[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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