BUILDER Act of 2023

I 118TH CONGRESS 1ST SESSION H. R. 1577 To amend the National Environmental Policy Act of 1969 to clarify ambig- uous provisions, reflect modern technologies, optimize interagency coordi- nation, and facilitate a more efficient, effective, and timely environmental review process. IN THE HOUSE OF REPRESENTATIVES MARCH 14, 2023 Mr. GRAVES of Louisiana 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, reflect modern tech- nologies, optimize interagency coordination, and facilitate a more efficient, effective, and timely environmental re- view process. 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 ‘‘BUILDER Act of 4 2023’’ or the ‘‘Building United States Infrastructure 5 through Limited Delays and Efficient Reviews Act of 6 2023’’. 7 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 1577 IH SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969. 1 (a) PARAGRAPH (2) OF SECTION 102.—Section 2 102(2) of the National Environmental Policy Act of 1969 3 (42 U.S.C. 4332(2)) is amended— 4 (1) in subparagraph (A), by striking ‘‘insure’’ 5 and inserting ‘‘ensure’’; 6 (2) in subparagraph (B), by striking ‘‘insure’’ 7 and inserting ‘‘ensure’’; 8 (3) in subparagraph (C)— 9 (A) by inserting ‘‘consistent with the provi- 10 sions of this Act and except as provided by 11 other provisions of law,’’ before ‘‘include in 12 every’’; 13 (B) by striking clauses (i) through (v) and 14 inserting the following: 15 ‘‘(i) reasonably foreseeable environmental 16 effects with a reasonably close causal relation- 17 ship to the proposed agency action; 18 ‘‘(ii) any reasonably foreseeable adverse en- 19 vironmental effects which cannot be avoided 20 should the proposal be implemented; 21 ‘‘(iii) a reasonable number of alternatives 22 to the proposed agency action, including an 23 analysis of any negative environmental impacts 24 of not implementing the proposed agency action 25 in the case of a no action alternative, that are 26 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 1577 IH technically and economically feasible, are within 1 the jurisdiction of the agency, meet the purpose 2 and need of the proposal, and, where applicable, 3 meet the goals of the applicant; 4 ‘‘(iv) the relationship between local short- 5 term uses of man’s environment and the main- 6 tenance and enhancement of long-term produc- 7 tivity; and 8 ‘‘(v) any irreversible and irretrievable com- 9 mitments of Federal resources which would be 10 involved in the proposed agency action should it 11 be implemented.’’; and 12 (C) by striking ‘‘the responsible Federal 13 official’’ and inserting ‘‘the head of the lead 14 agency’’; 15 (4) in subparagraph (D), by striking ‘‘Any’’ 16 and inserting ‘‘any’’; 17 (5) by redesignating subparagraphs (D) 18 through (I) as subparagraphs (F) through (K), re- 19 spectively; 20 (6) by inserting after subparagraph (C) the fol- 21 lowing: 22 ‘‘(D) ensure the professional integrity, including 23 scientific integrity, of the discussion and analysis in 24 an environmental document; 25 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 1577 IH ‘‘(E) make use of reliable existing data and re- 1 sources in carrying out this Act;’’; 2 (7) by amending subparagraph (G), as redesig- 3 nated, to read as follows: 4 ‘‘(G) consistent with the provisions of this Act, 5 study, develop, and describe technically and economi- 6 cally feasible alternatives within the jurisdiction and 7 authority of the agency;’’; 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) the proposed agency action is not a final 20 agency action within the meaning of such term in 21 chapter 5 of title 5, United States Code; 22 ‘‘(2) the proposed agency action is covered by 23 a categorical exclusion established by the agency, an- 24 other Federal agency, or another provision of law; 25 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 1577 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; 8 ‘‘(5) the proposed agency action is a rulemaking 9 that is subject to section 553 of title 5, United 10 States Code; or 11 ‘‘(6) the proposed agency action is an action for 12 which such agency’s compliance with another stat- 13 ute’s requirements serve the same or similar func- 14 tion as the requirements of this Act with respect to 15 such action. 16 ‘‘(b) LEVELS OF REVIEW.— 17 ‘‘(1) ENVIRONMENTAL IMPACT STATEMENT.— 18 An agency shall issue an environmental impact 19 statement with respect to a proposed agency action 20 that has a significant effect on the quality of the 21 human environment. 22 ‘‘(2) ENVIRONMENTAL ASSESSMENT.—An agen- 23 cy shall prepare an environmental assessment with 24 respect to a proposed agency action that is not likely 25 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 1577 IH to have a significant effect on the quality of the 1 human environment, or if the significance of such ef- 2 fect is unknown, unless the agency finds that a cat- 3 egorical exclusion established by the agency, another 4 Federal agency, or another provision of law applies. 5 Such environmental assessment shall be a concise 6 public document prepared by a Federal agency to set 7 forth the basis of such agency’s finding of no signifi- 8 cant impact. 9 ‘‘(3) SOURCES OF INFORMATION.—In making a 10 determination under this subsection, an agency— 11 ‘‘(A) may make use of any reliable data 12 source; and 13 ‘‘(B) is not required to undertake new sci- 14 entific or technical research. 15 ‘‘SEC. 107. TIMELY AND UNIFIED FEDERAL REVIEWS. 16 ‘‘(a) LEAD AGENCY.— 17 ‘‘(1) DESIGNATION.— 18 ‘‘(A) IN GENERAL.—If there are two or 19 more involved Federal agencies, such agencies 20 shall determine, by letter or memorandum, 21 which agency shall be the lead agency based on 22 consideration of the following factors: 23 ‘‘(i) Magnitude of agency’s involve- 24 ment. 25 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 1577 IH ‘‘(ii) Project approval or disapproval 1 authority. 2 ‘‘(iii) Expertise concerning the ac- 3 tion’s environmental effects. 4 ‘‘(iv) Duration of agency’s involve- 5 ment. 6 ‘‘(v) Sequence of agency’s involve- 7 ment. 8 ‘‘(B) JOINT LEAD AGENCIES.—In making 9 a determination under subparagraph (A), the 10 involved Federal agencies may, in addition to a 11 Federal agency, appoint such Federal, State, 12 Tribal, or local agencies as joint lead agencies 13 as the involved Federal agencies shall determine 14 appropriate. Joint lead agencies shall jointly 15 fulfill the role described in paragraph (2). 16 ‘‘(C) MINERAL PROJECTS.—This para- 17 graph shall not apply with respect to a mineral 18 exploration or mine permit. 19 ‘‘(2) ROLE.—A lead agency shall, with respect 20 to a proposed agency action— 21 ‘‘(A) supervise the preparation of an envi- 22 ronmental document if, with respect to such 23 proposed agency action, there is more than one 24 involved Federal agency; 25 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 1577 IH ‘‘(B) request the participation of each co- 1 operating agency at the earliest practicable 2 time; 3 ‘‘(C) in preparing an environmental docu- 4 ment, give consideration to any analysis or pro- 5 posal created by a cooperating agency with ju- 6 risdiction by law or a cooperating agency with 7 special expertise; 8 ‘‘(D) develop a schedule, in consultation 9 with each involved cooperating agency, the ap- 10 plicant, and such other entities as the lead 11 agency determines appropriate, for completion 12 of any environmental review, permit, or author- 13 ization required to carry out the proposed agen- 14 cy action; 15 ‘‘(E) if the lead agency determines that a 16 review, permit, or authorization will not be com- 17 pleted in accordance with the schedule devel- 18 oped under subparagraph (D), notify the agen- 19 cy responsible for issuing such review, permit, 20 or authorization of the discrepancy and request 21 that such agency take such measures as such 22 agency determines appropriate to comply with 23 such schedule; and 24 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 1577 IH ‘‘(F) meet with a cooperating agency that 1 requests such a meeting. 2 ‘‘(3) COOPERATING AGENCY.—The lead agency 3 may, with respect to a proposed agency action, des- 4 ignate any involved Federal agency or a State, Trib- 5 al, or local agency as a cooperating agency. A co- 6 operating agency may, not later than a date speci- 7 fied by the lead agency, submit comments to the 8 lead agency. Such comments shall be limited to mat- 9 ters relating to the proposed agency action with re- 10 spect to which such agency has special expertise or 11 jurisdiction by law with respect to an environmental 12 issue. 13 ‘‘(4) REQUEST FOR DESIGNATION.—Any Fed- 14 eral, State, Tribal, or local agency or person that is 15 substantially affected by the lack of a designation of 16 a lead agency with respect to a proposed agency ac- 17 tion under paragraph (1) may submit a written re- 18 quest for such a designation to an involved Federal 19 agency. An agency that receives a request under this 20 paragraph shall transmit such request to each in- 21 volved Federal agency and to the Council. 22 ‘‘(5) COUNCIL DESIGNATION.— 23 ‘‘(A) REQUEST.—Not earlier than 45 days 24 after the date on which a request is submitted 25 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 1577 IH under paragraph (4), if no designation has been 1 made under paragraph (1), a Federal, State, 2 Tribal, or local agency or person that is sub- 3 stantially affected by the lack of a designation 4 of a lead agency may request that the Council 5 designate a lead agency. Such request shall con- 6 sist of— 7 ‘‘(i) a precise description of the nature 8 and extent of the proposed agency action; 9 and 10 ‘‘(ii) a detailed statement with respect 11 to each involved Federal agency and each 12 factor listed in paragraph (1) regarding 13 which agency should serve as lead agency. 14 ‘‘(B) TRANSMISSION.—The Council shall 15 transmit a request received under subparagraph 16 (A) to each involved Federal agency. 17 ‘‘(C) RESPONSE.—An involved Federal 18 agency may, not later than 20 days after the 19 date of the submission of a request under sub- 20 paragraph (A), submit to the Council a re- 21 sponse to such request. 22 ‘‘(D) DESIGNATION.—Not later than 40 23 days after the date of the submission of a re- 24 quest under subparagraph (A), the Council 25 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 1577 IH shall designate the lead agency with respect to 1 the relevant proposed agency action. 2 ‘‘(b) ONE DOCUMENT.— 3 ‘‘(1) DOCUMENT.—To the extent practicable, if 4 there are 2 or more involved Federal agencies with 5 respect to a proposed agency action and the lead 6 agency has determined that an environmental docu- 7 ment is required, such requirement shall be deemed 8 satisfied with respect to all involved Federal agencies 9 if the lead agency issues such an environmental doc- 10 ument. 11 ‘‘(2) CONSIDERATION TIMING.—In developing 12 an environmental document for a proposed agency 13 action, no involved Federal agency shall be required 14 to consider any information that becomes available 15 after the sooner of, as applicable— 16 ‘‘(A) receipt of a complete application with 17 respect to such proposed agency action; or 18 ‘‘(B) publication of a notice of intent or 19 decision to prepare an environmental impact 20 statement for such proposed agency action. 21 ‘‘(3) SCOPE OF REVIEW.—In developing an en- 22 vironmental document for a proposed agency action, 23 the lead agency and any other involved Federal 24 VerDate Sep 11 2014 23:25 Mar 27, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H1577.IH H1577 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 1577 IH agencies shall only consider the effects of the pro- 1 posed agency action that— 2 ‘‘(A) occur on Federal land; or 3 ‘‘(B) are subject to Federal control and re- 4 sponsibility. 5 ‘‘(c) REQUEST FOR PUBLIC COMMENT.—Each notice 6 of intent to prepare an environmental impact statement 7 under section 102 shall include a request for public com- 8 ment on alternatives or impacts and on relevant informa- 9 tion, studies, or analyses with respect to the proposed 10 agency action. 11 ‘‘(d) STATEMENT OF PURPOSE AND NEED.—Each 12 environmental impact statement shall include a statement 13 of purpose and need that briefly summarizes the under- 14 lying purpose and need for the proposed agency action. 15 ‘‘(e) ESTIMATED TOTAL COST.—The cover sheet for 16 each environmental impact statement shall include a state- 17 ment of the estimated total cost of preparing such environ- 18 mental impact statement, including the costs of agency 19 full-time equivalent personnel hours, contractor costs, and 20 othe [Text truncated for display. Full text available on Congress.gov.]