[Congressional Record Volume 167, Number 137 (Monday, August 2, 2021)]
[Senate]
[Pages S5637-S5638]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 2250. Mr. LEE submitted an amendment intended to be proposed to 
amendment SA 2137 proposed by Mr. Schumer (for Ms. Sinema (for herself, 
Mr. Portman, Mr. Manchin, Mr. Cassidy, Mrs. Shaheen, Ms. Collins, Mr. 
Tester, Ms. Murkowski, Mr. Warner, and Mr. Romney)) to the bill H.R. 
3684, to authorize funds for Federal-aid highways, highway safety 
programs, and transit programs, and for other purposes; which was 
ordered to lie on the table; as follows:

        At the end of the amendment, add the following:

DIVISION __--PROJECT DELIVERY PROGRAMS UNDER THE NATIONAL ENVIRONMENTAL 
                               POLICY ACT

     SEC. __. 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

[[Page S5638]]

       ``(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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