BUILDER Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 2515 To amend the National Environmental Policy Act of 1969 to clarify ambig- uous provisions, align the Act with relevant case law, reflect modern technologies, optimize interagency coordination, and facilitate a more efficient, effective, and timely environmental review process. IN THE HOUSE OF REPRESENTATIVES APRIL 14, 2021 Mr. GRAVES of Louisiana (for himself, Mr. MCCARTHY, Mr. SCALISE, Mr. GRAVES of Missouri, Mr. WESTERMAN, Ms. CHENEY, Ms. GRANGER, Mrs. RODGERS of Washington, Mr. COLE, Mr. LUCAS, Mr. COMER, Mr. THOMPSON of Pennsylvania, Mr. LUETKEMEYER, Mr. RODNEY DAVIS of Illinois, Mr. CRAWFORD, Mr. VAN DREW, Mr. LAMALFA, Mr. BOST, Mr. BABIN, Mr. WEBER of Texas, Mr. FULCHER, Mr. BALDERSON, and Mr. BUDD) introduced the following bill; which was referred to the Committee on Natural Resources A BILL To amend the National Environmental Policy Act of 1969 to clarify ambiguous provisions, align the Act with rel- evant case law, reflect modern technologies, optimize interagency coordination, and facilitate a more efficient, effective, and timely environmental review process. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 2515 IH SECTION 1. SHORT TITLE. 1 This Act may be cited as ‘‘BUILDER Act of 2021’’ 2 or the ‘‘Building United States Infrastructure through 3 Limited Delays and Efficient Reviews Act of 2021’’. 4 SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969. 5 (a) PARAGRAPH (2) OF SECTION 102.—Section 6 102(2) of the National Environmental Policy Act of 1969 7 (42 U.S.C. 4332(2)) is amended— 8 (1) in subparagraph (A), by striking ‘‘insure’’ 9 and inserting ‘‘ensure’’; 10 (2) in subparagraph (B), by striking ‘‘insure’’ 11 and inserting ‘‘ensure’’; 12 (3) in subparagraph (C)— 13 (A) by inserting ‘‘consistent with the provi- 14 sions of this Act and except as provided by 15 other provisions of law,’’ before ‘‘include in 16 every’’; 17 (B) by striking clauses (i) through (v) and 18 inserting the following: 19 ‘‘(i) reasonably foreseeable environmental 20 effects with a reasonably close causal relation- 21 ship to the proposed agency action; 22 ‘‘(ii) any reasonably foreseeable adverse en- 23 vironmental effects which cannot be avoided 24 should the proposal be implemented; 25 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 2515 IH ‘‘(iii) a reasonable number of alternatives 1 to the proposed agency action that are tech- 2 nically and economically feasible, are within the 3 jurisdiction of the agency, meet the purpose and 4 need of the proposed agency action, and, where 5 applicable, meet the goals of the applicant; 6 ‘‘(iv) the relationship between local short- 7 term uses of man’s environment and the main- 8 tenance and enhancement of long-term produc- 9 tivity; and 10 ‘‘(v) any irreversible and irretrievable com- 11 mitments of Federal resources which would be 12 involved in the proposed agency action should it 13 be implemented.’’; and 14 (C) by striking ‘‘the responsible Federal 15 official’’ and inserting ‘‘the head of the lead 16 agency’’; 17 (4) in subparagraph (D), by striking ‘‘Any’’ 18 and inserting ‘‘any’’; 19 (5) by redesignating subparagraphs (D) 20 through (I) as subparagraphs (F) through (K), re- 21 spectively; 22 (6) by inserting after subparagraph (C) the fol- 23 lowing: 24 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 2515 IH ‘‘(D) ensure the professional integrity, including 1 scientific integrity, of the discussion and analysis in 2 an environmental document; 3 ‘‘(E) make use of reliable existing data and re- 4 sources in carrying out this Act;’’; 5 (7) in subparagraph (G), as amended, by in- 6 serting ‘‘consistent with the provisions of this Act,’’ 7 before ‘‘study,’’; and 8 (8) in subparagraph (H), as amended, by in- 9 serting ‘‘consistent with the provisions of this Act,’’ 10 before ‘‘recognize’’. 11 (b) NEW SECTIONS.—Title I of the National Envi- 12 ronmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 13 is amended by adding at the end the following: 14 ‘‘SEC. 106. PROCEDURE FOR DETERMINATION OF LEVEL OF 15 REVIEW. 16 ‘‘(a) THRESHOLD DETERMINATIONS.—An agency is 17 not required to prepare an environmental document with 18 respect to a proposed agency action if— 19 ‘‘(1) such action is not a final agency action 20 within the meaning of such term in chapter 5 of title 21 5, United States Code; 22 ‘‘(2) such proposed agency action is covered by 23 a categorical exclusion established by a Federal 24 agency; 25 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 2515 IH ‘‘(3) the preparation of such document would 1 clearly and fundamentally conflict with the require- 2 ments of another provision of law; 3 ‘‘(4) the proposed agency action is, in whole or 4 in part, a nondiscretionary action with respect to 5 which such agency does not have authority to take 6 environmental factors into consideration in deter- 7 mining whether to take the proposed action; or 8 ‘‘(5) the proposed agency action is an action for 9 which such agency’s compliance with another stat- 10 ute’s requirements serve the same function as the 11 requirements of this Act with respect to such action. 12 ‘‘(b) LEVELS OF REVIEW.— 13 ‘‘(1) ENVIRONMENTAL IMPACT STATEMENT.— 14 An agency shall issue an environmental impact 15 statement with respect to a proposed agency action 16 that has a significant effect on the quality of the 17 human environment. 18 ‘‘(2) ENVIRONMENTAL ASSESSMENT.—An agen- 19 cy shall issue an environmental assessment with re- 20 spect to a proposed agency action that is not likely 21 to have a significant effect on the quality of the 22 human environment, or if the significance of such ef- 23 fect is unknown. Such environmental assessment 24 shall be a concise public document prepared by a 25 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 2515 IH Federal agency to provide notice to the public for 1 the basis of such agency’s finding of no significant 2 impact. 3 ‘‘(3) SOURCES OF INFORMATION.—In making a 4 determination under this subsection, an agency— 5 ‘‘(A) may make use of any reliable data 6 source; and 7 ‘‘(B) is not required to undertake new sci- 8 entific or technical research. 9 ‘‘SEC. 107. TIMELY AND UNIFIED FEDERAL REVIEWS. 10 ‘‘(a) LEAD AGENCY.— 11 ‘‘(1) DESIGNATION.—If there are two or more 12 involved Federal agencies, such agencies shall deter- 13 mine, by letter or memorandum, which agency shall 14 be the lead agency based on consideration of the fol- 15 lowing factors: 16 ‘‘(A) Magnitude of agency’s involvement. 17 ‘‘(B) Project approval or disapproval au- 18 thority. 19 ‘‘(C) Expertise concerning the action’s en- 20 vironmental effects. 21 ‘‘(D) Duration of agency’s involvement. 22 ‘‘(E) Sequence of agency’s involvement. 23 ‘‘(2) JOINT LEAD AGENCIES.—In making a de- 24 termination under paragraph (1), the involved Fed- 25 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 2515 IH eral agencies may, in addition to a Federal agency, 1 appoint such Federal, State, Tribal, or local agencies 2 as joint lead agencies as the involved Federal agen- 3 cies shall determine appropriate. Joint lead agencies 4 shall jointly fulfill the role described in paragraph 5 (3). 6 ‘‘(3) ROLE.—A lead agency shall, with respect 7 to a proposed agency action— 8 ‘‘(A) supervise the preparation of an envi- 9 ronmental document if, with respect to such 10 proposed agency action, there is more than one 11 involved Federal agency; 12 ‘‘(B) request the participation of each co- 13 operating agency; 14 ‘‘(C) in preparing an environmental docu- 15 ment, give consideration to any analysis or pro- 16 posal created by a cooperating agency with ju- 17 risdiction by law or special expertise; 18 ‘‘(D) develop a schedule, in consultation 19 with each involved cooperating agency and such 20 other entities as the lead agency determines ap- 21 propriate, for completion of any environmental 22 review, permit, or authorization required to 23 carry out the proposed agency action; 24 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 2515 IH ‘‘(E) if the lead agency determines that a 1 review, permit, or authorization will not be com- 2 pleted in accordance with the schedule devel- 3 oped under subparagraph (D), notify the agen- 4 cy responsible for issuing such review, permit, 5 or authorization of the discrepancy and request 6 that such agency take such measures as such 7 agency determines appropriate to comply with 8 such schedule; and 9 ‘‘(F) meet with a cooperating agency that 10 requests such a meeting. 11 ‘‘(4) COOPERATING AGENCY.—The lead agency 12 may, with respect to a proposed agency action, des- 13 ignate any involved Federal agency or a State, Trib- 14 al, or local agency as a cooperating agency. A co- 15 operating agency may, not later than a date speci- 16 fied by the lead agency, submit comments to the 17 lead agency. Such comments shall be limited to mat- 18 ters relating to the proposed agency action with re- 19 spect to which such agency has special expertise or 20 jurisdiction by law with respect to an environmental 21 issue. 22 ‘‘(5) REQUEST FOR DESIGNATION.—Any Fed- 23 eral, State, Tribal, or local agency or person that is 24 substantially affected by the lack of a designation of 25 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 2515 IH a lead agency with respect to a proposed agency ac- 1 tion under paragraph (1) may submit a written re- 2 quest for such a designation to an involved Federal 3 agency. An agency that receives a request under this 4 paragraph shall transmit such request to each in- 5 volved Federal agency and to the Council. 6 ‘‘(6) COUNCIL DESIGNATION.— 7 ‘‘(A) REQUEST.—Not earlier than 45 days 8 after the date on which a request is submitted 9 under paragraph (5), if no designation has been 10 made under paragraph (1), a Federal, State, 11 Tribal, or local agency or person that is sub- 12 stantially affected by the lack of a designation 13 of a lead agency may request that the Council 14 designate a lead agency. Such request shall con- 15 sist of— 16 ‘‘(i) a precise description of the nature 17 and extent of the proposed agency action; 18 and 19 ‘‘(ii) a detailed statement with respect 20 to each involved Federal agency and each 21 factor listed in paragraph (1) regarding 22 which agency should serve as lead agency. 23 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 2515 IH ‘‘(B) TRANSMISSION.—The Council shall 1 transmit a request received under subparagraph 2 (A) to each involved Federal agency. 3 ‘‘(C) RESPONSE.—An involved Federal 4 agency may, not later than 20 days after the 5 date of the submission of a request under sub- 6 paragraph (A), submit to the Council a re- 7 sponse to such request. 8 ‘‘(D) DESIGNATION.—Not later than 40 9 days after the date of the submission of a re- 10 quest under subparagraph (A), the Council 11 shall designate the lead agency with respect to 12 the relevant proposed agency action. 13 ‘‘(b) ONE DOCUMENT.—To the extent practicable, if 14 there are 2 or more involved Federal agencies with respect 15 to a proposed agency action and the lead agency has deter- 16 mined that section 102(2)(C) requires the issuance of an 17 environmental document, such requirement shall be 18 deemed satisfied with respect to all involved Federal agen- 19 cies if the lead agency issues such an environmental docu- 20 ment. 21 ‘‘(c) REQUEST FOR PUBLIC COMMENT.—Each notice 22 of intent to prepare an environmental impact statement 23 under section 102 shall include a request for public com- 24 ment on potential alternatives or impacts and on relevant 25 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 2515 IH information, studies, or analyses with respect to the pro- 1 posed agency action. 2 ‘‘(d) STATEMENT OF PURPOSE AND NEED.—Each 3 environmental impact statement shall include a statement 4 of purpose and need that briefly summarizes the under- 5 lying purpose and need for the proposed agency action. 6 ‘‘(e) ESTIMATED TOTAL COST.—The cover sheet for 7 each environmental impact statement shall include a state- 8 ment of the estimated total cost of preparing such environ- 9 mental impact statement, including the costs of agency 10 full-time equivalent personnel hours, contractor costs, and 11 other direct costs. 12 ‘‘(f) SPONSOR PREPARATION.—A lead agency may 13 allow a project sponsor to prepare an environmental as- 14 sessment or an environmental impact statement, if such 15 agency provides such sponsor with appropriate guidance 16 and assists in the preparation. The lead agency shall inde- 17 pendently evaluate the environmental document and shall 18 take responsibility for the contents upon adoption. 19 ‘‘(g) DEADLINES.— 20 ‘‘(1) ISSUANCE OF ENVIRONMENTAL IMPACT 21 STATEMENT.—Except as provided in paragraph (2), 22 with respect to a proposed agency action, a lead 23 agency shall complete— 24 VerDate Sep 11 2014 08:49 May 28, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2515.IH H2515 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 2515 IH ‘‘(A) the environmental impact statement 1 not later than the date that is 2 years after the 2 date on which such agency determines that sec- 3 tion 102(2)(C) requires the issuance of an envi- 4 ronmental impact statement with respect to 5 such action; or 6 ‘‘(B) the environmental assessment not 7 later than the date that is 1 year after the date 8 on which such agency determines that such 9 102(2)(C) requires the issuance of an environ- 10 mental assessment with respect to such action. 11 ‘‘(2) DELAY.—A lead agency that determines it 12 is not able to meet the deadline described in para- 13 graph [Text truncated for display. 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