II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Endangered Species 

5 Management Self-Determination Act’’. 


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1 SEC. 2. DEFINITION OF ESA. 

2 In this Act, the term ‘‘ESA’’ means the Endangered 

3 Species Act of 1973 (16 U.S.C. 1531 et seq.). 

4 SEC. 3. FINDINGS. 

5 Congress finds that— 

6 (1) the ESA was passed in 1973 as a means of 

7 protecting and recovering species and has not been 

8 substantially revised in over 25 years; 

9 (2) the ESA has not achieved its stated goal of 

10 recovering threatened species or endangered species; 

11 (3) of the species listed in accordance with the 

12 ESA, less than 1 percent of the total number of spe13 cies in the United States have been recovered and 

14 removed from the list, largely due to data errors or 

15 other factors; 

16 (4) there is— 

17 (A) no comprehensive independent study of 

18 the costs or benefits of the ESA; 

19 (B) no full accounting of how much the 

20 Federal Government and State and local gov21 ernments spend to implement, enforce, and 

22 comply with the ESA; and 

23 (C) no meaningful effort to account for the 

24 costs the ESA imposes on the private sector; 


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1 (5) the ESA effectively penalizes landowners for 

2 owning endangered species habitat by forcing them 

3 to bear the cost of conservation; 

4 (6) the regulatory listing process under the 

5 ESA has become a tool for environmentalists to un6 dermine, slow down, or halt construction of infra7 structure projects, hampering economic growth and 

8 employment; and 

9 (7) litigation stemming from the ESA and some 

10 resulting settlements between the litigants and the 

11 Federal Government have made the ESA even more 

12 unworkable, to the detriment of species. 

13 SEC. 4. AMENDMENTS TO THE ENDANGERED SPECIES ACT 

14 OF 1973. 

15 (a) DETERMINATIONS OF ENDANGERED SPECIES

16 AND THREATENED SPECIES.—Section 4 of the Endan17 gered Species Act of 1973 (16 U.S.C. 1533) is amended— 

18 (1) in subsection (a)— 

19 (A) in paragraph (1), by inserting ‘‘, with 

20 the consent of the Governor of each State in 

21 which the endangered species or threatened spe22 cies is present,’’ after ‘‘The Secretary’’; and 

23 (B) in paragraph (2)(A)(ii), by inserting ‘‘, 

24 with the consent of the Governor of each State 


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1 in which the endangered species or threatened 

2 species is present,’’ after ‘‘, who’’; 

3 (2) in subsection (b)— 

4 (A) by striking paragraph (3); 

5 (B) by redesignating paragraphs (4) 

6 through (8) as paragraphs (3) through (7), re7 spectively; 

8 (C) in paragraph (3) (as so redesignated), 

9 by striking ‘‘paragraphs (5) and (6) of this sub10 section’’ and inserting ‘‘paragraphs (4) and 

11 (5)’’; 

12 (D) in paragraph (5)(A) (as so redesig13 nated), by striking ‘‘paragraph (5)(A)(i)’’ and 

14 inserting ‘‘paragraph (4)(A)(i)’’; 

15 (E) in paragraph (6) (as so redesignated), 

16 by striking ‘‘paragraph (4), (5), or (6) of this 

17 subsection’’ and inserting ‘‘paragraph (3), (4), 

18 or (5)’’; and 

19 (F) by adding at the end the following: 

20 ‘‘(8) DEFINITION OF BEST SCIENTIFIC AND

21 COMMERCIAL DATA.—In this subsection, the term 

22 ‘best scientific and commercial data’ includes any 

23 scientific evidence made available to the Secretary by 

24 any State agency.’’; 


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1 (3) by striking subsection (c) and inserting the 

2 following: 

3 ‘‘(c) LISTS.— 

4 ‘‘(1) DEFINITION OF JOINT RESOLUTION.—In 

5 this subsection, the term ‘joint resolution’ means 

6 only a joint resolution the matter after the resolving 

7 clause of which is as follows: ‘That Congress ap8 proves the lists relating to endangered species and 

9 threatened species submitted by the Secretary of the 

10 Interior on llllll.’ (the blank space being 

11 appropriately filled in). 

12 ‘‘(2) LISTS SUBMITTED TO CONGRESS.—The 

13 Secretary of the Interior shall submit to Congress— 

14 ‘‘(A) a list of all species determined by the 

15 Secretary of the Interior or the Secretary of 

16 Commerce to be endangered species; and 

17 ‘‘(B) a list of all species determined by the 

18 Secretary of the Interior or the Secretary of 

19 Commerce to be threatened species. 

20 ‘‘(3) CONGRESSIONAL APPROVAL.—The lists de21 scribed in paragraph (2) shall not take effect until 

22 a joint resolution described in paragraph (1) is en23 acted. 

24 ‘‘(4) CONTENTS OF LISTS.—Each list described 

25 in paragraph (2) shall— 


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1 ‘‘(A) refer to the species included on the 

2 list by any scientific and common name; and 

3 ‘‘(B) specify— 

4 ‘‘(i) with respect to the species over 

5 what portion of the range of the species 

6 that the species is endangered or threat7 ened; and 

8 ‘‘(ii) any critical habitat within the 

9 range. 

10 ‘‘(5) PUBLICATION.—The Secretary of the Inte11 rior shall publish in the Federal Register each list 

12 approved in accordance with paragraph (3). 

13 ‘‘(6) AUTOMATIC REMOVAL.— 

14 ‘‘(A) IN GENERAL.—On the date that is 5 

15 years after the date on which a joint resolution 

16 is enacted in accordance with this subsection, 

17 each species listed on a list approved by the 

18 joint resolution shall be removed from the list. 

19 ‘‘(B) PETITION FOR RELISTING.— 

20 ‘‘(i) IN GENERAL.—The Secretary of 

21 the Interior, in consultation with the Gov22 ernor of each State in which the endan23 gered species or threatened species is 

24 present, may submit to Congress a list 


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1 that includes any species that was removed 

2 under subparagraph (A). 

3 ‘‘(ii) CONGRESSIONAL APPROVAL.— 

4 The list described in clause (i) shall not 

5 take effect until a joint resolution de6 scribed in paragraph (1) is enacted.’’; 

7 (4) in subsection (d)— 

8 (A) in the first sentence, by striking 

9 ‘‘Whenever any species’’ and inserting ‘‘Except 

10 as provided in subsection (j), whenever any spe11 cies’’; and 

12 (B) in the second sentence, by striking 

13 ‘‘The Secretary may’’ and inserting ‘‘Except as 

14 provided in subsection (j), the Secretary may’’; 

15 (5) in subsection (f)(1), by striking ‘‘The Sec16 retary shall’’ and inserting ‘‘Except as provided in 

17 subsection (j), the Secretary shall’’; 

18 (6) in subsection (g)— 

19 (A) in paragraph (1), by striking ‘‘The 

20 Secretary shall’’ and inserting ‘‘Except as pro21 vided in subsection (j), the Secretary shall’’; 

22 and 

23 (B) in paragraph (2), by striking ‘‘para24 graph 7 of subsection (b) of this section’’ and 

25 inserting ‘‘subsection (b)(6)’’; 


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1 (7) in subsection (h)— 

2 (A) in the matter preceding paragraph (1), 

3 by striking ‘‘The Secretary shall’’ and inserting 

4 ‘‘Except as provided in subsection (j), the Sec5 retary shall’’; 

6 (B) by striking paragraphs (1) and (2); 

7 and 

8 (C) by redesignating paragraphs (3) and 

9 (4) as paragraphs (1) and (2), respectively; 

10 (8) in subsection (i)— 

11 (A) by striking ‘‘subsection (b)(5)(A)(ii) of 

12 this section’’ and inserting ‘‘subsection 

13 (b)(4)(A)(ii)’’; 

14 (B) by striking ‘‘or if the Secretary fails to 

15 adopt a regulation pursuant to an action peti16 tioned by a State agency under subsection 

17 (b)(3),’’; and 

18 (C) by striking ‘‘or petition’’; and 

19 (9) by adding at the end the following: 

20 ‘‘(j) INTRASTATE ENDANGERED SPECIES OR

21 THREATENED SPECIES.— 

22 ‘‘(1) DEFINITIONS.—In this subsection: 

23 ‘‘(A) GOVERNOR OF A STATE.—The term 

24 ‘Governor of a State’ means the Governor of a 


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1 State in which an intrastate endangered species 

2 or intrastate threatened species is present. 

3 ‘‘(B) INTRASTATE ENDANGERED SPE4 CIES.—The term ‘intrastate endangered species’ 

5 means an endangered species that the Governor 

6 of a State determines is present only within the 

7 State. 

8 ‘‘(C) INTRASTATE THREATENED SPE9 CIES.—The term ‘intrastate threatened species’ 

10 means a threatened species that the Governor 

11 of a State determines is present only within the 

12 State. 

13 ‘‘(2) CURRENTLY LISTED SPECIES.— 

14 ‘‘(A) IN GENERAL.—The Governor of a 

15 State may regulate any intrastate endangered 

16 species or any intrastate threatened species list17 ed under this section that is listed before the 

18 date of enactment of this subsection. 

19 ‘‘(B) AUTHORITY OF GOVERNOR.—If the 

20 Governor of a State elects to regulate an intra21 state endangered species or an intrastate 

22 threatened species under subparagraph (A), the 

23 Governor of the State shall, with respect to the 

24 management of the intrastate endangered spe25 cies or intrastate threatened species on any 


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1 land within the State, have the exclusive au2 thority to, in accordance with the purposes and 

3 policy of this Act— 

4 ‘‘(i) promulgate or enforce any regula5 tion or guidance; 

6 ‘‘(ii) designate a critical habitat; 

7 ‘‘(iii) issue a permit or license; 

8 ‘‘(iv) develop or implement a recovery 

9 plan; and 

10 ‘‘(v) establish any goal with respect to 

11 the recovery plan. 

12 ‘‘(C) APPLICABLE LAW.—The management 

13 described in subparagraph (B) shall be subject 

14 to the law of the State in which the land, in15 cluding public lands (as defined in section 103 

16 of the Federal Land Policy and Management 

17 Act of 1976 (43 U.S.C. 1702)), is located. 

18 ‘‘(3) NEWLY LISTED SPECIES.— 

19 ‘‘(A) IN GENERAL.—The Governor of a 

20 State may, before the Secretary or any other 

21 person, regulate any intrastate endangered spe22 cies or any intrastate threatened species listed 

23 under this section that is listed on or after the 

24 date of enactment of this subsection. 


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1 ‘‘(B) APPLICABILITY.—If the Governor of 

2 a State elects to regulate an intrastate endan3 gered species or an intrastate threatened spe4 cies under subparagraph (A), subparagraphs 

5 (B) and (C) of paragraph (2) shall apply. 

6 ‘‘(C) JUDICIAL REVIEW.—Any action by 

7 the Governor of a State under this subsection 

8 shall not be subject to judicial review in any 

9 court of the United States or in any State 

10 court.’’. 

11 (b) COST ACCOUNTING.—The Endangered Species 

12 Act of 1973 is amended by inserting after section 12 (16 

13 U.S.C. 1541) the following: 

14 ‘‘SEC. 12A. COST ACCOUNTING REPORT. 

15 ‘‘(a) DEFINITIONS.—In this section: 

16 ‘‘(1) DIRECT COSTS.—The term ‘direct costs’ 

17 includes— 

18 ‘‘(A) Federal agency obligations related to 

19 the cost of any study; 

20 ‘‘(B) capital, operation, maintenance, and 

21 replacement costs; and 

22 ‘‘(C) staffing costs. 

23 ‘‘(2) INDIRECT COSTS.—The term ‘indirect 

24 costs’ includes foregone power generation costs and 


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1 replacement power costs, including the net costs of 

2 any transmission of power. 

3 ‘‘(b) COST OF COMPLIANCE.— 

4 ‘‘(1) IN GENERAL.—Except with respect to 

5 intrastate endangered species or intrastate threat6 ened species regulated by a Governor of a State 

7 under section 4(j), the Administrator of the Bonne8 ville Power Administration, the Administrator of the 

9 Southeastern Power Administration, the Adminis10 trator of the Southwestern Power Administration, 

11 and the Administrator of the Western Area Power 

12 Administration shall each include in a monthly bill13 ing statement submitted to each customer of the re14 spective Administration the share of the direct and 

15 indirect costs to the customer incurred by the Ad16 ministration related to complying with this Act. 

17 ‘‘(2) ASSISTANCE IN IDENTIFYING COSTS.—The 

18 Director of the Bureau of Reclamation shall assist 

19 the administrators described in paragraph (1) with 

20 identifying the costs described in that paragraph. 

21 ‘‘(c) REPORT.—Not later than January 30 of each 

22 year, each of the administrators described in subsection 

23 (b)(1), in coordination with the Director of the Bureau 

24 of Reclamation, shall submit to the Committee on Envi25 ronment and Public Works of the Senate and the ComVerDate Sep 11 2014 23:31 Apr 25, 2017 Jkt 069200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S935.IS S935

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1 mittee on Natural Resources of the House of Representa2 tives a report estimating the costs described in subsection 

3 (b)(1)— 

4 ‘‘(1) with respect to the Western Area Power 

5 Administration, on a project-by-project basis; and 

6 ‘‘(2) with respect to the each of the Administra7 tions described in subsection (b)(1) (except the 

8 Western Power Administration), on a systemwide 

9 basis. 

10 ‘‘SEC. 12B. PROPERTY RIGHTS. 

11 ‘‘(a) DETERMINATION OF PROPOSED USE OF REAL

12 PROPERTY.— 

13 ‘‘(1) IN GENERAL.—Any owner or lessee of any 

14 real property may submit to the Secretary of the In15 terior an application that includes any proposed use 

16 of the real property. 

17 ‘‘(2) DETERMINATION.— 

18 ‘‘(A) IN GENERAL.—Not later than 90 

19 days after the date on which the application de20 scribed in paragraph (1) is submitted, the Sec21 retary of the Interior shall submit to the owner 

22 or lessee in writing a determination as to 

23 whether the proposed use will violate any provi24 sion of this Act. 


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1 ‘‘(B) FAILURE TO RESPOND.—If the Sec2 retary of the Interior fails to respond before the 

3 expiration of the 90-day period described in 

4 subparagraph (A), the proposed use shall be 

5 considered to not violate any provision of this 

6 Act. 

7 ‘‘(3) EFFECT OF DETERMINATIONS.— 

8 ‘‘(A) AFFIRMATIVE DEFENSE.—It is an af9 firmative defense to any civil penalty assessed 

10 under section 11 or to any civil action, civil 

11 suit, or prosecution brought under that section 

12 that the owner or lessee of real property reason13 ably relied on a determination, including a de14 termination that resulted under paragraph 

15 (2)(B), that a proposed use will not violate any 

16 provision of this Act. 

17 ‘‘(B) COMPENSATION FOR UNFAVORABLE

18 DETERMINATIONS.—If the Secretary of the In19 terior determines that a proposed use will vio20 late a provision of this Act, the owner or lessee 

21 of the real property may seek compensation in 

22 accordance with subsection (b). 

23 ‘‘(b) COMPENSATION FOR AGENCY ACTIONS.— 

24 ‘‘(1) DEFINITIONS.—In this subsection: 

25 ‘‘(A) AGENCY ACTION.— 


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1 ‘‘(i) IN GENERAL.—The term ‘agency 

2 action’ means any action taken by the Di3 rector of the United States Fish and Wild4 life Service in accordance with this Act 

5 that diminishes the fair market value of 

6 any real property by not less than 50 per7 cent with respect to the intended use of the 

8 real property. 

9 ‘‘(ii) EXCLUSION.—The term ‘agency 

10 action’ does not include any action taken 

11 with respect to intrastate endangered spe12 cies or intrastate threatened species regu13 lated by a Governor of a State under sec14 tion 4(j). 

15 ‘‘(B) LESSEE.—The term ‘lessee’ means a 

16 lessee of any real property affected by an agen17 cy action. 

18 ‘‘(C) OWNER.—The term ‘owner’ means an 

19 owner of any real property affected by an agen20 cy action. 

21 ‘‘(2) COMPENSATION.—Except as provided in 

22 paragraph (3)(B), not later than 180 days after the 

23 date on which an agency action takes place, the Sec24 retary shall pay an owner or lessee an amount equal 

25 to 150 percent of the fair market value of the real 


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1 property determined in accordance with paragraph 

2 (3). 

3 ‘‘(3) DETERMINATION OF FAIR MARKET

4 VALUE.— 

5 ‘‘(A) IN GENERAL.—The fair market value 

6 described in paragraph (2) shall be determined 

7 by 2 licensed independent appraisers of whom— 

8 ‘‘(i) 1 shall be chosen by the Sec9 retary; and 

10 ‘‘(ii) 1 shall be chosen by the owner or 

11 lessee. 

12 ‘‘(B) FAILURE TO AGREE ON FAIR MARKET

13 VALUE.— 

14 ‘‘(i) IN GENERAL.—If the appraisers 

15 chosen under subparagraph (A) fail to 

16 agree on the same fair market value, the 

17 Secretary and the owner shall jointly select 

18 an additional licensed independent ap19 praiser to determine the fair market value. 

20 ‘‘(ii) EXTENSION OF TIME TO MAKE

21 DETERMINATION.—The licensed inde22 pendent appraiser described in clause (i) 

23 shall determine the fair market value not 

24 later than 270 days after the date on 

25 which the agency action takes place. 


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1 ‘‘(C) COSTS.—The Secretary shall be re2 sponsible for all costs relating to the determina3 tion of fair market value made under this para4 graph.’’. 

5 (c) PENALTIES AND ENFORCEMENT.—Section 

6 11(g)(4) of the Endangered Species Act (16 U.S.C. 

7 1540(g)(4)) is amended by striking ‘‘attorney and’’. 

8 (d) CONFORMING AMENDMENT.—Section 6(d)(1) of 

9 the Endangered Species Act (16 U.S.C. 1535(d)(1)) is 

10 amended by striking ‘‘the status of candidate species pur11 suant to subparagraph (C) of section 4(b)(3) and’’. 

12 SEC. 5. AMENDMENT TO THE MIGRATORY BIRD TREATY 

13 ACT. 

14 Section 2 of the Migratory Bird Treaty Act (16 

15 U.S.C. 703) is amended by adding at the end the fol16 lowing: 

17 ‘‘(c) EXCEPTION FOR BLACK VULTURES.—Sub18 section (a) shall not apply to any black vulture (Coragyps 

19 atratus) that an individual reasonably believes to be en20 dangering any real or personal property, including— 

21 ‘‘(1) livestock; 

22 ‘‘(2) a vehicle; and 

23 ‘‘(3) a building. 

24 ‘‘(d) EXCEPTION FOR RAVENS.—Subsection (a) shall 

25 not apply to any action relating to the population control 


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1 of the raven (Corvus corax) in any area in which predation 

2 by a raven poses a risk, as determined by the applicable 

3 State wildlife management agency, to an effort to recover 

4 a member of a species that is— 

5 ‘‘(1) listed by the Secretary of the Interior as 

6 an endangered species or a threatened species under 

7 section 4 of the Endangered Species Act of 1973 (16 

8 U.S.C. 1533); or 

9 ‘‘(2) a candidate for listing as an endangered 

10 species or a threatened species under section 4 of 

11 the Endangered Species Act of 1973 (16 U.S.C. 

12 1533).’’. 

Æ 


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