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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Endangered Species 
Management Self-Determination Act’’. 
SEC. 2. DEFINITION OF ESA. 
In this Act, the term ‘‘ESA’’ means the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.). 
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SEC. 3. FINDINGS. 
Congress finds that— 
(1) the ESA was passed in 1973 as a means of 
protecting and recovering species and has not been 
substantially revised in over 25 years; 
(2) the ESA has not achieved its stated goal of 
recovering threatened species or endangered species; 
(3) of the species listed in accordance with the 
ESA, less than 1 percent of the total number of spe-
cies in the United States have been recovered and 
removed from the list, largely due to data errors or 
other factors; 
(4) there is— 
(A) no comprehensive independent study of 
the costs or benefits of the ESA; 
(B) no full accounting of how much the 
Federal Government and State and local gov-
ernments spend to implement, enforce, and 
comply with the ESA; and 
(C) no meaningful effort to account for the 
costs the ESA imposes on the private sector; 
(5) the ESA effectively penalizes landowners for 
owning endangered species habitat by forcing them 
to bear the cost of conservation; 
(6) the regulatory listing process under the 
ESA has become a tool for environmentalists to un-
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dermine, slow down, or halt construction of infra-
structure projects, hampering economic growth and 
employment; and 
(7) litigation stemming from the ESA and some 
resulting settlements between the litigants and the 
Federal Government have made the ESA even more 
unworkable, to the detriment of species. 
SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND 
THREATENED SPECIES. 
(a) PROCESS.—Section 4 of the Endangered Species 
Act of 1973 (16 U.S.C. 1533) is amended— 
(1) in subsection (a)— 
(A) in paragraph (1), by inserting ‘‘, with 
the consent of the Governor of each State in 
which the endangered species or threatened spe-
cies is present,’’ after ‘‘The Secretary’’; and 
(B) in paragraph (2)(A)(ii), by inserting ‘‘, 
with the consent of the Governor of each State 
in which the endangered species or threatened 
species is present,’’ after ‘‘, who’’; 
(2) in subsection (b)— 
(A) by striking paragraph (3); 
(B) 
by 
redesignating 
paragraphs 
(4) 
through (8) as paragraphs (3) through (7), re-
spectively; 
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(C) in paragraph (3) (as so redesignated), 
by striking ‘‘paragraphs (5) and (6) of this sub-
section’’ and inserting ‘‘paragraphs (4) and 
(5)’’; 
(D) in paragraph (5)(A) (as so redesig-
nated), by striking ‘‘paragraph (5)(A)(i)’’ and 
inserting ‘‘paragraph (4)(A)(i)’’; 
(E) in paragraph (6) (as so redesignated), 
by striking ‘‘paragraph (4), (5), or (6) of this 
subsection’’ and inserting ‘‘paragraph (3), (4), 
or (5)’’; and 
(F) by adding at the end the following: 
‘‘(8) DEFINITION
OF
BEST
SCIENTIFIC
AND 
COMMERCIAL DATA.—In this subsection, the term 
‘best scientific and commercial data’ includes any 
scientific evidence made available to the Secretary by 
any State agency.’’; 
(3) by striking subsection (c) and inserting the 
following: 
‘‘(c) LISTS.— 
‘‘(1) DEFINITION OF JOINT RESOLUTION.—In 
this subsection, the term ‘joint resolution’ means 
only a joint resolution the matter after the resolving 
clause of which is as follows: ‘That Congress ap-
proves the lists relating to endangered species and 
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threatened species submitted by the Secretary of the 
Interior on llllll.’ (the blank space being 
appropriately filled in). 
‘‘(2) LISTS
SUBMITTED
TO
CONGRESS.—The 
Secretary of the Interior shall submit to Congress— 
‘‘(A) a list of all species determined by the 
Secretary of the Interior or the Secretary of 
Commerce to be endangered species; and 
‘‘(B) a list of all species determined by the 
Secretary of the Interior or the Secretary of 
Commerce to be threatened species. 
‘‘(3) CONGRESSIONAL APPROVAL.—The lists de-
scribed in paragraph (2) shall not take effect until 
a joint resolution described in paragraph (1) is en-
acted. 
‘‘(4) CONTENTS OF LISTS.—Each list described 
in paragraph (2) shall— 
‘‘(A) refer to the species included on the 
list by any scientific and common name; and 
‘‘(B) specify— 
‘‘(i) with respect to the species over 
what portion of the range of the species 
that the species is endangered or threat-
ened; and 
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‘‘(ii) any critical habitat within the 
range. 
‘‘(5) PUBLICATION.—The Secretary of the Inte-
rior shall publish in the Federal Register each list 
approved in accordance with paragraph (3). 
‘‘(6) AUTOMATIC REMOVAL.— 
‘‘(A) IN GENERAL.—On the date that is 5 
years after the date on which a joint resolution 
is enacted in accordance with this subsection, 
each species listed on a list approved by the 
joint resolution shall be removed from the list. 
‘‘(B) PETITION FOR RELISTING.— 
‘‘(i) IN GENERAL.—The Secretary of 
the Interior, in consultation with the Gov-
ernor of each State in which the endan-
gered species or threatened species is 
present, may submit to Congress a list 
that includes any species that was removed 
under subparagraph (A). 
‘‘(ii) CONGRESSIONAL
APPROVAL.— 
The list described in clause (i) shall not 
take effect until a joint resolution de-
scribed in paragraph (1) is enacted.’’; 
(4) in subsection (d)— 
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(A) in the first sentence, by striking 
‘‘Whenever any species’’ and inserting ‘‘Except 
as provided in subsection (j), whenever any spe-
cies’’; and 
(B) in the second sentence, by striking 
‘‘The Secretary may’’ and inserting ‘‘Except as 
provided in subsection (j), the Secretary may’’; 
(5) in subsection (f)(1), by striking ‘‘The Sec-
retary shall’’ and inserting ‘‘Except as provided in 
subsection (j), the Secretary shall’’; 
(6) in subsection (g)— 
(A) in paragraph (1), by striking ‘‘The 
Secretary shall’’ and inserting ‘‘Except as pro-
vided in subsection (j), the Secretary shall’’; 
and 
(B) in paragraph (2), by striking ‘‘para-
graph 7 of subsection (b) of this section’’ and 
inserting ‘‘subsection (b)(6)’’; 
(7) in subsection (h)— 
(A) in the matter preceding paragraph (1), 
by striking ‘‘The Secretary shall’’ and inserting 
‘‘Except as provided in subsection (j), the Sec-
retary shall’’; 
(B) by striking paragraphs (1) and (2); 
and 
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(C) by redesignating paragraphs (3) and 
(4) as paragraphs (1) and (2), respectively; 
(8) in subsection (i)— 
(A) by striking ‘‘subsection (b)(5)(A)(ii) of 
this 
section’’ 
and 
inserting 
‘‘subsection 
(b)(4)(A)(ii)’’; 
(B) by striking ‘‘or if the Secretary fails to 
adopt a regulation pursuant to an action peti-
tioned by a State agency under subsection 
(b)(3),’’; and 
(C) by striking ‘‘or petition’’; and 
(9) by adding at the end the following: 
‘‘(j) 
INTRASTATE
ENDANGERED
SPECIES
OR 
THREATENED SPECIES.— 
‘‘(1) DEFINITIONS.—In this subsection: 
‘‘(A) GOVERNOR OF A STATE.—The term 
‘Governor of a State’ means the Governor of a 
State in which an intrastate endangered species 
or intrastate threatened species is present. 
‘‘(B) 
INTRASTATE
ENDANGERED
SPE-
CIES.—The term ‘intrastate endangered species’ 
means an endangered species that the Governor 
of a State determines is present only within the 
State. 
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‘‘(C) 
INTRASTATE
THREATENED
SPE-
CIES.—The term ‘intrastate threatened species’ 
means a threatened species that the Governor 
of a State determines is present only within the 
State. 
‘‘(2) CURRENTLY LISTED SPECIES.— 
‘‘(A) IN
GENERAL.—The Governor of a 
State may regulate any intrastate endangered 
species or any intrastate threatened species list-
ed under this section that is listed before the 
date of enactment of this subsection. 
‘‘(B) AUTHORITY OF GOVERNOR.—If the 
Governor of a State elects to regulate an intra-
state endangered species or an intrastate 
threatened species under subparagraph (A), the 
Governor of the State shall, with respect to the 
management of the intrastate endangered spe-
cies or intrastate threatened species on any 
land within the State, have the exclusive au-
thority to, in accordance with the purposes and 
policy of this Act— 
‘‘(i) promulgate or enforce any regula-
tion or guidance; 
‘‘(ii) designate a critical habitat; 
‘‘(iii) issue a permit or license; 
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‘‘(iv) develop or implement a recovery 
plan; and 
‘‘(v) establish any goal with respect to 
the recovery plan. 
‘‘(C) APPLICABLE LAW.—The management 
described in subparagraph (B) shall be subject 
to the law of the State in which the land, in-
cluding public lands (as defined in section 103 
of the Federal Land Policy and Management 
Act of 1976 (43 U.S.C. 1702)), is located. 
‘‘(3) NEWLY LISTED SPECIES.— 
‘‘(A) IN
GENERAL.—The Governor of a 
State may, before the Secretary or any other 
person, regulate any intrastate endangered spe-
cies or any intrastate threatened species listed 
under this section that is listed on or after the 
date of enactment of this subsection. 
‘‘(B) APPLICABILITY.—If the Governor of 
a State elects to regulate an intrastate endan-
gered species or an intrastate threatened spe-
cies under subparagraph (A), subparagraphs 
(B) and (C) of paragraph (2) shall apply. 
‘‘(C) JUDICIAL
REVIEW.—Any action by 
the Governor of a State under this subsection 
shall not be subject to judicial review in any 
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court of the United States or in any State 
court.’’. 
(b) REQUIREMENT TO PUBLISH ON THE INTERNET 
THE BASIS FOR LISTINGS.—Section 4(b) of the Endan-
gered Species Act of 1973 (16 U.S.C. 1533(b)) is further 
amended by adding at the end the following: 
‘‘(9) The Secretary shall make publicly available 
on the Internet the best scientific and commercial 
data available that are the basis for each regulation, 
including each proposed regulation, promulgated 
under subsection (a)(1), except that, at the request 
of a Governor or legislature of a State, the Secretary 
shall not make available under this paragraph infor-
mation regarding which the State has determined 
public disclosure is prohibited by a law of that State 
relating to the protection of personal information.’’. 
SEC. 5. COST ACCOUNTING. 
The Endangered Species Act of 1973 is amended by 
inserting after section 12 (16 U.S.C. 1541) the following: 
‘‘SEC. 12A. COST ACCOUNTING REPORT. 
‘‘(a) DEFINITIONS.—In this section: 
‘‘(1) DIRECT COSTS.—The term ‘direct costs’ 
includes— 
‘‘(A) Federal agency obligations related to 
the cost of any study; 
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‘‘(B) capital, operation, maintenance, and 
replacement costs; and 
‘‘(C) staffing costs. 
‘‘(2) INDIRECT
COSTS.—The term ‘indirect 
costs’ includes foregone power generation costs and 
replacement power costs, including the net costs of 
any transmission of power. 
‘‘(b) COST OF COMPLIANCE.— 
‘‘(1) IN
GENERAL.—Except with respect to 
intrastate endangered species or intrastate threat-
ened species regulated by a Governor of a State 
under section 4(j), the Administrator of the Bonne-
ville Power Administration, the Administrator of the 
Southeastern Power Administration, the Adminis-
trator of the Southwestern Power Administration, 
and the Administrator of the Western Area Power 
Administration shall each include in a monthly bill-
ing statement submitted to each customer of the re-
spective Administration the share of the direct and 
indirect costs to the customer incurred by the Ad-
ministration related to complying with this Act. 
‘‘(2) ASSISTANCE IN IDENTIFYING COSTS.—The 
Director of the Bureau of Reclamation shall assist 
the administrators described in paragraph (1) with 
identifying the costs described in that paragraph. 
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‘‘(c) REPORT.—Not later than January 30 of each 
year, each of the administrators described in subsection 
(b)(1), in coordination with the Director of the Bureau 
of Reclamation, shall submit to the Committee on Envi-
ronment and Public Works of the Senate and the Com-
mittee on Natural Resources of the House of Representa-
tives a report estimating the costs described in subsection 
(b)(1)— 
‘‘(1) with respect to the Western Area Power 
Administration, on a project-by-project basis; and 
‘‘(2) with respect to the each of the Administra-
tions described in subsection (b)(1) (except the 
Western Power Administration), on a systemwide 
basis. 
‘‘SEC. 12B. PROPERTY RIGHTS. 
‘‘(a) DETERMINATION OF PROPOSED USE OF REAL 
PROPERTY.— 
‘‘(1) IN GENERAL.—Any owner or lessee of any 
real property may submit to the Secretary of the In-
terior an application that includes any proposed use 
of the real property. 
‘‘(2) DETERMINATION.— 
‘‘(A) IN
GENERAL.—Not later than 90 
days after the date on which the application de-
scribed in paragraph (1) is submitted, the Sec-
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retary of the Interior shall submit to the owner 
or lessee in writing a determination as to 
whether the proposed use will violate any provi-
sion of this Act. 
‘‘(B) FAILURE TO RESPOND.—If the Sec-
retary of the Interior fails to respond before the 
expiration of the 90-day period described in 
subparagraph (A), the proposed use shall be 
considered to not violate any provision of this 
Act. 
‘‘(3) EFFECT OF DETERMINATIONS.— 
‘‘(A) AFFIRMATIVE DEFENSE.—It is an af-
firmative defense to any civil penalty assessed 
under section 11 or to any civil action, civil 
suit, or prosecution brought under that section 
that the owner or lessee of real property reason-
ably relied on a determination, including a de-
termination that resulted under paragraph 
(2)(B), that a proposed use will not violate any 
provision of this Act. 
‘‘(B) COMPENSATION FOR UNFAVORABLE 
DETERMINATIONS.—If the Secretary of the In-
terior determines that a proposed use will vio-
late a provision of this Act, the owner or lessee 
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of the real property may seek compensation in 
accordance with subsection (b). 
‘‘(b) COMPENSATION FOR AGENCY ACTIONS.— 
‘‘(1) DEFINITIONS.—In this subsection: 
‘‘(A) AGENCY ACTION.— 
‘‘(i) IN GENERAL.—The term ‘agency 
action’ means any action taken by the Di-
rector of the United States Fish and Wild-
life Service in accordance with this Act 
that diminishes the fair market value of 
any real property by not less than 50 per-
cent with respect to the intended use of the 
real property. 
‘‘(ii) EXCLUSION.—The term ‘agency 
action’ does not include any action taken 
with respect to intrastate endangered spe-
cies or intrastate threatened species regu-
lated by a Governor of a State under sec-
tion 4(j). 
‘‘(B) LESSEE.—The term ‘lessee’ means a 
lessee of any real property affected by an agen-
cy action. 
‘‘(C) OWNER.—The term ‘owner’ means an 
owner of any real property affected by an agen-
cy action. 
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‘‘(2) COMPENSATION.—Except as provided in 
paragraph (3)(B), not later than 180 days after the 
date on which an agency action takes place, the Sec-
retary shall pay an owner or lessee an amount equal 
to 150 percent of the fair market value of the real 
property determined in accordance with paragraph 
(3). 
‘‘(3) 
DETERMINATION
OF
FAIR
MARKET 
VALUE.— 
‘‘(A) IN GENERAL.—The fair market value 
described in paragraph (2) shall be determined 
by 2 licensed independent appraisers of whom— 
‘‘(i) one shall be chosen by the Sec-
retary; and 
‘‘(ii) one shall be chosen by the owner 
or lessee. 
‘‘(B) FAILURE TO AGREE ON FAIR MARKET 
VALUE.— 
‘‘(i) IN GENERAL.—If the appraisers 
chosen under subparagraph (A) fail to 
agree on the same fair market value, the 
Secretary and the owner shall jointly select 
an additional licensed independent ap-
praiser to determine the fair market value. 
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‘‘(ii) EXTENSION OF TIME TO MAKE 
DETERMINATION.—The 
licensed 
inde-
pendent appraiser described in clause (i) 
shall determine the fair market value not 
later than 270 days after the date on 
which the agency action takes place. 
‘‘(C) COSTS.—The Secretary shall be re-
sponsible for all costs relating to the determina-
tion of fair market value made under this para-
graph.’’. 
SEC. 6. PENALTIES AND ENFORCEMENT. 
Section 11(g)(4) of the Endangered Species Act of 
1973 (16 U.S.C. 1540(g)(4)) is amended by striking ‘‘at-
torney and’’. 
SEC. 7. CONFORMING AMENDMENT. 
Section 6(d)(1) of the Endangered Species Act of 
1973 (16 U.S.C. 1535(d)(1)) is amended by striking ‘‘the 
status of candidate species pursuant to subparagraph (C) 
of section 4(b)(3) and’’. 
SEC. 8. DISCLOSURE OF EXPENDITURES UNDER ENDAN-
GERED SPECIES ACT OF 1973. 
(a) REQUIREMENT TO DISCLOSE.—Section 13 of the 
Endangered Species Act of 1973 (87 Stat. 902; relating 
to conforming amendments which have executed) is 
amended to read as follows: 
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‘‘SEC. 13. DISCLOSURE OF EXPENDITURES. 
‘‘(a) REQUIREMENT.—The Secretary of the Interior, 
in consultation with the Secretary of Commerce, shall— 
‘‘(1) not later than 90 days after the end of 
each fiscal year, submit to the Committee on Nat-
ural Resources of the House of Representatives and 
the Committee on Energy and Natural Resources of 
the Senate an annual report detailing Federal Gov-
ernment expenditures for covered suits during the 
preceding fiscal year (including the information de-
scribed in subsection (b)); and 
‘‘(2) make publicly available through the Inter-
net a searchable database of the information de-
scribed in subsection (b). 
‘‘(b) INCLUDED INFORMATION.—The report shall in-
clude— 
‘‘(1) the case name and number of each covered 
suit, and a hyperlink to the record or decision for 
each covered suit (if available); 
‘‘(2) a description of the claims in each covered 
suit; 
‘‘(3) the name of each covered agency whose ac-
tions gave rise to a claim in a covered suit; 
‘‘(4) funds expended by each covered agency 
(disaggregated by agency account) to receive and re-
spond to notices referred to in section 11(g)(2) or to 
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prepare for litigation of, litigate, negotiate a settle-
ment agreement or consent decree in, or provide ma-
terial, technical, or other assistance in relation to, a 
covered suit; 
‘‘(5) the number of full-time equivalent employ-
ees that participated in the activities described in 
paragraph (4); and 
‘‘(6) expenses (disaggregated by agency ac-
count) awarded in covered suits, including any con-
sent decrees or settlement agreements (regardless of 
whether a decree or settlement agreement is sealed 
or otherwise subject to nondisclosure provisions), in-
cluding the bases for such awards. 
‘‘(c) REQUIREMENT TO PROVIDE INFORMATION.— 
The head of each covered agency shall provide to the Sec-
retary in a timely manner all information requested by the 
Secretary to comply with the requirements of this section. 
‘‘(d) 
LIMITATION
ON
DISCLOSURE.—Notwith-
standing any other provision of this section, this section 
shall not affect any restriction in a consent decree or set-
tlement agreement on the disclosure of information that 
is not described in subsection (b). 
‘‘(e) DEFINITIONS.— 
‘‘(1) COVERED
AGENCY.—The term ‘covered 
agency’ means any agency of the Department of the 
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Interior, the Forest Service, the National Marine 
Fisheries Service, the Bonneville Power Administra-
tion, the Western Area Power Administration, the 
Southwestern Power Administration, or the South-
eastern Power Administration. 
‘‘(2) COVERED SUIT.—The term ‘covered suit’ 
means any civil action containing a claim against the 
Federal Government, in which the claim arises under 
this Act and is based on the action of a covered 
agency.’’. 
(b) CLERICAL AMENDMENT.—The table of contents 
in the first section of such Act is amended by striking the 
item relating to such section and inserting the following: 
‘‘Sec. 13. Disclosure of expenditures.’’. 
(c) PRIOR AMENDMENTS NOT AFFECTED.—This sec-
tion shall not be construed to affect the amendments made 
by section 13 of such Act, as in effect before the enact-
ment of this Act. 
Æ 
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