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.

II 116TH CONGRESS 1ST SESSION S. 1051 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. IN THE SENATE OF THE UNITED STATES APRIL 4, 2019 Mr. CORNYN (for himself, Mr. SULLIVAN, Mr. CRUZ, and Ms. MURKOWSKI) 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. ASSUMPTION BY STATES OF CERTAIN ESA RE- 3 SPONSIBILITIES. 4 (a) IN GENERAL.—The Endangered Species Act of 5 1973 is amended by inserting after section 6 (16 U.S.C. 6 1535) the following: 7 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 2 •S 1051 IS ‘‘SEC. 6A. ASSUMPTION BY STATES OF CERTAIN RESPON- 1 SIBILITIES RELATING TO HIGHWAY 2 PROJECTS. 3 ‘‘(a) ESTABLISHMENT.— 4 ‘‘(1) IN GENERAL.—The Secretary shall carry 5 out an assignment program (referred to in this sec- 6 tion as the ‘program’) to allow States to assume cer- 7 tain responsibilities of the Secretary with respect to 8 agency actions applicable to highway projects within 9 the State. 10 ‘‘(2) ASSUMPTION OF RESPONSIBILITY.— 11 ‘‘(A) IN GENERAL.—Subject to the other 12 requirements of this section, on written agree- 13 ment of the Secretary and a State (which may 14 be in the form of a memorandum of under- 15 standing), the Secretary may assign, and the 16 State may assume, the responsibilities of the 17 Secretary under subsections (a) and (b) of sec- 18 tion 7 with respect to agency actions (as de- 19 fined in subsection (a)(2) of that section) that 20 are applicable to one or more highway projects 21 in the State. 22 ‘‘(B) ADDITIONAL RESPONSIBILITY.— 23 ‘‘(i) IN GENERAL.—If a State as- 24 sumes responsibility under subparagraph 25 (A)— 26 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 3 •S 1051 IS ‘‘(I) the Secretary may assign to 1 the State, and the State may assume, 2 all or part of the responsibilities of 3 the Secretary described in that sub- 4 paragraph for environmental review, 5 consultation, or other action required 6 under any Federal environmental law 7 pertaining to the review or approval of 8 highway projects described in the 9 agreement referred to in that sub- 10 paragraph; and 11 ‘‘(II) subject to clause (ii), on the 12 request of the State, the Secretary 13 may also assign to the State, and the 14 State may assume, the responsibilities 15 of the Secretary described in that sub- 16 paragraph for one or more railroad, 17 public transportation, or multimodal 18 projects within the State. 19 ‘‘(ii) EXCLUSION OF PROJECTS.—In 20 any State that assumes a responsibility of 21 the Secretary under clause (i)(II), a recipi- 22 ent of assistance under chapter 53 of title 23 49, United States Code, may submit to the 24 Secretary a request that the Secretary 25 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 4 •S 1051 IS shall maintain the responsibility of the 1 Secretary with respect to one or more pub- 2 lic transportation projects carried out by 3 the recipient in the State. 4 ‘‘(C) PROCEDURAL AND SUBSTANTIVE RE- 5 QUIREMENTS.—A State shall assume responsi- 6 bility under this section subject to the same 7 procedural and substantive requirements as 8 would apply if the responsibility were carried 9 out by the Secretary. 10 ‘‘(D) FEDERAL RESPONSIBILITY.—Any re- 11 sponsibility of the Secretary that is not explic- 12 itly assumed by a State by written agreement 13 under this section shall remain the responsi- 14 bility of the Secretary. 15 ‘‘(E) NO EFFECT ON AUTHORITY.—Noth- 16 ing in this section preempts or interferes with 17 any power, jurisdiction, responsibility, or au- 18 thority of a Federal agency (other than the 19 United States Fish and Wildlife Service), except 20 with respect to an authority delegated by the 21 Secretary pursuant to subparagraph (A) under 22 applicable law regarding a project or agency ac- 23 tion described in subparagraph (A) or (B). 24 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 5 •S 1051 IS ‘‘(F) PRESERVATION OF FLEXIBILITY.— 1 The Secretary may not require a State, as a 2 condition of participation in the program, to 3 forgo a project delivery method that is other- 4 wise permissible for a project described in sub- 5 paragraph (A) or (B). 6 ‘‘(G) LEGAL FEES.—A State that assumes 7 a responsibility of the Secretary under this sec- 8 tion for a project described in subparagraph (A) 9 or (B) may use funds apportioned to the State 10 under section 104(b)(2) of title 23, United 11 States Code, as necessary, for attorneys’ fees 12 directly attributable to eligible activities associ- 13 ated with the project. 14 ‘‘(b) STATE PARTICIPATION.— 15 ‘‘(1) PARTICIPATING STATES.—To be eligible to 16 participate in the program, a State shall— 17 ‘‘(A) be participating in the surface trans- 18 portation project delivery program under sec- 19 tion 327 of title 23, United States Code; and 20 ‘‘(B) assume the responsibilities of the 21 Secretary of Transportation under the National 22 Environmental Policy Act of 1969 (42 U.S.C. 23 4321 et seq.) pursuant to that section. 24 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 6 •S 1051 IS ‘‘(2) APPLICATION.—Not later than 270 days 1 after the date of enactment of this section, the Sec- 2 retary shall amend, as appropriate, regulations that 3 establish requirements relating to information re- 4 quired in any application of a State to participate in 5 the program, including, at a minimum— 6 ‘‘(A) the projects or classes of projects for 7 which the State anticipates exercising the au- 8 thority that may be granted under the program; 9 ‘‘(B) verification of the financial resources 10 necessary to carry out the authority that may 11 be granted under the program; and 12 ‘‘(C) evidence of the notice and solicitation 13 of public comment by the State relating to par- 14 ticipation of the State in the program, including 15 copies of comments received from that solicita- 16 tion. 17 ‘‘(3) PUBLIC NOTICE.— 18 ‘‘(A) IN GENERAL.—Each State that sub- 19 mits an application in accordance with the reg- 20 ulations described in paragraph (2) shall give 21 notice of the intent of the State to participate 22 in the program by not later than 30 days before 23 the date of submission of the application. 24 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 7 •S 1051 IS ‘‘(B) METHOD OF NOTICE AND SOLICITA- 1 TION.—The State shall provide notice and so- 2 licit public comment under this paragraph by 3 publishing the complete application of the State 4 in accordance with the appropriate public notice 5 requirements of the State. 6 ‘‘(4) SELECTION CRITERIA.—The Secretary 7 may approve the application of a State under this 8 subsection only if— 9 ‘‘(A) any necessary changes to regulations 10 pursuant to paragraph (2) have been carried 11 out; 12 ‘‘(B) the Secretary determines that the 13 State has the capability, including financial and 14 personnel, to assume the responsibility; and 15 ‘‘(C) the head of the State agency with pri- 16 mary jurisdiction over highway matters enters 17 into a written agreement with the Secretary, as 18 described in subsection (c). 19 ‘‘(5) OTHER FEDERAL AGENCY VIEWS.—If a 20 State applies to assume a responsibility of the Sec- 21 retary that would have required the Secretary to 22 consult with another Federal agency, the Secretary 23 shall solicit the views of the Federal agency before 24 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 8 •S 1051 IS approving the application of the State under this 1 subsection. 2 ‘‘(c) WRITTEN AGREEMENT.—A written agreement 3 under this section shall— 4 ‘‘(1) be executed by— 5 ‘‘(A) the Governor of the applicable State; 6 or 7 ‘‘(B) the top-ranking transportation offi- 8 cial in the State who is charged with responsi- 9 bility for highway construction; 10 ‘‘(2) be in such form as the Secretary may re- 11 quire; 12 ‘‘(3) provide that the State— 13 ‘‘(A) agrees to assume all or part of the re- 14 sponsibilities of the Secretary referred to in 15 subsection (a); 16 ‘‘(B) expressly consents, on behalf of the 17 State, to accept the jurisdiction of the Federal 18 courts for the compliance, discharge, and en- 19 forcement of any responsibility of the Secretary 20 assumed by the State; 21 ‘‘(C) certifies that State laws (including 22 regulations) are in effect that— 23 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 9 •S 1051 IS ‘‘(i) authorize the State to take the 1 actions necessary to carry out the respon- 2 sibilities being assumed; and 3 ‘‘(ii) are comparable to section 552 of 4 title 5, United States Code, including pro- 5 viding that any decision regarding the pub- 6 lic availability of a document under those 7 State laws is reviewable by a court of com- 8 petent jurisdiction; and 9 ‘‘(D) agrees to maintain the financial re- 10 sources necessary to carry out the responsibil- 11 ities being assumed; 12 ‘‘(4) require the State to provide to the Sec- 13 retary any information the Secretary reasonably con- 14 siders necessary to ensure that the State is ade- 15 quately carrying out the responsibilities assigned to 16 the State; 17 ‘‘(5) have a term of not more than 5 years; and 18 ‘‘(6) be renewable. 19 ‘‘(d) JURISDICTION.— 20 ‘‘(1) IN GENERAL.—The United States district 21 courts shall have exclusive jurisdiction over any civil 22 action against a State for failure to carry out any 23 responsibility assumed by the State pursuant to this 24 section. 25 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 10 •S 1051 IS ‘‘(2) LEGAL STANDARDS AND REQUIRE- 1 MENTS.—A civil action under paragraph (1) shall be 2 governed by the legal standards and requirements 3 that would apply in such a civil action against the 4 Secretary had the Secretary taken the actions in 5 question. 6 ‘‘(3) INTERVENTION.—The Secretary shall have 7 the right to intervene in any action described in 8 paragraph (1). 9 ‘‘(e) EFFECT OF ASSUMPTION OF RESPONSI- 10 BILITY.—A State that assumes responsibility under sub- 11 section (a)(2) shall be solely responsible and solely liable 12 for carrying out, in lieu of, and without further approval 13 of, the Secretary, those responsibilities, until the date on 14 which the program is terminated in accordance with sub- 15 section (j). 16 ‘‘(f) LIMITATIONS ON AGREEMENTS.—Nothing in 17 this section permits a State to assume any rulemaking au- 18 thority of the Secretary under any Federal law. 19 ‘‘(g) AUDITS.— 20 ‘‘(1) IN GENERAL.—To ensure compliance by a 21 State with an agreement of the State under sub- 22 section (c) (including compliance by the State with 23 all Federal laws for which responsibility is assumed 24 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 11 •S 1051 IS under subsection (a)(2)), for each State partici- 1 pating in the program, the Secretary shall— 2 ‘‘(A) not later than 180 days after the date 3 of execution of the applicable agreement, meet 4 with the State— 5 ‘‘(i) to review the implementation of 6 the agreement; and 7 ‘‘(ii) to discuss plans for the first an- 8 nual audit; 9 ‘‘(B) conduct annual audits during each of 10 the first 4 years of State participation in the 11 program; and 12 ‘‘(C) ensure that the time period for com- 13 pleting an annual audit, from initiation to com- 14 pletion (including public comment and re- 15 sponses to those comments), does not exceed 16 180 days. 17 ‘‘(2) PUBLIC AVAILABILITY AND COMMENT.— 18 ‘‘(A) IN GENERAL.—An audit conducted 19 under paragraph (1) shall be provided to the 20 public for comment. 21 ‘‘(B) RESPONSE.—Not later than 60 days 22 after the date on which the period for public 23 comment ends, the Secretary shall respond to 24 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 12 •S 1051 IS public comments received under subparagraph 1 (A). 2 ‘‘(3) AUDIT TEAM.— 3 ‘‘(A) IN GENERAL.—An audit conducted 4 under paragraph (1) shall be carried out by an 5 audit team determined by the Secretary, in con- 6 sultation with the State, in accordance with 7 subparagraph (B). 8 ‘‘(B) CONSULTATION.—Consultation with 9 the State under subparagraph (A) shall include 10 a reasonable opportunity for the State to re- 11 view, and provide comments regarding, the pro- 12 posed members of the audit team. 13 ‘‘(h) MONITORING.—After the end of the fourth year 14 of the participation by a State in the program, the Sec- 15 retary shall monitor compliance by the State with the writ- 16 ten agreement under subsection (c), including the provi- 17 sion by the State of financial resources to carry out the 18 written agreement. 19 ‘‘(i) REPORT TO CONGRESS.—The Secretary shall 20 submit to Congress an annual report that describes the 21 administration of the program during the preceding cal- 22 endar year. 23 ‘‘(j) TERMINATION.— 24 VerDate Sep 11 2014 00:36 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1051.IS S1051 pbinns on DSK79D2C42PROD with BILLS 13 •S 1051 IS ‘‘(1) TERMINATION BY SECRETARY.—The Sec- 1 retary may terminate the participation of a State in 2 the program if— 3 ‘‘(A) the Secretary determines that the 4 State is not adequately carrying out the respon- 5 sibilities assigned to the State pursuant to this 6 section; 7 ‘‘(B) the Secretary provides to the State— 8 ‘‘(i) a not [Text truncated for display. Full text available on Congress.gov.]