II 116TH CONGRESS 1ST SESSION S. 2343 To amend the Endangered Species Act of 1973 to permit Governors of States to regulate intrastate endangered species and intrastate threatened species, to amend the Migratory Bird Treaty Act to permit the taking of certain black vultures and ravens, and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 30, 2019 Mr. PAUL (for himself and Mr. CRUZ) 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 permit Governors of States to regulate intrastate endangered species and intrastate threatened species, to amend the Migratory Bird Treaty Act to permit the taking of cer- tain black vultures and ravens, 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. SHORT TITLE. 3 This Act may be cited as the ‘‘Endangered Species 4 Management Self-Determination Act’’. 5 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 2 •S 2343 IS SEC. 2. DEFINITION OF ESA. 1 In this Act, the term ‘‘ESA’’ means the Endangered 2 Species Act of 1973 (16 U.S.C. 1531 et seq.). 3 SEC. 3. FINDINGS. 4 Congress finds that— 5 (1) the ESA was passed in 1973 as a means of 6 protecting and recovering species and has not been 7 substantially revised in over 25 years; 8 (2) the ESA has not achieved its stated goal of 9 recovering threatened species or endangered species; 10 (3) of the species listed in accordance with the 11 ESA, less than 1 percent of the total number of spe- 12 cies in the United States have been recovered and 13 removed from the list, largely due to data errors or 14 other factors; 15 (4) there is— 16 (A) no comprehensive independent study of 17 the costs or benefits of the ESA; 18 (B) no full accounting of how much the 19 Federal Government and State and local gov- 20 ernments spend to implement, enforce, and 21 comply with the ESA; and 22 (C) no meaningful effort to account for the 23 costs the ESA imposes on the private sector; 24 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 3 •S 2343 IS (5) the ESA effectively penalizes landowners for 1 owning endangered species habitat by forcing them 2 to bear the cost of conservation; 3 (6) the regulatory listing process under the 4 ESA has become a tool for environmentalists to un- 5 dermine, slow down, or halt construction of infra- 6 structure projects, hampering economic growth and 7 employment; and 8 (7) litigation stemming from the ESA and some 9 resulting settlements between the litigants and the 10 Federal Government have made the ESA even more 11 unworkable, to the detriment of species. 12 SEC. 4. AMENDMENTS TO THE ENDANGERED SPECIES ACT 13 OF 1973. 14 (a) DETERMINATIONS OF ENDANGERED SPECIES 15 AND THREATENED SPECIES.—Section 4 of the Endan- 16 gered Species Act of 1973 (16 U.S.C. 1533) is amended— 17 (1) in subsection (a)— 18 (A) in paragraph (1), by inserting ‘‘, with 19 the consent of the Governor of each State in 20 which the endangered species or threatened spe- 21 cies is present,’’ after ‘‘The Secretary’’; and 22 (B) in paragraph (2)(A)(ii), by inserting ‘‘, 23 with the consent of the Governor of each State 24 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 4 •S 2343 IS in which the endangered species or threatened 1 species is present,’’ after ‘‘, who’’; 2 (2) in subsection (b)— 3 (A) by striking paragraph (3); 4 (B) by redesignating paragraphs (4) 5 through (8) as paragraphs (3) through (7), re- 6 spectively; 7 (C) in paragraph (3) (as so redesignated), 8 by striking ‘‘paragraphs (5) and (6) of this sub- 9 section’’ and inserting ‘‘paragraphs (4) and 10 (5)’’; 11 (D) in paragraph (5)(A) (as so redesig- 12 nated), by striking ‘‘paragraph (5)(A)(i)’’ and 13 inserting ‘‘paragraph (4)(A)(i)’’; 14 (E) in paragraph (6) (as so redesignated), 15 by striking ‘‘paragraph (4), (5), or (6) of this 16 subsection’’ and inserting ‘‘paragraph (3), (4), 17 or (5)’’; and 18 (F) by adding at the end the following: 19 ‘‘(8) DEFINITION OF BEST SCIENTIFIC AND 20 COMMERCIAL DATA.—In this subsection, the term 21 ‘best scientific and commercial data’ includes any 22 scientific evidence made available to the Secretary by 23 any State agency.’’; 24 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 5 •S 2343 IS (3) by striking subsection (c) and inserting the 1 following: 2 ‘‘(c) LISTS.— 3 ‘‘(1) DEFINITION OF JOINT RESOLUTION.—In 4 this subsection, the term ‘joint resolution’ means 5 only a joint resolution the matter after the resolving 6 clause of which is as follows: ‘That Congress ap- 7 proves the lists relating to endangered species and 8 threatened species submitted by the Secretary of the 9 Interior on llllll.’ (the blank space being 10 appropriately filled in). 11 ‘‘(2) LISTS SUBMITTED TO CONGRESS.—The 12 Secretary of the Interior shall submit to Congress— 13 ‘‘(A) a list of all species determined by the 14 Secretary of the Interior or the Secretary of 15 Commerce to be endangered species; and 16 ‘‘(B) a list of all species determined by the 17 Secretary of the Interior or the Secretary of 18 Commerce to be threatened species. 19 ‘‘(3) CONGRESSIONAL APPROVAL.—The lists de- 20 scribed in paragraph (2) shall not take effect until 21 a joint resolution described in paragraph (1) is en- 22 acted. 23 ‘‘(4) CONTENTS OF LISTS.—Each list described 24 in paragraph (2) shall— 25 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 6 •S 2343 IS ‘‘(A) refer to the species included on the 1 list by any scientific and common name; and 2 ‘‘(B) specify— 3 ‘‘(i) with respect to the species over 4 what portion of the range of the species 5 that the species is endangered or threat- 6 ened; and 7 ‘‘(ii) any critical habitat within the 8 range. 9 ‘‘(5) PUBLICATION.—The Secretary of the Inte- 10 rior shall publish in the Federal Register each list 11 approved in accordance with paragraph (3). 12 ‘‘(6) AUTOMATIC REMOVAL.— 13 ‘‘(A) IN GENERAL.—On the date that is 5 14 years after the date on which a joint resolution 15 is enacted in accordance with this subsection, 16 each species listed on a list approved by the 17 joint resolution shall be removed from the list. 18 ‘‘(B) PETITION FOR RELISTING.— 19 ‘‘(i) IN GENERAL.—The Secretary of 20 the Interior, in consultation with the Gov- 21 ernor of each State in which the endan- 22 gered species or threatened species is 23 present, may submit to Congress a list 24 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 7 •S 2343 IS that includes any species that was removed 1 under subparagraph (A). 2 ‘‘(ii) CONGRESSIONAL APPROVAL.— 3 The list described in clause (i) shall not 4 take effect until a joint resolution de- 5 scribed in paragraph (1) is enacted.’’; 6 (4) in subsection (d)— 7 (A) in the first sentence, by striking 8 ‘‘Whenever any species’’ and inserting ‘‘Except 9 as provided in subsection (j), whenever any spe- 10 cies’’; and 11 (B) in the second sentence, by striking 12 ‘‘The Secretary may’’ and inserting ‘‘Except as 13 provided in subsection (j), the Secretary may’’; 14 (5) in subsection (f)(1), by striking ‘‘The Sec- 15 retary shall’’ and inserting ‘‘Except as provided in 16 subsection (j), the Secretary shall’’; 17 (6) in subsection (g)— 18 (A) in paragraph (1), by striking ‘‘The 19 Secretary shall’’ and inserting ‘‘Except as pro- 20 vided in subsection (j), the Secretary shall’’; 21 and 22 (B) in paragraph (2), by striking ‘‘para- 23 graph 7 of subsection (b) of this section’’ and 24 inserting ‘‘subsection (b)(6)’’; 25 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 8 •S 2343 IS (7) in subsection (h)— 1 (A) in the matter preceding paragraph (1), 2 by striking ‘‘The Secretary shall’’ and inserting 3 ‘‘Except as provided in subsection (j), the Sec- 4 retary shall’’; 5 (B) by striking paragraphs (1) and (2); 6 and 7 (C) by redesignating paragraphs (3) and 8 (4) as paragraphs (1) and (2), respectively; 9 (8) in subsection (i)— 10 (A) by striking ‘‘subsection (b)(5)(A)(ii) of 11 this section’’ and inserting ‘‘subsection 12 (b)(4)(A)(ii)’’; 13 (B) by striking ‘‘or if the Secretary fails to 14 adopt a regulation pursuant to an action peti- 15 tioned by a State agency under subsection 16 (b)(3),’’; and 17 (C) by striking ‘‘or petition’’; and 18 (9) by adding at the end the following: 19 ‘‘(j) INTRASTATE ENDANGERED SPECIES OR 20 THREATENED SPECIES.— 21 ‘‘(1) DEFINITIONS.—In this subsection: 22 ‘‘(A) GOVERNOR OF A STATE.—The term 23 ‘Governor of a State’ means the Governor of a 24 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 9 •S 2343 IS State in which an intrastate endangered species 1 or intrastate threatened species is present. 2 ‘‘(B) INTRASTATE ENDANGERED SPE- 3 CIES.—The term ‘intrastate endangered species’ 4 means an endangered species that the Governor 5 of a State determines is present only within the 6 State. 7 ‘‘(C) INTRASTATE THREATENED SPE- 8 CIES.—The term ‘intrastate threatened species’ 9 means a threatened species that the Governor 10 of a State determines is present only within the 11 State. 12 ‘‘(2) CURRENTLY LISTED SPECIES.— 13 ‘‘(A) IN GENERAL.—The Governor of a 14 State may regulate any intrastate endangered 15 species or any intrastate threatened species list- 16 ed under this section that is listed before the 17 date of enactment of this subsection. 18 ‘‘(B) AUTHORITY OF GOVERNOR.—If the 19 Governor of a State elects to regulate an intra- 20 state endangered species or an intrastate 21 threatened species under subparagraph (A), the 22 Governor of the State shall, with respect to the 23 management of the intrastate endangered spe- 24 cies or intrastate threatened species on any 25 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 10 •S 2343 IS land within the State, have the exclusive au- 1 thority to, in accordance with the purposes and 2 policy of this Act— 3 ‘‘(i) promulgate or enforce any regula- 4 tion or guidance; 5 ‘‘(ii) designate a critical habitat; 6 ‘‘(iii) issue a permit or license; 7 ‘‘(iv) develop or implement a recovery 8 plan; and 9 ‘‘(v) establish any goal with respect to 10 the recovery plan. 11 ‘‘(C) APPLICABLE LAW.—The management 12 described in subparagraph (B) shall be subject 13 to the law of the State in which the land, in- 14 cluding public lands (as defined in section 103 15 of the Federal Land Policy and Management 16 Act of 1976 (43 U.S.C. 1702)), is located. 17 ‘‘(3) NEWLY LISTED SPECIES.— 18 ‘‘(A) IN GENERAL.—The Governor of a 19 State may, before the Secretary or any other 20 person, regulate any intrastate endangered spe- 21 cies or any intrastate threatened species listed 22 under this section that is listed on or after the 23 date of enactment of this subsection. 24 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 11 •S 2343 IS ‘‘(B) APPLICABILITY.—If the Governor of 1 a State elects to regulate an intrastate endan- 2 gered species or an intrastate threatened spe- 3 cies under subparagraph (A), subparagraphs 4 (B) and (C) of paragraph (2) shall apply. 5 ‘‘(C) JUDICIAL REVIEW.—Any action by 6 the Governor of a State under this subsection 7 shall not be subject to judicial review in any 8 court of the United States or in any State 9 court.’’. 10 (b) COST ACCOUNTING.—The Endangered Species 11 Act of 1973 is amended by inserting after section 12 (16 12 U.S.C. 1541) the following: 13 ‘‘SEC. 12A. COST ACCOUNTING REPORT. 14 ‘‘(a) DEFINITIONS.—In this section: 15 ‘‘(1) DIRECT COSTS.—The term ‘direct costs’ 16 includes— 17 ‘‘(A) Federal agency obligations related to 18 the cost of any study; 19 ‘‘(B) capital, operation, maintenance, and 20 replacement costs; and 21 ‘‘(C) staffing costs. 22 ‘‘(2) INDIRECT COSTS.—The term ‘indirect 23 costs’ includes foregone power generation costs and 24 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 12 •S 2343 IS replacement power costs, including the net costs of 1 any transmission of power. 2 ‘‘(b) COST OF COMPLIANCE.— 3 ‘‘(1) IN GENERAL.—Except with respect to 4 intrastate endangered species or intrastate threat- 5 ened species regulated by a Governor of a State 6 under section 4(j), the Administrator of the Bonne- 7 ville Power Administration, the Administrator of the 8 Southeastern Power Administration, the Adminis- 9 trator of the Southwestern Power Administration, 10 and the Administrator of the Western Area Power 11 Administration shall each include in a monthly bill- 12 ing statement submitted to each customer of the re- 13 spective Administration the share of the direct and 14 indirect costs to the customer incurred by the Ad- 15 ministration related to complying with this Act. 16 ‘‘(2) ASSISTANCE IN IDENTIFYING COSTS.—The 17 Director of the Bureau of Reclamation shall assist 18 the administrators described in paragraph (1) with 19 identifying the costs described in that paragraph. 20 ‘‘(c) REPORT.—Not later than January 30 of each 21 year, each of the administrators described in subsection 22 (b)(1), in coordination with the Director of the Bureau 23 of Reclamation, shall submit to the Committee on Envi- 24 ronment and Public Works of the Senate and the Com- 25 VerDate Sep 11 2014 03:29 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2343.IS S2343 kjohnson on DSK79L0C42 with BILLS 13 •S 2343 IS mittee on Natural Resources of the House of Representa- 1 tives a report estimating the costs described in subsection 2 (b)(1)— 3 ‘‘(1) with respect to the Western Area Power 4 Administration, on a project-by-project basis; and 5 ‘‘(2) with respect to each of the Administrations 6 described in subsection (b)(1) (except the Western 7 Power Administration), on a systemwide basis. 8 [Text truncated for display. 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