[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5281 Introduced in House (IH)]
<DOC>
114th CONGRESS
2d Session
H. R. 5281
To amend the Endangered Species Act of 1973 to permit Governors of
States to regulate intrastate endangered species and intrastate
threatened species, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 18, 2016
Mr. Luetkemeyer introduced the following bill; which was referred to
the Committee on Natural Resources
_______________________________________________________________________
A BILL
To amend the Endangered Species Act of 1973 to permit Governors of
States to regulate intrastate endangered species and intrastate
threatened species, and for other purposes.
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 ``Endangered Species Management Self-
Determination Act''.
SEC. 2. DEFINITION OF ESA.
In this Act, the term ``ESA'' means the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.).
SEC. 3. FINDINGS.
Congress finds that--
(1) the ESA was passed in 1973 as a means of protecting and
recovering species and has not been substantially revised in
over 25 years;
(2) the ESA has not achieved its stated goal of recovering
threatened species or endangered species;
(3) of the species listed in accordance with the ESA, less
than 1 percent of the total number of species in the United
States have been recovered and removed from the list, largely
due to data errors or other factors;
(4) there is--
(A) no comprehensive independent study of the costs
or benefits of the ESA;
(B) no full accounting of how much the Federal
Government and State and local governments spend to
implement, enforce, and comply with the ESA; and
(C) no meaningful effort to account for the costs
the ESA imposes on the private sector;
(5) the ESA effectively penalizes landowners for owning
endangered species habitat by forcing them to bear the cost of
conservation;
(6) the regulatory listing process under the ESA has become
a tool for environmentalists to undermine, slow down, or halt
construction of infrastructure projects, hampering economic
growth and employment; and
(7) litigation stemming from the ESA and some resulting
settlements between the litigants and the Federal Government
have made the ESA even more unworkable, to the detriment of
species.
SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND THREATENED SPECIES.
(a) Process.--Section 4 of the Endangered Species Act of 1973 (16
U.S.C. 1533) is amended--
(1) in subsection (a)--
(A) in paragraph (1), by inserting ``, with the
consent of the Governor of each State in which the
endangered species or threatened species is present,''
after ``The Secretary''; and
(B) in paragraph (2)(A)(ii), by inserting ``, with
the consent of the Governor of each State in which the
endangered species or threatened species is present,''
after ``, who'';
(2) in subsection (b)--
(A) by striking paragraph (3);
(B) by redesignating paragraphs (4) through (8) as
paragraphs (3) through (7), respectively;
(C) in paragraph (3) (as so redesignated), by
striking ``paragraphs (5) and (6) of this subsection''
and inserting ``paragraphs (4) and (5)'';
(D) in paragraph (5)(A) (as so redesignated), by
striking ``paragraph (5)(A)(i)'' and inserting
``paragraph (4)(A)(i)'';
(E) in paragraph (6) (as so redesignated), by
striking ``paragraph (4), (5), or (6) of this
subsection'' and inserting ``paragraph (3), (4), or
(5)''; and
(F) by adding at the end the following:
``(8) Definition of best scientific and commercial data.--
In this subsection, the term `best scientific and commercial
data' includes any scientific evidence made available to the
Secretary by any State agency.'';
(3) by striking subsection (c) and inserting the following:
``(c) Lists.--
``(1) Definition of joint resolution.--In this subsection,
the term `joint resolution' means only a joint resolution the
matter after the resolving clause of which is as follows: `That
Congress approves the lists relating to endangered species and
threatened species submitted by the Secretary of the Interior
on ______.' (the blank space being appropriately filled in).
``(2) Lists submitted to congress.--The Secretary of the
Interior shall submit to Congress--
``(A) a list of all species determined by the
Secretary of the Interior or the Secretary of Commerce
to be endangered species; and
``(B) a list of all species determined by the
Secretary of the Interior or the Secretary of Commerce
to be threatened species.
``(3) Congressional approval.--The lists described in
paragraph (2) shall not take effect until a joint resolution
described in paragraph (1) is enacted.
``(4) Contents of lists.--Each list described in paragraph
(2) shall--
``(A) refer to the species included on the list by
any scientific and common name; and
``(B) specify--
``(i) with respect to the species over what
portion of the range of the species that the
species is endangered or threatened; and
``(ii) any critical habitat within the
range.
``(5) Publication.--The Secretary of the Interior shall
publish in the Federal Register each list approved in
accordance with paragraph (3).
``(6) Automatic removal.--
``(A) In general.--On the date that is 5 years
after the date on which a joint resolution is enacted
in accordance with this subsection, each species listed
on a list approved by the joint resolution shall be
removed from the list.
``(B) Petition for relisting.--
``(i) In general.--The Secretary of the
Interior, in consultation with the Governor of
each State in which the endangered species or
threatened species is present, may submit to
Congress a list that includes any species that
was removed under subparagraph (A).
``(ii) Congressional approval.--The list
described in clause (i) shall not take effect
until a joint resolution described in paragraph
(1) is enacted.'';
(4) in subsection (d)--
(A) in the first sentence, by striking ``Whenever
any species'' and inserting ``Except as provided in
subsection (j), whenever any species''; and
(B) in the second sentence, by striking ``The
Secretary may'' and inserting ``Except as provided in
subsection (j), the Secretary may'';
(5) in subsection (f)(1), by striking ``The Secretary
shall'' and inserting ``Except as provided in subsection (j),
the Secretary shall'';
(6) in subsection (g)--
(A) in paragraph (1), by striking ``The Secretary
shall'' and inserting ``Except as provided in
subsection (j), the Secretary shall''; and
(B) in paragraph (2), by striking ``paragraph 7 of
subsection (b) of this section'' and inserting
``subsection (b)(6)'';
(7) in subsection (h)--
(A) in the matter preceding paragraph (1), by
striking ``The Secretary shall'' and inserting ``Except
as provided in subsection (j), the Secretary shall'';
(B) by striking paragraphs (1) and (2); and
(C) by redesignating paragraphs (3) and (4) as
paragraphs (1) and (2), respectively;
(8) in subsection (i)--
(A) by striking ``subsection (b)(5)(A)(ii) of this
section'' and inserting ``subsection (b)(4)(A)(ii)'';
(B) by striking ``or if the Secretary fails to
adopt a regulation pursuant to an action petitioned by
a State agency under subsection (b)(3),''; and
(C) by striking ``or petition''; and
(9) by adding at the end the following:
``(j) Intrastate Endangered Species or Threatened Species.--
``(1) Definitions.--In this subsection:
``(A) Governor of a state.--The term `Governor of a
State' means the Governor of a State in which an
intrastate endangered species or intrastate threatened
species is present.
``(B) Intrastate endangered species.--The term
`intrastate endangered species' means an endangered
species that the Governor of a State determines is
present only within the State.
``(C) Intrastate threatened species.--The term
`intrastate threatened species' means a threatened
species that the Governor of a State determines is
present only within the State.
``(2) Currently listed species.--
``(A) In general.--The Governor of a State may
regulate any intrastate endangered species or any
intrastate threatened species listed under this section
that is listed before the date of enactment of this
subsection.
``(B) Authority of governor.--If the Governor of a
State elects to regulate an intrastate endangered
species or an intrastate threatened species under
subparagraph (A), the Governor of the State shall, with
respect to the management of the intrastate endangered
species or intrastate threatened species on any land
within the State, have the exclusive authority to, in
accordance with the purposes and policy of this Act--
``(i) promulgate or enforce any regulation
or guidance;
``(ii) designate a critical habitat;
``(iii) issue a permit or license;
``(iv) develop or implement a recovery
plan; and
``(v) establish any goal with respect to
the recovery plan.
``(C) Applicable law.--The management described in
subparagraph (B) shall be subject to the law of the
State in which the land, including public lands (as
defined in section 103 of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1702)), is located.
``(3) Newly listed species.--
``(A) In general.--The Governor of a State may,
before the Secretary or any other person, regulate any
intrastate endangered species or any intrastate
threatened species listed under this section that is
listed on or after the date of enactment of this
subsection.
``(B) Applicability.--If the Governor of a State
elects to regulate an intrastate endangered species or
an intrastate threatened species under subparagraph
(A), subparagraphs (B) and (C) of paragraph (2) shall
apply.
``(C) Judicial review.--Any action by the Governor
of a State under this subsection shall not be subject
to judicial review in any court of the United States or
in any State court.''.
(b) Requirement To Publish on the Internet the Basis for
Listings.--Section 4(b) of the Endangered Species Act of 1973 (16
U.S.C. 1533(b)) is further amended by adding at the end the following:
``(9) The Secretary shall make publicly available on the
Internet the best scientific and commercial data available that
are the basis for each regulation, including each proposed
regulation, promulgated under subsection (a)(1), except that,
at the request of a Governor or legislature of a State, the
Secretary shall not make available under this paragraph
information regarding which the State has determined public
disclosure is prohibited by a law of that State relating to the
protection of personal information.''.
SEC. 5. COST ACCOUNTING.
The Endangered Species Act of 1973 is amended by inserting after
section 12 (16 U.S.C. 1541) the following:
``SEC. 12A. COST ACCOUNTING REPORT.
``(a) Definitions.--In this section:
``(1) Direct costs.--The term `direct costs' includes--
``(A) Federal agency obligations related to the
cost of any study;
``(B) capital, operation, maintenance, and
replacement costs; and
``(C) staffing costs.
``(2) Indirect costs.--The term `indirect costs' includes
foregone power generation costs and replacement power costs,
including the net costs of any transmission of power.
``(b) Cost of Compliance.--
``(1) In general.--Except with respect to intrastate
endangered species or intrastate threatened species regulated
by a Governor of a State under section 4(j), the Administrator
of the Bonneville Power Administration, the Administrator of
the Southeastern Power Administration, the Administrator of the
Southwestern Power Administration, and the Administrator of the
Western Area Power Administration shall each include in a
monthly billing statement submitted to each customer of the
respective Administration the share of the direct and indirect
costs to the customer incurred by the Administration related to
complying with this Act.
``(2) Assistance in identifying costs.--The Director of the
Bureau of Reclamation shall assist the administrators described
in paragraph (1) with identifying the costs described in that
paragraph.
``(c) Report.--Not later than January 30 of each year, each of the
administrators described in subsection (b)(1), in coordination with the
Director of the Bureau of Reclamation, shall submit to the Committee on
Environment and Public Works of the Senate and the Committee on Natural
Resources of the House of Representatives a report estimating the costs
described in subsection (b)(1)--
``(1) with respect to the Western Area Power
Administration, on a project-by-project basis; and
``(2) with respect to the each of the Administrations
described in subsection (b)(1) (except the Western Power
Administration), on a systemwide basis.
``SEC. 12B. PROPERTY RIGHTS.
``(a) Determination of Proposed Use of Real Property.--
``(1) In general.--Any owner or lessee of any real property
may submit to the Secretary of the Interior an application that
includes any proposed use of the real property.
``(2) Determination.--
``(A) In general.--Not later than 90 days after the
date on which the application described in paragraph
(1) is submitted, the Secretary of the Interior shall
submit to the owner or lessee in writing a
determination as to whether the proposed use will
violate any provision of this Act.
``(B) Failure to respond.--If the Secretary of the
Interior fails to respond before the expiration of the
90-day period described in subparagraph (A), the
proposed use shall be considered to not violate any
provision of this Act.
``(3) Effect of determinations.--
``(A) Affirmative defense.--It is an affirmative
defense to any civil penalty assessed under section 11
or to any civil action, civil suit, or prosecution
brought under that section that the owner or lessee of
real property reasonably relied on a determination,
including a determination that resulted under paragraph
(2)(B), that a proposed use will not violate any
provision of this Act.
``(B) Compensation for unfavorable
determinations.--If the Secretary of the Interior
determines that a proposed use will violate a provision
of this Act, the owner or lessee of the real property
may seek compensation in accordance with subsection
(b).
``(b) Compensation for Agency Actions.--
``(1) Definitions.--In this subsection:
``(A) Agency action.--
``(i) In general.--The term `agency action'
means any action taken by the Director of the
United States Fish and Wildlife Service in
accordance with this Act that diminishes the
fair market value of any real property by not
less than 50 percent with respect to the
intended use of the real property.
``(ii) Exclusion.--The term `agency action'
does not include any action taken with respect
to intrastate endangered species or intrastate
threatened species regulated by a Governor of a
State under section 4(j).
``(B) Lessee.--The term `lessee' means a lessee of
any real property affected by an agency action.
``(C) Owner.--The term `owner' means an owner of
any real property affected by an agency action.
``(2) Compensation.--Except as provided in paragraph
(3)(B), not later than 180 days after the date on which an
agency action takes place, the Secretary shall pay an owner or
lessee an amount equal to 150 percent of the fair market value
of the real property determined in accordance with paragraph
(3).
``(3) Determination of fair market value.--
``(A) In general.--The fair market value described
in paragraph (2) shall be determined by 2 licensed
independent appraisers of whom--
``(i) one shall be chosen by the Secretary;
and
``(ii) one shall be chosen by the owner or
lessee.
``(B) Failure to agree on fair market value.--
``(i) In general.--If the appraisers chosen
under subparagraph (A) fail to agree on the
same fair market value, the Secretary and the
owner shall jointly select an additional
licensed independent appraiser to determine the
fair market value.
``(ii) Extension of time to make
determination.--The licensed independent
appraiser described in clause (i) shall
determine the fair market value not later than
270 days after the date on which the agency
action takes place.
``(C) Costs.--The Secretary shall be responsible
for all costs relating to the determination of fair
market value made under this paragraph.''.
SEC. 6. PENALTIES AND ENFORCEMENT.
Section 11(g)(4) of the Endangered Species Act of 1973 (16 U.S.C.
1540(g)(4)) is amended by striking ``attorney and''.
SEC. 7. CONFORMING AMENDMENT.
Section 6(d)(1) of the Endangered Species Act of 1973 (16 U.S.C.
1535(d)(1)) is amended by striking ``the status of candidate species
pursuant to subparagraph (C) of section 4(b)(3) and''.
SEC. 8. DISCLOSURE OF EXPENDITURES UNDER ENDANGERED SPECIES ACT OF
1973.
(a) Requirement To Disclose.--Section 13 of the Endangered Species
Act of 1973 (87 Stat. 902; relating to conforming amendments which have
executed) is amended to read as follows:
``SEC. 13. DISCLOSURE OF EXPENDITURES.
``(a) Requirement.--The Secretary of the Interior, in consultation
with the Secretary of Commerce, shall--
``(1) not later than 90 days after the end of each fiscal
year, submit to the Committee on Natural Resources of the House
of Representatives and the Committee on Energy and Natural
Resources of the Senate an annual report detailing Federal
Government expenditures for covered suits during the preceding
fiscal year (including the information described in subsection
(b)); and
``(2) make publicly available through the Internet a
searchable database of the information described in subsection
(b).
``(b) Included Information.--The report shall include--
``(1) the case name and number of each covered suit, and a
hyperlink to the record or decision for each covered suit (if
available);
``(2) a description of the claims in each covered suit;
``(3) the name of each covered agency whose actions gave
rise to a claim in a covered suit;
``(4) funds expended by each covered agency (disaggregated
by agency account) to receive and respond to notices referred
to in section 11(g)(2) or to prepare for litigation of,
litigate, negotiate a settlement agreement or consent decree
in, or provide material, technical, or other assistance in
relation to, a covered suit;
``(5) the number of full-time equivalent employees that
participated in the activities described in paragraph (4); and
``(6) expenses (disaggregated by agency account) awarded in
covered suits, including any consent decrees or settlement
agreements (regardless of whether a decree or settlement
agreement is sealed or otherwise subject to nondisclosure
provisions), including the bases for such awards.
``(c) Requirement To Provide Information.--The head of each covered
agency shall provide to the Secretary in a timely manner all
information requested by the Secretary to comply with the requirements
of this section.
``(d) Limitation on Disclosure.--Notwithstanding any other
provision of this section, this section shall not affect any
restriction in a consent decree or settlement agreement on the
disclosure of information that is not described in subsection (b).
``(e) Definitions.--
``(1) Covered agency.--The term `covered agency' means any
agency of the Department of the Interior, the Forest Service,
the National Marine Fisheries Service, the Bonneville Power
Administration, the Western Area Power Administration, the
Southwestern Power Administration, or the Southeastern Power
Administration.
``(2) Covered suit.--The term `covered suit' means any
civil action containing a claim against the Federal Government,
in which the claim arises under this Act and is based on the
action of a covered agency.''.
(b) Clerical Amendment.--The table of contents in the first section
of such Act is amended by striking the item relating to such section
and inserting the following:
``Sec. 13. Disclosure of expenditures.''.
(c) Prior Amendments Not Affected.--This section shall not be
construed to affect the amendments made by section 13 of such Act, as
in effect before the enactment of this Act.
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