II 

113TH CONGRESS 

1ST SESSION S. 1731 

To amend the Endangered Species Act of 1973 to permit Governors of 

States to regulate intrastate endangered species and intrastate threatened 

species, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 19, 2013 

Mr. PAUL (for himself, Mr. HELLER, and Mr. LEE) 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, 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’’. 

6 SEC. 2. DEFINITION OF ESA. 

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

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


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1 SEC. 3. FINDINGS. 

2 Congress finds that— 

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

4 protecting and recovering species and has not been 

5 substantially revised in over 25 years; 

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

7 recovering threatened species or endangered species; 

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

9 ESA, less than 1 percent of the total number of spe10 cies in the United States have been recovered and 

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

12 other factors; 

13 (4) there is— 

14 (A) no comprehensive independent study of 

15 the costs or benefits of the ESA; 

16 (B) no full accounting of how much the 

17 Federal Government and State and local gov18 ernments spend to implement, enforce, and 

19 comply with the ESA; and 

20 (C) no meaningful effort to account for the 

21 costs the ESA imposes on the private sector; 

22 (5) the ESA effectively penalizes landowners for 

23 owning endangered species habitat by forcing them 

24 to bear the cost of conservation; 

25 (6) the regulatory listing process under the 

26 ESA has become a tool for environmentalists to unVerDate Mar 15 2010 18:26 Nov 21, 2013 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1731.IS S1731

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1 dermine, slow down, or halt construction of infra2 structure projects, hampering economic growth and 

3 employment; and 

4 (7) litigation stemming from the ESA and some 

5 resulting settlements between the litigants and the 

6 Federal Government have made the ESA even more 

7 unworkable, to the detriment of species. 

8 SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND 

9 THREATENED SPECIES. 

10 Section 4 of the Endangered Species Act of 1973 (16 

11 U.S.C. 1533) is amended— 

12 (1) in subsection (a)— 

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

14 the consent of the Governor of each State in 

15 which the endangered species or threatened spe16 cies is present,’’ after ‘‘The Secretary’’; and 

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

18 with the consent of the Governor of each State 

19 in which the endangered species or threatened 

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

21 (2) in subsection (b)— 

22 (A) by striking paragraph (3); 

23 (B) by redesignating paragraphs (4) 

24 through (8) as paragraphs (3) through (7), re25 spectively; 


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1 (C) in paragraph (6) (as so redesignated), 

2 strike ‘‘paragraph (4), (5), or (6)’’ and insert 

3 ‘‘paragraph (3), (4), or (5)’’; and 

4 (D) by adding at the end the following: 

5 ‘‘(7) DEFINITION OF BEST SCIENTIFIC AND

6 COMMERCIAL DATA.—In this subsection, the term 

7 ‘best scientific and commercial data’ includes any 

8 scientific evidence made available to the Secretary by 

9 any State agency.’’; 

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

11 following: 

12 ‘‘(c) LISTS.— 

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

14 this subsection, the term ‘joint resolution’ means 

15 only a joint resolution the matter after the resolving 

16 clause of which is as follows: ‘That Congress ap17 proves the lists relating to endangered species and 

18 threatened species submitted by the Secretary of the 

19 Interior on llllll.’ (the blank space being 

20 appropriately filled in). 

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

22 Secretary of the Interior shall submit to Congress— 

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

24 Secretary of the Interior or the Secretary of 

25 Commerce to be endangered species; and 


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

2 Secretary of the Interior or the Secretary of 

3 Commerce to be threatened species. 

4 ‘‘(3) CONGRESSIONAL APPROVAL.—The lists de5 scribed in paragraph (2) shall not take effect until 

6 a joint resolution described in paragraph (1) is en7 acted. 

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

9 in paragraph (2) shall— 

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

11 list by any scientific and common name; and 

12 ‘‘(B) specify— 

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

14 what portion of the range of the species 

15 that the species is endangered or threat16 ened; and 

17 ‘‘(ii) any critical habitat within the 

18 range. 

19 ‘‘(5) PUBLICATION.—The Secretary of the Inte20 rior shall publish in the Federal Register each list 

21 approved in accordance with paragraph (3). 

22 ‘‘(6) AUTOMATIC REMOVAL.— 

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

24 years after the date on which a joint resolution 

25 is enacted in accordance with this subsection, 


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1 each species listed on a list approved by the 

2 joint resolution shall be removed from the list. 

3 ‘‘(B) PETITION FOR RELISTING.— 

4 ‘‘(i) IN GENERAL.—The Secretary of 

5 the Interior, in consultation with the Gov6 ernor of each State in which the endan7 gered species or threatened species is 

8 present, may submit to Congress a list 

9 that includes any species that was removed 

10 under subparagraph (A). 

11 ‘‘(ii) CONGRESSIONAL APPROVAL.— 

12 The list described in clause (i) shall not 

13 take effect until a joint resolution de14 scribed in paragraph (1) is enacted.’’; 

15 (4) in subsection (d)— 

16 (A) in the first sentence, by striking 

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

18 as provided in subsection (j), whenever any spe19 cies’’; and 

20 (B) in the second sentence, by striking 

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

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

23 (5) in subsection (f)(1), by striking ‘‘The Sec24 retary shall’’ and inserting ‘‘Except as provided in 

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


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1 (6) in subsection (g)(1), by striking ‘‘The Sec2 retary shall’’ and inserting ‘‘Except as provided in 

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

4 (7) in subsection (h)— 

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

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

7 ‘‘Except as provided in subsection (j), the Sec8 retary shall’’; 

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

10 and 

11 (C) by redesignating paragraphs (3) and 

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

13 (8) in subsection (i)— 

14 (A) 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 (B) 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 SEC. 5. COST ACCOUNTING. 

12 The Endangered Species Act of 1973 is amended by 

13 inserting after section 12 (16 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 of the Senate and the Committee on Natural ReVerDate Mar 15 2010 18:26 Nov 21, 2013 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1731.IS S1731

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1 sources of the House of Representatives a report esti2 mating the costs described in subsection (b)(1)— 

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

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

5 ‘‘(2) with respect to the each of the Administra6 tions described in subsection (b)(1) (except the 

7 Western Power Administration), on a systemwide 

8 basis. 

9 ‘‘SEC. 12B. PROPERTY RIGHTS. 

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

11 PROPERTY.— 

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

13 real property may submit to the Secretary of the In14 terior an application that includes any proposed use 

15 of the real property. 

16 ‘‘(2) DETERMINATION.— 

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

18 days after the date on which the application de19 scribed in paragraph (1) is submitted, the Sec20 retary of the Interior shall submit to the owner 

21 or lessee in writing a determination as to 

22 whether the proposed use will violate any provi23 sion of this Act. 

24 ‘‘(B) FAILURE TO RESPOND.—If the Sec25 retary of the Interior fails to respond before the 


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1 expiration of the 90-day period described in 

2 subparagraph (A), the proposed use shall be 

3 considered to not violate any provision of this 

4 Act. 

5 ‘‘(3) EFFECT OF DETERMINATIONS.— 

6 ‘‘(A) AFFIRMATIVE DEFENSE.—It is an af7 firmative defense to any civil penalty assessed 

8 under section 11 or to any civil action, civil 

9 suit, or prosecution brought under that section 

10 that the owner or lessee of real property reason11 ably relied on a determination, including a de12 termination that resulted under paragraph 

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

14 provision of this Act. 

15 ‘‘(B) COMPENSATION FOR UNFAVORABLE

16 DETERMINATIONS.—If the Secretary of the In17 terior determines that a proposed use will vio18 late a provision of this Act, the owner or lessee 

19 of the real property may seek compensation in 

20 accordance with subsection (b). 

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

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

23 ‘‘(A) AGENCY ACTION.— 

24 ‘‘(i) IN GENERAL.—The term ‘agency 

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1 rector of the United States Fish and Wild2 life Service in accordance with this Act 

3 that diminishes the fair market value of 

4 any real property by not less than 50 per5 cent with respect to the intended use of the 

6 real property. 

7 ‘‘(ii) EXCLUSION.—The term ‘agency 

8 action’ does not include any action taken 

9 with respect to intrastate endangered spe10 cies or intrastate threatened species regu11 lated by a Governor of a State under sec12 tion 4(j). 

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

14 lessee of any real property affected by an agen15 cy action. 

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

17 owner of any real property affected by an agen18 cy action. 

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

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

21 date on which an agency action takes place, the Sec22 retary shall pay an owner or lessee an amount equal 

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

24 property determined in accordance with paragraph 

25 (3). 


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1 ‘‘(3) DETERMINATION OF FAIR MARKET

2 VALUE.— 

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

4 described in paragraph (2) shall be determined 

5 by 2 licensed independent appraisers of whom— 

6 ‘‘(i) 1 shall be chosen by the Sec7 retary; and 

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

9 lessee. 

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

11 VALUE.— 

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

13 chosen under subparagraph (A) fail to 

14 agree on the same fair market value, the 

15 Secretary and the owner shall jointly select 

16 an additional licensed independent ap17 praiser to determine the fair market value. 

18 ‘‘(ii) EXTENSION OF TIME TO MAKE

19 DETERMINATION.—The licensed inde20 pendent appraiser described in clause (i) 

21 shall determine the fair market value not 

22 later than 270 days after the date on 

23 which the agency action takes place. 

24 ‘‘(C) COSTS.—The Secretary shall be re25 sponsible for all costs relating to the determinaVerDate Mar 15 2010 18:26 Nov 21, 2013 Jkt 039200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S1731.IS S1731

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1 tion of fair market value made under this para2 graph.’’. 

3 SEC. 6. PENALTIES AND ENFORCEMENT. 

4 Section 11(g)(4) of the Endangered Species Act (16 

5 U.S.C. 1540(g)(4)) is amended by striking ‘‘attorney 

6 and’’. 

7 SEC. 7. CONFORMING AMENDMENT. 

8 Section 6(d)(1) of the Endangered Species Act (16 

9 U.S.C. 1535(d)(1)) is amended by striking ‘‘the status of 

10 candidate species pursuant to subparagraph (C) of section 

11 4(b)(3) and’’. 

Æ 


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