[Congressional Record Volume 164, Number 49 (Wednesday, March 21, 2018)]
[Senate]
[Pages S1876-S1878]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. CORNYN (for himself, Mr. Hatch, and Mr. Sullivan):
S. 2587. 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; to the Committee on Environment and Public Works.
Mr. CORNYN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2587
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 1 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 1 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 1 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,
[[Page S1877]]
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
[[Page S1878]]
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
highways.'';
and
(2) by adding at the end the following:
``Sec. 18. Annual cost analysis by the Fish and Wildlife Service.''.
______