II 113th CONGRESS 2d Session S. 2560 IN THE SENATE OF THE UNITED STATES June 26, 2014 Mr. Cardin (by request) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To authorize the United States Fish and Wildlife Service to seek compensation for injuries to trust resources and use those funds to restore, replace, or acquire equivalent resources, and for other purposes.

1. Short title This Act may be cited as the United States Fish and Wildlife Service Resource Protection Act . 2. Definitions In this Act: (1) Damages The term damages means— (A) compensation for— (i) (I) the cost of replacing, restoring, or acquiring the equivalent of a system resource; and (II) the value of any significant loss of use of a system resource, pending— (aa) restoration or replacement of the system resource; or (bb) the acquisition of an equivalent resource; or (ii) the value of a system resource, if the system resource cannot be replaced or restored; and (B) the cost of any relevant damage assessment carried out pursuant to section 4(c). (2) Response cost The term response cost means the cost of any action carried out by the Secretary— (A) to prevent, minimize, or abate destruction or loss of, or injury to, a system resource; (B) to abate or minimize the imminent risk of such destruction, loss, or injury; or (C) to monitor the ongoing effects of any incident causing such destruction, loss, or injury. (3) Secretary The term Secretary means the Secretary of the Interior. (4) System resource The term system resource means any living, nonliving, historical, cultural, or archeological resource that is located within the boundaries of— (A) a unit of the National Wildlife Refuge System; (B) a unit of the National Fish Hatchery System; or (C) any other land managed by the United States Fish and Wildlife Service, including any land managed cooperatively with any other Federal or State agency. 3. Liability (a) In general Subject to subsection (c), any individual or entity that destroys, causes the loss of, or injures any system resource, or that causes the Secretary to carry out any action to prevent, minimize, or abate destruction or loss of, or injuries or risk to, any system resource, shall be liable to the United States for any response costs or damages resulting from the destruction, loss, or injury. (b) Liability in rem Any instrumentality (including a vessel, vehicle, aircraft, or other equipment or mechanism) that destroys, causes the loss of, or injures any system resource, or that causes the Secretary to carry out any action to prevent, minimize, or abate destruction or loss of, or injury or risk to, a system resource shall be liable in rem to the United States for any response costs or damages resulting from the destruction, loss, or injury, to the same extent that an individual or entity is liable under subsection (a). (c) Defenses An individual or entity shall not be liable under this section, if the individual or entity can establish that— (1) the destruction or loss of, or injury to, the system resource was caused solely by an act of God or an act of war; or (2) (A) the individual or entity exercised due care; and (B) the destruction or loss of, or injury to, the system resource was caused solely by an act or omission of a third party, other than an employee or agent of the individual or entity. (d) Scope The liability established by this section shall be in addition to any other liability arising under Federal or State law. 4. Actions (a) Civil actions for response costs and damages The Attorney General, on request of the Secretary, may commence a civil action in the United States district court of appropriate jurisdiction against any individual, entity, or instrumentality that may be liable under section 3 for response costs or damages. (b) Administrative actions for response costs and damages (1) Action by Secretary (A) In general Subject to paragraph (2), the Secretary, after making a finding described in subparagraph (B), may consider, compromise, and settle a claim for response costs and damages if the claim has not been referred to the Attorney General under subsection (a). (B) Description of findings A finding referred to in subparagraph (A) is a finding that— (i) destruction or loss of, or injury to, a system resource has occurred; or (ii) such destruction, loss, or injury would occur absent an action by the Secretary to prevent, minimize, or abate the destruction, loss, or injury. (2) Requirement In any case in which the total amount to be recovered in a civil action under subsection (a) may exceed $500,000 (excluding interest), a claim may be compromised and settled under paragraph (1) only with the prior written approval of the Attorney General. (c) Response actions, assessments of damages, and injunctive relief (1) In general The Secretary may carry out all necessary actions (including making a request to the Attorney General to seek injunctive relief)— (A) to prevent, minimize, or abate destruction or loss of, or injury to, a system resource; or (B) to abate or minimize the imminent risk of such destruction, loss, or injury. (2) Assessment and monitoring (A) In general The Secretary may assess and monitor the destruction or loss of, or injury to, any system resource for purposes of paragraph (1). (B) Judicial review Any determination or assessment of damage to a system resource carried out under subparagraph (A) shall be subject to judicial review under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ), on the basis of the administrative record developed by the Secretary. 5. Use of recovered amounts (a) In general An amount equal to the total amount of the response costs and damages recovered by the Secretary under this Act and any amounts recovered by the Federal Government under any provision of Federal, State, or local law (including regulations) or otherwise as a result of the destruction or loss of, or injury to, any system resource shall be made available to the Secretary, without further appropriation, for use in accordance with subsection (b). (b) Use The Secretary may use amounts made available under subsection (a) only, in accordance with applicable law— (1) to reimburse response costs and damage assessments carried out pursuant to this Act by the Secretary or such other Federal agency as the Secretary determines to be appropriate; (2) to restore, replace, or acquire the equivalent of a system resource that was destroyed, lost, or injured; or (3) to monitor and study system resources. 6. Donations (a) In general In addition to any other authority to accept donations, the Secretary may accept donations of money or services for expenditure or use to meet expected, immediate, or ongoing response costs and damages. (b) Timing A donation described in subsection (a) may be expended or used at any time after acceptance of the donation, without further action by Congress. 7. Transfer of funds from Natural Resource Damage Assessment and Restoration Fund The matter under the heading Natural Resource Damage Assessment and Restoration Fund under the heading United States Fish and Wildlife Service of title I of the Department of the Interior and Related Agencies Appropriations Act, 1994 (43 U.S.C. 1474b–1), is amended by striking Provided , That and all that follows through activities. and inserting the following: Provided , That notwithstanding any other provision of law, any amounts appropriated or credited during fiscal year 1992 or any fiscal year thereafter may be transferred to any account (including through a payment to any Federal or non-Federal trustee) to carry out a negotiated legal settlement or other legal action for a restoration activity under the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601 et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Oil Pollution Act of 1990 ( 33 U.S.C. 2701 et seq. ), the Act of July 27, 1990 ( 16 U.S.C. 19jj et seq. ), or the United States Fish and Wildlife Service Resource Protection Act , or for any damage assessment activity: Provided further , That sums provided by any individual or entity before or after the date of enactment of this Act shall remain available until expended and shall not be limited to monetary payments, but may include stocks, bonds, or other personal or real property, which may be retained, liquidated, or otherwise disposed of by the Secretary for the restoration of injured resources or to conduct any new damage assessment activity. .