II 

115TH CONGRESS 

2D SESSION S. 2587 

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. 

IN THE SENATE OF THE UNITED STATES 

MARCH 21, 2018 

Mr. CORNYN (for himself, Mr. HATCH, and Mr. SULLIVAN) 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 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. 

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

3 SECTION 1. ASSUMPTION BY STATES OF CERTAIN ESA RE4 SPONSIBILITIES. 

5 (a) IN GENERAL.—The Endangered Species Act of 

6 1973 is amended by inserting after section 6 (16 U.S.C. 

7 1535) the following: 


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1 ‘‘SEC. 6A. ASSUMPTION BY STATES OF CERTAIN RESPON2 SIBILITIES RELATING TO HIGHWAY 

3 PROJECTS. 

4 ‘‘(a) ESTABLISHMENT.— 

5 ‘‘(1) IN GENERAL.—The Secretary shall carry 

6 out an assignment program (referred to in this sec7 tion as the ‘program’) to allow States to assume cer8 tain responsibilities of the Secretary with respect to 

9 agency actions applicable to highway projects within 

10 the State. 

11 ‘‘(2) ASSUMPTION OF RESPONSIBILITY.— 

12 ‘‘(A) IN GENERAL.—Subject to the other 

13 requirements of this section, on written agree14 ment of the Secretary and a State (which may 

15 be in the form of a memorandum of under16 standing), the Secretary may assign, and the 

17 State may assume, the responsibilities of the 

18 Secretary under subsections (a) and (b) of sec19 tion 7 with respect to agency actions (as de20 fined in subsection (a)(2) of that section) that 

21 are applicable to one or more highway projects 

22 in the State. 

23 ‘‘(B) ADDITIONAL RESPONSIBILITY.— 

24 ‘‘(i) IN GENERAL.—If a State as25 sumes responsibility under subparagraph 

26 (A)— 


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1 ‘‘(I) the Secretary may assign to 

2 the State, and the State may assume, 

3 all or part of the responsibilities of 

4 the Secretary described in that sub5 paragraph for environmental review, 

6 consultation, or other action required 

7 under any Federal environmental law 

8 pertaining to the review or approval of 

9 highway projects described in the 

10 agreement referred to in that sub11 paragraph; and 

12 ‘‘(II) subject to clause (ii), on the 

13 request of the State, the Secretary 

14 may also assign to the State, and the 

15 State may assume, the responsibilities 

16 of the Secretary described in that sub17 paragraph for one or more railroad, 

18 public transportation, or multimodal 

19 projects within the State. 

20 ‘‘(ii) EXCLUSION OF PROJECTS.—In 

21 any State that assumes a responsibility of 

22 the Secretary under clause (i)(II), a recipi23 ent of assistance under chapter 53 of title 

24 49, United States Code, may submit to the 

25 Secretary a request that the Secretary 


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1 shall maintain the responsibility of the 

2 Secretary with respect to one or more pub3 lic transportation projects carried out by 

4 the recipient in the State. 

5 ‘‘(C) PROCEDURAL AND SUBSTANTIVE RE6 QUIREMENTS.—A State shall assume responsi7 bility under this section subject to the same 

8 procedural and substantive requirements as 

9 would apply if the responsibility were carried 

10 out by the Secretary. 

11 ‘‘(D) FEDERAL RESPONSIBILITY.—Any re12 sponsibility of the Secretary that is not explic13 itly assumed by a State by written agreement 

14 under this section shall remain the responsi15 bility of the Secretary. 

16 ‘‘(E) NO EFFECT ON AUTHORITY.—Noth17 ing in this section preempts or interferes with 

18 any power, jurisdiction, responsibility, or au19 thority of a Federal agency (other than the 

20 United States Fish and Wildlife Service), except 

21 with respect to an authority delegated by the 

22 Secretary pursuant to subparagraph (A) under 

23 applicable law regarding a project or agency ac24 tion described in subparagraph (A) or (B). 


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1 ‘‘(F) PRESERVATION OF FLEXIBILITY.— 

2 The Secretary may not require a State, as a 

3 condition of participation in the program, to 

4 forgo a project delivery method that is other5 wise permissible for a project described in sub6 paragraph (A) or (B). 

7 ‘‘(G) LEGAL FEES.—A State that assumes 

8 a responsibility of the Secretary under this sec9 tion for a project described in subparagraph (A) 

10 or (B) may use funds apportioned to the State 

11 under section 104(b)(2) of title 23, United 

12 States Code, as necessary, for attorneys’ fees 

13 directly attributable to eligible activities associ14 ated with the project. 

15 ‘‘(b) STATE PARTICIPATION.— 

16 ‘‘(1) PARTICIPATING STATES.—To be eligible to 

17 participate in the program, a State shall— 

18 ‘‘(A) be participating in the surface trans19 portation project delivery program under sec20 tion 327 of title 23, United States Code; and 

21 ‘‘(B) assume the responsibilities of the 

22 Secretary of Transportation under the National 

23 Environmental Policy Act of 1969 (42 U.S.C. 

24 4321 et seq.) pursuant to that section. 


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1 ‘‘(2) APPLICATION.—Not later than 270 days 

2 after the date of enactment of this section, the Sec3 retary shall amend, as appropriate, regulations that 

4 establish requirements relating to information re5 quired in any application of a State to participate in 

6 the program, including, at a minimum— 

7 ‘‘(A) the projects or classes of projects for 

8 which the State anticipates exercising the au9 thority that may be granted under the program; 

10 ‘‘(B) verification of the financial resources 

11 necessary to carry out the authority that may 

12 be granted under the program; and 

13 ‘‘(C) evidence of the notice and solicitation 

14 of public comment by the State relating to par15 ticipation of the State in the program, including 

16 copies of comments received from that solicita17 tion. 

18 ‘‘(3) PUBLIC NOTICE.— 

19 ‘‘(A) IN GENERAL.—Each State that sub20 mits an application in accordance with the reg21 ulations described in paragraph (2) shall give 

22 notice of the intent of the State to participate 

23 in the program by not later than 30 days before 

24 the date of submission of the application. 


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1 ‘‘(B) METHOD OF NOTICE AND SOLICITA2 TION.—The State shall provide notice and so3 licit public comment under this paragraph by 

4 publishing the complete application of the State 

5 in accordance with the appropriate public notice 

6 requirements of the State. 

7 ‘‘(4) SELECTION CRITERIA.—The Secretary 

8 may approve the application of a State under this 

9 subsection only if— 

10 ‘‘(A) any necessary changes to regulations 

11 pursuant to paragraph (2) have been carried 

12 out; 

13 ‘‘(B) the Secretary determines that the 

14 State has the capability, including financial and 

15 personnel, to assume the responsibility; and 

16 ‘‘(C) the head of the State agency with pri17 mary jurisdiction over highway matters enters 

18 into a written agreement with the Secretary, as 

19 described in subsection (c). 

20 ‘‘(5) OTHER FEDERAL AGENCY VIEWS.—If a 

21 State applies to assume a responsibility of the Sec22 retary that would have required the Secretary to 

23 consult with another Federal agency, the Secretary 

24 shall solicit the views of the Federal agency before 


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1 approving the application of the State under this 

2 subsection. 

3 ‘‘(c) WRITTEN AGREEMENT.—A written agreement 

4 under this section shall— 

5 ‘‘(1) be executed by— 

6 ‘‘(A) the Governor of the applicable State; 

7 or 

8 ‘‘(B) the top-ranking transportation offi9 cial in the State who is charged with responsi10 bility for highway construction; 

11 ‘‘(2) be in such form as the Secretary may re12 quire; 

13 ‘‘(3) provide that the State— 

14 ‘‘(A) agrees to assume all or part of the re15 sponsibilities of the Secretary referred to in 

16 subsection (a); 

17 ‘‘(B) expressly consents, on behalf of the 

18 State, to accept the jurisdiction of the Federal 

19 courts for the compliance, discharge, and en20 forcement of any responsibility of the Secretary 

21 assumed by the State; 

22 ‘‘(C) certifies that State laws (including 

23 regulations) are in effect that— 


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1 ‘‘(i) authorize the State to take the 

2 actions necessary to carry out the respon3 sibilities being assumed; and 

4 ‘‘(ii) are comparable to section 552 of 

5 title 5, United States Code, including pro6 viding that any decision regarding the pub7 lic availability of a document under those 

8 State laws is reviewable by a court of com9 petent jurisdiction; and 

10 ‘‘(D) agrees to maintain the financial re11 sources necessary to carry out the responsibil12 ities being assumed; 

13 ‘‘(4) require the State to provide to the Sec14 retary any information the Secretary reasonably con15 siders necessary to ensure that the State is ade16 quately carrying out the responsibilities assigned to 

17 the State; 

18 ‘‘(5) have a term of not more than 5 years; and 

19 ‘‘(6) be renewable. 

20 ‘‘(d) JURISDICTION.— 

21 ‘‘(1) IN GENERAL.—The United States district 

22 courts shall have exclusive jurisdiction over any civil 

23 action against a State for failure to carry out any 

24 responsibility assumed by the State pursuant to this 

25 section. 


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1 ‘‘(2) LEGAL STANDARDS AND REQUIRE2 MENTS.—A civil action under paragraph (1) shall be 

3 governed by the legal standards and requirements 

4 that would apply in such a civil action against the 

5 Secretary had the Secretary taken the actions in 

6 question. 

7 ‘‘(3) INTERVENTION.—The Secretary shall have 

8 the right to intervene in any action described in 

9 paragraph (1). 

10 ‘‘(e) EFFECT OF ASSUMPTION OF RESPONSI11 BILITY.—A State that assumes responsibility under sub12 section (a)(2) shall be solely responsible and solely liable 

13 for carrying out, in lieu of, and without further approval 

14 of, the Secretary, those responsibilities, until the date on 

15 which the program is terminated in accordance with sub16 section (j). 

17 ‘‘(f) LIMITATIONS ON AGREEMENTS.—Nothing in 

18 this section permits a State to assume any rulemaking au19 thority of the Secretary under any Federal law. 

20 ‘‘(g) AUDITS.— 

21 ‘‘(1) IN GENERAL.—To ensure compliance by a 

22 State with an agreement of the State under sub23 section (c) (including compliance by the State with 

24 all Federal laws for which responsibility is assumed 


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1 under subsection (a)(2)), for each State partici2 pating in the program, the Secretary shall— 

3 ‘‘(A) not later than 180 days after the date 

4 of execution of the applicable agreement, meet 

5 with the State— 

6 ‘‘(i) to review the implementation of 

7 the agreement; and 

8 ‘‘(ii) to discuss plans for the first an9 nual audit; 

10 ‘‘(B) conduct annual audits during each of 

11 the first 4 years of State participation in the 

12 program; and 

13 ‘‘(C) ensure that the time period for com14 pleting an annual audit, from initiation to com15 pletion (including public comment and re16 sponses to those comments), does not exceed 

17 180 days. 

18 ‘‘(2) PUBLIC AVAILABILITY AND COMMENT.— 

19 ‘‘(A) IN GENERAL.—An audit conducted 

20 under paragraph (1) shall be provided to the 

21 public for comment. 

22 ‘‘(B) RESPONSE.—Not later than 60 days 

23 after the date on which the period for public 

24 comment ends, the Secretary shall respond to 


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1 public comments received under subparagraph 

2 (A). 

3 ‘‘(3) AUDIT TEAM.— 

4 ‘‘(A) IN GENERAL.—An audit conducted 

5 under paragraph (1) shall be carried out by an 

6 audit team determined by the Secretary, in con7 sultation with the State, in accordance with 

8 subparagraph (B). 

9 ‘‘(B) CONSULTATION.—Consultation with 

10 the State under subparagraph (A) shall include 

11 a reasonable opportunity for the State to re12 view, and provide comments regarding, the pro13 posed members of the audit team. 

14 ‘‘(h) MONITORING.—After the end of the fourth year 

15 of the participation by a State in the program, the Sec16 retary shall monitor compliance by the State with the writ17 ten agreement under subsection (c), including the provi18 sion by the State of financial resources to carry out the 

19 written agreement. 

20 ‘‘(i) REPORT TO CONGRESS.—The Secretary shall 

21 submit to Congress an annual report that describes the 

22 administration of the program during the preceding cal23 endar year. 

24 ‘‘(j) TERMINATION.— 


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1 ‘‘(1) TERMINATION BY SECRETARY.—The Sec2 retary may terminate the participation of a State in 

3 the program if— 

4 ‘‘(A) the Secretary determines that the 

5 State is not adequately carrying out the respon6 sibilities assigned to the State pursuant to this 

7 section; 

8 ‘‘(B) the Secretary provides to the State— 

9 ‘‘(i) a notification of the determina10 tion of noncompliance; 

11 ‘‘(ii) a period of not less than 120 

12 days to take such corrective action as the 

13 Secretary determines to be necessary to 

14 comply with the applicable agreement; and 

15 ‘‘(iii) on request of the Governor of 

16 the State, a detailed description of each re17 sponsibility in need of corrective action re18 garding an inadequacy identified under 

19 subparagraph (A); and 

20 ‘‘(C) the State, after the notification and 

21 period for corrective action provided under sub22 paragraph (B), fails to take satisfactory correc23 tive action, as determined by the Secretary. 

24 ‘‘(2) TERMINATION BY STATE.—The State may 

25 terminate the participation of the State in the proVerDate Sep 11 2014 03:52 Mar 31, 2018 Jkt 079200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S2587.IS S2587

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1 gram at any time by providing to the Secretary a 

2 notice, by not later than the date that is 90 days be3 fore the date of termination, subject to such terms 

4 and conditions as the Secretary may provide. 

5 ‘‘(k) CAPACITY BUILDING.—The Secretary, in co6 operation with representatives of State officials, may carry 

7 out education, training, peer-exchange, and other initia8 tives as appropriate— 

9 ‘‘(1) to assist States in developing the capacity 

10 to participate in the program; and 

11 ‘‘(2) to promote information sharing and col12 laboration among States that are participating in 

13 the program. 

14 ‘‘(l) RELATIONSHIP TO LOCALLY ADMINISTERED

15 PROJECTS.—A State granted authority under this section 

16 may, as appropriate and on the request of a local govern17 ment— 

18 ‘‘(1) exercise that authority on behalf of the 

19 local government for a locally administered project; 

20 or 

21 ‘‘(2) provide guidance and training regarding 

22 consolidating and minimizing the documentation and 

23 environmental analyses necessary for sponsors of a 

24 locally administered project to comply with— 

25 ‘‘(A) section 7; and 


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1 ‘‘(B) any comparable requirements under 

2 State law.’’. 

3 (b) CONFORMING AMENDMENTS.—Section 7 of the 

4 Endangered Species Act of 1973 (16 U.S.C. 1536) is 

5 amended— 

6 (1) in subsection (a)— 

7 (A) by striking paragraph (1) and insert8 ing the following: 

9 ‘‘(1) FEDERAL AGENCY ACTIONS.— 

10 ‘‘(A) IN GENERAL.—The Secretary shall— 

11 ‘‘(i) review other programs adminis12 tered by the Secretary; and 

13 ‘‘(ii) use those programs in further14 ance of the purposes of this Act. 

15 ‘‘(B) OTHER AGENCIES.—The head of 

16 each other Federal department or agency, in 

17 consultation with, and with the assistance of, 

18 the Secretary or a State that has assumed a re19 sponsibility of the Secretary pursuant to section 

20 6A, as applicable, shall use the authorities of 

21 the department or agency in furtherance of the 

22 purposes of this Act by carrying out programs 

23 for the conservation of endangered species and 

24 threatened species listed under section 4.’’; 

25 (B) in paragraph (2)— 


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1 (i) in the second sentence, by striking 

2 ‘‘In fulfilling’’ and inserting the following: 

3 ‘‘(B) USE OF DATA.—In fulfilling’’; and 

4 (ii) by striking the paragraph designa5 tion and all that follows through ‘‘not like6 ly’’ in the first sentence and inserting the 

7 following: 

8 ‘‘(2) AGENCY ACTIONS.— 

9 ‘‘(A) IN GENERAL.—The head of each 

10 Federal department or agency, in consultation 

11 with, and with the assistance of, the Secretary 

12 or a State that has assumed a responsibility of 

13 the Secretary pursuant to section 6A, as appli14 cable, shall ensure that any action authorized, 

15 funded, or carried out by the department or 

16 agency (referred to in this section as an ‘agency 

17 action’) is not likely’’; and 

18 (C) in paragraphs (3) and (4), by inserting 

19 ‘‘or a State that has assumed a responsibility of 

20 the Secretary pursuant to section 6A, as appli21 cable,’’ after ‘‘with the Secretary’’ each place it 

22 appears; 

23 (2) in subsection (b)— 

24 (A) in paragraph (1)— 


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1 (i) in subparagraph (A), by striking 

2 ‘‘within the 90-day’’ and all that follows 

3 through the period at the end of the sub4 paragraph and inserting the following: 

5 ‘‘within— 

6 ‘‘(i) the 90-day period beginning on the date on 

7 which the consultation is initiated; or 

8 ‘‘(ii) subject to subparagraph (B), such other 

9 time period as is mutually agreeable to— 

10 ‘‘(I) the Secretary or a State that has as11 sumed a responsibility of the Secretary pursu12 ant to section 6A, as applicable; and 

13 ‘‘(II) the head of the affected Federal de14 partment or agency.’’; and 

15 (ii) in subparagraph (B)— 

16 (I) in the matter preceding clause 

17 (i), by striking ‘‘the Federal’’ and in18 serting ‘‘or a State that has assumed 

19 a responsibility of the Secretary pur20 suant to section 6A, as applicable, 

21 and the head of the affected Federal 

22 department or’’; and 

23 (II) in the undesignated matter 

24 following clause (ii), by striking ‘‘The 

25 Secretary’’ and all that follows 


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1 through ‘‘before’’ and inserting the 

2 following: 

3 ‘‘(C) APPLICANT CONSENT.—The Sec4 retary or a State that has assumed a responsi5 bility of the Secretary pursuant to section 6A, 

6 as applicable, and the head of the affected Fed7 eral department or agency may mutually agree 

8 to extend a consultation period established 

9 under subparagraph (B) if the Secretary or the 

10 State that has assumed responsibility from the 

11 Secretary, as applicable, before’’; 

12 (B) in paragraph (2), by striking ‘‘agree13 able to’’ and all that follows through the period 

14 at the end of the paragraph and inserting the 

15 following: ‘‘agreeable to— 

16 ‘‘(A) the Secretary or a State that has assumed 

17 a responsibility of the Secretary pursuant to section 

18 6A, as applicable; 

19 ‘‘(B) the head of the affected Federal depart20 ment or agency; and 

21 ‘‘(C) the applicant concerned.’’; 

22 (C) in paragraph (3)— 

23 (i) in subparagraph (A)— 

24 (I) by inserting ‘‘or a State that 

25 has assumed a responsibility of the 


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1 Secretary pursuant to section 6A, as 

2 applicable,’’ after ‘‘the Secretary’’ 

3 each place it appears; 

4 (II) in the first sentence, by 

5 striking ‘‘the Secretary’s opinion’’ and 

6 inserting ‘‘the opinion of the Sec7 retary or the State, respectively,’’; and 

8 (III) in the second sentence, by 

9 striking ‘‘he believes’’ and inserting 

10 ‘‘the Secretary or the State, respec11 tively, believes’’; and 

12 (ii) in subparagraph (B)— 

13 (I) by striking ‘‘an opinion based 

14 by the Secretary incident to’’ and in15 serting ‘‘an opinion of the Secretary 

16 or a State that has assumed a respon17 sibility of the Secretary pursuant to 

18 section 6A, as applicable, based on’’; 

19 and 

20 (II) by striking ‘‘the Secretary 

21 reviews’’ and inserting ‘‘the Secretary 

22 or the State, respectively, reviews’’; 

23 (D) in paragraph (4)— 

24 (i) in the undesignated matter fol25 lowing subparagraph (C), by striking ‘‘the 


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1 Secretary shall provide the Federal agency 

2 and the applicant concerned, if any, with’’ 

3 and inserting the following: 

4 ‘‘(5) DESCRIPTION OF WRITTEN STATEMENT.— 

5 A written statement referred to in paragraph (4) 

6 is’’; 

7 (ii) by striking the paragraph designa8 tion and all that follows through ‘‘the Sec9 retary’’ in the matter preceding subpara10 graph (A) and inserting the following: 

11 ‘‘(4) REQUIREMENT ON CERTAIN CONCLU12 SION.—The Secretary or a State that has assumed 

13 a responsibility of the Secretary pursuant to section 

14 6A, as applicable, shall provide to the head of the 

15 affected Federal department or agency and the ap16 plicant concerned, if any, a written statement de17 scribed in paragraph (5) if, after consultation under 

18 subsection (a)(2), the Secretary or the State, respec19 tively,’’; 

20 (iii) in subparagraph (A), by striking 

21 ‘‘which the Secretary believes’’ and insert22 ing ‘‘that the Secretary or the State, re23 spectively, believes’’; and 


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1 (iv) in subparagraph (C), by striking 

2 the semicolon at the end and inserting 

3 ‘‘(16 U.S.C. 1371(a)(5)).’’; and 

4 (E) in paragraph (5) (as designated by 

5 subparagraph (D)(i))— 

6 (i) in each of clauses (i) and (ii)— 

7 (I) by striking ‘‘such’’ each place 

8 it appears and inserting ‘‘the applica9 ble’’; and 

10 (II) by striking the comma at the 

11 end of the clause and inserting a 

12 semicolon; 

13 (ii) in clause (iii), by striking ‘‘with 

14 regard to such taking, and’’ and inserting 

15 ‘‘(16 U.S.C. 1371(a)(5)) with respect to 

16 the applicable taking; and’’; 

17 (iii) in clause (iv), by striking ‘‘clauses 

18 (ii) and (iii)’’ and inserting ‘‘subpara19 graphs (B) and (C)’’; and 

20 (iv) by redesignating clauses (i) 

21 through (iv) as subparagraphs (A) through 

22 (D), respectively, and indenting the sub23 paragraphs appropriately; 

24 (3) in subsection (e)— 


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1 (A) in paragraph (3)(D), by striking 

2 ‘‘Agency. Agency.’’ and inserting ‘‘Agency.’’; 

3 and 

4 (B) in paragraph (4)(B), by adding a pe5 riod at the end; and 

6 (4) in subsection (f)(1), by inserting ‘‘or a 

7 State that has assumed a responsibility of the Sec8 retary pursuant to section 6A, as applicable’’ after 

9 ‘‘the Secretary’’. 

10 (c) TECHNICAL AMENDMENTS.—The table of con11 tents of the Endangered Species Act of 1973 (16 U.S.C. 

12 1531 note) is amended— 

13 (1) by inserting after the item relating to sec14 tion 6 the following: 

‘‘Sec. 6A. Assumption by States of certain responsibilities relating to highway 

projects.’’; 

15 and 

16 (2) by adding at the end the following: 

‘‘Sec. 18. Annual cost analysis by the Fish and Wildlife Service.’’. 

Æ 


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