I 

115TH CONGRESS 

1ST SESSION H. R. 2134 

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 HOUSE OF REPRESENTATIVES 

APRIL 25, 2017 

Mr. LUETKEMEYER (for himself and Mr. SESSIONS) introduced the following 

bill; which was referred to the Committee on Natural Resources 

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 

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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. AMENDMENTS TO THE ENDANGERED SPECIES ACT 

9 OF 1973. 

10 (a) DETERMINATIONS OF ENDANGERED SPECIES

11 AND THREATENED SPECIES.—Section 4 of the Endan12 gered Species Act of 1973 (16 U.S.C. 1533) is amended— 

13 (1) in subsection (a)— 

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

15 the consent of the Governor of each State in 

16 which the endangered species or threatened spe17 cies is present,’’ after ‘‘The Secretary’’; and 

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

19 with the consent of the Governor of each State 

20 in which the endangered species or threatened 

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

22 (2) in subsection (b)— 

23 (A) by striking paragraph (3); 


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1 (B) by redesignating paragraphs (4) 

2 through (8) as paragraphs (3) through (7), re3 spectively; 

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

5 by striking ‘‘paragraphs (5) and (6) of this sub6 section’’ and inserting ‘‘paragraphs (4) and 

7 (5)’’; 

8 (D) in paragraph (5)(A) (as so redesig9 nated), by striking ‘‘paragraph (5)(A)(i)’’ and 

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

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

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

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

14 or (5)’’; and 

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

16 ‘‘(8) DEFINITION OF BEST SCIENTIFIC AND

17 COMMERCIAL DATA.—In this subsection, the term 

18 ‘best scientific and commercial data’ includes any 

19 scientific evidence made available to the Secretary by 

20 any State agency.’’; 

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

22 following: 

23 ‘‘(c) LISTS.— 

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

25 this subsection, the term ‘joint resolution’ means 


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1 only a joint resolution the matter after the resolving 

2 clause of which is as follows: ‘That Congress ap3 proves the lists relating to endangered species and 

4 threatened species submitted by the Secretary of the 

5 Interior on llllll.’ (the blank space being 

6 appropriately filled in). 

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

8 Secretary of the Interior shall submit to Congress— 

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

10 Secretary of the Interior or the Secretary of 

11 Commerce to be endangered species; and 

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

13 Secretary of the Interior or the Secretary of 

14 Commerce to be threatened species. 

15 ‘‘(3) CONGRESSIONAL APPROVAL.—The lists de16 scribed in paragraph (2) shall not take effect until 

17 a joint resolution described in paragraph (1) is en18 acted. 

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

20 in paragraph (2) shall— 

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

22 list by any scientific and common name; and 

23 ‘‘(B) specify— 

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

25 what portion of the range of the species 


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1 that the species is endangered or threat2 ened; and 

3 ‘‘(ii) any critical habitat within the 

4 range. 

5 ‘‘(5) PUBLICATION.—The Secretary of the Inte6 rior shall publish in the Federal Register each list 

7 approved in accordance with paragraph (3). 

8 ‘‘(6) AUTOMATIC REMOVAL.— 

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

10 years after the date on which a joint resolution 

11 is enacted in accordance with this subsection, 

12 each species listed on a list approved by the 

13 joint resolution shall be removed from the list. 

14 ‘‘(B) PETITION FOR RELISTING.— 

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

16 the Interior, in consultation with the Gov17 ernor of each State in which the endan18 gered species or threatened species is 

19 present, may submit to Congress a list 

20 that includes any species that was removed 

21 under subparagraph (A). 

22 ‘‘(ii) CONGRESSIONAL APPROVAL.— 

23 The list described in clause (i) shall not 

24 take effect until a joint resolution de25 scribed in paragraph (1) is enacted.’’; 


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1 (4) in subsection (d)— 

2 (A) in the first sentence, by striking 

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

4 as provided in subsection (j), whenever any spe5 cies’’; and 

6 (B) in the second sentence, by striking 

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

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

9 (5) in subsection (f)(1), by striking ‘‘The Sec10 retary shall’’ and inserting ‘‘Except as provided in 

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

12 (6) in subsection (g)— 

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

14 Secretary shall’’ and inserting ‘‘Except as pro15 vided in subsection (j), the Secretary shall’’; 

16 and 

17 (B) in paragraph (2), by striking ‘‘para18 graph 7 of subsection (b) of this section’’ and 

19 inserting ‘‘subsection (b)(6)’’; 

20 (7) in subsection (h)— 

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

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

23 ‘‘Except as provided in subsection (j), the Sec24 retary shall’’; 


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

2 and 

3 (C) by redesignating paragraphs (3) and 

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

5 (8) in subsection (i)— 

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

7 this section’’ and inserting ‘‘subsection 

8 (b)(4)(A)(ii)’’; 

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

10 adopt a regulation pursuant to an action peti11 tioned by a State agency under subsection 

12 (b)(3),’’; and 

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

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

15 ‘‘(j) INTRASTATE ENDANGERED SPECIES OR

16 THREATENED SPECIES.— 

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

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

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

20 State in which an intrastate endangered species 

21 or intrastate threatened species is present. 

22 ‘‘(B) INTRASTATE ENDANGERED SPE23 CIES.—The term ‘intrastate endangered species’ 

24 means an endangered species that the Governor 


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1 of a State determines is present only within the 

2 State. 

3 ‘‘(C) INTRASTATE THREATENED SPE4 CIES.—The term ‘intrastate threatened species’ 

5 means a threatened species that the Governor 

6 of a State determines is present only within the 

7 State. 

8 ‘‘(2) CURRENTLY LISTED SPECIES.— 

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

10 State may regulate any intrastate endangered 

11 species or any intrastate threatened species list12 ed under this section that is listed before the 

13 date of enactment of this subsection. 

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

15 Governor of a State elects to regulate an intra16 state endangered species or an intrastate 

17 threatened species under subparagraph (A), the 

18 Governor of the State shall, with respect to the 

19 management of the intrastate endangered spe20 cies or intrastate threatened species on any 

21 land within the State, have the exclusive au22 thority to, in accordance with the purposes and 

23 policy of this Act— 

24 ‘‘(i) promulgate or enforce any regula25 tion or guidance; 


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1 ‘‘(ii) designate a critical habitat; 

2 ‘‘(iii) issue a permit or license; 

3 ‘‘(iv) develop or implement a recovery 

4 plan; and 

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

6 the recovery plan. 

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

8 described in subparagraph (B) shall be subject 

9 to the law of the State in which the land, in10 cluding public lands (as defined in section 103 

11 of the Federal Land Policy and Management 

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

13 ‘‘(3) NEWLY LISTED SPECIES.— 

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

15 State may, before the Secretary or any other 

16 person, regulate any intrastate endangered spe17 cies or any intrastate threatened species listed 

18 under this section that is listed on or after the 

19 date of enactment of this subsection. 

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

21 a State elects to regulate an intrastate endan22 gered species or an intrastate threatened spe23 cies under subparagraph (A), subparagraphs 

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


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

2 the Governor of a State under this subsection 

3 shall not be subject to judicial review in any 

4 court of the United States or in any State 

5 court.’’. 

6 (b) COST ACCOUNTING.—The Endangered Species 

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

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

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

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

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

12 includes— 

13 ‘‘(A) Federal agency obligations related to 

14 the cost of any study; 

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

16 replacement costs; and 

17 ‘‘(C) staffing costs. 

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

19 costs’ includes foregone power generation costs and 

20 replacement power costs, including the net costs of 

21 any transmission of power. 

22 ‘‘(b) COST OF COMPLIANCE.— 

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

24 intrastate endangered species or intrastate threat25 ened species regulated by a Governor of a State 


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1 under section 4(j), the Administrator of the Bonne2 ville Power Administration, the Administrator of the 

3 Southeastern Power Administration, the Adminis4 trator of the Southwestern Power Administration, 

5 and the Administrator of the Western Area Power 

6 Administration shall each include in a monthly bill7 ing statement submitted to each customer of the re8 spective Administration the share of the direct and 

9 indirect costs to the customer incurred by the Ad10 ministration related to complying with this Act. 

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

12 Director of the Bureau of Reclamation shall assist 

13 the administrators described in paragraph (1) with 

14 identifying the costs described in that paragraph. 

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

16 year, each of the administrators described in subsection 

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

18 of Reclamation, shall submit to the Committee on Envi19 ronment and Public Works of the Senate and the Com20 mittee on Natural Resources of the House of Representa21 tives a report estimating the costs described in subsection 

22 (b)(1)— 

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

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


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1 ‘‘(2) with respect to the each of the Administra2 tions described in subsection (b)(1) (except the 

3 Western Power Administration), on a systemwide 

4 basis. 

5 ‘‘SEC. 12B. PROPERTY RIGHTS. 

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

7 PROPERTY.— 

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

9 real property may submit to the Secretary of the In10 terior an application that includes any proposed use 

11 of the real property. 

12 ‘‘(2) DETERMINATION.— 

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

14 days after the date on which the application de15 scribed in paragraph (1) is submitted, the Sec16 retary of the Interior shall submit to the owner 

17 or lessee in writing a determination as to 

18 whether the proposed use will violate any provi19 sion of this Act. 

20 ‘‘(B) FAILURE TO RESPOND.—If the Sec21 retary of the Interior fails to respond before the 

22 expiration of the 90-day period described in 

23 subparagraph (A), the proposed use shall be 

24 considered to not violate any provision of this 

25 Act. 


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1 ‘‘(3) EFFECT OF DETERMINATIONS.— 

2 ‘‘(A) AFFIRMATIVE DEFENSE.—It is an af3 firmative defense to any civil penalty assessed 

4 under section 11 or to any civil action, civil 

5 suit, or prosecution brought under that section 

6 that the owner or lessee of real property reason7 ably relied on a determination, including a de8 termination that resulted under paragraph 

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

10 provision of this Act. 

11 ‘‘(B) COMPENSATION FOR UNFAVORABLE

12 DETERMINATIONS.—If the Secretary of the In13 terior determines that a proposed use will vio14 late a provision of this Act, the owner or lessee 

15 of the real property may seek compensation in 

16 accordance with subsection (b). 

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

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

19 ‘‘(A) AGENCY ACTION.— 

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

21 action’ means any action taken by the Di22 rector of the United States Fish and Wild23 life Service in accordance with this Act 

24 that diminishes the fair market value of 

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1 cent with respect to the intended use of the 

2 real property. 

3 ‘‘(ii) EXCLUSION.—The term ‘agency 

4 action’ does not include any action taken 

5 with respect to intrastate endangered spe6 cies or intrastate threatened species regu7 lated by a Governor of a State under sec8 tion 4(j). 

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

10 lessee of any real property affected by an agen11 cy action. 

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

13 owner of any real property affected by an agen14 cy action. 

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

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

17 date on which an agency action takes place, the Sec18 retary shall pay an owner or lessee an amount equal 

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

20 property determined in accordance with paragraph 

21 (3). 

22 ‘‘(3) DETERMINATION OF FAIR MARKET

23 VALUE.— 


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

2 described in paragraph (2) shall be determined 

3 by 2 licensed independent appraisers of whom— 

4 ‘‘(i) one shall be chosen by the Sec5 retary; and 

6 ‘‘(ii) one shall be chosen by the owner 

7 or lessee. 

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

9 VALUE.— 

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

11 chosen under subparagraph (A) fail to 

12 agree on the same fair market value, the 

13 Secretary and the owner shall jointly select 

14 an additional licensed independent ap15 praiser to determine the fair market value. 

16 ‘‘(ii) EXTENSION OF TIME TO MAKE

17 DETERMINATION.—The licensed inde18 pendent appraiser described in clause (i) 

19 shall determine the fair market value not 

20 later than 270 days after the date on 

21 which the agency action takes place. 

22 ‘‘(C) COSTS.—The Secretary shall be re23 sponsible for all costs relating to the determina24 tion of fair market value made under this para25 graph.’’. 


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1 (c) PENALTIES AND ENFORCEMENT.—Section 

2 11(g)(4) of the Endangered Species Act of 1973 (16 

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

4 and’’. 

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

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

7 1535(d)(1)) is amended by striking ‘‘the status of can8 didate species pursuant to subparagraph (C) of section 

9 4(b)(3) and’’. 

Æ 


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