Surface transportation project delivery demonstration program

(a)

In general

Chapter 3 of title 23, United States Code, is amended by adding at the end the following:

330.

Use of State environmental laws

(a)

Demonstration program

Subject to the requirements of this section, the Secretary shall carry out a demonstration program to permit an eligible State or a unit of local government in the State to carry out the responsibilities of the Secretary with respect to highway projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) through the implementation of the environmental laws of such State instead of Federal environmental laws. (b)

Eligible States and local governments

The Secretary may permit a State or a unit of local government in the State to participate in the demonstration program only if the Secretary determines, after reviewing the environmental laws of the State and such other materials as the Secretary may require, that— (1)the environmental laws of the State provide a substantially equivalent level of environmental protection as applicable Federal laws; (2)participation by the State or a unit of local government in the State in the demonstration program will not diminish protection of the environment; and (3)the head of the State agency having primary jurisdiction over highway matters or the head of a unit of local government in the State having primary jurisdiction over highway matters in that unit enters into a written agreement with the Secretary described in subsection (d). (c)

Final determination

The Secretary shall make the final determination with regard to the participation of a State or a unit of local government in the State in the demonstration program within 6 months after the date of enactment of the Environmental Review Cooperation Act. (d)

Written Agreement

A written agreement under this section shall— (1)be executed by the Governor or the top-ranking transportation official in the State who is charged with responsibility for highway construction or the head of a unit of local government in the State having primary jurisdiction over highway matters in that unit; (2)be in such form as the Secretary may prescribe; (3)provide that the State or the unit of local government— (A)agrees to assume all or part of the responsibilities of the Secretary described in subsection (a); (B)expressly consents, on behalf of the State or the unit of local government, to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary assumed by the State or the unit of local government; (C)certifies that State laws (including regulations) are in effect that— (i)authorize the State or the unit of local government 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. (e)

Audits

(1)

In general

To ensure compliance by a State or a unit of local government with any requirements for participating in the program under this section, the Secretary shall conduct— (A)semiannual audits during each of the first 2 years of participation in the program; and (B)annual audits during each subsequent year of participation in the program. (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 Secretary shall respond to public comments received under subparagraph (A). (f)

Report to Congress

(1)

In general

Not later than 2 years after the date on which the first State is selected for participation in the demonstration program, and annually thereafter, the Secretary shall submit to Congress, and make available to the public, a report on the results of the demonstration program. (2)

Contents

For each reporting period, the report shall contain, at a minimum, the following: (A)A list identifying how many projects have been approved and completed under the demonstration program. (B)An assessment of whether delays were reduced and project delivery was enhanced as a result of the demonstration program. (C)An assessment of whether there have been any adverse impacts or risks to the environment as a result of the demonstration program. (g)

Termination

(1)

In general

Except as provided in paragraph (2), the program shall terminate on the date that is 7 years after the date of enactment of this section. (2)

Termination by Secretary

The Secretary may terminate the participation of any State or unit of local government in the program if— (A)the Secretary determines that the State or unit of local government is not adequately carrying out the responsibilities assigned to the State or unit of local government, respectively; (B)the Secretary provides to the State or unit of local government— (i)notification of the determination of noncompliance; and (ii)a period of at least 30 days during which to take such corrective action as the Secretary determines is necessary to comply with the applicable agreement; and (C)the State or unit of local government, after the notification and period provided under subparagraph (B), fails to take satisfactory corrective action, as determined by the Secretary.

(b)

Conforming change

The analysis for chapter 3 of title 23, United States Code, is amended by adding after the item related to section 329 the following:

330. Use of State environmental laws.

Surface transportation project delivery pilot program

Section 327 of title 23, United States Code, is amended— (1)in the section heading by striking

pilot

; (2)in subsection (a)(1) by striking pilot; (3)in subsection (a)(2)— (A)in subparagraph (B) by striking clause (ii) and inserting the following:

(ii)the Secretary may not assign any responsibility imposed on the Secretary by section 134 or 135.

; and

(B)by adding at the end the following:

(F)

Preservation of flexibility

The Secretary shall not require a State, as a condition of participation in this program, to forego project delivery methods that are otherwise permissible for highway projects. (G)

Highway project

A highway project under subparagraph (A) includes any project eligible under this title. With respect to such a project, a State may assume the responsibilities administered by the Federal Highway Administration, but the State may not assume the responsibilities of any other modal administration within the Department.

;

(4)in subsection (b)— (A)by striking paragraph (1) and inserting the following:

(1)

Participating States

(A)

In general

All States are eligible to participate in the program. (B)

Special rule

Any State participating in the program under this section on September 30, 2009, shall be permitted by the Secretary to continue to participate in the program and such State shall not have to submit an application under paragraph (2) in order to participate in the program.

; and

(B)in paragraph (2) by striking “this section, the Secretary shall promulgate” and inserting “the Environmental Review Cooperation Act, the Secretary shall amend, as appropriate,”; and (5)by striking subsection (i) and inserting the following:

(i)

Termination

The Secretary may terminate the participation of any State in the program if— (1)the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State; (2)the Secretary provides to the State— (A)notification of the determination of noncompliance; and (B)a period of at least 30 days during which to take such corrective action as the Secretary determines is necessary to comply with the applicable agreement; and (3)the State, after the notification and period provided under paragraph (2), fails to take satisfactory corrective action, as determined by Secretary.