II 

116TH CONGRESS 

2D SESSION S. 4312 

To amend the National Environmental Policy Act of 1969 to provide for 

project delivery programs, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 23, 2020 

Mr. LEE introduced the following bill; which was read twice and referred to 

the Committee on Environment and Public Works 

A BILL 

To amend the National Environmental Policy Act of 1969 

to provide for project delivery programs, 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 ‘‘NEPA State Assign5 ment Expansion Act of 2020’’. 

6 SEC. 2. PROJECT DELIVERY PROGRAMS. 

7 (a) IN GENERAL.—Title I of the National Environ8 mental Policy Act of 1969 is amended— 

9 (1) by redesignating section 105 (42 U.S.C. 

10 4335) as section 106; and 


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1 (2) by inserting after section 104 (42 U.S.C. 

2 4334) the following: 

3 ‘‘SEC. 105. PROJECT DELIVERY PROGRAMS. 

4 ‘‘(a) DEFINITION OF AGENCY PROGRAM.—In this 

5 section, the term ‘agency program’ means a project deliv6 ery program established by a Federal agency under sub7 section (b)(1). 

8 ‘‘(b) ESTABLISHMENT.— 

9 ‘‘(1) IN GENERAL.—The head of each Federal 

10 agency, including the Secretary of Transportation, 

11 shall carry out a project delivery program. 

12 ‘‘(2) ASSUMPTION OF RESPONSIBILITY.— 

13 ‘‘(A) IN GENERAL.—Subject to subpara14 graph (B), the head of each Federal agency 

15 shall, on request of a State, enter into a written 

16 agreement with the State, which may be in the 

17 form of a memorandum of understanding, in 

18 which the head of each Federal agency may as19 sign, and the State may assume, the respon20 sibilities of the head of the Federal agency 

21 under this title with respect to 1 or more 

22 projects within the State that are under the ju23 risdiction of the Federal agency. 

24 ‘‘(B) EXCEPTION.—The head of a Federal 

25 agency shall not enter into a written agreement 


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1 under subparagraph (A) if the head of the Fed2 eral agency determines that the State is not in 

3 compliance with the requirements described in 

4 subsection (c)(4). 

5 ‘‘(C) ADDITIONAL RESPONSIBILITY.—If a 

6 State assumes responsibility under subpara7 graph (A)— 

8 ‘‘(i) the head of the Federal agency 

9 may assign to the State, and the State 

10 may assume, all or part of the responsibil11 ities of the head of the Federal agency for 

12 environmental review, consultation, or 

13 other action required under any Federal 

14 environmental law pertaining to the review 

15 or approval of a specific project; 

16 ‘‘(ii) at the request of the State, the 

17 head of the Federal agency may also as18 sign to the State, and the State may as19 sume, the responsibilities of the head of 

20 the Federal agency under this title with re21 spect to 1 or more projects within the 

22 State that are under the jurisdiction of the 

23 Federal agency; but 

24 ‘‘(iii) the head of the Federal agency 

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1 formity determination required under sec2 tion 176 of the Clean Air Act (42 U.S.C. 

3 7506). 

4 ‘‘(D) PROCEDURAL AND SUBSTANTIVE RE5 QUIREMENTS.—A State shall assume responsi6 bility under this section subject to the same 

7 procedural and substantive requirements as 

8 would apply if that responsibility were carried 

9 out by the Federal agency. 

10 ‘‘(E) FEDERAL RESPONSIBILITY.—Any re11 sponsibility of a Federal agency not explicitly 

12 assumed by the State by written agreement 

13 under subparagraph (A) shall remain the re14 sponsibility of the Federal agency. 

15 ‘‘(F) NO EFFECT ON AUTHORITY.—Noth16 ing in this section preempts or interferes with 

17 any power, jurisdiction, responsibility, or au18 thority of an agency, other than the Federal 

19 agency for which the written agreement applies, 

20 under applicable law (including regulations) 

21 with respect to a project. 

22 ‘‘(G) PRESERVATION OF FLEXIBILITY.— 

23 The head of the Federal agency may not re24 quire a State, as a condition of participation in 

25 the agency program of the Federal agency, to 


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1 forego project delivery methods that are other2 wise permissible for projects under applicable 

3 law. 

4 ‘‘(H) LEGAL FEES.—A State assuming the 

5 responsibilities of a Federal agency under this 

6 section for a specific project may use funds 

7 awarded to the State for that project for attor8 neys’ fees directly attributable to eligible activi9 ties associated with the project. 

10 ‘‘(c) STATE PARTICIPATION.— 

11 ‘‘(1) PARTICIPATING STATES.—Except as pro12 vided in subsection (b)(2)(B), all States are eligible 

13 to participate in an agency program. 

14 ‘‘(2) APPLICATION.—Not later than 270 days 

15 after the date of enactment of this section, the head 

16 of each Federal agency shall amend, as appropriate, 

17 regulations that establish requirements relating to 

18 information required to be contained in any applica19 tion of a State to participate in the agency program, 

20 including, at a minimum— 

21 ‘‘(A) the projects or classes of projects for 

22 which the State anticipates exercising the au23 thority that may be granted under the agency 

24 program; 


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1 ‘‘(B) verification of the financial resources 

2 necessary to carry out the authority that may 

3 be granted under the agency program; and 

4 ‘‘(C) evidence of the notice and solicitation 

5 of public comment by the State relating to par6 ticipation of the State in the agency program, 

7 including copies of comments received from that 

8 solicitation. 

9 ‘‘(3) PUBLIC NOTICE.— 

10 ‘‘(A) IN GENERAL.—Each State that sub11 mits an application under this subsection shall 

12 give notice of the intent of the State to partici13 pate in an agency program not later than 30 

14 days before the date of submission of the appli15 cation. 

16 ‘‘(B) METHOD OF NOTICE AND SOLICITA17 TION.—The State shall provide notice and so18 licit public comment under this paragraph by 

19 publishing the complete application of the State 

20 in accordance with the appropriate public notice 

21 law of the State. 

22 ‘‘(4) SELECTION CRITERIA.—The head of a 

23 Federal agency may approve the application of a 

24 State under this section only if— 


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1 ‘‘(A) the regulatory requirements under 

2 paragraph (2) have been met; 

3 ‘‘(B) the head of the Federal agency deter4 mines that the State has the capability, includ5 ing financial and personnel, to assume the re6 sponsibility; and 

7 ‘‘(C) the head of the State agency having 

8 primary jurisdiction over the project enters into 

9 a written agreement with the head of the Fed10 eral agency as described in subsection (d). 

11 ‘‘(5) OTHER FEDERAL AGENCY VIEWS.—If a 

12 State applies to assume a responsibility of the Fed13 eral agency that would have required the head of the 

14 Federal agency to consult with the head of another 

15 Federal agency, the head of the Federal agency shall 

16 solicit the views of the head of the other Federal 

17 agency before approving the application. 

18 ‘‘(d) WRITTEN AGREEMENT.—A written agreement 

19 under subsection (b)(2)(A) shall— 

20 ‘‘(1) be executed by the Governor or the top21 ranking official in the State who is charged with re22 sponsibility for the project; 

23 ‘‘(2) be in such form as the head of the Federal 

24 agency may prescribe; 

25 ‘‘(3) provide that the State— 


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1 ‘‘(A) agrees to assume all or part of the re2 sponsibilities of the Federal agency described in 

3 subparagraphs (A) and (C) of subsection (b)(2); 

4 ‘‘(B) expressly consents, on behalf of the 

5 State, to accept the jurisdiction of the Federal 

6 courts for the compliance, discharge, and en7 forcement of any responsibility of the Federal 

8 agency assumed by the State; 

9 ‘‘(C) certifies that State laws (including 

10 regulations) are in effect that— 

11 ‘‘(i) authorize the State to take the 

12 actions necessary to carry out the respon13 sibilities being assumed; and 

14 ‘‘(ii) are comparable to section 552 of 

15 title 5, including providing that any deci16 sion regarding the public availability of a 

17 document under those State laws is review18 able by a court of competent jurisdiction; 

19 and 

20 ‘‘(D) agrees to maintain the financial re21 sources necessary to carry out the responsibil22 ities being assumed; 

23 ‘‘(4) require the State to provide to the head of 

24 the Federal agency any information the head of the 

25 Federal agency reasonably considers necessary to enVerDate Sep 11 2014 23:03 Aug 09, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4312.IS S4312

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1 sure that the State is adequately carrying out the 

2 responsibilities assigned to the State; 

3 ‘‘(5) have a term of not more than 5 years; and 

4 ‘‘(6) be renewable. 

5 ‘‘(e) JURISDICTION.— 

6 ‘‘(1) IN GENERAL.—The United States district 

7 courts shall have exclusive jurisdiction over any civil 

8 action against a State for failure to carry out any 

9 responsibility of the State under this section. 

10 ‘‘(2) LEGAL STANDARDS AND REQUIRE11 MENTS.—A civil action under paragraph (1) shall be 

12 governed by the legal standards and requirements 

13 that would apply in such a civil action against the 

14 head of a Federal agency had the head of the Fed15 eral agency taken the actions in question. 

16 ‘‘(3) INTERVENTION.—The head of a Federal 

17 agency shall have the right to intervene in any ac18 tion described in paragraph (1). 

19 ‘‘(f) EFFECT OF ASSUMPTION OF RESPONSI20 BILITY.—A State that assumes responsibility under sub21 section (b)(2) shall be solely responsible and solely liable 

22 for carrying out, in lieu of and without further approval 

23 of the head of the Federal agency, the responsibilities as24 sumed under subsection (b)(2), until the agency program 

25 is terminated under subsection (k). 


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1 ‘‘(g) LIMITATIONS ON AGREEMENTS.—Nothing in 

2 this section permits a State to assume any rulemaking au3 thority of the head of a Federal agency under any Federal 

4 law. 

5 ‘‘(h) AUDITS.— 

6 ‘‘(1) IN GENERAL.—To ensure compliance by a 

7 State with any agreement of the State under sub8 section (d) (including compliance by the State with 

9 all Federal laws for which responsibility is assumed 

10 under subsection (b)(2)), for each State partici11 pating in an agency program, the head of a Federal 

12 agency shall— 

13 ‘‘(A) not later than 180 days after the date 

14 of execution of the agreement, meet with the 

15 State to review implementation of the agree16 ment and discuss plans for the first annual 

17 audit; 

18 ‘‘(B) conduct annual audits during each of 

19 the first 4 years of State participation; and 

20 ‘‘(C) ensure that the time period for com21 pleting an annual audit, from initiation to com22 pletion (including public comment and re23 sponses to those comments), does not exceed 

24 180 days. 

25 ‘‘(2) PUBLIC AVAILABILITY AND COMMENT.— 


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1 ‘‘(A) IN GENERAL.—An audit conducted 

2 under paragraph (1) shall be provided to the 

3 public for comment. 

4 ‘‘(B) RESPONSE.—Not later than 60 days 

5 after the date on which the period for public 

6 comment ends, the head of the Federal agency 

7 shall respond to public comments received 

8 under subparagraph (A). 

9 ‘‘(3) AUDIT TEAM.— 

10 ‘‘(A) IN GENERAL.—An audit conducted 

11 under paragraph (1) shall be carried out by an 

12 audit team determined by the head of the Fed13 eral agency, in consultation with the State, in 

14 accordance with subparagraph (B). 

15 ‘‘(B) CONSULTATION.—Consultation with 

16 the State under subparagraph (A) shall include 

17 a reasonable opportunity for the State to review 

18 and provide comments on the proposed mem19 bers of the audit team. 

20 ‘‘(i) MONITORING.—After the fourth year of the par21 ticipation of a State in an agency program, the head of 

22 the Federal agency shall monitor compliance by the State 

23 with the written agreement, including the provision by the 

24 State of financial resources to carry out the written agree25 ment. 


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1 ‘‘(j) REPORT TO CONGRESS.—The head of each Fed2 eral agency shall submit to Congress an annual report that 

3 describes the administration of the agency program. 

4 ‘‘(k) TERMINATION.— 

5 ‘‘(1) TERMINATION BY FEDERAL AGENCY.—The 

6 head of a Federal agency may terminate the partici7 pation of any State in the agency program of the 

8 Federal agency if— 

9 ‘‘(A) the head of the Federal agency deter10 mines that the State is not adequately carrying 

11 out the responsibilities assigned to the State; 

12 ‘‘(B) the head of the Federal agency pro13 vides to the State— 

14 ‘‘(i) a notification of the determina15 tion of noncompliance; 

16 ‘‘(ii) a period of not less than 120 

17 days to take such corrective action as the 

18 head of the Federal agency determines to 

19 be necessary to comply with the applicable 

20 agreement; and 

21 ‘‘(iii) on request of the Governor of 

22 the State, a detailed description of each re23 sponsibility in need of corrective action re24 garding an inadequacy identified under 

25 subparagraph (A); and 


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1 ‘‘(C) the State, after the notification and 

2 period provided under subparagraph (B), fails 

3 to take satisfactory corrective action, as deter4 mined by the head of the Federal agency. 

5 ‘‘(2) TERMINATION BY THE STATE.—A State 

6 may terminate the participation of the State in an 

7 agency program at any time by providing to the 

8 head of the applicable Federal agency a notice by 

9 not later than the date that is 90 days before the 

10 date of termination, and subject to such terms and 

11 conditions as the head of the Federal agency may 

12 provide. 

13 ‘‘(l) CAPACITY BUILDING.—The head of a Federal 

14 agency, in cooperation with representatives of State offi15 cials, may carry out education, training, peer-exchange, 

16 and other initiatives as appropriate— 

17 ‘‘(1) to assist States in developing the capacity 

18 to participate in the agency program of the Federal 

19 agency; and 

20 ‘‘(2) to promote information sharing and col21 laboration among States that are participating in 

22 the agency program of the Federal agency. 

23 ‘‘(m) RELATIONSHIP TO LOCALLY ADMINISTERED

24 PROJECTS.—A State granted authority under an agency 


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1 program may, as appropriate and at the request of a local 

2 government— 

3 ‘‘(1) exercise that authority on behalf of the 

4 local government for a locally administered project; 

5 or 

6 ‘‘(2) provide guidance and training on consoli7 dating and minimizing the documentation and envi8 ronmental analyses necessary for sponsors of a lo9 cally administered project to comply with this title 

10 and any comparable requirements under State law.’’. 

11 (b) CONFORMING AMENDMENT.—Section 327 of title 

12 23, United States Code, is amended— 

13 (1) in subsection (a)(1), by striking ‘‘The Sec14 retary’’ and inserting ‘‘Subject to subsection (m), 

15 the Secretary’’; and 

16 (2) by adding at the end the following: 

17 ‘‘(m) SUNSET.— 

18 ‘‘(1) IN GENERAL.—Except as provided under 

19 paragraph (2), the authority provided by this section 

20 terminates on the date of enactment of this sub21 section. 

22 ‘‘(2) EXISTING AGREEMENTS.—Subject to the 

23 requirements of this section, the Secretary may con24 tinue to enforce any agreement entered into under 


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1 this section before the date of enactment of this sub2 section.’’. 

Æ 


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