[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2587 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
2d Session
S. 2587
To amend the Endangered Species Act of 1973 to establish a program to
allow States to assume certain Federal responsibilities under that Act
with respect to agency actions applicable to highway projects within
the States, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 21, 2018
Mr. Cornyn (for himself, Mr. Hatch, and Mr. Sullivan) introduced the
following bill; which was read twice and referred to the Committee on
Environment and Public Works
_______________________________________________________________________
A BILL
To amend the Endangered Species Act of 1973 to establish a program to
allow States to assume certain Federal responsibilities under that Act
with respect to agency actions applicable to highway projects within
the States, 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. ASSUMPTION BY STATES OF CERTAIN ESA RESPONSIBILITIES.
(a) In General.--The Endangered Species Act of 1973 is amended by
inserting after section 6 (16 U.S.C. 1535) the following:
``SEC. 6A. ASSUMPTION BY STATES OF CERTAIN RESPONSIBILITIES RELATING TO
HIGHWAY PROJECTS.
``(a) Establishment.--
``(1) In general.--The Secretary shall carry out an
assignment program (referred to in this section as the
`program') to allow States to assume certain responsibilities
of the Secretary with respect to agency actions applicable to
highway projects within the State.
``(2) Assumption of responsibility.--
``(A) In general.--Subject to the other
requirements of this section, on written agreement of
the Secretary and a State (which may be in the form of
a memorandum of understanding), the Secretary may
assign, and the State may assume, the responsibilities
of the Secretary under subsections (a) and (b) of
section 7 with respect to agency actions (as defined in
subsection (a)(2) of that section) that are applicable
to one or more highway projects in the State.
``(B) Additional responsibility.--
``(i) In general.--If a State assumes
responsibility under subparagraph (A)--
``(I) the Secretary may assign to
the State, and the State may assume,
all or part of the responsibilities of
the Secretary described in that
subparagraph for environmental review,
consultation, or other action required
under any Federal environmental law
pertaining to the review or approval of
highway projects described in the
agreement referred to in that
subparagraph; and
``(II) subject to clause (ii), on
the request of the State, the Secretary
may also assign to the State, and the
State may assume, the responsibilities
of the Secretary described in that
subparagraph for one or more railroad,
public transportation, or multimodal
projects within the State.
``(ii) Exclusion of projects.--In any State
that assumes a responsibility of the Secretary
under clause (i)(II), a recipient of assistance
under chapter 53 of title 49, United States
Code, may submit to the Secretary a request
that the Secretary shall maintain the
responsibility of the Secretary with respect to
one or more public transportation projects
carried out by the recipient in the State.
``(C) Procedural and substantive requirements.--A
State shall assume responsibility under this section
subject to the same procedural and substantive
requirements as would apply if the responsibility were
carried out by the Secretary.
``(D) Federal responsibility.--Any responsibility
of the Secretary that is not explicitly assumed by a
State by written agreement under this section shall
remain the responsibility of the Secretary.
``(E) No effect on authority.--Nothing in this
section preempts or interferes with any power,
jurisdiction, responsibility, or authority of a Federal
agency (other than the United States Fish and Wildlife
Service), except with respect to an authority delegated
by the Secretary pursuant to subparagraph (A) under
applicable law regarding a project or agency action
described in subparagraph (A) or (B).
``(F) Preservation of flexibility.--The Secretary
may not require a State, as a condition of
participation in the program, to forgo a project
delivery method that is otherwise permissible for a
project described in subparagraph (A) or (B).
``(G) Legal fees.--A State that assumes a
responsibility of the Secretary under this section for
a project described in subparagraph (A) or (B) may use
funds apportioned to the State under section 104(b)(2)
of title 23, United States Code, as necessary, for
attorneys' fees directly attributable to eligible
activities associated with the project.
``(b) State Participation.--
``(1) Participating states.--To be eligible to participate
in the program, a State shall--
``(A) be participating in the surface
transportation project delivery program under section
327 of title 23, United States Code; and
``(B) assume the responsibilities of the Secretary
of Transportation under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) pursuant to
that section.
``(2) Application.--Not later than 270 days after the date
of enactment of this section, the Secretary shall amend, as
appropriate, regulations that establish requirements relating
to information required in any application of a State to
participate in the program, including, at a minimum--
``(A) the projects or classes of projects for which
the State anticipates exercising the authority that may
be granted under the program;
``(B) verification of the financial resources
necessary to carry out the authority that may be
granted under the program; and
``(C) evidence of the notice and solicitation of
public comment by the State relating to participation
of the State in the program, including copies of
comments received from that solicitation.
``(3) Public notice.--
``(A) In general.--Each State that submits an
application in accordance with the regulations
described in paragraph (2) shall give notice of the
intent of the State to participate in the program by
not later than 30 days before the date of submission of
the application.
``(B) Method of notice and solicitation.--The State
shall provide notice and solicit public comment under
this paragraph by publishing the complete application
of the State in accordance with the appropriate public
notice requirements of the State.
``(4) Selection criteria.--The Secretary may approve the
application of a State under this subsection only if--
``(A) any necessary changes to regulations pursuant
to paragraph (2) have been carried out;
``(B) the Secretary determines that the State has
the capability, including financial and personnel, to
assume the responsibility; and
``(C) the head of the State agency with primary
jurisdiction over highway matters enters into a written
agreement with the Secretary, as described in
subsection (c).
``(5) Other federal agency views.--If a State applies to
assume a responsibility of the Secretary that would have
required the Secretary to consult with another Federal agency,
the Secretary shall solicit the views of the Federal agency
before approving the application of the State under this
subsection.
``(c) Written Agreement.--A written agreement under this section
shall--
``(1) be executed by--
``(A) the Governor of the applicable State; or
``(B) the top-ranking transportation official in
the State who is charged with responsibility for
highway construction;
``(2) be in such form as the Secretary may require;
``(3) provide that the State--
``(A) agrees to assume all or part of the
responsibilities of the Secretary referred to in
subsection (a);
``(B) expressly consents, on behalf of the State,
to accept the jurisdiction of the Federal courts for
the compliance, discharge, and enforcement of any
responsibility of the Secretary assumed by the State;
``(C) certifies that State laws (including
regulations) are in effect that--
``(i) authorize the State to take the
actions necessary to carry out the
responsibilities being assumed; and
``(ii) are comparable to section 552 of
title 5, United States Code, including
providing that any decision regarding the
public availability of a document under those
State laws is reviewable by a court of
competent jurisdiction; and
``(D) agrees to maintain the financial resources
necessary to carry out the responsibilities being
assumed;
``(4) require the State to provide to the Secretary any
information the Secretary reasonably considers necessary to
ensure that the State is adequately carrying out the
responsibilities assigned to the State;
``(5) have a term of not more than 5 years; and
``(6) be renewable.
``(d) Jurisdiction.--
``(1) In general.--The United States district courts shall
have exclusive jurisdiction over any civil action against a
State for failure to carry out any responsibility assumed by
the State pursuant to this section.
``(2) Legal standards and requirements.--A civil action
under paragraph (1) shall be governed by the legal standards
and requirements that would apply in such a civil action
against the Secretary had the Secretary taken the actions in
question.
``(3) Intervention.--The Secretary shall have the right to
intervene in any action described in paragraph (1).
``(e) Effect of Assumption of Responsibility.--A State that assumes
responsibility under subsection (a)(2) shall be solely responsible and
solely liable for carrying out, in lieu of, and without further
approval of, the Secretary, those responsibilities, until the date on
which the program is terminated in accordance with subsection (j).
``(f) Limitations on Agreements.--Nothing in this section permits a
State to assume any rulemaking authority of the Secretary under any
Federal law.
``(g) Audits.--
``(1) In general.--To ensure compliance by a State with an
agreement of the State under subsection (c) (including
compliance by the State with all Federal laws for which
responsibility is assumed under subsection (a)(2)), for each
State participating in the program, the Secretary shall--
``(A) not later than 180 days after the date of
execution of the applicable agreement, meet with the
State--
``(i) to review the implementation of the
agreement; and
``(ii) to discuss plans for the first
annual audit;
``(B) conduct annual audits during each of the
first 4 years of State participation in the program;
and
``(C) ensure that the time period for completing an
annual audit, from initiation to completion (including
public comment and responses to those comments), does
not exceed 180 days.
``(2) Public availability and comment.--
``(A) In general.--An audit conducted under
paragraph (1) shall be provided to the public for
comment.
``(B) Response.--Not later than 60 days after the
date on which the period for public comment ends, the
Secretary shall respond to public comments received
under subparagraph (A).
``(3) Audit team.--
``(A) In general.--An audit conducted under
paragraph (1) shall be carried out by an audit team
determined by the Secretary, in consultation with the
State, in accordance with subparagraph (B).
``(B) Consultation.--Consultation with the State
under subparagraph (A) shall include a reasonable
opportunity for the State to review, and provide
comments regarding, the proposed members of the audit
team.
``(h) Monitoring.--After the end of the fourth year of the
participation by a State in the program, the Secretary shall monitor
compliance by the State with the written agreement under subsection
(c), including the provision by the State of financial resources to
carry out the written agreement.
``(i) Report to Congress.--The Secretary shall submit to Congress
an annual report that describes the administration of the program
during the preceding calendar year.
``(j) Termination.--
``(1) Termination by secretary.--The Secretary may
terminate the participation of a State in the program if--
``(A) the Secretary determines that the State is
not adequately carrying out the responsibilities
assigned to the State pursuant to this section;
``(B) the Secretary provides to the State--
``(i) a notification of the determination
of noncompliance;
``(ii) a period of not less than 120 days
to take such corrective action as the Secretary
determines to be necessary to comply with the
applicable agreement; and
``(iii) on request of the Governor of the
State, a detailed description of each
responsibility in need of corrective action
regarding an inadequacy identified under
subparagraph (A); and
``(C) the State, after the notification and period
for corrective action provided under subparagraph (B),
fails to take satisfactory corrective action, as
determined by the Secretary.
``(2) Termination by state.--The State may terminate the
participation of the State in the program at any time by
providing to the Secretary a notice, by not later than the date
that is 90 days before the date of termination, subject to such
terms and conditions as the Secretary may provide.
``(k) Capacity Building.--The Secretary, in cooperation with
representatives of State officials, may carry out education, training,
peer-exchange, and other initiatives as appropriate--
``(1) to assist States in developing the capacity to
participate in the program; and
``(2) to promote information sharing and collaboration
among States that are participating in the program.
``(l) Relationship to Locally Administered Projects.--A State
granted authority under this section may, as appropriate and on the
request of a local government--
``(1) exercise that authority on behalf of the local
government for a locally administered project; or
``(2) provide guidance and training regarding consolidating
and minimizing the documentation and environmental analyses
necessary for sponsors of a locally administered project to
comply with--
``(A) section 7; and
``(B) any comparable requirements under State
law.''.
(b) Conforming Amendments.--Section 7 of the Endangered Species Act
of 1973 (16 U.S.C. 1536) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1) and inserting the
following:
``(1) Federal agency actions.--
``(A) In general.--The Secretary shall--
``(i) review other programs administered by
the Secretary; and
``(ii) use those programs in furtherance of
the purposes of this Act.
``(B) Other agencies.--The head of each other
Federal department or agency, in consultation with, and
with the assistance of, the Secretary or a State that
has assumed a responsibility of the Secretary pursuant
to section 6A, as applicable, shall use the authorities
of the department or agency in furtherance of the
purposes of this Act by carrying out programs for the
conservation of endangered species and threatened
species listed under section 4.'';
(B) in paragraph (2)--
(i) in the second sentence, by striking
``In fulfilling'' and inserting the following:
``(B) Use of data.--In fulfilling''; and
(ii) by striking the paragraph designation
and all that follows through ``not likely'' in
the first sentence and inserting the following:
``(2) Agency actions.--
``(A) In general.--The head of each Federal
department or agency, in consultation with, and with
the assistance of, the Secretary or a State that has
assumed a responsibility of the Secretary pursuant to
section 6A, as applicable, shall ensure that any action
authorized, funded, or carried out by the department or
agency (referred to in this section as an `agency
action') is not likely''; and
(C) in paragraphs (3) and (4), by inserting ``or a
State that has assumed a responsibility of the
Secretary pursuant to section 6A, as applicable,''
after ``with the Secretary'' each place it appears;
(2) in subsection (b)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking
``within the 90-day'' and all that follows
through the period at the end of the
subparagraph and inserting the following:
``within--
``(i) the 90-day period beginning on the date on which the
consultation is initiated; or
``(ii) subject to subparagraph (B), such other time period
as is mutually agreeable to--
``(I) the Secretary or a State that has assumed a
responsibility of the Secretary pursuant to section 6A,
as applicable; and
``(II) the head of the affected Federal department
or agency.''; and
(ii) in subparagraph (B)--
(I) in the matter preceding clause
(i), by striking ``the Federal'' and
inserting ``or a State that has assumed
a responsibility of the Secretary
pursuant to section 6A, as applicable,
and the head of the affected Federal
department or''; and
(II) in the undesignated matter
following clause (ii), by striking
``The Secretary'' and all that follows
through ``before'' and inserting the
following:
``(C) Applicant consent.--The Secretary or a State
that has assumed a responsibility of the Secretary
pursuant to section 6A, as applicable, and the head of
the affected Federal department or agency may mutually
agree to extend a consultation period established under
subparagraph (B) if the Secretary or the State that has
assumed responsibility from the Secretary, as
applicable, before'';
(B) in paragraph (2), by striking ``agreeable to''
and all that follows through the period at the end of
the paragraph and inserting the following: ``agreeable
to--
``(A) the Secretary or a State that has assumed a
responsibility of the Secretary pursuant to section 6A, as
applicable;
``(B) the head of the affected Federal department or
agency; and
``(C) the applicant concerned.'';
(C) in paragraph (3)--
(i) in subparagraph (A)--
(I) by inserting ``or a State that
has assumed a responsibility of the
Secretary pursuant to section 6A, as
applicable,'' after ``the Secretary''
each place it appears;
(II) in the first sentence, by
striking ``the Secretary's opinion''
and inserting ``the opinion of the
Secretary or the State,
respectively,''; and
(III) in the second sentence, by
striking ``he believes'' and inserting
``the Secretary or the State,
respectively, believes''; and
(ii) in subparagraph (B)--
(I) by striking ``an opinion based
by the Secretary incident to'' and
inserting ``an opinion of the Secretary
or a State that has assumed a
responsibility of the Secretary
pursuant to section 6A, as applicable,
based on''; and
(II) by striking ``the Secretary
reviews'' and inserting ``the Secretary
or the State, respectively, reviews'';
(D) in paragraph (4)--
(i) in the undesignated matter following
subparagraph (C), by striking ``the Secretary
shall provide the Federal agency and the
applicant concerned, if any, with'' and
inserting the following:
``(5) Description of written statement.--A written
statement referred to in paragraph (4) is'';
(ii) by striking the paragraph designation
and all that follows through ``the Secretary''
in the matter preceding subparagraph (A) and
inserting the following:
``(4) Requirement on certain conclusion.--The Secretary or
a State that has assumed a responsibility of the Secretary
pursuant to section 6A, as applicable, shall provide to the
head of the affected Federal department or agency and the
applicant concerned, if any, a written statement described in
paragraph (5) if, after consultation under subsection (a)(2),
the Secretary or the State, respectively,'';
(iii) in subparagraph (A), by striking
``which the Secretary believes'' and inserting
``that the Secretary or the State,
respectively, believes''; and
(iv) in subparagraph (C), by striking the
semicolon at the end and inserting ``(16 U.S.C.
1371(a)(5)).''; and
(E) in paragraph (5) (as designated by subparagraph
(D)(i))--
(i) in each of clauses (i) and (ii)--
(I) by striking ``such'' each place
it appears and inserting ``the
applicable''; and
(II) by striking the comma at the
end of the clause and inserting a
semicolon;
(ii) in clause (iii), by striking ``with
regard to such taking, and'' and inserting
``(16 U.S.C. 1371(a)(5)) with respect to the
applicable taking; and'';
(iii) in clause (iv), by striking ``clauses
(ii) and (iii)'' and inserting ``subparagraphs
(B) and (C)''; and
(iv) by redesignating clauses (i) through
(iv) as subparagraphs (A) through (D),
respectively, and indenting the subparagraphs
appropriately;
(3) in subsection (e)--
(A) in paragraph (3)(D), by striking ``Agency.
Agency.'' and inserting ``Agency.''; and
(B) in paragraph (4)(B), by adding a period at the
end; and
(4) in subsection (f)(1), by inserting ``or a State that
has assumed a responsibility of the Secretary pursuant to
section 6A, as applicable'' after ``the Secretary''.
(c) Technical Amendments.--The table of contents of the Endangered
Species Act of 1973 (16 U.S.C. 1531 note) is amended--
(1) by inserting after the item relating to section 6 the
following:
``Sec. 6A. Assumption by States of certain responsibilities relating to
highway projects.'';
and
(2) by adding at the end the following:
``Sec. 18. Annual cost analysis by the Fish and Wildlife Service.''.
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