[Congressional Record Volume 167, Number 137 (Monday, August 2, 2021)]
[Senate]
[Pages S5675-S5676]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 2279. 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 division E, add the following:

 TITLE ___--PROJECT DELIVERY PROGRAM FOR WATER STORAGE INFRASTRUCTURE 
                                PROJECTS

     SEC. ___. PROJECT DELIVERY PROGRAM FOR WATER STORAGE 
                   INFRASTRUCTURE PROJECTS.

       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 PROGRAM FOR WATER STORAGE 
                   INFRASTRUCTURE PROJECTS.

       ``(a) Definitions.--In this section:
       ``(1) Agency program.--The term `agency program' means a 
     project delivery program established by the Secretary under 
     subsection (b)(1).
       ``(2) Covered project.--The term `covered project' means a 
     water storage infrastructure project that includes related 
     transmission infrastructure and other associated 
     infrastructure components.
       ``(3) Department.--The term `Department' means the 
     Department of the Interior.
       ``(4) Secretary.--The term `Secretary' means the Secretary 
     of the Interior.
       ``(b) Establishment.--
       ``(1) In general.--The Secretary shall carry out a project 
     delivery program for covered projects.
       ``(2) Assumption of responsibility.--
       ``(A) In general.--Subject to subparagraph (B), the 
     Secretary 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 Secretary may 
     assign, and the State may assume, the responsibilities of the 
     Secretary under this title with respect to 1 or more covered 
     projects within the State that are under the jurisdiction of 
     the Department.
       ``(B) Exception.--The Secretary shall not enter into a 
     written agreement under subparagraph (A) if the Secretary 
     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 Secretary may assign to the State, and the State 
     may assume, all or part of the responsibilities of the 
     Secretary for environmental review, consultation, or other 
     action required under any Federal environmental law 
     pertaining to the review or approval of a specific covered 
     project;
       ``(ii) at the request of the State, the Secretary may also 
     assign to the State, and the State may assume, the 
     responsibilities of the Secretary under this title with 
     respect to 1 or more covered projects within the State that 
     are under the jurisdiction of the Department; but
       ``(iii) the Secretary 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 Department.
       ``(E) Federal responsibility.--Any responsibility of the 
     Department not explicitly assumed by the State by written 
     agreement under subparagraph (A) shall remain the 
     responsibility of the Department.
       ``(F) No effect on authority.--Nothing in this section 
     preempts or interferes with any power, jurisdiction, 
     responsibility, or authority of an agency, other than 
     Department, under applicable law (including regulations) with 
     respect to a covered project.
       ``(G) Preservation of flexibility.--The Secretary may not 
     require a State, as a condition of participation in the 
     agency program of the Department, to forego project delivery 
     methods that are otherwise permissible for covered projects 
     under applicable law.
       ``(H) Legal fees.--A State assuming the responsibilities of 
     the Department under this section for a specific covered 
     project may use funds awarded to the State for that

[[Page S5676]]

     project for attorneys' fees directly attributable to eligible 
     activities associated with the covered 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 Secretary 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 covered projects or classes of covered 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 Secretary may approve the 
     application of a State under this section only if--
       ``(A) the regulatory requirements under paragraph (2) have 
     been met;
       ``(B) the Secretary determines that the State has the 
     capability, including financial and personnel, to assume the 
     responsibility; and
       ``(C) the Secretary having primary jurisdiction over the 
     covered project enters into a written agreement with the 
     Secretary as described in subsection (d).
       ``(5) Other federal agency views.--If a State applies to 
     assume a responsibility of the Department that would have 
     required the Secretary to consult with the head of another 
     Federal agency, the Secretary 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 covered project;
       ``(2) be in such form as the Secretary may prescribe;
       ``(3) provide that the State--
       ``(A) agrees to assume all or part of the responsibilities 
     of the Department 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 
     Department 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 Secretary any 
     information the Secretary 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 Secretary had the Secretary taken the actions in 
     question.
       ``(3) Intervention.--The Secretary 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 Secretary, 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 
     Secretary 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 Secretary 
     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 Secretary 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 
     Secretary, 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 Secretary 
     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 Secretary shall submit to 
     Congress an annual report that describes the administration 
     of the agency program.
       ``(k) Termination.--
       ``(1) Termination by department.--The Secretary may 
     terminate the participation of any State in the agency 
     program of the Department if--
       ``(A) the Secretary determines that the State is not 
     adequately carrying out the responsibilities assigned to the 
     State;
       ``(B) the Secretary 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 Secretary 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 Secretary.
       ``(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 Secretary 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 Secretary may 
     provide.
       ``(l) Capacity Building.--The Secretary, 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 Department; and
       ``(2) to promote information sharing and collaboration 
     among States that are participating in the agency program of 
     the Department.
       ``(m) Relationship to Locally Administered Covered 
     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 covered project; or
       ``(2) provide guidance and training on consolidating and 
     minimizing the documentation and environmental analyses 
     necessary for sponsors of a locally administered covered 
     project to comply with this title and any comparable 
     requirements under State law.''.
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