[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.''.
                                 ______