II 112th CONGRESS 1st Session S. 1081 IN THE SENATE OF THE UNITED STATES May 26, 2011 Ms. Murkowski introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend titles 23 and 49, United States Code, to streamline the environmental review process for highway projects, and for other purposes.

1.

Short title

This Act may be cited as the Project Delivery Improvement Act of 2011.

2.

Findings

Congress finds that— (1)in addition to amounts available as of the date of enactment of this Act, the United States needs to expend $20,000,000,000 to maintain the transportation infrastructure of the United States; (2)up to $80,000,000,000 per year in additional spending could be used for projects that would provide positive economic returns; (3)the United States needs at least $255,000,000,000 per year in transportation spending during the 50-year period after the date of enactment of this Act— (A)to maintain the transportation system of the United States in a state of good repair; and (B)to complete necessary upgrades of that system; (4)transportation spending as of the date of enactment of this Act falls 60 percent short of the amount required; and (5)because revenues deposited in the Highway Trust Fund are declining— (A)transportation project costs need to be reduced; and (B)regulatory requirements for those projects should be streamlined.

3.

Environmental review process

(a)

Use of proprietary and experimental products

Section 112 of title 23, United States Code, is amended by adding at the end the following: (h)

Use of proprietary and experimental products

Notwithstanding any other provision of this section— (1)a State may use for any highway project 1 or more proprietary, patented, or experimental products selected by the State without competitive bidding or approval by the Secretary; and (2)the use by the State of a product described in paragraph (1) for a highway project shall not affect the eligibility of the State or the highway project to receive Federal funds. . (b)

Preservation of Parklands

Section 138 of title 23, United States Code, is repealed. (c)

Participating agencies

Section 139 of title 23, United States Code, is amended— (1)in subsection (c)(5), by striking may be and inserting shall be; (2)in subsection (d), by striking paragraph (1) and inserting the following: (1)

In general

The lead agency shall be responsible for— (A)determining the purpose of and need for a project; and (B)inviting and designating participating agencies in accordance with this subsection. ; and (3)in subsection (f)— (A)in paragraph (1), by striking provide an opportunity for involvement by participating agencies and the public in defining and inserting provide for an opportunity for public comment on the definition of; (B)in paragraph (2)— (i)by striking Following participation under paragraph (1) and inserting the following: (A)

In general

After the period of public comment under paragraph (1) ; and (ii)by adding at the end the following: (B)

Long-range transportation plan

For a project included in an adopted long-range transportation plan under section 134 or 135, the lead agency may use the purpose and need presented in the plan without further agency collaboration. ; and (C)in paragraph (4), by striking subparagraph (B) and inserting the following: (B)

Range of alternatives

(i)

In general

Following participation under paragraph (1), the lead agency shall determine the range of alternatives for consideration in any document which the lead agency is responsible for preparing for the project. (ii)

Exclusion of alternatives

The lead agency may exclude from consideration under clause (i) any alternative that, as determined by the lead agency, would not meet the purpose of and need for the project determined under paragraph (1)(A), regardless of whether the alternative would impact the environment to a greater degree than the preferred alternative. . (d)

Limitations on Claims

Section 139(l) of title 23, United States Code, is amended— (1)in each of paragraphs (1) and (2), by striking 180 days each place it appears and inserting 90 days; and (2)by adding at the end the following: (3)

Burden of proof

In any claim described in the first sentence of paragraph (1), the individual or entity bringing the claim shall bear the burden of proving the claim. . (e)

Exclusions; Document Combination

Section 139 of title 23, United States Code, is amended by adding at the end the following: (m)

Categorical Exclusions; Document Combination

(1)

Categorical exclusions

(A)

In general

A highway project carried out within the right-of-way of a Federal-aid highway or a highway funded under section 118(e) shall be considered to be a categorical exclusion under section 771.117(a) of title 23, Code of Federal Regulations (or a successor regulation). (B)

State authority

A State may designate or classify a highway project carried out by the State as a categorical exclusion under section 771.117(a) of title 23, Code of Federal Regulations (or a successor regulation). (2)

Document combination

To further expedite the environmental review process for a project under this section, the Secretary may combine the final environmental impact statement and the record of decision for the project if a preferred alternative is identified in the environmental impact statement. . (f)

Policy on lands, wildlife and waterfowl refuges, and historic sites; de minimis impacts

Section 303 of title 49, United States Code, is amended— (1)by striking the section heading and inserting the following:

303.

Policy on lands and wildlife and waterfowl refuges

; (2)in subsection (a), by striking , wildlife and waterfowl refuges, and historic sites and inserting and wildlife and waterfowl refuges; (3)in subsection (c)— (A)in the matter preceding paragraph (1)— (i)by striking Subject to subsection (d), the Secretary and inserting The Secretary; and (ii)by striking , or land of an historic site of national, State, or local significance (as determined by the Federal, or local officials having jurisdiction over the park, area, refuge, or site); and (B)by striking paragraphs (1) and (2) and inserting the following: (1)(A)there is no prudent and feasible alternative to using that land; and (B)the program or project includes all practicable planning to minimize harm to the park, recreation area, or wildlife and waterfowl refuge resulting from the use; or (2)the Governor of the State, and, if applicable, the mayor or chief executive officer of the city, county, or borough having management responsibility for or ownership of areas or sites described in paragraph (1)(B) agree that the transportation project is the preferred alternative. ; and (4)by striking subsection (d).