[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4336 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 4336
To amend the National Environmental Policy Act of 1969 to provide for
project delivery programs, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 1, 2021
Mr. Schweikert (for himself, Mrs. Lesko, and Mr. Newhouse) introduced
the following bill; which was referred to the Committee on Natural
Resources, and in addition to the Committee on Transportation and
Infrastructure, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``NEPA State Assignment Expansion
Act''.
SEC. 2. PROJECT DELIVERY PROGRAMS.
(a) In General.--Title I of the National Environmental Policy Act
of 1969 is amended--
(1) by redesignating section 105 (42 U.S.C. 4335) as
section 106; and
(2) by inserting after section 104 (42 U.S.C. 4334) the
following:
``SEC. 105. PROJECT DELIVERY PROGRAMS.
``(a) Definition of Agency Program.--In this section, the term
`agency program' means a project delivery program established by a
Federal agency under subsection (b)(1).
``(b) Establishment.--
``(1) In general.--The head of each Federal agency,
including the Secretary of Transportation, shall carry out a
project delivery program.
``(2) Assumption of responsibility.--
``(A) In general.--Subject to subparagraph (B), the
head of each Federal agency shall, on request of a
State, enter into a written agreement with the State,
which may be in the form of a memorandum of
understanding, in which the head of each Federal agency
may assign, and the State may assume, the
responsibilities of the head of the Federal agency
under this title with respect to 1 or more projects
within the State that are under the jurisdiction of the
Federal agency.
``(B) Exception.--The head of a Federal agency
shall not enter into a written agreement under
subparagraph (A) if the head of the Federal agency
determines that the State is not in compliance with the
requirements described in subsection (c)(4).
``(C) Additional responsibility.--If a State
assumes responsibility under subparagraph (A)--
``(i) the head of the Federal agency may
assign to the State, and the State may assume,
all or part of the responsibilities of the head
of the Federal agency for environmental review,
consultation, or other action required under
any Federal environmental law pertaining to the
review or approval of a specific project;
``(ii) at the request of the State, the
head of the Federal agency may also assign to
the State, and the State may assume, the
responsibilities of the head of the Federal
agency under this title with respect to 1 or
more projects within the State that are under
the jurisdiction of the Federal agency; but
``(iii) the head of the Federal agency may
not assign responsibility for any regional
conformity determination required under section
176 of the Clean Air Act (42 U.S.C. 7506)
currently made by a Metropolitan Planning
Organization.
``(D) Procedural and substantive requirements.--A
State shall assume responsibility under this section
subject to the same procedural and substantive
requirements as would apply if that responsibility were
carried out by the Federal agency.
``(E) Federal responsibility.--Any responsibility
of a Federal agency not explicitly assumed by the State
by written agreement under subparagraph (A) shall
remain the responsibility of the Federal agency.
``(F) No effect on authority.--Nothing in this
section preempts or interferes with any power,
jurisdiction, responsibility, or authority of an
agency, other than the Federal agency for which the
written agreement applies, under applicable law
(including regulations) with respect to a project.
``(G) Preservation of flexibility.--The head of the
Federal agency may not require a State, as a condition
of participation in the agency program of the Federal
agency, to forego project delivery methods that are
otherwise permissible for projects under applicable
law.
``(H) Legal fees.--A State assuming the
responsibilities of a Federal agency under this section
for a specific project may use funds awarded to the
State for that project for attorneys' fees directly
attributable to eligible activities associated with the
project.
``(c) State Participation.--
``(1) Participating states.--Except as provided in
subsection (b)(2)(B), all States are eligible to participate in
an agency program.
``(2) Application.--Not later than 270 days after the date
of enactment of this section, the head of each Federal agency
shall amend, as appropriate, regulations that establish
requirements relating to information required to be contained
in any application of a State to participate in the agency
program, including, at a minimum--
``(A) the projects or classes of projects for which
the State anticipates exercising the authority that may
be granted under the agency program;
``(B) verification of the financial resources
necessary to carry out the authority that may be
granted under the agency program; and
``(C) evidence of the notice and solicitation of
public comment by the State relating to participation
of the State in the agency program, including copies of
comments received from that solicitation.
``(3) Public notice.--
``(A) In general.--Each State that submits an
application under this subsection shall give notice of
the intent of the State to participate in an agency
program not later than 30 days before the date of
submission of the application.
``(B) Method of notice and solicitation.--The State
shall provide notice and solicit public comment under
this paragraph by publishing the complete application
of the State in accordance with the appropriate public
notice law of the State.
``(4) Selection criteria.--The head of a Federal agency may
approve the application of a State under this section only if--
``(A) the regulatory requirements under paragraph
(2) have been met;
``(B) the head of the Federal agency determines
that the State has the capability, including financial
and personnel, to assume the responsibility; and
``(C) the head of the State agency having primary
jurisdiction over the project enters into a written
agreement with the head of the Federal agency as
described in subsection (d).
``(5) Other federal agency views.--If a State applies to
assume a responsibility of the Federal agency that would have
required the head of the Federal agency to consult with the
head of another Federal agency, the head of the Federal agency
shall solicit the views of the head of the other Federal agency
before approving the application.
``(d) Written Agreement.--A written agreement under subsection
(b)(2)(A) shall--
``(1) be executed by the Governor or the top-ranking
official in the State who is charged with responsibility for
the project;
``(2) be in such form as the head of the Federal agency may
prescribe;
``(3) provide that the State--
``(A) agrees to assume all or part of the
responsibilities of the Federal agency described in
subparagraphs (A) and (C) of subsection (b)(2);
``(B) 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 Federal agency assumed by the
State;
``(C) 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, including providing that any decision
regarding the public availability of a document
under those State laws is reviewable by a court
of competent jurisdiction; and
``(D) agrees to maintain the financial resources
necessary to carry out the responsibilities being
assumed;
``(4) require the State to provide to the head of the
Federal agency any information the head of the Federal agency
reasonably considers necessary to ensure that the State is
adequately carrying out the responsibilities assigned to the
State;
``(5) have a term of not more than 5 years; and
``(6) be renewable.
``(e) Jurisdiction.--
``(1) In general.--The United States district courts shall
have exclusive jurisdiction over any civil action against a
State for failure to carry out any responsibility of the State
under this section.
``(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 head of a Federal agency had the head of the
Federal agency taken the actions in question.
``(3) Intervention.--The head of a Federal agency shall
have the right to intervene in any action described in
paragraph (1).
``(f) Effect of Assumption of Responsibility.--A State that assumes
responsibility under subsection (b)(2) shall be solely responsible and
solely liable for carrying out, in lieu of and without further approval
of the head of the Federal agency, the responsibilities assumed under
subsection (b)(2), until the agency program is terminated under
subsection (k).
``(g) Limitations on Agreements.--Nothing in this section permits a
State to assume any rulemaking authority of the head of a Federal
agency under any Federal law.
``(h) Audits.--
``(1) In general.--To ensure compliance by a State with any
agreement of the State under subsection (d) (including
compliance by the State with all Federal laws for which
responsibility is assumed under subsection (b)(2)), for each
State participating in an agency program, the head of a Federal
agency 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; and
``(C) ensure that the time period for completing an
annual 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, the
head of the Federal agency shall respond to public
comments received under subparagraph (A).
``(3) Audit team.--
``(A) In general.--An audit conducted under
paragraph (1) shall be carried out by an audit team
determined by the head of the Federal agency, 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.
``(i) Monitoring.--After the fourth year of the participation of a
State in an agency program, the head of the Federal agency shall
monitor compliance by the State with the written agreement, including
the provision by the State of financial resources to carry out the
written agreement.
``(j) Report to Congress.--The head of each Federal agency shall
submit to Congress an annual report that describes the administration
of the agency program.
``(k) Termination.--
``(1) Termination by federal agency.--The head of a Federal
agency may terminate the participation of a State in the agency
program of the Federal agency if--
``(A) the head of the Federal agency determines
that the State is not--
``(i) meeting time lines or other
requirements under Federal law that became the
responsibility of the State under the agency
program; or
``(ii) adequately carrying out other the
responsibilities assigned to the State under
the agency program;
``(B) the head of the Federal agency provides to
the State--
``(i) a notification of the determination
of noncompliance;
``(ii) a period of not less than 120 days
to take such corrective action as the head of
the Federal agency determines to be necessary
to comply with the applicable agreement; and
``(iii) on request of the Governor of the
State, a detailed description of each
responsibility in need of corrective action
regarding an inadequacy identified under
subparagraph (A); and
``(C) the State, after the notification and period
provided under subparagraph (B), fails to take
satisfactory corrective action, as determined by the
head of the Federal agency.
``(2) Termination by the state.--A State may terminate the
participation of the State in an agency program at any time by
providing to the head of the applicable Federal agency a notice
by not later than the date that is 90 days before the date of
termination, and subject to such terms and conditions as the
head of the Federal agency may provide.
``(l) Capacity Building.--The head of a Federal agency, in
cooperation with representatives of State officials, may carry out
education, training, peer-exchange, and other initiatives as
appropriate--
``(1) to assist States in developing the capacity to
participate in the agency program of the Federal agency; and
``(2) to promote information sharing and collaboration
among States that are participating in the agency program of
the Federal agency.
``(m) Relationship to Locally Administered Projects.--A State
granted authority under an agency program may, as appropriate and at
the request of a local government--
``(1) exercise that authority on behalf of the local
government for a locally administered project; or
``(2) provide guidance and training on consolidating and
minimizing the documentation and environmental analyses
necessary for sponsors of a locally administered project to
comply with this title and any comparable requirements under
State law.''.
(b) Conforming Amendment.--Section 327 of title 23, United States
Code, is amended--
(1) in subsection (a)(1), by striking ``The Secretary'' and
inserting ``Subject to subsection (m), the Secretary''; and
(2) by adding at the end the following:
``(m) Sunset.--
``(1) In general.--Except as provided under paragraph (2),
the authority provided by this section terminates on the date
of enactment of this subsection.
``(2) Existing agreements.--Subject to the requirements of
this section, the Secretary may continue to enforce any
agreement entered into under this section before the date of
enactment of this subsection.''.
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