REBUILD Act of 2023

I 118TH CONGRESS 1ST SESSION H. R. 495 To amend the National Environmental Policy Act of 1969 to authorize assign- ment to States of Federal agency environmental review responsibilities, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 25, 2023 Mr. CALVERT 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 authorize assignment to States of Federal agency envi- ronmental review responsibilities, 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 ‘‘Reducing Environ- 4 mental Barriers to Unified Infrastructure and Land De- 5 velopment Act of 2023’’ or the ‘‘REBUILD Act of 2023’’. 6 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 495 IH SEC. 2. ASSIGNMENT TO STATES OF FEDERAL ENVIRON- 1 MENTAL REVIEW RESPONSIBILITIES. 2 Title I of the National Environmental Policy Act of 3 1969 (42 U.S.C. 4331 et seq.) is amended by adding at 4 the end the following new section: 5 ‘‘SEC. 106. ASSIGNMENT TO STATES OF ENVIRONMENTAL 6 REVIEW RESPONSIBILITIES WITH RESPECT 7 TO CERTAIN PROJECTS IN THE STATE. 8 ‘‘(a) ASSUMPTION OF RESPONSIBILITY.— 9 ‘‘(1) IN GENERAL.—Subject to the other provi- 10 sions of this section, with the written agreement of 11 the responsible Federal official and a State, which 12 may be in the form of a memorandum of under- 13 standing, the responsible Federal official may assign, 14 and the State may assume, the responsibilities of the 15 responsible Federal official under this Act with re- 16 spect to one or more covered Federal projects of the 17 responsible Federal official within the State. 18 ‘‘(2) ADDITIONAL RESPONSIBILITY.—If a State 19 assumes responsibility under paragraph (1) the re- 20 sponsible Federal official may assign to the State, 21 and the State may assume, all or part of the respon- 22 sibilities of the responsible Federal official for envi- 23 ronmental review, consultation, or other action re- 24 quired under any Federal environmental law per- 25 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 495 IH taining to the review or approval of covered projects 1 of the responsible Federal official. 2 ‘‘(3) PROCEDURAL AND SUBSTANTIVE RE- 3 QUIREMENTS.—A State shall assume responsibility 4 under this section subject to the same procedural 5 and substantive requirements as would apply if that 6 responsibility were carried out by the responsible 7 Federal official. 8 ‘‘(4) FEDERAL RESPONSIBILITY.—Any respon- 9 sibility of the responsible Federal official not explic- 10 itly assumed by the State by written agreement 11 under this section shall remain the responsibility of 12 the responsible Federal official. 13 ‘‘(5) NO EFFECT ON AUTHORITY.—Nothing in 14 this section preempts or interferes with any power, 15 jurisdiction, responsibility, or authority of an agen- 16 cy, other than the agency of the responsible Federal 17 official for a covered Federal project, under applica- 18 ble law (including regulations) with respect to the 19 project. 20 ‘‘(b) STATE PARTICIPATION.— 21 ‘‘(1) APPLICATION.—Not later than 180 days 22 after the date of enactment of this section, each re- 23 sponsible Federal official shall promulgate regula- 24 tions that establish requirements relating to infor- 25 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 495 IH mation required to be contained in any application 1 of a State to assume responsibility under this section 2 with respect to covered Federal projects of the re- 3 sponsible Federal official, including, at a min- 4 imum— 5 ‘‘(A) the projects or classes of projects for 6 which the State anticipates exercising the au- 7 thority that may be granted under this section; 8 ‘‘(B) verification of the financial resources 9 necessary to carry out the authority that may 10 be assigned under this section; and 11 ‘‘(C) evidence of the notice and solicitation 12 of public comment by the State relating to as- 13 sumption of responsibility under this section by 14 the State, including copies of comments re- 15 ceived from that solicitation. 16 ‘‘(2) PUBLIC NOTICE.— 17 ‘‘(A) IN GENERAL.—Each State that sub- 18 mits an application under this subsection shall 19 give notice of the intent of the State to submit 20 such application not later than 30 days before 21 the date of submission of the application. 22 ‘‘(B) METHOD OF NOTICE AND SOLICITA- 23 TION.—The State shall provide notice and so- 24 licit public comment under this paragraph by 25 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 495 IH publishing the complete application of the State 1 in accordance with the appropriate public notice 2 law of the State. 3 ‘‘(3) SELECTION CRITERIA.—A responsible Fed- 4 eral official may approve the application of a State 5 under this section only if— 6 ‘‘(A) the regulatory requirements under 7 paragraph (2) have been met; 8 ‘‘(B) the responsible Federal official deter- 9 mines that the State has the capability, includ- 10 ing financial and personnel, to assume the re- 11 sponsibility; and 12 ‘‘(C) the head of the State agency having 13 primary jurisdiction over covered projects with 14 respect to which responsibility would be as- 15 signed to the State pursuant to the application 16 enters into a written agreement with the re- 17 sponsible Federal official described in sub- 18 section (c). 19 ‘‘(4) OTHER FEDERAL AGENCY VIEWS.—If a 20 State applies to assume a responsibility of a respon- 21 sible Federal official that would have required the 22 responsible Federal official to consult with another 23 Federal agency, the responsible Federal official shall 24 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 495 IH solicit the views of the Federal agency before ap- 1 proving the application. 2 ‘‘(c) WRITTEN AGREEMENT.—A written agreement 3 under this section shall— 4 ‘‘(1) be executed by the Governor of the State 5 or the head of the State agency referred to in sub- 6 section (b)(3)(C); 7 ‘‘(2) be in such form as the responsible Federal 8 official may prescribe; and 9 ‘‘(3) provide that the State— 10 ‘‘(A) agrees to assume all or part of the re- 11 sponsibilities of the responsible Federal official 12 described in subsection (a); 13 ‘‘(B) expressly consents, on behalf of the 14 State, to accept the jurisdiction of the Federal 15 courts for the compliance, discharge, and en- 16 forcement of any responsibility of the respon- 17 sible Federal official assumed by the State; 18 ‘‘(C) certifies that State laws (including 19 regulations) are in effect that— 20 ‘‘(i) authorize the State to take the 21 actions necessary to carry out the respon- 22 sibilities being assumed; and 23 ‘‘(ii) are comparable to section 552 of 24 title 5, United States Code, including pro- 25 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 495 IH viding that any decision regarding the pub- 1 lic availability of a document under those 2 State laws is reviewable by a court of com- 3 petent jurisdiction; and 4 ‘‘(D) agrees to maintain the financial re- 5 sources necessary to carry out the responsibil- 6 ities being assumed. 7 ‘‘(d) JURISDICTION.— 8 ‘‘(1) IN GENERAL.—The United States district 9 courts shall have exclusive jurisdiction over any civil 10 action against a State for failure to carry out any 11 responsibility of the State under this section. 12 ‘‘(2) LEGAL STANDARDS AND REQUIRE- 13 MENTS.—A civil action under paragraph (1) shall be 14 governed by the legal standards and requirements 15 that would apply in such a civil action against the 16 responsible Federal official had the responsible Fed- 17 eral official taken the actions in question. 18 ‘‘(3) INTERVENTION.—The responsible Federal 19 official shall have the right to intervene in any ac- 20 tion described in paragraph (1). 21 ‘‘(e) EFFECT OF ASSUMPTION OF RESPONSI- 22 BILITY.—A State that assumes responsibility under sub- 23 section (a) shall be solely responsible and solely liable for 24 carrying out, in lieu of the responsible Federal official, the 25 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 495 IH responsibilities assumed under subsection (a), until the 1 termination of such assumption of responsibility. 2 ‘‘(f) LIMITATIONS ON AGREEMENTS.—Nothing in 3 this section permits a State to assume any rulemaking au- 4 thority of the responsible Federal official under any Fed- 5 eral law. 6 ‘‘(g) AUDITS.— 7 ‘‘(1) IN GENERAL.—To ensure compliance by a 8 State with any agreement of the State under sub- 9 section (c) (including compliance by the State with 10 all Federal laws for which responsibility is assumed 11 under subsection (a)), for each State participating in 12 the program under this section, the responsible Fed- 13 eral official shall conduct— 14 ‘‘(A) semiannual audits during each of the 15 first 2 years of the effective period of the agree- 16 ment; and 17 ‘‘(B) annual audits during each subsequent 18 year of such effective period. 19 ‘‘(2) PUBLIC AVAILABILITY AND COMMENT.— 20 ‘‘(A) IN GENERAL.—An audit conducted 21 under paragraph (1) shall be provided to the 22 public for comment for a 30-day period. 23 ‘‘(B) RESPONSE.—Not later than 60 days 24 after the date on which the period for public 25 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 495 IH comment ends, the responsible Federal official 1 shall respond to public comments received 2 under subparagraph (A). 3 ‘‘(h) REPORT TO CONGRESS.—Each responsible Fed- 4 eral official shall submit to Congress an annual report that 5 describes the administration of this section by such offi- 6 cial. 7 ‘‘(i) TERMINATION BY RESPONSIBLE FEDERAL OFFI- 8 CIAL.—The responsible Federal official with respect to an 9 agreement with a State under this section may terminate 10 the agreement, and any responsibility or authority of the 11 State under this section with respect to such agreement, 12 if— 13 ‘‘(1) the responsible Federal official determines 14 that the State is not adequately carrying out the re- 15 sponsibilities assumed by the State under this sec- 16 tion; 17 ‘‘(2) the responsible Federal official provides to 18 the State— 19 ‘‘(A) notification of the determination of 20 noncompliance; and 21 ‘‘(B) a period of at least 30 days during 22 which to take such corrective action as the re- 23 sponsible Federal official determines is nec- 24 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 495 IH essary to comply with the applicable agreement; 1 and 2 ‘‘(3) the State, after the notification and period 3 provided under subparagraph (B), fails to take satis- 4 factory corrective action, as determined by the re- 5 sponsible Federal official. 6 ‘‘(j) DEFINITIONS.—In this section: 7 ‘‘(1) COVERED FEDERAL PROJECT.—The term 8 ‘covered Federal project’ means— 9 ‘‘(A)(i) except as provided in clause (ii) 10 and subparagraph (B), any project that is fund- 11 ed by, carried out by, or subject to approval or 12 disapproval by a responsible Federal official, in- 13 cluding any project for which a permit or other 14 authorization by a responsible Federal official is 15 required; and 16 ‘‘(ii) in the case of projects funded, carried 17 out by, or subject to review, approval, or dis- 18 approval by the Secretary of the Army, and ex- 19 cept as provided in subparagraph (B), includes 20 only such projects of the Corps of Engineers; 21 and 22 ‘‘(B) the preparation of any statement re- 23 quired by section 102(2)(C). 24 VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 495 IH ‘‘(2) RESPONSIBLE FEDERAL OFFICIAL.—The 1 term ‘responsible Federal official’ means— 2 ‘‘(A) the Secretary of the Interior; 3 ‘‘(B) the Secretary of Transportation; 4 ‘‘(C) the Administrator of the Environ- 5 mental Protection Agency; 6 ‘‘(D) the Secretary of the Army; or 7 ‘‘(E) the head of a Federal agency, with 8 respect to the preparation of statements under 9 section 102(2)(C) for major Federal actions (as 10 that term is used in that section) of the agen- 11 cy.’’. 12 Æ VerDate Sep 11 2014 23:33 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\H495.IH H495 pbinns on DSKJLVW7X2PROD with $$_JOB