[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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