State assumption of consultation responsibilities

The Endangered Species Act of 1973 is amended by inserting after section 7 (16 U.S.C. 1536) the following: 7A. State assumption of consultation responsibilities (a) Definitions In this section: (1) Program The term program means the program carried out by the Secretary pursuant to this section. (2) Secretary The term Secretary means the Secretary of the Interior. (3) State agency 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. (b) Program (1) In general Except as provided in this subsection, the Secretary shall carry out a program under which the Secretary may assign the consultation responsibilities of the Secretary described in paragraph (4)(A) to States. (2) Limitations on assumptions (A) In general Except as provided in subparagraph (B), the Secretary may not assign the consultation responsibilities of the Secretary described in paragraph (4)(A) to any State for a project or agency action (as referred to in section 7) that exceeds the boundaries of the State. (B) Limitation For any project or agency action (as referred to in section 7) that is solely within the boundaries of 1 State, but that is within an area affected that exceeds the boundaries of the State, a State that assumes responsibility under paragraph (4) for the project or agency action (as referred to in section 7) shall consult with— (i) if any other State has assumed responsibility under that paragraph, the jurisdiction of which is within that area affected, such State; or (ii) if there is no State described in clause (i), the Secretary. (3) Implementing regulation (A) In general Not later than 270 days after the date of enactment of the Bipartisan American Affordability and Jobs Act of 2026, the Secretary shall issue a proposed rule to establish a program that would comply with the requirements of this section and ensure that approved State assumption programs adequately carry out the consultation requirements under section 7 (referred to in this section as the implementing regulation). (B) Public comment The proposed rule issued under subparagraph (A) shall be made available for public comment for a period of not less than 60 days, during which the Secretary shall solicit comment from States on the proposed rule. (C) Limitation The rule issued under subparagraph (A) shall not include any requirement that is not necessary to carry out this section. (4) Assumption of responsibility (A) In general Subject to the requirements of this section and the implementing regulation, 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. (B) Certain projects and agency actions A State may not assume responsibility under the program until the date on which— (i) the implementing regulation takes effect; and (ii) the State certifies to the Secretary that the State has secured the financial, legal, personnel, and other resources described in subsection (c)(2)(B). (C) Federal responsibility Any responsibility of the Secretary not explicitly assumed by the State by written agreement under the program shall remain the responsibility of the Secretary. (c) State participation (1) Requirements for participating States Each State is eligible to participate in the program if the State meets each requirement described in this section and the implementing regulation. (2) Application (A) In general 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, in accordance with subparagraph (B). (B) Requirements As part of the implementing regulation, the Secretary shall establish requirements relating to applications submitted by States under subparagraph (A), including, at a minimum, requirements that a State provide— (i) verification of the financial and legal resources necessary to carry out the authority that may be granted to the State under the program; (ii) 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; (iii) verification that the State will waive sovereign immunity for the responsibilities assumed by the State under the program; and (iv) evidence of the notice and solicitation of public comment by the State relating to participation of the State in the program, including— (I) copies of comments received from that solicitation; (II) a brief summary of those comments; and (III) a description of ways in which those comments will be incorporated by the State during the participation of the State in the program. (C) Denial On denial of an application submitted by a State under subparagraph (A)— (i) the Secretary shall— (I) respond to the State, in writing, identifying the reasons for the denial, subject to the condition that such reasons shall only include a determination by the Secretary that the State did not demonstrate the legal, financial, or personnel capability to assume responsibility under the program; and (II) at the request of the State, provide technical assistance to the State to address the reasons identified under subclause (I); and (ii) the State may reapply in accordance with the requirements of subparagraphs (A) and (B). (3) Public notice (A) In general Not less than 60 days before the date of submission of an application of a State under paragraph (2)(A), the State shall, in accordance with the applicable public notice law of the State— (i) publish the complete application of the State; and (ii) provide an opportunity for public comment on the application for a period of not less than 30 days. (B) Response to comments Notwithstanding any other provision of law, a State shall be required to respond to public comments received under subparagraph (A)(ii). (4) Selection criteria The Secretary shall approve the application of a State submitted under paragraph (2)(A) if— (A) the Secretary determines that the State has demonstrated the legal, financial, and current or future personnel capability to assume the responsibility; (B) the Secretary has made an affirmative determination that the State has met the requirements to implement the program, as described in this section and the implementing regulation; and (C) the head of the State agency enters into a written agreement with the Secretary described in subsection (d)(1). (5) Failure to approve or deny application If the Secretary fails to make a determination with respect to any application submitted under paragraph (2)(A) within 180 days after the date on which the Secretary receives that application, the inaction shall be considered a failure to act under section 107(g)(3) of the National Environmental Policy Act of 1969 (42 U.S.C. 4336a(g)(3)). (d) Written agreement (1) In general A written agreement referred to in subsection (c)(4)(C) shall— (A) be executed by the Governor or the head of the State agency that would assume responsibility under the program; (B) be in such form as the Secretary may prescribe; (C) provide that the State— (i) agrees to assume all responsibilities of the Secretary described in subsection (b)(4); (ii) 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; (iii) 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; (iv) agrees to maintain the legal resources, financial resources, and personnel capacity and expertise necessary to carry out the responsibilities being assumed; and (v) agrees to meet the same deadlines for consultations that the Secretary would be required to meet under— (I) section 7; and (II) section 107 of the National Environmental Policy Act of 1969 (42 U.S.C. 4336a); (D) 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; (E) be renewable; (F) have a term of not more than 10 years; and (G) be published in the Federal Register not later than 15 days after execution. (2) Role of Secretary The Secretary shall not delegate the responsibilities of the Secretary with respect to entering into a written agreement with a State under paragraph (1). (e) Jurisdiction (1) In general 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. (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). (f) Effect of assumption of responsibility (1) In general A State that assumes responsibility under subsection (b)(4) shall be solely responsible for carrying out, in lieu of and without further approval of the Secretary, the responsibilities assumed under that subsection, until the Secretary or the State, as applicable, terminates the participation of the State in the program in accordance with paragraph (1) or (2) of subsection (k), as applicable. (2) Permit or license applicant election Notwithstanding a State assumption of responsibility under subsection (b)(4), a permit or license applicant may elect to consult with the Secretary within the boundary of the State under subsections (a), (b), and (c) of section 7. (g) Limitations on agreements Nothing in this section permits a State to assume any rulemaking authority of the Secretary under any Federal law. (h) Audits (1) In general To ensure compliance by a State with any agreement of the State under subsection (c)(4)(C) (including compliance by the State with all Federal laws for which responsibility is assumed under subsection (b)(4)), for each State participating in the program, the Secretary shall— (A) 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; (B) conduct annual audits during each of the first 4 years of State participation; (C) 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. (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— (i) the Secretary shall respond to public comments received under subparagraph (A); and (ii) to the extent necessary, the applicable State agency may respond to those comments. (3) Audit team (A) In general Subject to subparagraph (C), 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 on the proposed members of the audit team. (C) Limitation An audit team shall only include— (i) qualified staff of regional and headquarters offices of the United States Fish and Wildlife Service; (ii) staff of the Department of the Interior Office of Inspector General; and (iii) staff of the applicable State agency. (i) Monitoring (1) In general 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 subsection (c)(4)(C), including the provision by the State of financial resources to carry out the written agreement. (2) Resumption of annual audits If the Secretary determines that there is reasonable cause to believe that a State is not complying with a written agreement entered into under subsection (c)(4)(C) pursuant to monitoring under paragraph (1), the Secretary may require the resumption of annual audits under subsection (h). (j) Report to Congress 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— (1) a list of active written agreements entered into under subsection (c)(4)(C) being carried out; (2) a list of pending written agreements entered into under that subsection; (3) a list of applications denied under subsection (c)(2)(C) and the reasons for those denials, if any; and (4) the results of any audits completed pursuant to subsection (h) in the year covered by the report. (k) Termination (1) Termination by the 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; (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 corrective action as the Secretary determines to be necessary to comply with the applicable written agreement; and (iii) 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 subparagraph (A); and (C) the State, after the notification and period provided under subparagraph (B)(i), fails to take satisfactory corrective action, as determined by the Secretary. (2) Termination by the State 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. (l) Outreach and capacity building (1) Outreach The Secretary shall require the Director of the United States Fish and Wildlife Service (referred to in this subsection as the Director) to conduct outreach and education activities to States with respect to the program. (2) Capacity building The Director, in cooperation with relevant State officials, shall provide education, training, peer-exchange, and other initiatives as appropriate— (A) to assist States in developing the capacity to participate in the program; and (B) to promote information sharing and collaboration among States with respect to the program. (3) Delegation The Director may delegate the outreach and education activities and capacity building requirements under this subsection to a relevant field or regional office of the United States Fish and Wildlife Service. (m) Agency deemed To be federal agency A State agency that is assigned a responsibility under a written agreement under the program shall be deemed to be an agency for the purposes of section 2412 of title 28, United States Code..