II 

115TH CONGRESS 

1ST SESSION S. 604 

To allow certain State permitting authority to encourage expansion of 

broadband service to rural communities, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 9, 2017 

Mr. HATCH (for himself, Mr. DAINES, and Mrs. FISCHER) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works 

A BILL 

To allow certain State permitting authority to encourage 

expansion of broadband service to rural communities, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Highway Rights-of5 Way Permitting Efficiency Act of 2017’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that, as of the date of enactment of 

8 this Act— 


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1 (1) the United States has been the world leader 

2 in Internet and telecommunications technology 

3 growth, and the people of the United States now rely 

4 on broadband connectivity as an increasingly nec5 essary part of daily life; 

6 (2) broadband services are used by private citi7 zens, businesses, public groups, and government 

8 agencies throughout the United States to commu9 nicate, access information, share cultures, develop 

10 technologies, and grow economies nationally and 

11 internationally; 

12 (3) while wireless and broadband technologies 

13 have contributed significantly to progress throughout 

14 the United States, lack of broadband deployment to 

15 rural communities has put rural parties at a greater 

16 disadvantage for economic development; and 

17 (4) delays in the permitting process are costly 

18 and discouraging to broadband deployment and fur19 ther discourage broadband deployment to rural 

20 areas. 

21 SEC. 3. DEFINITIONS. 

22 In this Act: 

23 (1) BROADBAND PROJECT.—The term 

24 ‘‘broadband project’’ means a project under which a 

25 broadband provider installs broadband infrastrucVerDate Sep 11 2014 23:42 Mar 16, 2017 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S604.IS S604

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1 ture, including copper lines or fiber optic lines, on 

2 Federal land. 

3 (2) BROADBAND PROVIDER.—The term 

4 ‘‘broadband provider’’ means a facilities-based pro5 vider of broadband capability that enables a user to 

6 originate and receive high-quality voice, data, graph7 ics, and video telecommunications. 

8 (3) OPERATIONAL RIGHT-OF-WAY.—The term 

9 ‘‘operational right-of-way’’ means all real property 

10 interests (including easements) acquired for the con11 struction or operation of a project, including the lo12 cations of the roadway, bridges, interchanges, cul13 verts, drainage, clear zone, traffic control signage, 

14 landscaping, copper and fiber optic lines, utility shel15 ters, and broadband infrastructure as installed by 

16 broadband providers, and any rest areas with direct 

17 access to a controlled access highway or the National 

18 Highway System. 

19 (4) PROJECT.—The term ‘‘project’’ has the 

20 meaning given the term in section 101(a) of title 23, 

21 United States Code. 

22 (5) SECRETARY CONCERNED.—The term ‘‘Sec23 retary concerned’’ means— 


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1 (A) the Secretary of Agriculture (acting 

2 through the Chief of the Forest Service), with 

3 respect to National Forest System land; and 

4 (B) the Secretary of the Interior, with re5 spect to land managed by the Bureau of Land 

6 Management (including land held for the ben7 efit of an Indian tribe). 

8 SEC. 4. STATE PERMITTING AUTHORITY. 

9 (a) IN GENERAL.—The Secretaries concerned shall 

10 jointly establish a program under which any State may 

11 offer, and the Secretary concerned shall agree, to enter 

12 into a memorandum of understanding with the Secretary 

13 concerned to allow for the permitting of broadband within 

14 an operational right-of-way in accordance with this sec15 tion. 

16 (b) ASSUMPTION OF RESPONSIBILITIES.— 

17 (1) IN GENERAL.—In entering into a memo18 randum of understanding under this section, the 

19 Secretary concerned may assign to the State, and 

20 the State may agree to assume, all or part of the re21 sponsibilities of the Secretary concerned for environ22 mental review, consultation, or other action required 

23 under any Federal environmental law pertaining to 

24 the review or approval of a specific operational right25 of-way broadband project. 


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1 (2) STATE RESPONSIBILITY.— 

2 (A) IN GENERAL.—A State that assumes 

3 any responsibility under paragraph (1) shall be 

4 subject to the same procedural and substantive 

5 requirements as would apply if the responsi6 bility were carried out by the Secretary con7 cerned. 

8 (B) EFFECT OF ASSUMPTION OF RESPON9 SIBILITY.—A State that assumes any responsi10 bility under paragraph (1) shall be solely re11 sponsible and solely liable for carrying out, in 

12 lieu of the Secretary concerned, the responsibil13 ities assumed under that paragraph until date 

14 on which the program is terminated under sub15 section (f). 

16 (C) ENVIRONMENTAL REVIEW.—A State 

17 that assumes any responsibility under para18 graph (1) shall comply with the environmental 

19 review procedures under part 771 of title 23, 

20 Code of Federal Regulations (or successor regu21 lations). 

22 (3) FEDERAL RESPONSIBILITY.—Any responsi23 bility of the Secretary concerned described in para24 graph (1) that is not explicitly assumed by the State 


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1 in the memorandum of understanding shall remain 

2 the responsibility of the Secretary concerned. 

3 (c) OFFER AND NOTIFICATION.—A State that in4 tends to offer to enter into a memorandum of under5 standing under this section shall provide to the Secretary 

6 concerned notice of the intent of the State not later than 

7 90 days before the date on which the State submits a for8 mal written offer to the Secretary concerned. 

9 (d) MEMORANDUM OF UNDERSTANDING.—A memo10 randum of understanding entered into under this section 

11 shall— 

12 (1) be executed by the Governor or the top13 ranking transportation official in the State who is 

14 charged with responsibility for highway construction; 

15 (2) be for a term not to exceed 10 years; 

16 (3) be in such form as the Secretary concerned 

17 may prescribe; and 

18 (4) provide that the State— 

19 (A) agrees to assume all or part of the re20 sponsibilities of the Secretary concerned de21 scribed in subsection (b)(1); 

22 (B) expressly consents, on behalf of the 

23 State, to accept the jurisdiction of the Federal 

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1 forcement of any responsibility of the Secretary 

2 concerned assumed by the State; 

3 (C) certifies that State laws (including reg4 ulations) are in effect that— 

5 (i) authorize the State to take the ac6 tions necessary to carry out the respon7 sibilities being assumed; and 

8 (ii) are comparable to section 552 of 

9 title 5, United States Code, including pro10 viding that any decision regarding the pub11 lic availability of a document under the 

12 State laws is reviewable by a court of com13 petent jurisdiction; 

14 (D) agrees to maintain the financial re15 sources necessary to carry out the responsibil16 ities being assumed; and 

17 (E) agrees to provide to the Secretary con18 cerned any information the Secretary concerned 

19 considers necessary to ensure that the State is 

20 adequately carrying out the responsibilities as21 signed to and assumed by the State. 

22 (e) LIMITATION.—Nothing in this section permits a 

23 State to assume any rulemaking authority of the Secretary 

24 concerned under any Federal law. 

25 (f) TERMINATION.— 


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1 (1) TERMINATION BY THE SECRETARY.—The 

2 Secretary concerned may terminate the participation 

3 of any State in the program established under this 

4 section if— 

5 (A) the Secretary concerned determines 

6 that the State is not adequately carrying out 

7 the responsibilities assigned to and assumed by 

8 the State; 

9 (B) the Secretary concerned provides to 

10 the State— 

11 (i) notification of the determination of 

12 noncompliance; and 

13 (ii) a period of at least 30 days during 

14 which to take such corrective action as the 

15 Secretary concerned determines is nec16 essary to comply with the applicable agree17 ment; and 

18 (C) the State, after the notification and 

19 period provided under subparagraph (B), fails 

20 to take satisfactory corrective action, as deter21 mined by the Secretary concerned. 

22 (2) TERMINATION BY THE STATE.—A State 

23 may terminate the participation of the State in the 

24 program established under this section at any time 

25 by providing to the Secretary concerned a notice of 


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1 intent to terminate by not later than the date that 

2 is 90 days before the date of termination. 

3 SEC. 5. CATEGORICAL EXCLUSION FOR PROJECTS WITHIN 

4 OPERATIONAL RIGHTS-OF-WAY. 

5 The Secretary concerned shall— 

6 (1) not later than 180 days after the date of 

7 enactment of this Act, designate any project within 

8 an existing operational right-of-way as an action cat9 egorically excluded from the requirements relating to 

10 environmental assessments or environmental impact 

11 statements under section 1508.4 of title 40, Code of 

12 Federal Regulations, and section 771.117(c) of title 

13 23, Code of Federal Regulations (or successor regu14 lations); and 

15 (2) not later than 150 days after the date of 

16 enactment of this Act, promulgate regulations to 

17 carry out paragraph (1). 

18 SEC. 6. FEDERAL BROADBAND PERMIT COORDINATION. 

19 (a) DEFINITION OF SECRETARY.—In this section, the 

20 term ‘‘Secretary’’ means the Secretary of the Interior. 

21 (b) ESTABLISHMENT.—The Secretary shall establish 

22 a Federal Permit Streamlining Project in each Bureau of 

23 Land Management field office with responsibility for 

24 issuing permits for broadband projects. 

25 (c) MEMORANDUM OF UNDERSTANDING.— 


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1 (1) IN GENERAL.—Not later than 90 days after 

2 the date of enactment of this Act, the Secretary, in 

3 consultation with the National Conference of State 

4 Historic Preservation Officers, shall enter into a 

5 memorandum of understanding to carry out this sec6 tion with— 

7 (A) the Secretary of Agriculture; 

8 (B) the Administrator of the Environ9 mental Protection Agency; 

10 (C) the Administrator of the Federal High11 way Administration; and 

12 (D) the Director of the United States Fish 

13 and Wildlife Service. 

14 (2) LEAD AGENCY.—As part of the memo15 randum of understanding under paragraph (1), the 

16 Secretary shall act as the lead agency in issuing a 

17 single permit for each broadband project on behalf 

18 of all Federal agencies involved in the broadband 

19 project. 

20 (3) STATE PARTICIPATION.—The Secretary 

21 may request that the Governor of any State with one 

22 or more broadband projects be a party to the memo23 randum of understanding under paragraph (1). 

24 (4) DESIGNATION OF QUALIFIED STAFF.— 


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1 (A) IN GENERAL.—Not later than 30 days 

2 after the date of entrance into the memo3 randum of understanding under paragraph (1), 

4 the head of each Federal agency that is a party 

5 to the memorandum of understanding (other 

6 than the Secretary) shall, if the head of the 

7 Federal agency determines it to be appropriate, 

8 designate to each Bureau of Land Management 

9 field office an employee of that Federal agency 

10 with expertise in regulatory issues relating to 

11 that Federal agency, including, as applicable, 

12 particular expertise in— 

13 (i) planning under the Forest and 

14 Rangeland Renewable Resources Planning 

15 Act of 1974 (16 U.S.C. 1600 et seq.); 

16 (ii) the preparation of analyses under 

17 the National Environmental Policy Act of 

18 1969 (42 U.S.C. 4321 et seq.); 

19 (iii) programs under chapter 1 and 

20 chapter 2 of title 23, United States Code; 

21 or 

22 (iv) consultation and the preparation 

23 of biological opinions under section 7 of 

24 the Endangered Species Act of 1973 (16 

25 U.S.C. 1536). 


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1 (B) DUTIES.—Each employee designated 

2 under subparagraph (A) shall— 

3 (i) not later than 90 days after the 

4 date of designation, report to the manager 

5 of the Bureau of Land Management field 

6 office to which the employee is assigned; 

7 (ii) be responsible for any issue relat8 ing to any broadband project within the ju9 risdiction of the field office described in 

10 clause (i) under the authority of the Fed11 eral agency from which the employee is as12 signed; 

13 (iii) participate as part of the team of 

14 personnel working on one or more pro15 posed broadband projects, including plan16 ning and environmental analyses; and 

17 (iv) serve as the designated point of 

18 contact with any applicable State that as19 sumes any responsibility under section 

20 4(b)(1) relating to any issue described in 

21 clause (ii). 

22 (d) FUNDING.—This section shall be carried out 

23 using such amounts as are necessary from other amounts 

24 available that are not otherwise obligated. 

Æ 


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