I 

114TH CONGRESS 

2D SESSION H. R. 5281 

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 

MAY 18, 2016 

Mr. LUETKEMEYER 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. DETERMINATIONS OF ENDANGERED SPECIES AND 

9 THREATENED SPECIES. 

10 (a) PROCESS.—Section 4 of the Endangered Species 

11 Act of 1973 (16 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 (3) (as so redesignated), 

2 by striking ‘‘paragraphs (5) and (6) of this sub3 section’’ and inserting ‘‘paragraphs (4) and 

4 (5)’’; 

5 (D) in paragraph (5)(A) (as so redesig6 nated), by striking ‘‘paragraph (5)(A)(i)’’ and 

7 inserting ‘‘paragraph (4)(A)(i)’’; 

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

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

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

11 or (5)’’; and 

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

13 ‘‘(8) DEFINITION OF BEST SCIENTIFIC AND

14 COMMERCIAL DATA.—In this subsection, the term 

15 ‘best scientific and commercial data’ includes any 

16 scientific evidence made available to the Secretary by 

17 any State agency.’’; 

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

19 following: 

20 ‘‘(c) LISTS.— 

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

22 this subsection, the term ‘joint resolution’ means 

23 only a joint resolution the matter after the resolving 

24 clause of which is as follows: ‘That Congress ap25 proves the lists relating to endangered species and 


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1 threatened species submitted by the Secretary of the 

2 Interior on llllll.’ (the blank space being 

3 appropriately filled in). 

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

5 Secretary of the Interior shall submit to Congress— 

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

7 Secretary of the Interior or the Secretary of 

8 Commerce to be endangered species; and 

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

10 Secretary of the Interior or the Secretary of 

11 Commerce to be threatened species. 

12 ‘‘(3) CONGRESSIONAL APPROVAL.—The lists de13 scribed in paragraph (2) shall not take effect until 

14 a joint resolution described in paragraph (1) is en15 acted. 

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

17 in paragraph (2) shall— 

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

19 list by any scientific and common name; and 

20 ‘‘(B) specify— 

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

22 what portion of the range of the species 

23 that the species is endangered or threat24 ened; and 


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1 ‘‘(ii) any critical habitat within the 

2 range. 

3 ‘‘(5) PUBLICATION.—The Secretary of the Inte4 rior shall publish in the Federal Register each list 

5 approved in accordance with paragraph (3). 

6 ‘‘(6) AUTOMATIC REMOVAL.— 

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

8 years after the date on which a joint resolution 

9 is enacted in accordance with this subsection, 

10 each species listed on a list approved by the 

11 joint resolution shall be removed from the list. 

12 ‘‘(B) PETITION FOR RELISTING.— 

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

14 the Interior, in consultation with the Gov15 ernor of each State in which the endan16 gered species or threatened species is 

17 present, may submit to Congress a list 

18 that includes any species that was removed 

19 under subparagraph (A). 

20 ‘‘(ii) CONGRESSIONAL APPROVAL.— 

21 The list described in clause (i) shall not 

22 take effect until a joint resolution de23 scribed in paragraph (1) is enacted.’’; 

24 (4) in subsection (d)— 


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1 (A) in the first sentence, by striking 

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

3 as provided in subsection (j), whenever any spe4 cies’’; and 

5 (B) in the second sentence, by striking 

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

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

8 (5) in subsection (f)(1), by striking ‘‘The Sec9 retary shall’’ and inserting ‘‘Except as provided in 

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

11 (6) in subsection (g)— 

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

13 Secretary shall’’ and inserting ‘‘Except as pro14 vided in subsection (j), the Secretary shall’’; 

15 and 

16 (B) in paragraph (2), by striking ‘‘para17 graph 7 of subsection (b) of this section’’ and 

18 inserting ‘‘subsection (b)(6)’’; 

19 (7) in subsection (h)— 

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

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

22 ‘‘Except as provided in subsection (j), the Sec23 retary shall’’; 

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

25 and 


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1 (C) by redesignating paragraphs (3) and 

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

3 (8) in subsection (i)— 

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

5 this section’’ and inserting ‘‘subsection 

6 (b)(4)(A)(ii)’’; 

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

8 adopt a regulation pursuant to an action peti9 tioned by a State agency under subsection 

10 (b)(3),’’; and 

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

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

13 ‘‘(j) INTRASTATE ENDANGERED SPECIES OR

14 THREATENED SPECIES.— 

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

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

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

18 State in which an intrastate endangered species 

19 or intrastate threatened species is present. 

20 ‘‘(B) INTRASTATE ENDANGERED SPE21 CIES.—The term ‘intrastate endangered species’ 

22 means an endangered species that the Governor 

23 of a State determines is present only within the 

24 State. 


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1 ‘‘(C) INTRASTATE THREATENED SPE2 CIES.—The term ‘intrastate threatened species’ 

3 means a threatened species that the Governor 

4 of a State determines is present only within the 

5 State. 

6 ‘‘(2) CURRENTLY LISTED SPECIES.— 

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

8 State may regulate any intrastate endangered 

9 species or any intrastate threatened species list10 ed under this section that is listed before the 

11 date of enactment of this subsection. 

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

13 Governor of a State elects to regulate an intra14 state endangered species or an intrastate 

15 threatened species under subparagraph (A), the 

16 Governor of the State shall, with respect to the 

17 management of the intrastate endangered spe18 cies or intrastate threatened species on any 

19 land within the State, have the exclusive au20 thority to, in accordance with the purposes and 

21 policy of this Act— 

22 ‘‘(i) promulgate or enforce any regula23 tion or guidance; 

24 ‘‘(ii) designate a critical habitat; 

25 ‘‘(iii) issue a permit or license; 


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1 ‘‘(iv) develop or implement a recovery 

2 plan; and 

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

4 the recovery plan. 

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

6 described in subparagraph (B) shall be subject 

7 to the law of the State in which the land, in8 cluding public lands (as defined in section 103 

9 of the Federal Land Policy and Management 

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

11 ‘‘(3) NEWLY LISTED SPECIES.— 

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

13 State may, before the Secretary or any other 

14 person, regulate any intrastate endangered spe15 cies or any intrastate threatened species listed 

16 under this section that is listed on or after the 

17 date of enactment of this subsection. 

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

19 a State elects to regulate an intrastate endan20 gered species or an intrastate threatened spe21 cies under subparagraph (A), subparagraphs 

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

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

24 the Governor of a State under this subsection 

25 shall not be subject to judicial review in any 


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1 court of the United States or in any State 

2 court.’’. 

3 (b) REQUIREMENT TO PUBLISH ON THE INTERNET

4 THE BASIS FOR LISTINGS.—Section 4(b) of the Endan5 gered Species Act of 1973 (16 U.S.C. 1533(b)) is further 

6 amended by adding at the end the following: 

7 ‘‘(9) The Secretary shall make publicly available 

8 on the Internet the best scientific and commercial 

9 data available that are the basis for each regulation, 

10 including each proposed regulation, promulgated 

11 under subsection (a)(1), except that, at the request 

12 of a Governor or legislature of a State, the Secretary 

13 shall not make available under this paragraph infor14 mation regarding which the State has determined 

15 public disclosure is prohibited by a law of that State 

16 relating to the protection of personal information.’’. 

17 SEC. 5. COST ACCOUNTING. 

18 The Endangered Species Act of 1973 is amended by 

19 inserting after section 12 (16 U.S.C. 1541) the following: 

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

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

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

23 includes— 

24 ‘‘(A) Federal agency obligations related to 

25 the cost of any study; 


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

2 replacement costs; and 

3 ‘‘(C) staffing costs. 

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

5 costs’ includes foregone power generation costs and 

6 replacement power costs, including the net costs of 

7 any transmission of power. 

8 ‘‘(b) COST OF COMPLIANCE.— 

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

10 intrastate endangered species or intrastate threat11 ened species regulated by a Governor of a State 

12 under section 4(j), the Administrator of the Bonne13 ville Power Administration, the Administrator of the 

14 Southeastern Power Administration, the Adminis15 trator of the Southwestern Power Administration, 

16 and the Administrator of the Western Area Power 

17 Administration shall each include in a monthly bill18 ing statement submitted to each customer of the re19 spective Administration the share of the direct and 

20 indirect costs to the customer incurred by the Ad21 ministration related to complying with this Act. 

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

23 Director of the Bureau of Reclamation shall assist 

24 the administrators described in paragraph (1) with 

25 identifying the costs described in that paragraph. 


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

2 year, each of the administrators described in subsection 

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

4 of Reclamation, shall submit to the Committee on Envi5 ronment and Public Works of the Senate and the Com6 mittee on Natural Resources of the House of Representa7 tives a report estimating the costs described in subsection 

8 (b)(1)— 

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

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

11 ‘‘(2) with respect to the each of the Administra12 tions described in subsection (b)(1) (except the 

13 Western Power Administration), on a systemwide 

14 basis. 

15 ‘‘SEC. 12B. PROPERTY RIGHTS. 

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

17 PROPERTY.— 

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

19 real property may submit to the Secretary of the In20 terior an application that includes any proposed use 

21 of the real property. 

22 ‘‘(2) DETERMINATION.— 

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

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1 retary of the Interior shall submit to the owner 

2 or lessee in writing a determination as to 

3 whether the proposed use will violate any provi4 sion of this Act. 

5 ‘‘(B) FAILURE TO RESPOND.—If the Sec6 retary of the Interior fails to respond before the 

7 expiration of the 90-day period described in 

8 subparagraph (A), the proposed use shall be 

9 considered to not violate any provision of this 

10 Act. 

11 ‘‘(3) EFFECT OF DETERMINATIONS.— 

12 ‘‘(A) AFFIRMATIVE DEFENSE.—It is an af13 firmative defense to any civil penalty assessed 

14 under section 11 or to any civil action, civil 

15 suit, or prosecution brought under that section 

16 that the owner or lessee of real property reason17 ably relied on a determination, including a de18 termination that resulted under paragraph 

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

20 provision of this Act. 

21 ‘‘(B) COMPENSATION FOR UNFAVORABLE

22 DETERMINATIONS.—If the Secretary of the In23 terior determines that a proposed use will vio24 late a provision of this Act, the owner or lessee 


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1 of the real property may seek compensation in 

2 accordance with subsection (b). 

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

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

5 ‘‘(A) AGENCY ACTION.— 

6 ‘‘(i) IN GENERAL.—The term ‘agency 

7 action’ means any action taken by the Di8 rector of the United States Fish and Wild9 life Service in accordance with this Act 

10 that diminishes the fair market value of 

11 any real property by not less than 50 per12 cent with respect to the intended use of the 

13 real property. 

14 ‘‘(ii) EXCLUSION.—The term ‘agency 

15 action’ does not include any action taken 

16 with respect to intrastate endangered spe17 cies or intrastate threatened species regu18 lated by a Governor of a State under sec19 tion 4(j). 

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

21 lessee of any real property affected by an agen22 cy action. 

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

24 owner of any real property affected by an agen25 cy action. 


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

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

3 date on which an agency action takes place, the Sec4 retary shall pay an owner or lessee an amount equal 

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

6 property determined in accordance with paragraph 

7 (3). 

8 ‘‘(3) DETERMINATION OF FAIR MARKET

9 VALUE.— 

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

11 described in paragraph (2) shall be determined 

12 by 2 licensed independent appraisers of whom— 

13 ‘‘(i) one shall be chosen by the Sec14 retary; and 

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

16 or lessee. 

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

18 VALUE.— 

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

20 chosen under subparagraph (A) fail to 

21 agree on the same fair market value, the 

22 Secretary and the owner shall jointly select 

23 an additional licensed independent ap24 praiser to determine the fair market value. 


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1 ‘‘(ii) EXTENSION OF TIME TO MAKE

2 DETERMINATION.—The licensed inde3 pendent appraiser described in clause (i) 

4 shall determine the fair market value not 

5 later than 270 days after the date on 

6 which the agency action takes place. 

7 ‘‘(C) COSTS.—The Secretary shall be re8 sponsible for all costs relating to the determina9 tion of fair market value made under this para10 graph.’’. 

11 SEC. 6. PENALTIES AND ENFORCEMENT. 

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

13 1973 (16 U.S.C. 1540(g)(4)) is amended by striking ‘‘at14 torney and’’. 

15 SEC. 7. CONFORMING AMENDMENT. 

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

17 1973 (16 U.S.C. 1535(d)(1)) is amended by striking ‘‘the 

18 status of candidate species pursuant to subparagraph (C) 

19 of section 4(b)(3) and’’. 

20 SEC. 8. DISCLOSURE OF EXPENDITURES UNDER ENDAN21 GERED SPECIES ACT OF 1973. 

22 (a) REQUIREMENT TO DISCLOSE.—Section 13 of the 

23 Endangered Species Act of 1973 (87 Stat. 902; relating 

24 to conforming amendments which have executed) is 

25 amended to read as follows: 


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1 ‘‘SEC. 13. DISCLOSURE OF EXPENDITURES. 

2 ‘‘(a) REQUIREMENT.—The Secretary of the Interior, 

3 in consultation with the Secretary of Commerce, shall— 

4 ‘‘(1) not later than 90 days after the end of 

5 each fiscal year, submit to the Committee on Nat6 ural Resources of the House of Representatives and 

7 the Committee on Energy and Natural Resources of 

8 the Senate an annual report detailing Federal Gov9 ernment expenditures for covered suits during the 

10 preceding fiscal year (including the information de11 scribed in subsection (b)); and 

12 ‘‘(2) make publicly available through the Inter13 net a searchable database of the information de14 scribed in subsection (b). 

15 ‘‘(b) INCLUDED INFORMATION.—The report shall in16 clude— 

17 ‘‘(1) the case name and number of each covered 

18 suit, and a hyperlink to the record or decision for 

19 each covered suit (if available); 

20 ‘‘(2) a description of the claims in each covered 

21 suit; 

22 ‘‘(3) the name of each covered agency whose ac23 tions gave rise to a claim in a covered suit; 

24 ‘‘(4) funds expended by each covered agency 

25 (disaggregated by agency account) to receive and re26 spond to notices referred to in section 11(g)(2) or to 


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1 prepare for litigation of, litigate, negotiate a settle2 ment agreement or consent decree in, or provide ma3 terial, technical, or other assistance in relation to, a 

4 covered suit; 

5 ‘‘(5) the number of full-time equivalent employ6 ees that participated in the activities described in 

7 paragraph (4); and 

8 ‘‘(6) expenses (disaggregated by agency ac9 count) awarded in covered suits, including any con10 sent decrees or settlement agreements (regardless of 

11 whether a decree or settlement agreement is sealed 

12 or otherwise subject to nondisclosure provisions), in13 cluding the bases for such awards. 

14 ‘‘(c) REQUIREMENT TO PROVIDE INFORMATION.— 

15 The head of each covered agency shall provide to the Sec16 retary in a timely manner all information requested by the 

17 Secretary to comply with the requirements of this section. 

18 ‘‘(d) LIMITATION ON DISCLOSURE.—Notwith19 standing any other provision of this section, this section 

20 shall not affect any restriction in a consent decree or set21 tlement agreement on the disclosure of information that 

22 is not described in subsection (b). 

23 ‘‘(e) DEFINITIONS.— 

24 ‘‘(1) COVERED AGENCY.—The term ‘covered 

25 agency’ means any agency of the Department of the 


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1 Interior, the Forest Service, the National Marine 

2 Fisheries Service, the Bonneville Power Administra3 tion, the Western Area Power Administration, the 

4 Southwestern Power Administration, or the South5 eastern Power Administration. 

6 ‘‘(2) COVERED SUIT.—The term ‘covered suit’ 

7 means any civil action containing a claim against the 

8 Federal Government, in which the claim arises under 

9 this Act and is based on the action of a covered 

10 agency.’’. 

11 (b) CLERICAL AMENDMENT.—The table of contents 

12 in the first section of such Act is amended by striking the 

13 item relating to such section and inserting the following: 

‘‘Sec. 13. Disclosure of expenditures.’’. 

14 (c) PRIOR AMENDMENTS NOT AFFECTED.—This sec15 tion shall not be construed to affect the amendments made 

16 by section 13 of such Act, as in effect before the enact17 ment of this Act. 

Æ 


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