II 115th CONGRESS 2d Session S. 2587 IN THE SENATE OF THE UNITED STATES March 21, 2018 Mr. Cornyn (for himself, Mr. Hatch , and Mr. Sullivan ) 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 establish a program to allow States to assume certain Federal responsibilities under that Act with respect to agency actions applicable to highway projects within the States, and for other purposes.

1. Assumption by States of certain ESA responsibilities (a) In general The Endangered Species Act of 1973 is amended by inserting after section 6 ( 16 U.S.C. 1535 ) the following: 6A. Assumption by States of certain responsibilities relating to highway projects (a) Establishment (1) In general The Secretary shall carry out an assignment program (referred to in this section as the program ) to allow States to assume certain responsibilities of the Secretary with respect to agency actions applicable to highway projects within the State. (2) Assumption of responsibility (A) In general Subject to the other requirements of this section, on written agreement of the Secretary and a State (which may be in the form of a memorandum of understanding), the Secretary may assign, and the State may assume, the responsibilities of the Secretary under subsections (a) and (b) of section 7 with respect to agency actions (as defined in subsection (a)(2) of that section) that are applicable to one or more highway projects in the State. (B) Additional responsibility (i) In general If a State assumes responsibility under subparagraph (A)— (I) the Secretary may assign to the State, and the State may assume, all or part of the responsibilities of the Secretary described in that subparagraph for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review or approval of highway projects described in the agreement referred to in that subparagraph; and (II) subject to clause (ii), on the request of the State, the Secretary may also assign to the State, and the State may assume, the responsibilities of the Secretary described in that subparagraph for one or more railroad, public transportation, or multimodal projects within the State. (ii) Exclusion of projects In any State that assumes a responsibility of the Secretary under clause (i)(II), a recipient of assistance under chapter 53 of title 49, United States Code, may submit to the Secretary a request that the Secretary shall maintain the responsibility of the Secretary with respect to one or more public transportation projects carried out by the recipient in the State. (C) Procedural and substantive requirements A State shall assume responsibility under this section subject to the same procedural and substantive requirements as would apply if the responsibility were carried out by the Secretary. (D) Federal responsibility Any responsibility of the Secretary that is not explicitly assumed by a State by written agreement under this section shall remain the responsibility of the Secretary. (E) No effect on authority Nothing in this section preempts or interferes with any power, jurisdiction, responsibility, or authority of a Federal agency (other than the United States Fish and Wildlife Service), except with respect to an authority delegated by the Secretary pursuant to subparagraph (A) under applicable law regarding a project or agency action described in subparagraph (A) or (B). (F) Preservation of flexibility The Secretary may not require a State, as a condition of participation in the program, to forgo a project delivery method that is otherwise permissible for a project described in subparagraph (A) or (B). (G) Legal fees A State that assumes a responsibility of the Secretary under this section for a project described in subparagraph (A) or (B) may use funds apportioned to the State under section 104(b)(2) of title 23, United States Code, as necessary, for attorneys' fees directly attributable to eligible activities associated with the project. (b) State participation (1) Participating States To be eligible to participate in the program, a State shall— (A) be participating in the surface transportation project delivery program under section 327 of title 23, United States Code; and (B) assume the responsibilities of the Secretary of Transportation under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) pursuant to that section. (2) Application Not later than 270 days after the date of enactment of this section, the Secretary shall amend, as appropriate, regulations that establish requirements relating to information required in any application of a State to participate in the program, including, at a minimum— (A) the projects or classes of projects for which the State anticipates exercising the authority that may be granted under the program; (B) verification of the financial resources necessary to carry out the authority that may be granted under the program; and (C) evidence of the notice and solicitation of public comment by the State relating to participation of the State in the program, including copies of comments received from that solicitation. (3) Public notice (A) In general Each State that submits an application in accordance with the regulations described in paragraph (2) shall give notice of the intent of the State to participate in the program by not later than 30 days before the date of submission of the application. (B) Method of notice and solicitation The State shall provide notice and solicit public comment under this paragraph by publishing the complete application of the State in accordance with the appropriate public notice requirements of the State. (4) Selection criteria The Secretary may approve the application of a State under this subsection only if— (A) any necessary changes to regulations pursuant to paragraph (2) have been carried out; (B) the Secretary determines that the State has the capability, including financial and personnel, to assume the responsibility; and (C) the head of the State agency with primary jurisdiction over highway matters enters into a written agreement with the Secretary, as described in subsection (c). (5) Other Federal agency views If a State applies to assume a responsibility of the Secretary that would have required the Secretary to consult with another Federal agency, the Secretary shall solicit the views of the Federal agency before approving the application of the State under this subsection. (c) Written agreement A written agreement under this section shall— (1) be executed by— (A) the Governor of the applicable State; or (B) the top-ranking transportation official in the State who is charged with responsibility for highway construction; (2) be in such form as the Secretary may require; (3) provide that the State— (A) agrees to assume all or part of the responsibilities of the Secretary referred to in subsection (a); (B) expressly consents, on behalf of the State, to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary assumed by the State; (C) certifies that State laws (including regulations) are in effect that— (i) authorize the State to take the actions necessary to carry out the responsibilities being assumed; and (ii) are comparable to section 552 of title 5, United States Code, including providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and (D) agrees to maintain the financial resources necessary to carry out the responsibilities being assumed; (4) require the State to provide to the Secretary any information the Secretary reasonably considers necessary to ensure that the State is adequately carrying out the responsibilities assigned to the State; (5) have a term of not more than 5 years; and (6) be renewable. (d) Jurisdiction (1) In general The United States district courts shall have exclusive jurisdiction over any civil action against a State for failure to carry out any responsibility assumed by the State pursuant to this section. (2) Legal standards and requirements A civil action under paragraph (1) shall be governed by the legal standards and requirements that would apply in such a civil action against the Secretary had the Secretary taken the actions in question. (3) Intervention The Secretary shall have the right to intervene in any action described in paragraph (1). (e) Effect of assumption of responsibility A State that assumes responsibility under subsection (a)(2) shall be solely responsible and solely liable for carrying out, in lieu of, and without further approval of, the Secretary, those responsibilities, until the date on which the program is terminated in accordance with subsection (j). (f) Limitations on agreements Nothing in this section permits a State to assume any rulemaking authority of the Secretary under any Federal law. (g) Audits (1) In general To ensure compliance by a State with an agreement of the State under subsection (c) (including compliance by the State with all Federal laws for which responsibility is assumed under subsection (a)(2)), for each State participating in the program, the Secretary shall— (A) not later than 180 days after the date of execution of the applicable agreement, meet with the State— (i) to review the implementation of the agreement; and (ii) to discuss plans for the first annual audit; (B) conduct annual audits during each of the first 4 years of State participation in the program; and (C) ensure that the time period for completing an annual audit, from initiation to completion (including public comment and responses to those comments), does not exceed 180 days. (2) Public availability and comment (A) In general An audit conducted under paragraph (1) shall be provided to the public for comment. (B) Response Not later than 60 days after the date on which the period for public comment ends, the Secretary shall respond to public comments received under subparagraph (A). (3) Audit team (A) In general An audit conducted under paragraph (1) shall be carried out by an audit team determined by the Secretary, in consultation with the State, in accordance with subparagraph (B). (B) Consultation Consultation with the State under subparagraph (A) shall include a reasonable opportunity for the State to review, and provide comments regarding, the proposed members of the audit team. (h) Monitoring After the end of the fourth year of the participation by a State in the program, the Secretary shall monitor compliance by the State with the written agreement under subsection (c), including the provision by the State of financial resources to carry out the written agreement. (i) Report to Congress The Secretary shall submit to Congress an annual report that describes the administration of the program during the preceding calendar year. (j) Termination (1) Termination by Secretary The Secretary may terminate the participation of a State in the program if— (A) the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State pursuant to this section; (B) the Secretary provides to the State— (i) a notification of the determination of noncompliance; (ii) a period of not less than 120 days to take such corrective action as the Secretary determines to be necessary to comply with the applicable agreement; and (iii) on request of the Governor of the State, a detailed description of each responsibility in need of corrective action regarding an inadequacy identified under subparagraph (A); and (C) the State, after the notification and period for corrective action provided under subparagraph (B), fails to take satisfactory corrective action, as determined by the Secretary. (2) Termination by State The State may terminate the participation of the State in the program at any time by providing to the Secretary a notice, by not later than the date that is 90 days before the date of termination, subject to such terms and conditions as the Secretary may provide. (k) Capacity building The Secretary, in cooperation with representatives of State officials, may carry out education, training, peer-exchange, and other initiatives as appropriate— (1) to assist States in developing the capacity to participate in the program; and (2) to promote information sharing and collaboration among States that are participating in the program. (l) Relationship to locally administered projects A State granted authority under this section may, as appropriate and on the request of a local government— (1) exercise that authority on behalf of the local government for a locally administered project; or (2) provide guidance and training regarding consolidating and minimizing the documentation and environmental analyses necessary for sponsors of a locally administered project to comply with— (A) section 7; and (B) any comparable requirements under State law. . (b) Conforming amendments Section 7 of the Endangered Species Act of 1973 ( 16 U.S.C. 1536 ) is amended— (1) in subsection (a)— (A) by striking paragraph (1) and inserting the following: (1) Federal agency actions (A) In general The Secretary shall— (i) review other programs administered by the Secretary; and (ii) use those programs in furtherance of the purposes of this Act. (B) Other agencies The head of each other Federal department or agency, in consultation with, and with the assistance of, the Secretary or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable, shall use the authorities of the department or agency in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed under section 4. ; (B) in paragraph (2)— (i) in the second sentence, by striking In fulfilling and inserting the following: (B) Use of data In fulfilling ; and (ii) by striking the paragraph designation and all that follows through not likely in the first sentence and inserting the following: (2) Agency actions (A) In general The head of each Federal department or agency, in consultation with, and with the assistance of, the Secretary or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable, shall ensure that any action authorized, funded, or carried out by the department or agency (referred to in this section as an agency action ) is not likely ; and (C) in paragraphs (3) and (4), by inserting or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable, after with the Secretary each place it appears; (2) in subsection (b)— (A) in paragraph (1)— (i) in subparagraph (A), by striking within the 90-day and all that follows through the period at the end of the subparagraph and inserting the following: within— (i) the 90-day period beginning on the date on which the consultation is initiated; or (ii) subject to subparagraph (B), such other time period as is mutually agreeable to— (I) the Secretary or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable; and (II) the head of the affected Federal department or agency. ; and (ii) in subparagraph (B)— (I) in the matter preceding clause (i), by striking the Federal and inserting or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable, and the head of the affected Federal department or ; and (II) in the undesignated matter following clause (ii), by striking The Secretary and all that follows through before and inserting the following: (C) Applicant consent The Secretary or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable, and the head of the affected Federal department or agency may mutually agree to extend a consultation period established under subparagraph (B) if the Secretary or the State that has assumed responsibility from the Secretary, as applicable, before ; (B) in paragraph (2), by striking agreeable to and all that follows through the period at the end of the paragraph and inserting the following: agreeable to— (A) the Secretary or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable; (B) the head of the affected Federal department or agency; and (C) the applicant concerned. ; (C) in paragraph (3)— (i) in subparagraph (A)— (I) by inserting or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable, after the Secretary each place it appears; (II) in the first sentence, by striking the Secretary's opinion and inserting the opinion of the Secretary or the State, respectively, ; and (III) in the second sentence, by striking he believes and inserting the Secretary or the State, respectively, believes ; and (ii) in subparagraph (B)— (I) by striking an opinion based by the Secretary incident to and inserting an opinion of the Secretary or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable, based on ; and (II) by striking the Secretary reviews and inserting the Secretary or the State, respectively, reviews ; (D) in paragraph (4)— (i) in the undesignated matter following subparagraph (C), by striking the Secretary shall provide the Federal agency and the applicant concerned, if any, with and inserting the following: (5) Description of written statement A written statement referred to in paragraph (4) is ; (ii) by striking the paragraph designation and all that follows through the Secretary in the matter preceding subparagraph (A) and inserting the following: (4) Requirement on certain conclusion The Secretary or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable, shall provide to the head of the affected Federal department or agency and the applicant concerned, if any, a written statement described in paragraph (5) if, after consultation under subsection (a)(2), the Secretary or the State, respectively, ; (iii) in subparagraph (A), by striking which the Secretary believes and inserting that the Secretary or the State, respectively, believes ; and (iv) in subparagraph (C), by striking the semicolon at the end and inserting ( 16 U.S.C. 1371(a)(5) ). ; and (E) in paragraph (5) (as designated by subparagraph (D)(i))— (i) in each of clauses (i) and (ii)— (I) by striking such each place it appears and inserting the applicable ; and (II) by striking the comma at the end of the clause and inserting a semicolon; (ii) in clause (iii), by striking with regard to such taking, and and inserting ( 16 U.S.C. 1371(a)(5) ) with respect to the applicable taking; and ; (iii) in clause (iv), by striking clauses (ii) and (iii) and inserting subparagraphs (B) and (C) ; and (iv) by redesignating clauses (i) through (iv) as subparagraphs (A) through (D), respectively, and indenting the subparagraphs appropriately; (3) in subsection (e)— (A) in paragraph (3)(D), by striking Agency. Agency. and inserting Agency. ; and (B) in paragraph (4)(B), by adding a period at the end; and (4) in subsection (f)(1), by inserting or a State that has assumed a responsibility of the Secretary pursuant to section 6A, as applicable after the Secretary . (c) Technical amendments The table of contents of the Endangered Species Act of 1973 ( 16 U.S.C. 1531 note) is amended— (1) by inserting after the item relating to section 6 the following: Sec. 6A. Assumption by States of certain responsibilities relating to highway projects. ; and (2) by adding at the end the following: Sec. 18. Annual cost analysis by the Fish and Wildlife Service. .