[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4312 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 4312

 To amend the National Environmental Policy Act of 1969 to provide for 
           project delivery programs, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 23, 2020

    Mr. Lee introduced the following bill; which was read twice and 
       referred to the Committee on Environment and Public Works

_______________________________________________________________________

                                 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 
of 2020''.

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 conformity 
                        determination required under section 176 of the 
                        Clean Air Act (42 U.S.C. 7506).
                    ``(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 any State in the 
        agency program of the Federal agency if--
                    ``(A) the head of the Federal agency determines 
                that the State is not adequately carrying out the 
                responsibilities assigned to the State;
                    ``(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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