shall apply to the exercise of such
function by the head of the Federal agency, and other officers
of the agency, to which such function is transferred by this
Act.
SEC. 4. DEFINITIONS.
For purposes of this Act:
(1) Anadromous species and catadromous species.--Each of the
terms ``anadromous species'' and ``catadromous species'' has
the meaning that term has under section 3 of the Endangered
Species Act of 1973, as amended by section 2 of this Act.
(2) Function.--The term ``function'' includes any duty,
obligation, power, authority, responsibility, right, privilege,
activity, or program.
(3) Office.--The term ``office'' includes any office,
administration, agency, bureau, institute, council, unit,
organizational entity, or component thereof.
Purpose of the Bill
The purpose of H.R. 3916 is to amend the Endangered Species
Act of 1973 to vest in the Secretary of the Interior functions
under the Act with respect to species of fish that spawn in
fresh or estuarine waters and migrate to ocean waters, and
species of fish that spawn in ocean waters and migrate to fresh
waters.
Background and Need for Legislation
The Endangered Species Act of 1973
In response to fears over dwindling populations of plant
and animal species, Congress passed the Endangered Species Act
of 1973 (ESA, 16 U.S.C. 1531 et seq.). ESA sets out the broad
goal of conserving and recovering species facing extinction.\1\
The law authorizes federal agencies to identify imperiled
species and list them as either threatened or endangered as
appropriate.\2\ The law further requires agencies to take
necessary actions to conserve those species and their habitats.
Congress made significant amendments to the ESA in 1978, 1982,
and 1988, though the overall framework has remained essentially
unchanged since its original enactment in 1973.\3\ In 44 years,
there have been 2,335 total listings of species as either
``endangered'' or ``threatened'', thus triggering ESA
protections.\4\ In that time, of the 72 total species delisted,
only 42 distinct species have been removed, either entirely or
partially throughout their range, due to population
recovery.\5\
---------------------------------------------------------------------------
\1\The Endangered Species Act of 1973, 16 U.S.C. Sec. 1531(b).
\2\16 U.S.C. Sec. 1533.
\3\A History of the Endangered Species Act of 1973, United States
Fish and Wildlife Service.
\4\Listed Species Summary, Environmental Conservation Online
System, United States Fish and Wildlife Service.
\5\Delisted Species, Environmental Conservation Online System,
United States Fish and Wildlife Service.
---------------------------------------------------------------------------
Under the ESA, the Secretary of the Interior, through the
U.S. Fish and Wildlife Service (FWS), has responsibility for
plants, wildlife and inland fisheries. The Secretary of
Commerce, through the National Marine Fisheries Service (NMFS),
is responsible for implementing the ESA with respect to ocean-
going fish and some marine mammals.\6\ If federal actions\7\
might affect a listed species, section 7 of the ESA requires
federal agencies that would carry out such actions to consult
with FWS or NMFS to ``ensure that their actions are `not likely
to jeopardize the continued existence' of any endangered or
threatened species, nor to adversely modify critical
habitat''.\8\
---------------------------------------------------------------------------
\6\Congressional Research Service Report ``The Endangered Species
Act: A Primer,'' p. 8.
\7\As defined in 40 Code of Federal Regulations 1508.18.
\8\Id.
---------------------------------------------------------------------------
When otherwise lawful actions occurring on private lands
that lack a federal nexus impact a listed species, the
appropriate Secretary may issue an incidental take permit.\9\
These ESA section 10 permits require applicants to submit a
conservation plan outlining the impacts of the takings and
steps the applicant will take to reduce such impacts along with
any alternatives that could avoid such impacts.\10\
---------------------------------------------------------------------------
\9\16 U.S.C. Sec. 1539.
\10\Id.
---------------------------------------------------------------------------
Regulatory duplication
FWS or NMFS completes its section 7 consultation process
with the issuance of a Biological Opinion (BiOp) determining
whether the federal action will jeopardize the continued
existence of the species in question or adversely modify
critical habitat.\11\ If the BiOp concludes ``no jeopardy'' to
the species, then the agency issues an incidental take
statement allowing the action to continue.\12\ If the BiOp
concludes that the proposed action ``jeopardizes'' a species,
then the agency outlines Reasonable and Prudent Alternative
courses of action (RPAs) that will allow the action to move
forward without jeopardizing the species.\13\ If no such RPAs
exist, the action is not permitted to proceed.
---------------------------------------------------------------------------
\11\16 U.S.C. Sec. 1536(b).
\12\16 U.S.C. Sec. 1536(b)(4).
\13\Id.
---------------------------------------------------------------------------
In many cases, federal and private actions impact multiple
species that fall under the jurisdiction of both FWS and NMFS.
In such instances, both FWS and NMFS issue BiOps detailing
impacts on their respective species and detailing RPAs to
mitigate jeopardy if necessary. This redundant exercise can
result in competing recommendations and in some cases,
irreconcilable mandates, such as in the example below.
Examples of Agency duplication
In California, operations of the federal Central Valley
Project (CVP) and the State Water Project (SWP) in the
Sacramento-San Joaquin Bay-Delta (Bay-Delta) required BiOps
from FWS and NMFS relating to impacts on the Delta smelt and
certain species of salmon respectively. The 2009 NMFS BiOP for
Winter-run Chinook salmon (2009 BiOp) requires the Bureau of
Reclamation to receive approval from NMFS prior to issuing
water supply allocations for the water year.\14\ On March 31,
2016, after reviewing Reclamation's March forecast and water
supply allocation, NMFS sent a concurrence letter stating,
``NMFS concurs with Reclamation's forecast based on March 15,
2016, hydrologic conditions, and initial water supply
allocation, that RPA I.2.3.A should be implemented this
year.''\15\ Two weeks after sending its concurrence letter,
NMFS indicated that its temperature projections were no longer
valid. As a result, NMFS proposed to limit releases from Shasta
Dam to 8,000 cubic feet per second (cfs)--down from a maximum
of 10,500 cfs in the approved operations plan--through the
summer and into the fall to preserve cold water for Winter-run
Chinook salmon.\16\
---------------------------------------------------------------------------
\14\Biological Opinion and Conference Opinion on the Long-Term
Operations of the Central Valley Project and State Water Project,
Southwest Region, National Marine Fisheries Service, June 4, 2009, p.
602.
\15\http://www.westcoast.fisheries.noaa.gov/publications/
Central_Valley/Water%20Operations/
nmfs_march_31_2016_response_to_the_bureau_of_reclamation_s_march_forecas
t.pdf, p. 4.
\16\http://valadao.house.gov/uploadedfiles/
june_2016_letter_to_u.s._interior_and_u.s._commerce.pdf, p. 1.
---------------------------------------------------------------------------
As NMFS sought to limit Delta outflow, FWS proposed to
increase Bay-Delta outflow for the Delta smelt during the same
period. According to a Reclamation spokesman, FWS requested up
to 300,000 acre-feet of water for Delta outflow for the Delta
smelt in the summer of 2016.\17\ Some contend that these
actions are outside the requirements of the 2008 FWS Delta
smelt Biological Opinion (2008 BiOp).\18\ At a July 2016
Subcommittee on Water, Power and Oceans hearing, Mr. Ara
Azhderian, Water Policy Administrator for the San Luis and
Delta-Mendota Water Authority, testified, ``The current BiOps
have squeezed virtually all of the operational flexibility from
the Projects, causing the damaging effects of the natural
drought to amplify the chronic water supply shortages of the
regulatory drought, with devastating effect throughout the CVP
service area, but especially in the San Joaquin Valley.''\19\
---------------------------------------------------------------------------
\17\http://www.sacbee.com/news/state/california/water-and-drought/
article86742377.html
\18\http://valadao.house.gov/uploadedfiles/
june_2016_letter_to_u.s._interior_and_u.s._commerce.pdf, p. 2.
\19\Written Testimony of Mr. Ara Azhderian before the Subcommittee
on Water, Power and Oceans, Oversight Hearing ``Changing Demands and
Water Supply Uncertainty in California'', July 12, 2016, p. 2.
---------------------------------------------------------------------------
Section 10 permit applicants face similar uncertainty when
their actions impact species that cross jurisdictional lines.
An example would be ESA listing of several species including
the northern spotted owl and the marbled murrelet that stalled
timber management activities in the Pacific Northwest. Revenues
from timber sales in the Pacific Northwest finance a variety of
county services, including public schools.\20\ Section 10 of
ESA requires non-federal stakeholders to develop habitat
conservation plans (HCPs) for spotted owls and marbled
murrelets to continue timber harvesting in ways that would
mitigate impacts on these species.\21\ However, a 2007 guidance
from FWS and NMFS regional offices overseeing California,
Nevada and the Pacific Northwest complicated the HCP
development and section 10 application processes.\22\ According
to the guidance, each agency will consider only multi-species
HCPs that also encompass potential impacts on species under the
jurisdiction of both agencies if the lands in question may
support any such species. Furthermore, the guidance established
that applicants pursue ``parallel permit processes as a
criterion for permit issuance,'' effectively establishing a
firewall between the agencies' individual ESA
determinations.\23\
---------------------------------------------------------------------------
\20\``Public Timber: Federal and State Programs Differ
Significantly in Pacific Northwest'', Report to the Chairman, Committee
on Resources, House of Representatives, U.S. Government Accountability
Office, May 1996, p. 1.
\21\``OFIC Comments on Streamlining Regulatory Processes and
Reducing Regulatory Burden'', Letter from the Oregon Forest &
Industries Council to the National Marine Fisheries Service, August 21,
2017, p. 2.
\22\``Guidance on Single-Species and Single-Agency Approaches to
Endangered Species Act Section 10 Permits for Habitat Conservation
Plans, Safe Harbor Agreements, and Candidate Conservation Agreement
with Assurances'', Joint Memorandum, National Marine Fisheries Service
and United States Fish and Wildlife Service; July 11, 2007.
\23\Id., p. 2.
---------------------------------------------------------------------------
In Oregon, for example, FWS refuses to issue section 10
permits to forestland owners for the marbled murrelet and
spotted owl unless the applicants also undertake the
conservation measures required to obtain a section 10 permit
from NMFS for Oregon coast coho.\24\ All three species are
listed as threatened.
---------------------------------------------------------------------------
\24\``OFIC Comments on Streamlining Regulatory Processes and
Reducing Regulatory Burden'', Letter from the Oregon Forest &
Industries Council to the National Marine Fisheries Service, August 21,
2017, p. 2.
---------------------------------------------------------------------------
The different approach each agency takes to ESA section
4(d) rules creates further uncertainty for those attempting to
navigate the interjurisdictional regulatory web. While the ESA
applies a blanket prohibition on takings of endangered
species,\25\ this prohibition does not extend to threatened
species. Section 4(d) authorizes each agency to promulgate
regulations ``the Secretary deems necessary and advisable to
provide for the conservation of [threatened] species.''\26\
NMFS applies 4(d) rules to threatened species in its
jurisdiction on a case-by-case basis, whereas FWS uses its 4(d)
authority to extend a blanket taking prohibition to all
threatened species in its jurisdiction and in some instances
applies tailored rules to individual threatened species.\27\
When the ESA requires both agencies to participate in a section
7 consultation or to issue a section 10 permit, these differing
regulatory styles add unnecessary hurdles to an already
extensive review process.
---------------------------------------------------------------------------
\25\16 U.S.C. Sec. 1538(a).
\26\16 U.S.C. Sec. 1533(d).
\27\Curtiss, Sarah Stauffer, ``A Necessary Tool for Conservation:
The Case for Section 4(d) of the Endangered Species Act: Current &
Emerging Issues Affecting Resource Development'', Paper 7C, Page No. 2
(Rocky Mt. Min. L. Fdn. 2015).
---------------------------------------------------------------------------
H.R. 3916--The FISH Act
In 1966 Congress passed the Marine Resources and
Engineering Development Act (Public Law 89-454), which
established a Commission on Marine Science, Engineering and
Resources. The legislation directed the Commission to ``make a
comprehensive investigation and study of all aspects of marine
science in order to recommend an overall plan for an adequate
national oceanographic program that will meet the present and
future national needs.''\28\ The Commission published its final
report ``Our Nation and the Sea: A Plan for National Action''
which laid the foundation for creation of the National Oceanic
and Atmospheric Administration (NOAA).\29\ President Nixon
incorporated the Commission's recommendation into his Advisory
Council on Executive Organization which recommended that this
new agency be housed in the Department of the Interior
(DOI).\30\ Nearly two-thirds of this new agency's budget would
comprise the budget of the Environmental Science Services
Administration (ESSA) which operated within the Department of
Commerce. Citing the prevalence of ESSA's resources in the new
budget for NOAA, then-Secretary of Commerce Maurice Stans--
aided by political strife between President Nixon and his DOI
Secretary--successfully argued that NOAA should be temporarily
housed in the Department of Commerce.\31\ On October 3, 1970,
President Nixon created NOAA as part of Reorganization Plan No.
4, placing it in the Department of Commerce.\32\
---------------------------------------------------------------------------
\28\80 Stat 206.
\29\A History of NOAA, National Oceanic and Atmospheric
Administration.
\30\Id.
\31\Id.
\32\84 Stat. 2090-3.
---------------------------------------------------------------------------
In his 2011 State of the Union address, President Obama
highlighted this duplicative authority as his ``favorite
example'' of government inefficiency, saying ``the Interior
Department is in charge of salmon while they're in freshwater,
but the Commerce Department handles them when they're in
saltwater. And I hear it gets even more complicated once
they're smoked.''\33\ Furthermore, President Obama formally
proposed the idea of merging NOAA into DOI in 2012 in his
Fiscal Year (FY) 2013 budget request and echoed the 2012
proposal in his FY 2016 budget request.\34\\35\
---------------------------------------------------------------------------
\33\State of the Union Address, President Barack Obama, 2011.
\34\Fiscal Year 2013 Budget of the United States, p. 41.
\35\Fiscal Year 2016 Budget of the United States, p. 81.
---------------------------------------------------------------------------
The FISH Act, authored by Rep. Ken Calvert (R-CA), takes a
step in righting a decades-old wrong. H.R. 3916 would eliminate
bureaucratic redundancies by consolidating the ESA functions of
NOAA and DOI relating to the conservation of anadromous and
catadromous fish, making DOI solely responsible for managing
these species. This legislation will allow one wildlife
management agency to comprehensively evaluate impacts on
species interacting in a shared ecosystem and determine a
holistic management approach.
Section-by-Section Analysis
Section 1. Short title
This Act may be cited as ``Federally Integrated Species
Health Act'' or ``FISH Act''.
Section 2. Transfer of functions with respect to anadromous species and
catadromous species
This section transfers all ESA authority with respect to
the conservation of anadromous and catadromous fish species
from NOAA to DOI. Section 2 amends Section 3 of the ESA to
reflect this change.
Section 3. Miscellaneous provisions
This section ensures any reference in federal law,
executive order, rule, regulation, or delegation of authority,
or any document of or pertaining to a department or office from
which a function is transferred by the FISH Act would refer to
the Secretary of the Interior and/or DOI upon passage. Section
3 also guarantees the FISH Act would impose no limitations on
the Secretary of the Interior's authorities under the ESA.
Section 3 also includes a number of savings clauses. The
legislation would not interfere with existing rules, contracts,
licenses, etc. or any court proceedings that had initiated
prior to the date of enactment of this Act. If any official is
party to a lawsuit in his/her official capacity relating to
authorities transferred under this legislation, the lawsuit is
allowed to proceed substituting the analogous officer within
DOI. Section 3 also ensures compliance with all procedural and
judicial review requirements with respect to exercise of
transferred authorities by the Secretary of the Interior.
Section 4. Definitions
This section defines several key terms including
``anadromous species'' and ``catadromous species''.
This section defines several key terms including
``anadromous species'' and ``catadromous species''.
Committee Action
H.R. 3916 was introduced on October 3, 2017, by Congressman
Ken Calvert (R-CA). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water, Power and Oceans. On October 12, 2017, the
Subcommittee held a hearing on the legislation. On May 16,
2018, the Natural Resources Committee met to consider the bill.
The Subcommittee was discharged by unanimous consent.
Congressman Doug Lamborn (R-CO) offered an amendment designated
#1; it was adopted by voice vote. No further amendments were
offered and the bill, as amended, was ordered favorably
reported to the House of Representatives by a bipartisan roll
call vote of 22 yeas and 14 nays, as follows:
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 25, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3916, the FISH
Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 3916--FISH Act
H.R. 3916 would amend the Endangered Species Act (ESA) to
transfer all authority for managing the species of fish that
migrate between freshwater and saltwater to the U.S. Fish and
Wildlife Service (USFWS). Currently, the responsibility is
shared by USFWS and the National Oceanic and Atmospheric
Administration (NOAA).
In 2018, NOAA allocated appropriations totaling $140
million to support 363 agency staff who manage the affected
fish populations. Those employees conduct research and
monitoring, engage in interagency consultations, complete
habitat conservation plans, and implement recovery actions. CBO
expects that NOAA' s workforce and budget would be reduced
under the bill and that any reduction in spending would be
offset by a corresponding increase in USFWS spending.
Implementing H.R. 3916 could affect the federal budget if
the transfer of authority affected the amount of work space
necessary for one or both agencies or the number of employees
needed to carry out the activities required under the ESA.
However, CBO lacks sufficient information regarding how the
agencies would implement the bill to determine whether such
effects would result in any significant net increase or
decrease in spending; any increased spending would be subject
to the availability of appropriated funds.
Enacting H.R. 3916 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 3916 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 3916 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Endangered Species Act
of 1973 to vest in the Secretary of the Interior functions
under the Act with respect to species of fish that spawn in
fresh or estuarine waters and migrate to ocean waters, and
species of fish that spawn in ocean waters and migrate to fresh
waters.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
* * * * * * *
definitions
Sec. 3. For the purposes of this Act--
(1) The term ``alternative courses of action'' means all
alternatives and thus is not limited to original project
objectives and agency jurisdiction.
(2) The term ``commercial activity'' means all activities of
industry and trade, including, but not limited to, the buying
or selling of commodities and activities conducted for the
purpose of facilitating such buying and selling: Provided,
however, That it does not include exhibitions of commodities by
museums or similar cultural or historical organizations.
(3) The terms ``conserve,''``conserving,'' and
``conservation'' mean to use and the use of all methods and
procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary. Such
methods and procedures include, but are not limited to, all
activities associated with scientific resources management such
as research, census, law enforcement, habitat acquisition and
maintenance, propagation, live trapping, and transplantation,
and, in the extraordinary case where population pressures
within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
(4) The term ``Convention'' means the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.
(5)(A) The term ``critical habitat'' for a threatened or
endangered species means--
(i) the specific areas within the geographical area
occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this
Act, on which are found those physical or biological
features (I) essential to the conservation of the
species and (II) which may require special management
considerations or protection; and
(ii) specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of this
Act, upon a determination by the Secretary that such
areas are essential for the conservation of the
species.
(B) Critical habitat may be established for those species now
listed as threatened or endangered species for which no
critical habitat has heretofore been established as set forth
in subparagraph (A) of this paragraph.
(C) Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire
geographical area which can be occupied by the threatened or
endangered species.
(6) The term ``endangered species''' means any species which
is in danger of extinction throughout all or a significant
portion of its range other than a species of the Class Insecta
determined by the Secretary to constitute a pest whose
protection under the provisions of this Act would present an
overwhelming and overriding risk to man.
(7) The term ``Federal agency'' means any department, agency,
or instrumentality of the United States.
(8) The term ``fish or wildlife'' means any member of the
animal kingdom, including without limitation any mammal, fish,
bird (including any migratory, nonmigratory, or endangered bird
for which protection is also afforded by treaty or other
international agreement), amphibian, reptile, mollusk,
crustacean, arthropod or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or
parts thereof.
(9) The term ``foreign commerce'' includes, among other
things, any transaction--
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a
person in a foreign country; or
(D) between persons within the United States, where
the fish and wildlife in question are moving in any
country or countries outside the United States.
(10) The term ``import'' means to land on, bring into, or
introduce into or attempt to land on, bring into, or introduce
into, any place subject to the jurisdiction of the United
States, whether or not such landing, bringing, or introduction
constitutes an importation within the meaning of the customs
laws of the United States.
(12) The term ``permit or license applicant'' means, when
used with respect to an action of a Federal agency for which
exemption is sought under section 7, any person whose
application to such agency for a permit or license has been
denied primarily because of the application of section 7(a) to
such agency action.
(13) The term ``person'' means an individual, corporation,
partnership, trust, association, or any other private entity;
or any officer, employee, agent, department, or instrumentality
of the Federal Government, of any State, municipality, or
political subdivision of a State, or of any foreign government;
any State, municipality, or political subdivision of a State;
or any other entity subject to the jurisdiction of the United
States.
(14) The term ``plant'' means any member of the plant
kingdom, including seeds, roots and other parts thereof.
(15)(A) The term ``Secretary'' means, except as otherwise
herein provided, the Secretary of the Interior or the Secretary
of Commerce as program responsibilities are vested pursuant to
the provisions of Reorganization Plan Numbered 4 of 1970;
except that with respect to the enforcement of the provisions
of this Act and the Convention which pertain to the importation
or exportation of terrestrial plants, the term also means the
Secretary of Agriculture.
(B) Notwithstanding subparagraph (A), with respect to
anadromous species and catadromous species, the term
``Secretary'' means the Secretary of the Interior.
(16) The term ``species''' includes any subspecies of fish or
wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when
mature.
(17) The term ``State'' means any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, Guam, and the Trust Territory of the
Pacific Islands.
(18) The term ``State agency'' means any State agency,
department, board, commission, or other governmental entity
which is responsible for the management and conservation of
fish, plant, or wildlife resources within a State.
(19) The term ``take'' means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.
(20) The term ``threatened species''' means any species which
is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of
its range.
(21) The term ``United States,'' when used in a geographical
context, includes all States.
(22) The term ``anadromous species''' means a species of fish
that spawn in fresh or estuarine waters and that migrate to
ocean waters.
(23) The term ``catadromous species''' means a species of
fish that spawn in ocean waters and migrate to fresh waters.
* * * * * * *
DISSENTING VIEWS
H.R. 3916 transfers management of certain endangered fish
species from the National Marine Fisheries Service (NMFS), an
agency within the Commerce Department, to the Department of the
Interior (DOI). Because the bill fails to account for the
complexities of protecting endangered fish, we cannot support
H.R. 3916.
Anadromous fish are born and spawn in fresh water, but
spend most of their lives in the ocean, while catadromous
species spend most of their lives in fresh water, but breed in
the ocean. Many anadromous species of fish are listed under the
Endangered Species Act (ESA), including 28 salmon and steelhead
populations on the West Coast, Atlantic salmon, and 13 sturgeon
species. There are no catadromous species currently listed
under the ESA. H.R. 3916 would transfer management of these
species to DOI.
Given that ESA-listed anadromous fish spend most of their
lives in the open ocean, the National Marine Fisheries Service
is the appropriate agency to manage these populations, not the
Interior Department. Marine fisheries are inherently different
from freshwater fisheries in both environmental and policy
contexts. Endangered fish management across habitats is
informed by life cycles; threats and recovery measures
necessary for spawning and migrating salmon are different from
measures necessary for adult salmon in the open ocean. While it
is necessary for the Fish and Wildlife Service (FWS), an
Interior Department agency, and NMFS to coordinate,
transferring management of these species to Interior would
undermine management and recovery of these endangered fish.
Additionally, H.R. 3916 fails to indicate how this
management transition would be supported in the budget. The
bill does not indicate if the existing NMFS budgets for both
Atlantic and Pacific salmon would go to the FWS. Given the
current lack of funding for the FWS to manage listed species,
it is unclear if the already-strained agency would have the
budget and personnel necessary to take on management of
additional endangered species.
Several fishing and other non-governmental organizations,
including the Pacific Coast Federation of Fishermen's
Associations, League of Conservation Voters, Natural Resources
Defense Council, Western Watersheds Project, and the Golden
State Salmon Association, also oppose H.R. 3916.
Raul M. Grijalva,
Ranking Member,
House Committee on Natural
Resources.
Nydia M. Velazquez.
Jared Huffman.