II 

114TH CONGRESS 

1ST SESSION S. 855 

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 

MARCH 24, 2015 

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, 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 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 (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 SEC. 5. COST ACCOUNTING. 

4 The Endangered Species Act of 1973 is amended by 

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

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

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

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

9 includes— 

10 ‘‘(A) Federal agency obligations related to 

11 the cost of any study; 

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

13 replacement costs; and 

14 ‘‘(C) staffing costs. 

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

16 costs’ includes foregone power generation costs and 

17 replacement power costs, including the net costs of 

18 any transmission of power. 

19 ‘‘(b) COST OF COMPLIANCE.— 

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

21 intrastate endangered species or intrastate threat22 ened species regulated by a Governor of a State 

23 under section 4(j), the Administrator of the Bonne24 ville Power Administration, the Administrator of the 

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1 trator of the Southwestern Power Administration, 

2 and the Administrator of the Western Area Power 

3 Administration shall each include in a monthly bill4 ing statement submitted to each customer of the re5 spective Administration the share of the direct and 

6 indirect costs to the customer incurred by the Ad7 ministration related to complying with this Act. 

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

9 Director of the Bureau of Reclamation shall assist 

10 the administrators described in paragraph (1) with 

11 identifying the costs described in that paragraph. 

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

13 year, each of the administrators described in subsection 

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

15 of Reclamation, shall submit to the Committee on Envi16 ronment and Public Works of the Senate and the Com17 mittee on Natural Resources of the House of Representa18 tives a report estimating the costs described in subsection 

19 (b)(1)— 

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

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

22 ‘‘(2) with respect to the each of the Administra23 tions described in subsection (b)(1) (except the 

24 Western Power Administration), on a systemwide 

25 basis. 


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1 ‘‘SEC. 12B. PROPERTY RIGHTS. 

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

3 PROPERTY.— 

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

5 real property may submit to the Secretary of the In6 terior an application that includes any proposed use 

7 of the real property. 

8 ‘‘(2) DETERMINATION.— 

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

10 days after the date on which the application de11 scribed in paragraph (1) is submitted, the Sec12 retary of the Interior shall submit to the owner 

13 or lessee in writing a determination as to 

14 whether the proposed use will violate any provi15 sion of this Act. 

16 ‘‘(B) FAILURE TO RESPOND.—If the Sec17 retary of the Interior fails to respond before the 

18 expiration of the 90-day period described in 

19 subparagraph (A), the proposed use shall be 

20 considered to not violate any provision of this 

21 Act. 

22 ‘‘(3) EFFECT OF DETERMINATIONS.— 

23 ‘‘(A) AFFIRMATIVE DEFENSE.—It is an af24 firmative defense to any civil penalty assessed 

25 under section 11 or to any civil action, civil 

26 suit, or prosecution brought under that section 


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1 that the owner or lessee of real property reason2 ably relied on a determination, including a de3 termination that resulted under paragraph 

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

5 provision of this Act. 

6 ‘‘(B) COMPENSATION FOR UNFAVORABLE

7 DETERMINATIONS.—If the Secretary of the In8 terior determines that a proposed use will vio9 late a provision of this Act, the owner or lessee 

10 of the real property may seek compensation in 

11 accordance with subsection (b). 

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

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

14 ‘‘(A) AGENCY ACTION.— 

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

16 action’ means any action taken by the Di17 rector of the United States Fish and Wild18 life Service in accordance with this Act 

19 that diminishes the fair market value of 

20 any real property by not less than 50 per21 cent with respect to the intended use of the 

22 real property. 

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

24 action’ does not include any action taken 

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1 cies or intrastate threatened species regu2 lated by a Governor of a State under sec3 tion 4(j). 

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

5 lessee of any real property affected by an agen6 cy action. 

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

8 owner of any real property affected by an agen9 cy action. 

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

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

12 date on which an agency action takes place, the Sec13 retary shall pay an owner or lessee an amount equal 

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

15 property determined in accordance with paragraph 

16 (3). 

17 ‘‘(3) DETERMINATION OF FAIR MARKET

18 VALUE.— 

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

20 described in paragraph (2) shall be determined 

21 by 2 licensed independent appraisers of whom— 

22 ‘‘(i) 1 shall be chosen by the Sec23 retary; and 

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

25 lessee. 


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

2 VALUE.— 

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

4 chosen under subparagraph (A) fail to 

5 agree on the same fair market value, the 

6 Secretary and the owner shall jointly select 

7 an additional licensed independent ap8 praiser to determine the fair market value. 

9 ‘‘(ii) EXTENSION OF TIME TO MAKE

10 DETERMINATION.—The licensed inde11 pendent appraiser described in clause (i) 

12 shall determine the fair market value not 

13 later than 270 days after the date on 

14 which the agency action takes place. 

15 ‘‘(C) COSTS.—The Secretary shall be re16 sponsible for all costs relating to the determina17 tion of fair market value made under this para18 graph.’’. 

19 SEC. 6. PENALTIES AND ENFORCEMENT. 

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

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

22 and’’. 

23 SEC. 7. CONFORMING AMENDMENT. 

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

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


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1 candidate species pursuant to subparagraph (C) of section 

2 4(b)(3) and’’. 

Æ 


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