I 114th CONGRESS 2d Session H. R. 5281 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. Short title This Act may be cited as the Endangered Species Management Self-Determination Act . 2. Definition of ESA In this Act, the term ESA means the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ). 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 species 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 governments 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 undermine, slow down, or halt construction of infrastructure 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. 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 species 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), respectively; (C) in paragraph (3) (as so redesignated), by striking paragraphs (5) and (6) of this subsection and inserting paragraphs (4) and (5) ; (D) in paragraph (5)(A) (as so redesignated), 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 approves the lists relating to endangered species and threatened species submitted by the Secretary of the Interior on ______. (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 described in paragraph (2) shall not take effect until a joint resolution described in paragraph (1) is enacted. (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 threatened; and (ii) any critical habitat within the range. (5) Publication The Secretary of the Interior 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 Governor of each State in which the endangered 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 described in paragraph (1) is enacted. ; (4) in subsection (d)— (A) in the first sentence, by striking Whenever any species and inserting Except as provided in subsection (j), whenever any species ; 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 Secretary 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 provided in subsection (j), the Secretary shall ; and (B) in paragraph (2), by striking paragraph 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 Secretary shall ; (B) by striking paragraphs (1) and (2); and (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 petitioned 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 species The term intrastate endangered species means an endangered species that the Governor of a State determines is present only within the State. (C) Intrastate threatened species 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 listed 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 intrastate 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 species or intrastate threatened species on any land within the State, have the exclusive authority to, in accordance with the purposes and policy of this Act— (i) promulgate or enforce any regulation or guidance; (ii) designate a critical habitat; (iii) issue a permit or license; (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, including 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 species 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 endangered species or an intrastate threatened species 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 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 Endangered 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 information regarding which the State has determined public disclosure is prohibited by a law of that State relating to the protection of personal information. . 5. Cost accounting The Endangered Species Act of 1973 is amended by inserting after section 12 ( 16 U.S.C. 1541 ) the following: 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; (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 threatened species regulated by a Governor of a State under section 4(j), the Administrator of the Bonneville Power Administration, the Administrator of the Southeastern Power Administration, the Administrator of the Southwestern Power Administration, and the Administrator of the Western Area Power Administration shall each include in a monthly billing statement submitted to each customer of the respective Administration the share of the direct and indirect costs to the customer incurred by the Administration 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. (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 Environment and Public Works of the Senate and the Committee on Natural Resources of the House of Representatives 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 Administrations described in subsection (b)(1) (except the Western Power Administration), on a systemwide basis. 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 Interior 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 described in paragraph (1) is submitted, the Secretary of the Interior shall submit to the owner or lessee in writing a determination as to whether the proposed use will violate any provision of this Act. (B) Failure to respond If the Secretary 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 affirmative 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 reasonably relied on a determination, including a determination 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 Interior determines that a proposed use will violate a provision of this Act, the owner or lessee 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 Director of the United States Fish and Wildlife Service in accordance with this Act that diminishes the fair market value of any real property by not less than 50 percent 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 species or intrastate threatened species regulated by a Governor of a State under section 4(j). (B) Lessee The term lessee means a lessee of any real property affected by an agency action. (C) Owner The term owner means an owner of any real property affected by an agency action. (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 Secretary 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 Secretary; 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 appraiser to determine the fair market value. (ii) Extension of time to make determination The licensed independent 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 responsible for all costs relating to the determination of fair market value made under this paragraph. . 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 attorney and . 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 . 8. Disclosure of expenditures under Endangered 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: 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 Natural Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate an annual report detailing Federal Government expenditures for covered suits during the preceding fiscal year (including the information described in subsection (b)); and (2) make publicly available through the Internet a searchable database of the information described in subsection (b). (b) Included information The report shall include— (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 actions gave rise to a claim in a covered suit; (4) funds expended by each covered agency (disaggregated by agency account) to receive and respond to notices referred to in section 11(g)(2) or to prepare for litigation of, litigate, negotiate a settlement agreement or consent decree in, or provide material, technical, or other assistance in relation to, a covered suit; (5) the number of full-time equivalent employees that participated in the activities described in paragraph (4); and (6) expenses (disaggregated by agency account) awarded in covered suits, including any consent decrees or settlement agreements (regardless of whether a decree or settlement agreement is sealed or otherwise subject to nondisclosure provisions), including the bases for such awards. (c) Requirement To provide information The head of each covered agency shall provide to the Secretary in a timely manner all information requested by the Secretary to comply with the requirements of this section. (d) Limitation on disclosure Notwithstanding any other provision of this section, this section shall not affect any restriction in a consent decree or settlement 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 Interior, the Forest Service, the National Marine Fisheries Service, the Bonneville Power Administration, the Western Area Power Administration, the Southwestern Power Administration, or the Southeastern 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 section shall not be construed to affect the amendments made by section 13 of such Act, as in effect before the enactment of this Act.