Sec. 7. Efficient consultations under the Endangered Species Act of 1973
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Section 7(b)(1) of the Endangered Species Act of 1973 ( 16 U.S.C. 1536(b)(1) ) is amended— in subparagraph (A), by striking 90-day and inserting 60-day ; and in subparagraph (B)— in the matter preceding clause (i)— by striking 90 days and inserting 60 days ; and by striking 90th day and inserting 60th day ; in clause (i), in the matter preceding subclause (I), by striking 150th day and inserting 100th day ; and in clause (ii), by striking 150 or more and inserting 100 or more .
In this subsection: The term program means the program carried out by the Secretary pursuant to this subsection. The term Secretary means the Secretary of the Interior. The term State means— each of the several States of the United States; the District of Columbia; the Commonwealth of Puerto Rico; Guam; American Samoa; the Commonwealth of the Northern Mariana Islands; and the United States Virgin Islands. The term State agency means any agency, department, board, commission, or other governmental entity in a State with primary jurisdiction over environmental or wildlife management matters in the State, as determined by the Governor of the State.
The Secretary shall carry out a program under which the Secretary may assign consultation responsibilities described in subparagraph (B)(i) to States. Subject to the requirements of this subsection, with the 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 consultation responsibilities of the Secretary within the boundary of the State under subsections (a), (b), and
(c)of section 7 of the Endangered Species Act of 1973 ( 16 U.S.C. 1536 ). A State shall assume responsibility under the program subject to the same procedural and substantive requirements as would apply if that responsibility were carried out by the Secretary. Any responsibility of the Secretary not explicitly assumed by the State by written agreement under the program shall remain the responsibility of the Secretary. All States are eligible to participate in the program. A State seeking to participate in the program shall submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require, which shall include— verification of the financial and legal resources necessary to carry out the authority that may be granted to the State under the program; verification of the personnel resources or a plan to hire the personnel, not later than 1 year after the date on which the application is approved, necessary to carry out the authority that may be granted to the State under the program; and 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. The Secretary shall only deny an application submitted by a State under clause
(i)if the Secretary determines that the State does not demonstrate the legal, financial, or personnel capability to assume responsibility under the program. On denial of an application submitted by a State under clause (i)— the Secretary shall— respond to the State in writing, identifying the reasons for the denial; and at the request of the State, provide technical assistance to the State to address the reasons identified under subitem (AA); and the State may reapply in accordance with the requirements of clause (i). Not less than 30 days before the date of submission of an application of a State under subparagraph (B)(i), the State shall, in accordance with the applicable public notice law of the State— publish the complete application of the State; and provide an opportunity for public comment on the application, which shall not exceed 30 days. Notwithstanding any other provision of law, a State shall not be required to respond to public comments received under clause (i)(II). The Secretary shall approve the application of a State submitted under subparagraph (B)(i) if— the Secretary determines that the State has demonstrated the legal, financial, and current or future personnel capability to assume the responsibility; and the head of the State agency enters into a written agreement with the Secretary described in paragraph (4)(A). If the Secretary fails to make a determination with respect to any application submitted under subparagraph (B)(i) within 180 days after the date on which the Secretary receives that application— the application shall be deemed approved; and the Secretary shall— notify the State that submitted the application of the approval; and execute a written agreement described in paragraph (4)(A). A written agreement referred to in paragraph (3)(D)(ii) shall— be executed by the Governor or the top-ranking environmental official in the State who is charged with responsibility for environmental matters; be in such form as the Secretary may prescribe; provide that the State— agrees to assume all or part of the responsibilities of the Secretary described in paragraph (2)(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; certifies that State laws (including regulations) are in effect that— authorize the State to take the actions necessary to carry out the responsibilities being assumed; and 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 agrees to maintain the financial resources necessary to carry out the responsibilities being assumed; 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; be renewable; and have a term of— not more than 5 years; or 10 years, in the case of a State that has participated in a program under this subsection (or under a predecessor program) for not less than 10 years. The Secretary shall not delegate the responsibilities of the Secretary with respect to entering into a written agreement with a State under subparagraph (A). The district courts of the United States shall have exclusive jurisdiction over any civil action against a State for failure to carry out any responsibility of the State under the program. A civil action under subparagraph
(A)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. The Secretary shall have the right to intervene in any action described in subparagraph (A). A State that assumes responsibility under paragraph (2)(B) shall be solely responsible and solely liable for carrying out, in lieu of and without further approval of the Secretary, the responsibilities assumed under that paragraph, until the Secretary or the State, as applicable, terminates the participation of the State in the program in accordance with subparagraph
(A)or
(B)of paragraph (11), as applicable. Nothing in this subsection permits a State to assume any rulemaking authority of the Secretary under any Federal law. To ensure compliance by a State with any agreement of the State under paragraph (3)(D)(ii) (including compliance by the State with all Federal laws for which responsibility is assumed under paragraph (2)(B)), for each State participating in the program, the Secretary shall— not later than 180 days after the date of execution of the agreement, meet with the State to review implementation of the agreement and discuss plans for the first annual audit; conduct annual audits during each of the first 4 years of State participation; in the case of an agreement period of greater than 5 years pursuant to paragraph (4)(A)(vi)(II), conduct an audit covering the first 5 years of the agreement period; and ensure that the time period for completing an audit, from initiation to completion (including public comment and responses to those comments), does not exceed 180 days. An audit conducted under subparagraph
(A)shall be provided to the public for comment. 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 clause (i); and to the extent necessary, the applicable State agency may respond to those comments. An audit conducted under subparagraph
(A)shall be carried out by an audit team determined by the Secretary, in consultation with the State, in accordance with clause (ii). Consultation with the State under clause
(i)shall include a reasonable opportunity for the State to review and provide comments on the proposed members of the audit team. An audit team shall only include— qualified staff of regional and headquarters offices of the United States Fish and Wildlife Service; staff of the Department of the Interior Office of Inspector General; and staff of the applicable State agency. After the fourth year of the participation of a State in the program, the Secretary shall monitor compliance by the State with the written agreement entered into under paragraph (3)(D)(ii), including the provision by the State of financial resources to carry out the written agreement. The Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Natural Resources of the House of Representatives an annual report that describes the administration of the program, which shall include an identification of— the number of active written agreements entered into under paragraph (3)(D)(ii) being carried out; the number of pending written agreements entered into under that paragraph; the number of applications denied under paragraph (3)(B)(ii) and the reasons for those denials, if any; and the results of any audits completed pursuant to paragraph
(8)in the year covered by the report. The Secretary may terminate the participation of a State in the program if— the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State; the Secretary provides to the State— a notification of the determination of noncompliance; a period of not less than 120 days to take corrective action as the Secretary determines to be necessary to comply with the applicable agreement; and on request of the Governor of the State, a detailed description of each responsibility in need of corrective action relating to an inadequacy identified under clause (i); and the State, after the notification and period provided under clause (ii), fails to take satisfactory corrective action, as determined by the Secretary. The State may terminate the participation of the State in the program at any time by providing to the Secretary a notice 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. The Secretary, in cooperation with relevant State officials, shall provide funding for education, training, peer-exchange, and other initiatives as appropriate— to assist States in developing the capacity to participate in the program; and to promote information sharing and collaboration among States that are participating in the program. A State agency that is assigned a responsibility under an agreement under the program shall be deemed to be an agency for the purposes of section 2412 of title 28, United States Code.
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Sec. 7
Efficient consultations under the Endangered Species Act of 1973
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