NEPA State Assignment Expansion Act

II 117TH CONGRESS 1ST SESSION S. 719 To amend the National Environmental Policy Act of 1969 to provide for project delivery programs, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 11, 2021 Mr. LEE introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the National Environmental Policy Act of 1969 to provide for project delivery programs, 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 ‘‘NEPA State Assign- 4 ment Expansion Act’’. 5 SEC. 2. PROJECT DELIVERY PROGRAMS. 6 (a) IN GENERAL.—Title I of the National Environ- 7 mental Policy Act of 1969 is amended— 8 (1) by redesignating section 105 (42 U.S.C. 9 4335) as section 106; and 10 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 719 IS (2) by inserting after section 104 (42 U.S.C. 1 4334) the following: 2 ‘‘SEC. 105. PROJECT DELIVERY PROGRAMS. 3 ‘‘(a) DEFINITION OF AGENCY PROGRAM.—In this 4 section, the term ‘agency program’ means a project deliv- 5 ery program established by a Federal agency under sub- 6 section (b)(1). 7 ‘‘(b) ESTABLISHMENT.— 8 ‘‘(1) IN GENERAL.—The head of each Federal 9 agency, including the Secretary of Transportation, 10 shall carry out a project delivery program. 11 ‘‘(2) ASSUMPTION OF RESPONSIBILITY.— 12 ‘‘(A) IN GENERAL.—Subject to subpara- 13 graph (B), the head of each Federal agency 14 shall, on request of a State, enter into a written 15 agreement with the State, which may be in the 16 form of a memorandum of understanding, in 17 which the head of each Federal agency may as- 18 sign, and the State may assume, the respon- 19 sibilities of the head of the Federal agency 20 under this title with respect to 1 or more 21 projects within the State that are under the ju- 22 risdiction of the Federal agency. 23 ‘‘(B) EXCEPTION.—The head of a Federal 24 agency shall not enter into a written agreement 25 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 719 IS under subparagraph (A) if the head of the Fed- 1 eral agency determines that the State is not in 2 compliance with the requirements described in 3 subsection (c)(4). 4 ‘‘(C) ADDITIONAL RESPONSIBILITY.—If a 5 State assumes responsibility under subpara- 6 graph (A)— 7 ‘‘(i) the head of the Federal agency 8 may assign to the State, and the State 9 may assume, all or part of the responsibil- 10 ities of the head of the Federal agency for 11 environmental review, consultation, or 12 other action required under any Federal 13 environmental law pertaining to the review 14 or approval of a specific project; 15 ‘‘(ii) at the request of the State, the 16 head of the Federal agency may also as- 17 sign to the State, and the State may as- 18 sume, the responsibilities of the head of 19 the Federal agency under this title with re- 20 spect to 1 or more projects within the 21 State that are under the jurisdiction of the 22 Federal agency; but 23 ‘‘(iii) the head of the Federal agency 24 may not assign responsibility for any con- 25 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 719 IS formity determination required under sec- 1 tion 176 of the Clean Air Act (42 U.S.C. 2 7506). 3 ‘‘(D) PROCEDURAL AND SUBSTANTIVE RE- 4 QUIREMENTS.—A State shall assume responsi- 5 bility under this section subject to the same 6 procedural and substantive requirements as 7 would apply if that responsibility were carried 8 out by the Federal agency. 9 ‘‘(E) FEDERAL RESPONSIBILITY.—Any re- 10 sponsibility of a Federal agency not explicitly 11 assumed by the State by written agreement 12 under subparagraph (A) shall remain the re- 13 sponsibility of the Federal agency. 14 ‘‘(F) NO EFFECT ON AUTHORITY.—Noth- 15 ing in this section preempts or interferes with 16 any power, jurisdiction, responsibility, or au- 17 thority of an agency, other than the Federal 18 agency for which the written agreement applies, 19 under applicable law (including regulations) 20 with respect to a project. 21 ‘‘(G) PRESERVATION OF FLEXIBILITY.— 22 The head of the Federal agency may not re- 23 quire a State, as a condition of participation in 24 the agency program of the Federal agency, to 25 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 719 IS forego project delivery methods that are other- 1 wise permissible for projects under applicable 2 law. 3 ‘‘(H) LEGAL FEES.—A State assuming the 4 responsibilities of a Federal agency under this 5 section for a specific project may use funds 6 awarded to the State for that project for attor- 7 neys’ fees directly attributable to eligible activi- 8 ties associated with the project. 9 ‘‘(c) STATE PARTICIPATION.— 10 ‘‘(1) PARTICIPATING STATES.—Except as pro- 11 vided in subsection (b)(2)(B), all States are eligible 12 to participate in an agency program. 13 ‘‘(2) APPLICATION.—Not later than 270 days 14 after the date of enactment of this section, the head 15 of each Federal agency shall amend, as appropriate, 16 regulations that establish requirements relating to 17 information required to be contained in any applica- 18 tion of a State to participate in the agency program, 19 including, at a minimum— 20 ‘‘(A) the projects or classes of projects for 21 which the State anticipates exercising the au- 22 thority that may be granted under the agency 23 program; 24 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 719 IS ‘‘(B) verification of the financial resources 1 necessary to carry out the authority that may 2 be granted under the agency program; and 3 ‘‘(C) evidence of the notice and solicitation 4 of public comment by the State relating to par- 5 ticipation of the State in the agency program, 6 including copies of comments received from that 7 solicitation. 8 ‘‘(3) PUBLIC NOTICE.— 9 ‘‘(A) IN GENERAL.—Each State that sub- 10 mits an application under this subsection shall 11 give notice of the intent of the State to partici- 12 pate in an agency program not later than 30 13 days before the date of submission of the appli- 14 cation. 15 ‘‘(B) METHOD OF NOTICE AND SOLICITA- 16 TION.—The State shall provide notice and so- 17 licit public comment under this paragraph by 18 publishing the complete application of the State 19 in accordance with the appropriate public notice 20 law of the State. 21 ‘‘(4) SELECTION CRITERIA.—The head of a 22 Federal agency may approve the application of a 23 State under this section only if— 24 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 719 IS ‘‘(A) the regulatory requirements under 1 paragraph (2) have been met; 2 ‘‘(B) the head of the Federal agency deter- 3 mines that the State has the capability, includ- 4 ing financial and personnel, to assume the re- 5 sponsibility; and 6 ‘‘(C) the head of the State agency having 7 primary jurisdiction over the project enters into 8 a written agreement with the head of the Fed- 9 eral agency as described in subsection (d). 10 ‘‘(5) OTHER FEDERAL AGENCY VIEWS.—If a 11 State applies to assume a responsibility of the Fed- 12 eral agency that would have required the head of the 13 Federal agency to consult with the head of another 14 Federal agency, the head of the Federal agency shall 15 solicit the views of the head of the other Federal 16 agency before approving the application. 17 ‘‘(d) WRITTEN AGREEMENT.—A written agreement 18 under subsection (b)(2)(A) shall— 19 ‘‘(1) be executed by the Governor or the top- 20 ranking official in the State who is charged with re- 21 sponsibility for the project; 22 ‘‘(2) be in such form as the head of the Federal 23 agency may prescribe; 24 ‘‘(3) provide that the State— 25 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 719 IS ‘‘(A) agrees to assume all or part of the re- 1 sponsibilities of the Federal agency described in 2 subparagraphs (A) and (C) of subsection (b)(2); 3 ‘‘(B) expressly consents, on behalf of the 4 State, to accept the jurisdiction of the Federal 5 courts for the compliance, discharge, and en- 6 forcement of any responsibility of the Federal 7 agency assumed by the State; 8 ‘‘(C) certifies that State laws (including 9 regulations) are in effect that— 10 ‘‘(i) authorize the State to take the 11 actions necessary to carry out the respon- 12 sibilities being assumed; and 13 ‘‘(ii) are comparable to section 552 of 14 title 5, including providing that any deci- 15 sion regarding the public availability of a 16 document under those State laws is review- 17 able by a court of competent jurisdiction; 18 and 19 ‘‘(D) agrees to maintain the financial re- 20 sources necessary to carry out the responsibil- 21 ities being assumed; 22 ‘‘(4) require the State to provide to the head of 23 the Federal agency any information the head of the 24 Federal agency reasonably considers necessary to en- 25 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 719 IS sure that the State is adequately carrying out the 1 responsibilities assigned to the State; 2 ‘‘(5) have a term of not more than 5 years; and 3 ‘‘(6) be renewable. 4 ‘‘(e) JURISDICTION.— 5 ‘‘(1) IN GENERAL.—The United States district 6 courts shall have exclusive jurisdiction over any civil 7 action against a State for failure to carry out any 8 responsibility of the State under this section. 9 ‘‘(2) LEGAL STANDARDS AND REQUIRE- 10 MENTS.—A civil action under paragraph (1) shall be 11 governed by the legal standards and requirements 12 that would apply in such a civil action against the 13 head of a Federal agency had the head of the Fed- 14 eral agency taken the actions in question. 15 ‘‘(3) INTERVENTION.—The head of a Federal 16 agency shall have the right to intervene in any ac- 17 tion described in paragraph (1). 18 ‘‘(f) EFFECT OF ASSUMPTION OF RESPONSI- 19 BILITY.—A State that assumes responsibility under sub- 20 section (b)(2) shall be solely responsible and solely liable 21 for carrying out, in lieu of and without further approval 22 of the head of the Federal agency, the responsibilities as- 23 sumed under subsection (b)(2), until the agency program 24 is terminated under subsection (k). 25 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 719 IS ‘‘(g) LIMITATIONS ON AGREEMENTS.—Nothing in 1 this section permits a State to assume any rulemaking au- 2 thority of the head of a Federal agency under any Federal 3 law. 4 ‘‘(h) AUDITS.— 5 ‘‘(1) IN GENERAL.—To ensure compliance by a 6 State with any agreement of the State under sub- 7 section (d) (including compliance by the State with 8 all Federal laws for which responsibility is assumed 9 under subsection (b)(2)), for each State partici- 10 pating in an agency program, the head of a Federal 11 agency shall— 12 ‘‘(A) not later than 180 days after the date 13 of execution of the agreement, meet with the 14 State to review implementation of the agree- 15 ment and discuss plans for the first annual 16 audit; 17 ‘‘(B) conduct annual audits during each of 18 the first 4 years of State participation; and 19 ‘‘(C) ensure that the time period for com- 20 pleting an annual audit, from initiation to com- 21 pletion (including public comment and re- 22 sponses to those comments), does not exceed 23 180 days. 24 ‘‘(2) PUBLIC AVAILABILITY AND COMMENT.— 25 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 719 IS ‘‘(A) IN GENERAL.—An audit conducted 1 under paragraph (1) shall be provided to the 2 public for comment. 3 ‘‘(B) RESPONSE.—Not later than 60 days 4 after the date on which the period for public 5 comment ends, the head of the Federal agency 6 shall respond to public comments received 7 under subparagraph (A). 8 ‘‘(3) AUDIT TEAM.— 9 ‘‘(A) IN GENERAL.—An audit conducted 10 under paragraph (1) shall be carried out by an 11 audit team determined by the head of the Fed- 12 eral agency, in consultation with the State, in 13 accordance with subparagraph (B). 14 ‘‘(B) CONSULTATION.—Consultation with 15 the State under subparagraph (A) shall include 16 a reasonable opportunity for the State to review 17 and provide comments on the proposed mem- 18 bers of the audit team. 19 ‘‘(i) MONITORING.—After the fourth year of the par- 20 ticipation of a State in an agency program, the head of 21 the Federal agency shall monitor compliance by the State 22 with the written agreement, including the provision by the 23 State of financial resources to carry out the written agree- 24 ment. 25 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 719 IS ‘‘(j) REPORT TO CONGRESS.—The head of each Fed- 1 eral agency shall submit to Congress an annual report that 2 describes the administration of the agency program. 3 ‘‘(k) TERMINATION.— 4 ‘‘(1) TERMINATION BY FEDERAL AGENCY.—The 5 head of a Federal agency may terminate the partici- 6 pation of any State in the agency program of the 7 Federal agency if— 8 ‘‘(A) the head of the Federal agency deter- 9 mines that the State is not adequately carrying 10 out the responsibilities assigned to the State; 11 ‘‘(B) the head of the Federal agency pro- 12 vides to the State— 13 ‘‘(i) a notification of the determina- 14 tion of noncompliance; 15 ‘‘(ii) a period of not less than 120 16 days to take such corrective action as the 17 head of the Federal agency determines to 18 be necessary to comply with the applicable 19 agreement; and 20 ‘‘(iii) on request of the Governor of 21 the State, a detailed description of each re- 22 sponsibility in need of corrective action re- 23 garding an inadequacy identified under 24 subparagraph (A); and 25 VerDate Sep 11 2014 18:07 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBC07HB2PROD with BILLS 13 •S [Text truncated for display. 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