[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 935 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                 S. 935

  To amend the Endangered Species Act of 1973 to permit Governors of 
    States to regulate intrastate endangered species and intrastate 
 threatened species, to amend the Migratory Bird Treaty Act to permit 
    the taking of certain black vultures and ravens, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 25, 2017

 Mr. Paul (for himself and Mr. Heller) 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 permit Governors of 
    States to regulate intrastate endangered species and intrastate 
 threatened species, to amend the Migratory Bird Treaty Act to permit 
    the taking of certain black vultures and ravens, 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. AMENDMENTS TO THE ENDANGERED SPECIES ACT OF 1973.

    (a) Determinations of Endangered Species and Threatened Species.--
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) 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) 1 shall be chosen by the Secretary; 
                        and
                            ``(ii) 1 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.''.
    (c) Penalties and Enforcement.--Section 11(g)(4) of the Endangered 
Species Act (16 U.S.C. 1540(g)(4)) is amended by striking ``attorney 
and''.
    (d) Conforming Amendment.--Section 6(d)(1) of the Endangered 
Species Act (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. 5. AMENDMENT TO THE MIGRATORY BIRD TREATY ACT.

    Section 2 of the Migratory Bird Treaty Act (16 U.S.C. 703) is 
amended by adding at the end the following:
    ``(c) Exception for Black Vultures.--Subsection (a) shall not apply 
to any black vulture (Coragyps atratus) that an individual reasonably 
believes to be endangering any real or personal property, including--
            ``(1) livestock;
            ``(2) a vehicle; and
            ``(3) a building.
    ``(d) Exception for Ravens.--Subsection (a) shall not apply to any 
action relating to the population control of the raven (Corvus corax) 
in any area in which predation by a raven poses a risk, as determined 
by the applicable State wildlife management agency, to an effort to 
recover a member of a species that is--
            ``(1) listed by the Secretary of the Interior as an 
        endangered species or a threatened species under section 4 of 
        the Endangered Species Act of 1973 (16 U.S.C. 1533); or
            ``(2) a candidate for listing as an endangered species or a 
        threatened species under section 4 of the Endangered Species 
        Act of 1973 (16 U.S.C. 1533).''.
                                 <all>