[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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