19–008 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 112–446 

PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 4348) TO PROVIDE AN 

EXTENSION OF FEDERAL-AID HIGHWAY, HIGHWAY SAFETY, MOTOR 

CARRIER SAFETY, TRANSIT, AND OTHER PROGRAMS FUNDED OUT OF 

THE HIGHWAY TRUST FUND PENDING ENACTMENT OF A MULTIYEAR 

LAW REAUTHORIZING SUCH PROGRAMS, AND FOR OTHER PURPOSES 

APRIL 17, 2012.—Referred to the House Calendar and ordered to be printed 

Ms. FOXX, from the Committee on Rules, 

submitted the following 

R E P O R T 

[To accompany H. Res. 619] 

The Committee on Rules, having had under consideration House 

Resolution 619, by a record vote of 7 to 3, report the same to the 

House with the recommendation that the resolution be adopted. 

SUMMARY OF PROVISIONS OF THE RESOLUTION

The resolution provides for consideration of H.R. 4348, the Surface Transportation Extension Act of 2012, Part II, under a structured rule. The resolution provides one hour of general debate 

equally divided and controlled by the chair and ranking minority 

member of the Committee on Transportation and Infrastructure. 

The resolution waives all points of order against consideration of 

the bill. The resolution provides that the bill shall be considered as 

read. The resolution waives all points of order against provisions 

in the bill. The resolution makes in order only those amendments 

printed in this report. Each such amendment may be offered only 

in the order printed in this report, may be offered only by a Member designated in this report, shall be considered as read, shall be 

debatable for the time specified in this report equally divided and 

controlled by the proponent and an opponent, shall not be subject 

to amendment, and shall not be subject to a demand for division 

of the question in the House or in the Committee of the Whole. The 

resolution waives all points of order against the amendments printed in this report. Finally, the resolution provides one motion to recommit with or without instructions. 

EXPLANATION OF WAIVERS

Although the resolution waives all points of order against consideration of the bill, the Committee is not aware of any points of 

order. The waiver is prophylactic in nature. 


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Although the resolution waives all points of order against provisions in the bill, the Committee is not aware of any points of order. 

The waiver is prophylactic in nature. 

Although the resolution waives all points of order against the 

amendments printed in this report, the Committee is not aware of 

any points of order. The waiver is prophylactic in nature. 

COMMITTEE VOTES

The results of each record vote on an amendment or motion to 

report, together with the names of those voting for and against, are 

printed below: 

Rules Committee record vote No. 211 

Motion by Mr. McGovern to make in order and provide the appropriate waivers for amendment #3, offered by Rep. McGovern 

(MA), which would reduce the federal deficit by $40 billion by 

eliminating subsidies to oil companies. Defeated: 3–7. 

Majority Members Vote Minority Members Vote 

Mr. Sessions ..................................................... Nay Mr. McGovern ................................................... Yea 

Ms. Foxx ............................................................ Nay Mr. Hastings of Florida .................................... Yea 

Mr. Woodall ....................................................... Nay Mr. Polis ........................................................... Yea 

Mr. Nugent ........................................................ Nay 

Mr. Scott of South Carolina ............................. Nay 

Mr. Webster ...................................................... Nay 

Mr. Dreier, Chairman ........................................ Nay 

Rules Committee record vote No. 212 

Motion by Mr. Hastings of Florida to make in order and provide 

the appropriate waivers for amendment #1, offered by Rep. Rahall 

II (WV), Rep. Bishop (NY), Rep. Brown (FL) and Rep. DeFazio 

(OR), which would provide a total of $109 billion in funding for FY 

2012 and FY 2013 for reformed and restructured Federal highway, 

highway safety, and public transportation programs. Would fully 

pay for the highway, transit, and highway safety programs authorized by the bill in FY 2012 and 2013, and allows the USDOT to 

maintain a positive balance in both the highway and transit accounts of the Trust Fund at the end of the bill. Defeated: 3–7. 

Majority Members Vote Minority Members Vote 

Mr. Sessions ..................................................... Nay Mr. McGovern ................................................... Yea 

Ms. Foxx ............................................................ Nay Mr. Hastings of Florida .................................... Yea 

Mr. Woodall ....................................................... Nay Mr. Polis ........................................................... Yea 

Mr. Nugent ........................................................ Nay 

Mr. Scott of South Carolina ............................. Nay 

Mr. Webster ...................................................... Nay 

Mr. Dreier, Chairman ........................................ Nay 

Rules Committee record vote No. 213 

Motion by Ms. Foxx to report the rule. Adopted: 7–3. 


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Majority Members Vote Minority Members Vote 

Mr. Sessions ..................................................... Yea Mr. McGovern ................................................... Nay 

Ms. Foxx ............................................................ Yea Mr. Hastings of Florida .................................... Nay 

Mr. Woodall ....................................................... Yea Mr. Polis ........................................................... Nay 

Mr. Nugent ........................................................ Yea 

Mr. Scott of South Carolina ............................. Yea 

Mr. Webster ...................................................... Yea 

Mr. Dreier, Chairman ........................................ Yea 

SUMMARY OF THE AMENDMENTS MADE IN ORDER

1. Boustany (LA): Would include a guarantee that requires that 

the total amount available for spending from the Harbor Maintenance Trust Fund (HMTF) each fiscal year be equal to the Trust 

Fund receipts as estimated by the President’s budget for that year. 

(10 minutes) 

2. Ribble (WI): Would add to the bill the environmental streamlining provisions from Title III of the American Energy and Infrastructure Jobs Act (H.R. 7). (10 minutes) 

3. McKinley (WV): Would insert the text of H.R. 2273, Coal Residuals Reuse and Management Act. Would leave regulation and 

enforcement of coal combustion residuals to the states, and utilize 

the existing framework and requirements of federal regulatory programs for those states to follow. (10 minutes) 

TEXT OF AMENDMENTS MADE IN ORDER

1. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE BOUSTANY

JR. OF LOUISIANA OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

At the end of the bill, add the following (and conform the table 

of contents of the bill accordingly): 

TITLE IV—HARBOR MAINTENANCE 

PROGRAMS 

SEC. 401. FUNDING FOR HARBOR MAINTENANCE PROGRAMS. 

(a) HARBOR MAINTENANCE TRUST FUND GUARANTEE.— 

(1) IN GENERAL.—The total budget resources for a fiscal year 

shall be equal to the level of receipts for harbor maintenance 

for that fiscal year. Such amounts shall be used only for harbor 

maintenance programs. 

(2) GUARANTEE.—No funds may be appropriated for harbor 

maintenance programs unless the amount under paragraph (1) 

has been provided for all such programs. 

(b) DEFINITIONS.—In this section, the following definitions apply: 

(1) HARBOR MAINTENANCE PROGRAMS.—The term ‘‘harbor 

maintenance programs’’ means expenditures under section 

9505(c)(1) of the Internal Revenue Code of 1986 (relating to expenditures from the Harbor Maintenance Trust Fund). 

(2) LEVEL OF RECEIPTS FOR HARBOR MAINTENANCE.—The 

term ‘‘level of receipts for harbor maintenance’’ means the level 

of taxes credited to the Harbor Maintenance Trust Fund under 

section 9505(a)(1) of the Internal Revenue Code of 1986 for a 

fiscal year as set forth in the President’s budget baseline proVerDate Mar 15 2010 06:23 Apr 18, 2012 Jkt 019008 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR446.XXX HR446

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jection as defined in section 257 of the Balanced Budget and 

Emergency Deficit Control Act of 1985 (Public Law 99–177) for 

that fiscal year submitted pursuant to section 1105 of title 31, 

United States Code, reduced by the amount requested in such 

President’s budget for payments described in section 9505(c)(3) 

of the Internal Revenue Code of 1986. 

(3) TOTAL BUDGET RESOURCES.—The term ‘‘total budget resources’’ means the total amount made available by appropriations Acts from the Harbor Maintenance Trust Fund for a fiscal year for making expenditures under section 9505(c)(1) of 

the Internal Revenue Code of 1986. 

————— 

2. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE RIBBLE OF

WISCONSIN OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

At the end of the bill, add the following (and conform the table 

of contents of the bill accordingly): 

TITLE IV—ENVIRONMENTAL 

STREAMLINING 

SEC. 401. AMENDMENTS TO TITLE 23, UNITED STATES CODE. 

Except as otherwise expressly provided, whenever in this title an 

amendment or repeal is expressed in terms of an amendment to, 

or a repeal of, a section or other provision, the reference shall be 

considered to be made to a section or other provision of title 23, 

United States Code. 

SEC. 402. DECLARATION OF POLICY. 

(a) EXPEDITED PROJECT DELIVERY.—Section 101(b) is amended by 

adding at the end the following: 

‘‘(4) EXPEDITED PROJECT DELIVERY.—Congress declares that 

it is in the national interest to expedite the delivery of surface 

transportation projects by substantially reducing the average 

length of the environmental review process. Accordingly, it is 

the policy of the United States that— 

‘‘(A) the Secretary shall have the lead role among Federal agencies in carrying out the environmental review 

process for surface transportation projects; 

‘‘(B) each Federal agency shall cooperate with the Secretary to expedite the environmental review process for 

surface transportation projects; 

‘‘(C) there shall be a presumption that the mode, facility 

type, and corridor location for a surface transportation 

project will be determined in the transportation planning 

process, as established in sections 134 and 135 and sections 5303 and 5304 of title 49; 

‘‘(D) project sponsors shall not be prohibited from carrying out pre-construction project development activities 

concurrently with the environmental review process; 

‘‘(E) programmatic approaches shall be used, to the maximum extent possible, to reduce the need for project-byproject reviews and decisions by Federal agencies; and 


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‘‘(F) the Secretary shall actively support increased opportunities for project sponsors to assume responsibilities of 

the Secretary in carrying out the environmental review 

process.’’. 

SEC. 403. EXEMPTION IN EMERGENCIES. 

If any road, highway, or bridge is in operation or under construction when damaged by an emergency declared by the Governor of 

the State and concurred in by the Secretary, or declared by the 

President pursuant to the Robert T. Stafford Disaster Relief and 

Emergency Assistance Act (42 U.S.C. 5121), and is reconstructed in 

the same location with the same capacity, dimensions, and design 

as before the emergency, then that reconstruction project shall be 

exempt from any further environmental reviews, approvals, licensing, and permit requirements under— 

(1) the National Environmental Policy Act of 1969 (42 U.S.C. 

4321 et seq.); 

(2) sections 402 and 404 of the Federal Water Pollution Control Act (33 U.S.C. 1342, 1344); 

(3) the National Historic Preservation Act (16 U.S.C. 470 et 

seq.); 

(4) the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.); 

(5) the Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.); 

(6) the Fish and Wildlife Coordination Act (16 U.S.C. 661 et 

seq.); 

(7) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 

seq.), except when the reconstruction occurs in designated critical habitat for threatened and endangered species; 

(8) Executive Order 11990 (42 U.S.C. 4321 note; relating to 

the protection of wetlands); and 

(9) any Federal law (including regulations) requiring no net 

loss of wetlands. 

SEC. 404. ADVANCE ACQUISITION OF REAL PROPERTY INTERESTS. 

(a) REAL PROPERTY INTERESTS.—Section 108 is amended— 

(1) by striking ‘‘real property’’ each place it appears and inserting ‘‘real property interests’’; 

(2) by striking ‘‘right-of-way’’ each place it appears and inserting ‘‘real property interest’’; and 

(3) by striking ‘‘rights-of-way’’ each place it appears and inserting ‘‘real property interests’’. 

(b) STATE-FUNDED EARLY ACQUISITION OF REAL PROPERTY INTERESTS.—Section 108(c) is amended— 

(1) in the subsection heading by striking ‘‘EARLY ACQUISITION OF RIGHTS-OF-WAY’’ and inserting ‘‘STATE-FUNDED EARLY

ACQUISITION OF REAL PROPERTY INTERESTS’’; 

(2) by redesignating paragraphs (1) and (2) as paragraphs (2) 

and (3), respectively; 

(3) in paragraph (2), as redesignated— 

(A) in the heading by striking ‘‘GENERAL RULE’’ and inserting ‘‘ELIGIBILITY FOR REIMBURSEMENT’’; and 

(B) by striking ‘‘Subject to paragraph (2)’’ and inserting 

‘‘Subject to paragraph (3)’’; 

(4) by inserting before paragraph (2), as redesignated, the 

following: 


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‘‘(1) IN GENERAL.—A State may carry out, at the expense of 

the State, acquisitions of interests in real property for a project 

before completion of the review process required for the project 

under the National Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.) without affecting subsequent approvals required for the project by the State or any Federal agency.’’; and 

(5) in paragraph (3), as redesignated— 

(A) in the matter preceding subparagraph (A) by striking 

‘‘in paragraph (1)’’ and inserting ‘‘in paragraph (2)’’; and 

(B) in subparagraph (G) by striking ‘‘both the Secretary 

and the Administrator of the Environmental Protection 

Agency have concurred’’ and inserting ‘‘the Secretary has 

determined’’. 

(c) FEDERALLY FUNDED ACQUISITION OF REAL PROPERTY INTERESTS.—Section 108 is further amended by adding at the end the following: 

‘‘(d) FEDERALLY FUNDED EARLY ACQUISITION OF REAL PROPERTY

INTERESTS.— 

‘‘(1) IN GENERAL.—The Secretary may authorize the use of 

Federal funds for the acquisition of a real property interest by 

a State. For purposes of this subsection, an acquisition of a 

real property interest includes the acquisition of any interest 

in land, including the acquisition of a contractual right to acquire any interest in land, or any other similar action to acquire or preserve rights-of-way for a transportation facility. 

‘‘(2) STATE CERTIFICATION.—A State requesting Federal funding for an acquisition of a real property interest shall certify 

in writing that— 

‘‘(A) the State has authority to acquire the real property 

interest under State law; 

‘‘(B) the acquisition of the real property interest is for a 

transportation purpose; and 

‘‘(C) the State acknowledges that early acquisition will 

not be considered by the Secretary in the environmental 

assessment of a project, the decision relative to the need 

to construct a project, or the selection of a project design 

or location. 

‘‘(3) ENVIRONMENTAL COMPLIANCE.—Before authorizing Federal funding for an acquisition of a real property interest, the 

Secretary shall complete for the acquisition the review process 

under the National Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.). For purposes of the review process, the acquisition of a real property interest shall be treated as having 

independent utility and does not limit consideration of alternatives for future transportation improvements with respect to 

the real property interest. 

‘‘(4) PROGRAMMING.—The acquisition of a real property interest for which Federal funding is requested shall be included as 

a project in an applicable transportation improvement program 

under sections 134 and 135 and sections 5303 and 5304 of title 

49. The acquisition project may be included in the transportation improvement program on its own, without including the 

future construction project for which the real property interest 

is being acquired. The acquisition project may consist of the acVerDate Mar 15 2010 06:23 Apr 18, 2012 Jkt 019008 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR446.XXX HR446

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quisition of a specific parcel, a portion of a transportation corridor, or an entire transportation corridor. 

‘‘(5) OTHER REQUIREMENTS.—The acquisition of a real property interest shall be carried out in compliance with all requirements applicable to the acquisition of real property interests for federally funded transportation projects. 

‘‘(e) CONSIDERATION OF LONG-RANGE TRANSPORTATION NEEDS.— 

The Secretary shall encourage States and other public authorities, 

if practicable, to acquire transportation real property interests that 

are sufficient to accommodate long-range transportation needs and, 

if possible, to do so through the acquisition of broad real property 

interests that have the capacity for expansion over a 50- to 100- 

year period and the potential to accommodate one or more transportation modes.’’. 

SEC. 405. STANDARDS. 

Section 109 is amended by adding at the end the following: 

‘‘(r) UNDERTAKING DESIGN ACTIVITIES BEFORE COMPLETION OF

ENVIRONMENTAL REVIEW PROCESS.— 

‘‘(1) IN GENERAL.—A State may carry out, at the expense of 

the State, design activities at any level of detail for a project 

before completion of the review process required for the project 

under the National Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.) without affecting subsequent approvals of 

the project. 

‘‘(2) ELIGIBILITY FOR REIMBURSEMENT.—Subject to paragraph 

(3), funds apportioned to a State under this title may be used 

to participate in the payment of costs incurred by the State for 

design activities, if the results of the activities are subsequently incorporated (in whole or in substantial part) into a 

project eligible for surface transportation program funds. 

‘‘(3) TERMS AND CONDITIONS.—The Federal share payable of 

the costs described in paragraph (2) shall be eligible for reimbursement out of funds apportioned to a State under this title 

when the design activities are incorporated (in whole or in substantial part) into a project eligible for surface transportation 

program funds, if the State demonstrates to the Secretary and 

the Secretary finds that— 

‘‘(A) before the time that the cost incurred by a State is 

approved for Federal participation, environmental compliance pursuant to the National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.) has been completed for the 

project for which the design activities were conducted by 

the State; and 

‘‘(B) the design activities conducted pursuant to this subsection did not preclude the consideration of alternatives 

to the project.’’. 

SEC. 406. LETTING OF CONTRACTS. 

(a) BIDDING REQUIREMENTS.—Section 112(b)(1) is amended to 

read as follows: 

‘‘(1) IN GENERAL.— ‘‘(A) COMPETITIVE BIDDING REQUIREMENT.—Subject to 

paragraphs (2), (3), and (4), construction of each project, 

subject to the provisions of subsection (a), shall be performed by contract awarded by competitive bidding, unless 


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the State transportation department demonstrates, to the 

satisfaction of the Secretary, that some other method is 

more cost effective or that an emergency exists. 

‘‘(B) BASIS OF AWARD.— 

‘‘(i) IN GENERAL.—Contracts for the construction of 

each project shall be awarded only on the basis of the 

lowest responsive bid submitted by a bidder meeting 

established criteria of responsibility. 

‘‘(ii) PROHIBITION.—No requirement or obligation 

shall be imposed as a condition precedent to the award 

of a contract to such bidder for a project, or to the Secretary’s concurrence in the award of a contract to such 

bidder, unless such requirement or obligation is otherwise lawful and is specifically set forth in the advertised specifications.’’. 

(b) DESIGN-BUILD CONTRACTING.—Section 112(b)(3) is amended— 

(1) in subparagraph (A) by striking ‘‘subparagraph (C)’’ and 

inserting ‘‘subparagraph (B)’’; 

(2) by striking subparagraph (B); 

(3) by redesignating subparagraphs (C) through (E) as subparagraphs (B) through (D), respectively; and 

(4) in subparagraph (C), as redesignated— 

(A) in the matter preceding clause (i) by striking ‘‘of the 

SAFETEA-LU’’ and inserting ‘‘of the Surface Transportation Extension Act of 2012, Part II’’; 

(B) in clause (ii) by striking ‘‘and’’ at the end; 

(C) in clause (iii)— 

(i) by striking ‘‘final design or’’; and 

(ii) by striking the period at the end and inserting 

‘‘; and’’; and 

(D) by adding at the end the following: 

‘‘(iv) permit the State transportation department, 

the local transportation agency, and the design-build 

contractor to proceed, at the expense of one or more of 

those entities, with design activities at any level of detail for a project before completion of the review process required for the project under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 

without affecting subsequent approvals required for 

the project. Design activities carried out under this 

clause shall be eligible for Federal reimbursement as 

a project expense in accordance with the requirements 

under section 109(r).’’. 

(c) EFFICIENCIES IN CONTRACTING.—Section 112(b) is amended by 

adding at the end the following: 

‘‘(4) METHOD OF CONTRACTING.— 

‘‘(A) IN GENERAL.— 

‘‘(i) TWO-PHASE CONTRACT.—A contracting agency 

may award a two-phase contract for preconstruction 

and construction services. 

‘‘(ii) PRE-CONSTRUCTION SERVICES PHASE.—In the 

pre-construction services phase, the contractor shall 

provide the contracting agency with advice for scheduling, work sequencing, cost engineering, 


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constructability, cost estimating, and risk identification. 

‘‘(iii) AGREEMENT.—Prior to the start of the construction services phase, the contracting agency and the 

contractor may agree to a price and other factors specified in regulation for the construction of the project or 

a portion of the project. 

‘‘(iv) CONSTRUCTION PHASE.—If an agreement is 

reached under clause (iii), the contractor shall be responsible for the construction of the project or portion 

of the project at the negotiated price and other factors 

specified in regulation. 

‘‘(B) SELECTION.—A contract shall be awarded to a contractor using a competitive selection process based on 

qualifications, experience, best value, or any other combination of factors considered appropriate by the contracting agency. 

‘‘(C) TIMING.— ‘‘(i) RELATIONSHIP TO NEPA PROCESS.—Prior to the 

completion of the process required under section 102 

of the National Environmental Policy Act of 1969 (42 

U.S.C. 4332), a contracting agency may— 

‘‘(I) issue requests for proposals; 

‘‘(II) proceed with the award of a contract for 

preconstruction services under subparagraph (A); 

and 

‘‘(III) issue notices to proceed with a preliminary 

design and any work related to preliminary design. 

‘‘(ii) PRECONSTRUCTION SERVICES PHASE.—If the 

preconstruction services phase of a contract under subparagraph (A)(ii) focuses primarily on one alternative, 

the Secretary shall require that the contract include 

appropriate provisions to achieve the objectives of section 102 of the National Environmental Policy Act of 

1969 (42 U.S.C. 4332) and comply with other applicable Federal laws and regulations. 

‘‘(iii) CONSTRUCTION SERVICES PHASE.—A contracting 

agency may not proceed with the award of the construction services phase of a contract under subparagraph (A)(iv) and may not proceed, or permit any consultant or contractor to proceed, with construction 

until completion of the process required under section 

102 of the National Environmental Policy Act of 1969 

(42 U.S.C. 4332). 

‘‘(iv) APPROVAL REQUIREMENT.—Prior to authorizing 

construction activities, the Secretary shall approve the 

contracting agency’s price estimate for the entire 

project, as well as any price agreement with the general contractor for the project or a portion of the 

project. 

‘‘(v) DESIGN ACTIVITIES.—A contracting agency may 

proceed, at its expense, with design activities at any 

level of detail for a project before completion of the review process required for the project under the NaVerDate Mar 15 2010 06:23 Apr 18, 2012 Jkt 019008 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR446.XXX HR446

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tional Environmental Policy Act of 1969 (42 U.S.C. 

4321 et seq.) without affecting subsequent approvals 

required for the project. Design activities carried out 

under this clause shall be eligible for Federal reimbursement as a project expense in accordance with the 

requirements under section 109(r).’’. 

SEC. 407. ELIMINATION OF DUPLICATION IN HISTORIC PRESERVATION REQUIREMENTS. 

(a) PRESERVATION OF PARKLANDS.—Section 138 is amended by 

adding at the end the following: 

‘‘(c) ELIMINATION OF DUPLICATION FOR HISTORIC SITES AND PROPERTIES.—The requirements of this section shall be considered to be 

satisfied for an historic site or property where its treatment has 

been agreed upon in a memorandum of agreement by invited and 

mandatory signatories, including the Advisory Council on Historic 

Preservation, if participating, in accordance with section 106 of the 

National Historic Preservation Act (16 U.S.C. 470f).’’. 

(b) POLICY ON LANDS, WILDLIFE AND WATERFOWL REFUGES, AND

HISTORIC SITES.—Section 303 of title 49, United States Code, is 

amended by adding at the end the following: 

‘‘(e) ELIMINATION OF DUPLICATION FOR HISTORIC SITES AND PROPERTIES.—The requirements of this section shall be considered to be 

satisfied for an historic site or property where its treatment has 

been agreed upon in a memorandum of agreement by invited and 

mandatory signatories, including the Advisory Council on Historic 

Preservation, if participating, in accordance with section 106 of the 

National Historic Preservation Act (16 U.S.C. 470f).’’. 

SEC. 408. FUNDING THRESHOLD. 

Section 139(b) is amended by adding at the end the following: 

‘‘(3) FUNDING THRESHOLD.—The Secretary’s approval of a 

project receiving funds under this title or under chapter 53 of 

title 49 shall not be considered a Federal action for the purposes of the National Environmental Policy Act of 1969 if such 

funds— 

‘‘(A) constitute 15 percent or less of the total estimated 

project costs; or 

‘‘(B) are less than $10,000,000.’’. 

SEC. 409. EFFICIENT ENVIRONMENTAL REVIEWS FOR PROJECT DECISIONMAKING. 

(a) FLEXIBILITY.—Section 139(b) is further amended— 

(1) in paragraph (2) by inserting ‘‘, and any requirements established in this section may be satisfied,’’ after ‘‘exercised’’; 

and 

(2) by adding after paragraph (3), as added by this Act, the 

following: 

‘‘(4) PROGRAMMATIC COMPLIANCE.—At the request of a State, 

the Secretary may modify the procedures developed under this 

section to encourage programmatic approaches and strategies 

with respect to environmental programs and permits (in lieu of 

project-by-project reviews).’’. 

(b) FEDERAL LEAD AGENCY.—Section 139(c) is amended— 

(1) in paragraph (1) by adding at the end the following: ‘‘If 

the project requires approval from more than one modal administration within the Department, the Secretary shall desVerDate Mar 15 2010 06:23 Apr 18, 2012 Jkt 019008 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\HR446.XXX HR446

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ignate a single modal administration to serve as the Federal 

lead agency for the Department in the environmental review 

process for the project.’’; 

(2) in paragraph (3) by inserting ‘‘or other approvals by the 

Secretary’’ after ‘‘chapter 53 of title 49’’; and 

(3) by striking paragraph (5) and inserting the following: 

‘‘(5) ADOPTION AND USE OF DOCUMENTS.—Any environmental 

document prepared in accordance with this subsection shall be 

adopted and used by any Federal agency in making any approval of a project subject to this section as the document required to be completed under the National Environmental Policy Act of 1969.’’. 

(c) PARTICIPATING AGENCIES.— (1) EFFECT OF DESIGNATION.—Section 139(d)(4) is amended 

to read as follows: 

‘‘(4) EFFECT OF DESIGNATION.— ‘‘(A) REQUIREMENT.—A participating agency shall comply 

with the requirements of this section and any schedule established under this section. 

‘‘(B) IMPLICATION.—Designation as a participating agency under this subsection shall not imply that the participating agency— 

‘‘(i) supports a proposed project; or 

‘‘(ii) has any jurisdiction over, or special expertise 

with respect to evaluation of, the project.’’. 

(2) CONCURRENT REVIEWS.—Section 139(d)(7) is amended to 

read as follows: 

‘‘(7) CONCURRENT REVIEWS.—Each participating agency and 

cooperating agency shall— 

‘‘(A) carry out obligations of that agency under other applicable law concurrently, and in conjunction, with the review required under the National Environmental Policy 

Act of 1969 (42 U.S.C. 4321 et seq.); and 

‘‘(B) formulate and implement administrative, policy, 

and procedural mechanisms to enable the agency to ensure 

completion of the environmental review process in a timely, coordinated, and environmentally responsible manner.’’. 

(d) PROJECT INITIATION.—Section 139(e) is amended by adding at 

the end the following: ‘‘The project sponsor may satisfy this requirement by submitting to the Secretary a draft notice for publication in the Federal Register announcing the preparation of an environmental impact statement for the project.’’. 

(e) ALTERNATIVES ANALYSIS.—Section 139(f) is amended— 

(1) in paragraph (4)— 

(A) by amending subparagraph (B) to read as follows 

‘‘(B) RANGE OF ALTERNATIVES.— 

‘‘(i) IN GENERAL.—Following participation under 

paragraph (1), the lead agency shall determine the 

range of alternatives for consideration in any document which the lead agency is responsible for preparing for the project. 

‘‘(ii) LIMITATION.—The range of alternatives shall be 

limited to alternatives that are consistent with the 

transportation mode and general design of the project 

described in the long-range transportation plan or 


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transportation improvement program prepared pursuant to section 134 or 135 or section 5303 or 5304 of 

title 49. 

‘‘(iii) RESTRICTION.—A Federal agency may not require the evaluation of any alternative that was evaluated, but not adopted— 

‘‘(I) in any prior State or Federal environmental 

document with regard to the applicable long-range 

transportation plan or transportation improvement program; or 

‘‘(II) after the preparation of a programmatic or 

tiered environmental document that evaluated alternatives to the project. 

‘‘(iv) LEGAL SUFFICIENCY.—The evaluation of the 

range of alternatives shall be deemed legally sufficient 

if the environmental document complies with the requirements of this paragraph.’’; 

(B) in subparagraph (C)— 

(i) by striking ‘‘(C) METHODOLOGIES.—The lead 

agency’’ and inserting the following: 

‘‘(C) METHODOLOGIES.— 

‘‘(i) IN GENERAL.—The lead agency’’; 

(ii) by striking ‘‘in collaboration with participating 

agencies at appropriate times during the study process’’ and inserting ‘‘after consultation with participating agencies as part of the scoping process’’; and 

(iii) by adding at the end the following: 

‘‘(ii) COMMENTS.—Each participating agency shall 

limit comments on such methodologies to those issues 

that are within the authority and expertise of such 

participating agency. 

‘‘(iii) STUDIES.—The lead agency may not conduct 

studies proposed by any participating agency that are 

not within the authority or expertise of such participating agency.’’; and 

(C) by adding at the end the following: 

‘‘(E) LIMITATIONS ON THE EVALUATION OF IMPACTS EVALUATED IN PRIOR ENVIRONMENTAL DOCUMENTS.— 

‘‘(i) IN GENERAL.—The lead agency may not reevaluate, and a Federal agency may not require the reevaluation of, cumulative impacts or growth-inducing 

impacts where such impacts were previously evaluated 

in— 

‘‘(I) a long-range transportation plan or transportation improvement program developed pursuant to section 134 or 135 or section 5303 or 5304 

of title 49; 

‘‘(II) a prior environmental document approved 

by the Secretary; or 

‘‘(III) a prior State environmental document approved pursuant to a State law that is substantially equivalent to section 102(2)(C) of the National Environmental Policy Act of 1969 (42 

U.S.C. 4332(2)(C)). 


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‘‘(ii) LEGAL SUFFICIENCY.—The evaluation of cumulative impacts and growth inducing impacts shall be 

deemed legally sufficient if the environmental document complies with the requirements of this paragraph.’’; and 

(2) by adding at the end the following: 

‘‘(5) EFFECTIVE DECISIONMAKING.— ‘‘(A) CONCURRENCE.—At the discretion of the lead agency, a participating agency shall be presumed to concur in 

the determinations made by the lead agency under this 

subsection unless the participating agency submits an objection to the lead agency in writing within 30 days after 

receiving notice of the lead agency’s determination and 

specifies the statutory basis for the objection. 

‘‘(B) ADOPTION OF DETERMINATION.—If the participating 

agency concurs or does not object within the 30-day period, 

the participating agency shall adopt the lead agency’s determination for purposes of any reviews, approvals, or 

other actions taken by the participating agency as part of 

the environmental review process for the project.’’. 

(f) COORDINATION PLAN.—Section 139(g) is amended— 

(1) in paragraph (1)(A) by striking ‘‘project or category of 

projects’’ and inserting ‘‘project, category of projects, or program of projects’’; 

(2) by amending paragraph (3) to read as follows: 

‘‘(3) DEADLINES FOR DECISIONS UNDER OTHER LAWS.— ‘‘(A) PRIOR APPROVAL DEADLINE.—If a participating agency is required to make a determination regarding or otherwise approve or disapprove the project prior to the record 

of decision or finding of no significant impact of the lead 

agency, such participating agency shall make such determination or approval not later than 30 days after the lead 

agency publishes notice of the availability of a final environmental impact statement or other final environmental 

document, or not later than such other date that is otherwise required by law, whichever occurs first. 

‘‘(B) OTHER DEADLINES.—With regard to any determination or approval of a participating agency that is not subject to subparagraph (A), each participating agency shall 

make any required determination regarding or otherwise 

approve or disapprove the project not later than 90 days 

after the date that the lead agency approves the record of 

decision or finding of no significant impact for the project, 

or not later than such other date that is otherwise required by law, whichever occurs first. 

‘‘(C) DEEMED APPROVED.—In the event that any participating agency fails to make a determination or approve or 

disapprove the project within the applicable deadline described in subparagraphs (A) and (B), the project shall be 

deemed approved by such participating agency, and such 

approval shall be deemed to comply with the applicable requirements of Federal law. 

‘‘(D) WRITTEN FINDING.—The Secretary may issue a written finding verifying the approval made in accordance with 

this paragraph.’’; and 


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(3) by striking paragraph (4). 

(g) ISSUE IDENTIFICATION AND RESOLUTION.—Section 139(h)(4) is 

amended by adding at the end the following: 

‘‘(C) RESOLUTION FINAL.— ‘‘(i) IN GENERAL.—The lead agency and participating 

agencies may not reconsider the resolution of any 

issue agreed to by the relevant agencies in a meeting 

under subparagraph (A). 

‘‘(ii) COMPLIANCE WITH APPLICABLE LAW.—Any such 

resolution shall be deemed to comply with applicable 

law notwithstanding that the agencies agreed to such 

resolution prior to the approval of the environmental 

document.’’. 

(h) STREAMLINED DOCUMENTATION AND DECISIONMAKING.—Section 139 is amended— 

(1) by redesignating subsections (i) through (l) as subsections 

(k) through (n), respectively; and 

(2) by inserting after subsection (h) the following: 

‘‘(i) STREAMLINED DOCUMENTATION AND DECISIONMAKING.— ‘‘(1) IN GENERAL.—The lead agency in the environmental review process for a project, in order to reduce paperwork and 

expedite decisionmaking, shall prepare a condensed final environmental impact statement. 

‘‘(2) CONDENSED FORMAT.—A condensed final environmental 

impact statement for a project in the environmental review 

process shall consist only of— 

‘‘(A) an incorporation by reference of the draft environmental impact statement; 

‘‘(B) any updates to specific pages or sections of the draft 

environmental impact statement as appropriate; and 

‘‘(C) responses to comments on the draft environmental 

impact statement and copies of the comments. 

‘‘(3) TIMING OF DECISION.—Notwithstanding any other provision of law, in conducting the environmental review process for 

a project, the lead agency shall combine a final environmental 

impact statement and a record of decision for the project into 

a single document if— 

‘‘(A) the alternative approved in the record of decision is 

either a preferred alternative that was identified in the 

draft environmental impact statement or is a modification 

of such preferred alternative that was developed in response to comments on the draft environmental impact 

statement; 

‘‘(B) the Secretary has received a certification from a 

State under section 128, if such a certification is required 

for the project; and 

‘‘(C) the Secretary determines that the lead agency, participating agency, or the project sponsor has committed to 

implement the measures applicable to the approved alternative that are identified in the final environmental impact statement. 

‘‘(j) SUPPLEMENTAL ENVIRONMENTAL REVIEW AND RE-EVALUA- TION.— 

‘‘(1) SUPPLEMENTAL ENVIRONMENTAL REVIEW.—After the approval of a record of decision or finding of no significant impact 


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with regard to a project, an agency may not require the preparation of a subsequent environmental document for such 

project unless the lead agency determines that— 

‘‘(A) changes to the project will result in new significant 

impacts that were not evaluated in the environmental document; or 

‘‘(B) new information has become available or changes in 

circumstances have occurred after the lead agency approval of the project that will result in new significant impacts that were not evaluated in the environmental document. 

‘‘(2) RE-EVALUATIONS.—The Secretary may only require the 

re-evaluation of a document prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) if— 

‘‘(A) the Secretary determines that the events in paragraph (1)(A) or (1)(B) apply; and 

‘‘(B) more than 5 years has elapsed since the Secretary’s 

prior approval of the project or authorization of project 

funding. 

‘‘(3) CHANGE TO RECORD OF DECISION.—After the approval of 

a record of decision, the Secretary may not require the record 

of decision to be changed solely because of a change in the fiscal circumstances surrounding the project.’’. 

(i) REGULATIONS.—Section 139(m) (as redesignated by subsection 

(h)(1) of this section) is further amended to read as follows: 

‘‘(m) REGULATIONS.— ‘‘(1) IN GENERAL.—Not later than 1 year after the date of enactment of the Surface Transportation Extension Act of 2012, 

Part II, the Secretary, by regulation, shall— 

‘‘(A) implement this section; and 

‘‘(B) establish methodologies and procedures for evaluating the environmental impacts, including cumulative impacts and growth-inducing impacts, of transportation 

projects subject to this section. 

‘‘(2) COMPLIANCE WITH APPLICABLE LAW.—Any environmental 

document that utilizes the methodologies and procedures established under this subsection shall be deemed to comply with 

the applicable requirements of— 

‘‘(A) the National Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.) or its implementing regulations; or 

‘‘(B) any other Federal environmental statute applicable 

to transportation projects.’’. 

SEC. 410. DISPOSAL OF HISTORIC PROPERTIES. 

(a) DISPOSAL OF HISTORIC PROPERTIES.—Section 156 is amended— 

(1) by striking the section heading and inserting ‘‘Sale or 

lease of real property’’; and 

(2) by adding at the end the following: 

‘‘(d) ASSESSMENT OF ADVERSE EFFECTS.—Notwithstanding part 

800 of title 36, Code of Federal Regulations, the sale or lease by 

a State of any historic property that is not listed in the National 

Register of Historic Places shall not be considered an adverse effect 

to the property within any consultation process carried out under 

section 106 of the National Historic Preservation Act (16 U.S.C. 

470f).’’. 


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(b) CLERICAL AMENDMENT.—The analysis for chapter 1 is amended by striking the item relating to section 156 and inserting the following: 

‘‘156. Sale or lease of real property.’’. 

SEC. 411. INTEGRATION OF PLANNING AND ENVIRONMENTAL REVIEW. 

(a) IN GENERAL.—Chapter 1 is amended by adding at the end the 

following: 

‘‘§ 167. Integration of planning and environmental review 

‘‘(a) DEFINITIONS.—In this section, the following definitions 

apply: 

‘‘(1) ENVIRONMENTAL REVIEW PROCESS.— 

‘‘(A) IN GENERAL.—The term ‘environmental review process’ means the process for preparing for a project an environmental impact statement, environmental assessment, 

categorical exclusion, or other document prepared under 

the National Environmental Policy Act of 1969 (42 U.S.C. 

4321 et seq.). 

‘‘(B) INCLUSIONS.—The term ‘environmental review process’ includes the process for and completion of any environmental permit, approval, review, or study required for a 

project under any Federal law other than the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). 

‘‘(2) PLANNING PRODUCT.—The term ‘planning product’ means 

any decision, analysis, study, or other documented result of an 

evaluation or decisionmaking process carried out during transportation planning. 

‘‘(3) PROJECT.—The term ‘project’ means any highway project 

or program of projects, public transportation capital project or 

program of projects, or multimodal project or program of 

projects that requires the approval of the Secretary. 

‘‘(4) PROJECT SPONSOR.—The term ‘project sponsor’ means 

the agency or other entity, including any private or public-private entity, that seeks approval of the Secretary for a project. 

‘‘(b) PURPOSE AND FINDINGS.— 

‘‘(1) PURPOSE.—The purpose of this section is to establish the 

authority and provide procedures for achieving integrated 

planning and environmental review processes to— 

‘‘(A) enable statewide and metropolitan planning processes to more effectively serve as the foundation for project 

decisions; 

‘‘(B) foster better decisionmaking; 

‘‘(C) reduce duplication in work; 

‘‘(D) avoid delays in transportation improvements; and 

‘‘(E) better transportation and environmental results for 

communities and the United States. 

‘‘(2) FINDINGS.—Congress finds the following: 

‘‘(A) This section is consistent with and is adopted in furtherance of sections 101 and 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 and 4332) and 

section 109 of this title. 

‘‘(B) This section should be broadly construed and may 

be applied to any project, class of projects, or program of 


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projects carried out under this title or chapter 53 of title 

49. 

‘‘(c) ADOPTION OF PLANNING PRODUCTS FOR USE IN NEPA PRO- CEEDINGS.— ‘‘(1) IN GENERAL.—Notwithstanding any other provision of 

law and subject to the conditions set forth in subsection (e), the 

Federal lead agency for a project, at the request of the project 

sponsors, may adopt and use a planning product in proceedings 

relating to any class of action in the environmental review 

process of the project. 

‘‘(2) PARTIAL ADOPTION OF PLANNING PRODUCTS.—The Federal lead agency may adopt a planning product under paragraph (1) in its entirety or may select portions for adoption. 

‘‘(3) TIMING.—A determination under paragraph (1) with respect to the adoption of a planning product shall be made at 

the time the lead agencies decide the appropriate scope of environmental review for the project. 

‘‘(d) APPLICABILITY.— ‘‘(1) PLANNING DECISIONS.—Planning decisions that may be 

adopted pursuant to this section include— 

‘‘(A) a purpose and need or goals and objectives statement for the project, including with respect to whether 

tolling, private financial assistance, or other special financial measures are necessary to implement the project; 

‘‘(B) a decision with respect to travel corridor location, 

including project termini; 

‘‘(C) a decision with respect to modal choice, including a 

decision to implement corridor or subarea study recommendations to advance different modal solutions as separate projects with independent utility; 

‘‘(D) a decision with respect to the elimination of unreasonable alternatives and the selection of the range of reasonable alternatives for detailed study during the environmental review process; 

‘‘(E) a basic description of the environmental setting; 

‘‘(F) a decision with respect to methodologies for analysis; and 

‘‘(G) identifications of programmatic level mitigation for 

potential impacts that the Federal lead agency, in consultation with Federal, State, local, and tribal resource 

agencies, determines are most effectively addressed at a 

regional or national program level, including— 

‘‘(i) system-level measures to avoid, minimize, or 

mitigate impacts of proposed transportation investments on environmental resources, including regional 

ecosystem and water resources; and 

‘‘(ii) potential mitigation activities, locations, and investments. 

‘‘(2) PLANNING ANALYSES.—Planning analyses that may be 

adopted pursuant to this section include studies with respect 

to— 

‘‘(A) travel demands; 

‘‘(B) regional development and growth; 

‘‘(C) local land use, growth management, and development; 


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‘‘(D) population and employment; 

‘‘(E) natural and built environmental conditions; 

‘‘(F) environmental resources and environmentally sensitive areas; 

‘‘(G) potential environmental effects, including the identification of resources of concern and potential cumulative 

effects on those resources, identified as a result of a statewide or regional cumulative effects assessment; and 

‘‘(H) mitigation needs for a proposed action, or for programmatic level mitigation, for potential effects that the 

Federal lead agency determines are most effectively addressed at a regional or national program level. 

‘‘(e) CONDITIONS.—Adoption and use of a planning product under 

this section is subject to a determination by the Federal lead agency, in consultation with joint lead agencies and project sponsors as 

appropriate, that the following conditions have been met: 

‘‘(1) The planning product was developed through a planning 

process conducted pursuant to applicable Federal law. 

‘‘(2) The planning process included broad multidisciplinary 

consideration of systems-level or corridor-wide transportation 

needs and potential effects. 

‘‘(3) During the planning process, notice was provided 

through publication or other means to Federal, State, and local 

government agencies and tribal governments that might have 

an interest in the proposed project, and to members of the general public, of the planning products that the planning process 

might produce and that might be relied on during the environmental review process, and such entities have been provided 

an appropriate opportunity to participate in the planning process leading to such planning product. 

‘‘(4) Prior to determining the scope of environmental review 

for the project, the joint lead agencies have made documentation relating to the planning product available to Federal, 

State, and local governmental agencies and tribal governments 

that may have an interest in the proposed action, and to members of the general public. 

‘‘(5) There is no significant new information or new circumstance that has a reasonable likelihood of affecting the continued validity or appropriateness of the planning product. 

‘‘(6) The planning product is based on reliable and reasonably current data and reasonable and scientifically acceptable 

methodologies. 

‘‘(7) The planning product is documented in sufficient detail 

to support the decision or the results of the analysis and to 

meet requirements for use of the information in the environmental review process. 

‘‘(8) The planning product is appropriate for adoption and 

use in the environmental review process for the project. 

‘‘(f) EFFECT OF ADOPTION.—Notwithstanding any other provision 

of law, any planning product adopted by the Federal lead agency 

in accordance with this section shall not be reconsidered or made 

the subject of additional interagency consultation during the environmental review process of the project unless the Federal lead 

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mation or new circumstances that affect the continued validity or 

appropriateness of the adopted planning product. Any planning 

product adopted by the Federal lead agency in accordance with this 

section may be relied upon and used by other Federal agencies in 

carrying out reviews of the project. 

‘‘(g) RULE OF CONSTRUCTION.—This section may not be construed 

to make the National Environmental Policy Act of 1969 (42 U.S.C. 

4321 et seq.) process applicable to the transportation planning 

process conducted under chapter 52 of title 49. Initiation of the National Environmental Policy Act of 1969 process as a part of, or 

concurrently with, transportation planning activities does not subject transportation plans and programs to the National Environmental Policy Act of 1969 process. This section may not be construed to affect the use of planning products in the National Environmental Policy Act of 1969 process pursuant to other authorities 

under law or to restrict the initiation of the National Environmental Policy Act of 1969 process during planning.’’. 

(b) CLERICAL AMENDMENT.—The analysis for such chapter is 

amended by adding at end the following: 

‘‘167. Integration of planning and environmental review.’’. 

SEC. 412. DEVELOPMENT OF PROGRAMMATIC MITIGATION PLANS. 

(a) IN GENERAL.—Chapter 1 (as amended by this title) is further 

amended by adding at the end the following: 

‘‘§ 168. Development of programmatic mitigation plans 

‘‘(a) IN GENERAL.—As part of the statewide or metropolitan 

transportation planning process, a State or metropolitan planning 

organization may develop one or more programmatic mitigation 

plans to address the potential environmental impacts of future 

transportation projects. 

‘‘(b) SCOPE.— 

‘‘(1) SCALE.—A programmatic mitigation plan may be developed on a regional, ecosystem, watershed, or statewide scale. 

‘‘(2) RESOURCES.—The plan may encompass multiple environmental resources within a defined geographic area or may 

focus on a specific resource, such as aquatic resources, parklands, or wildlife habitat. 

‘‘(3) PROJECT IMPACTS.—The plan may address impacts from 

all projects in a defined geographic area or may focus on a specific type of project, such as bridge replacements. 

‘‘(4) CONSULTATION.—The scope of the plan shall be determined by the State or metropolitan planning organization, as 

appropriate, in consultation with the agency or agencies with 

jurisdiction over the resources being addressed in the mitigation plan. 

‘‘(c) CONTENTS.—A programmatic mitigation plan may include— 

‘‘(1) an assessment of the condition of environmental resources in the geographic area covered by the plan, including 

an assessment of recent trends and any potential threats to 

those resources; 

‘‘(2) an assessment of potential opportunities to improve the 

overall quality of environmental resources in the geographic 

area covered by the plan, through strategic mitigation for impacts of transportation projects; 


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‘‘(3) standard measures for mitigating certain types of impacts; 

‘‘(4) parameters for determining appropriate mitigation for 

certain types of impacts, such as mitigation ratios or criteria 

for determining appropriate mitigation sites; 

‘‘(5) adaptive management procedures, such as protocols that 

involve monitoring predicted impacts over time and adjusting 

mitigation measures in response to information gathered 

through the monitoring; and 

‘‘(6) acknowledgment of specific statutory or regulatory requirements that must be satisfied when determining appropriate mitigation for certain types of resources. 

‘‘(d) PROCESS.—Before adopting a programmatic mitigation plan, 

a State or metropolitan planning organization shall— 

‘‘(1) consult with the agency or agencies with jurisdiction 

over the environmental resources considered in the programmatic mitigation plan; 

‘‘(2) make a draft of the plan available for review and comment by applicable environmental resource agencies and the 

public; 

‘‘(3) consider any comments received from such agencies and 

the public on the draft plan; and 

‘‘(4) address such comments in the final plan. 

‘‘(e) INTEGRATION WITH OTHER PLANS.—A programmatic mitigation plan may be integrated with other plans, including watershed 

plans, ecosystem plans, species recovery plans, growth management plans, and land use plans. 

‘‘(f) CONSIDERATION IN PROJECT DEVELOPMENT AND PERMITTING.—If a programmatic mitigation plan has been developed pursuant to this section, any Federal agency responsible for environmental reviews, permits, or approvals for a transportation project 

shall give substantial weight to the recommendations in a programmatic mitigation plan when carrying out their responsibilities 

under applicable laws. 

‘‘(g) PRESERVATION OF EXISTING AUTHORITIES.—Nothing in this 

section limits the use of programmatic approaches to reviews under 

the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 

seq.).’’. 

(b) CLERICAL AMENDMENT.—The analysis for such chapter (as 

amended by this title) is further amended by adding at the end the 

following: 

‘‘168. Development of programmatic mitigation plans.’’. 

SEC. 413. STATE ASSUMPTION OF RESPONSIBILITY FOR CATEGORICAL 

EXCLUSIONS. 

Section 326(a) is amended— 

(1) in paragraph (2) by striking ‘‘and only for types of activities specifically designated by the Secretary’’ and inserting 

‘‘and for any type of activity for which a categorical exclusion 

classification is appropriate’’; and 

(2) by adding at the end the following: 

‘‘(4) PRESERVATION OF FLEXIBILITY.—The Secretary shall not 

require a State, as a condition of assuming responsibility under 

this section, to forego project delivery methods that are otherwise permissible for highway projects.’’. 


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SEC. 414. SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM. 

(a) PROGRAM NAME.—Section 327 is amended— 

(1) in the section heading by striking ‘‘pilot’’; and 

(2) in subsection (a)(1) by striking ‘‘pilot’’. 

(b) ASSUMPTION OF RESPONSIBILITY.—Section 327(a)(2) is amended— 

(1) in subparagraph (A) by striking ‘‘highway’’; 

(2) in subparagraph (B) by striking clause (ii) and inserting 

the following: 

‘‘(ii) the Secretary may not assign any responsibility 

imposed on the Secretary by section 134 or 135 or section 5303 or 5304 of title 49.’’; and 

(3) by adding at the end the following: 

‘‘(F) PRESERVATION OF FLEXIBILITY.—The Secretary may 

not require a State, as a condition of participation in the 

program, to forego project delivery methods that are otherwise permissible for projects.’’. 

(c) STATE PARTICIPATION.—Section 327(b) is amended— 

(1) by amending paragraph (1) to read as follows: 

‘‘(1) PARTICIPATING STATES.—All States are eligible to participate in the program.’’; and 

(2) in paragraph (2) by striking ‘‘this section, the Secretary 

shall promulgate’’ and inserting ‘‘amendments to this section 

by the Surface Transportation Extension Act of 2012, Part II, 

the Secretary shall amend, as appropriate,’’. 

(d) WRITTEN AGREEMENT.—Section 327(c) is amended— 

(1) in paragraph (3)(D) by striking the period at the end and 

inserting a semicolon; and 

(2) by adding at the end the following: 

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

‘‘(5) be renewable.’’. 

(e) CONFORMING AMENDMENT.—Section 327(e) is amended by 

striking ‘‘subsection (i)’’ and inserting ‘‘subsection (j)’’. 

(f) AUDITS.—Section 327(g)(1)(B) is amended by striking ‘‘subsequent year’’ and inserting ‘‘of the third and fourth years’’. 

(g) MONITORING.—Section 327 is further amended— 

(1) by redesignating subsections (h) and (i) as subsections (i) 

and (j), respectively; and 

(2) by inserting after subsection (g) the following: 

‘‘(h) MONITORING.—After the fourth year of the participation of a 

State in the 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.’’. 

(h) TERMINATION.—Section 327(j) (as redesignated by subsection 

(g)(1) of this section) is amended to read as follows: 

‘‘(j) TERMINATION.—The Secretary may terminate the participation of any State in the program if— 

‘‘(1) the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State; 

‘‘(2) the Secretary provides to the State— 

‘‘(A) notification of the determination of noncompliance; 

and 


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‘‘(B) a period of at least 30 days during which to take 

such corrective action as the Secretary determines is necessary to comply with the applicable agreement; and 

‘‘(3) the State, after the notification and period provided 

under paragraph (2), fails to take satisfactory corrective action, 

as determined by the Secretary.’’. 

(i) DEFINITIONS.—Section 327 is amended by adding at the end 

the following: 

‘‘(k) DEFINITIONS.—In this section, the following definitions 

apply: 

‘‘(1) MULTIMODAL PROJECT.—The term ‘multimodal project’ 

means a project funded, in whole or in part, under this title 

or chapter 53 of title 49 and involving the participation of more 

than one Department of Transportation administration or 

agency. 

‘‘(2) PROJECT.—The term ‘project’ means any highway 

project, public transportation capital project, or multimodal 

project that requires the approval of the Secretary.’’. 

(j) CLERICAL AMENDMENT.—The analysis for chapter 3 is amended by striking the item relating to section 327 and inserting the following: 

‘‘327. Surface transportation project delivery program.’’. 

SEC. 415. PROGRAM FOR ELIMINATING DUPLICATION OF ENVIRONMENTAL REVIEWS. 

(a) IN GENERAL.—Chapter 3 is amended by adding at the end the 

following: 

‘‘§ 330. Program for eliminating duplication of environmental reviews 

‘‘(a) ESTABLISHMENT.— 

‘‘(1) IN GENERAL.—The Secretary shall establish a program to 

eliminate duplicative environmental reviews and approvals 

under State and Federal law of projects. Under this program, 

a State may use State laws and procedures to conduct reviews 

and make approvals in lieu of Federal environmental laws and 

regulations, consistent with the provisions of this section. 

‘‘(2) PARTICIPATING STATES.—All States are eligible to participate in the program. 

‘‘(3) SCOPE OF ALTERNATIVE REVIEW AND APPROVAL PROCEDURES.—For purposes of this section, alternative environmental review and approval procedures may include one or 

more of the following: 

‘‘(A) Substitution of one or more State environmental 

laws for one or more Federal environmental laws, if the 

Secretary determines in accordance with this section that 

the State environmental laws provide environmental protection and opportunities for public involvement that are 

substantially equivalent to the applicable Federal environmental laws. 

‘‘(B) Substitution of one or more State regulations for 

Federal regulations implementing one or more Federal environmental laws, if the Secretary determines in accordance with this section that the State regulations provide 

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volvement that are substantially equivalent to the Federal 

regulations. 

‘‘(b) APPLICATION.—To participate in the program, a State shall 

submit to the Secretary an application containing such information 

as the Secretary may require, including— 

‘‘(1) a full and complete description of the proposed alternative environmental review and approval procedures of the 

State; 

‘‘(2) for each State law or regulation included in the proposed 

alternative environmental review and approval procedures of 

the State, an explanation of the basis for concluding that the 

law or regulation meets the requirements under subsection 

(a)(3); and 

‘‘(3) evidence of having sought, received, and addressed comments on the proposed application from the public and appropriate Federal environmental resource agencies. 

‘‘(c) REVIEW OF APPLICATION.—The Secretary shall— 

‘‘(1) review an application submitted under subsection (b); 

‘‘(2) approve or disapprove the application in accordance with 

subsection (d) not later than 90 days after the date of the receipt of the application; and 

‘‘(3) transmit to the State notice of the approval or disapproval, together with a statement of the reasons for the approval or disapproval. 

‘‘(d) APPROVAL OF STATE PROGRAMS.— ‘‘(1) IN GENERAL.—The Secretary shall approve each such application if the Secretary finds that the proposed alternative 

environmental review and approval procedures of the State are 

substantially equivalent to the applicable Federal environmental laws and Federal regulations. 

‘‘(2) EXCLUSION.—The National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.) and the Endangered Species Act 

of 1973 (16 U.S.C. 1531 et seq.) shall not apply to any decision 

by the Secretary to approve or disapprove any application submitted pursuant to this section. 

‘‘(e) COMPLIANCE WITH PERMITS.—Compliance with a permit or 

other approval of a project issued pursuant to a program approved 

by the Secretary under this section shall be deemed compliance 

with the Federal laws and regulations identified in the program approved by the Secretary pursuant to this section. 

‘‘(f) REVIEW AND TERMINATION.— 

‘‘(1) REVIEW.—All State alternative environmental review 

and approval procedures approved under this section shall be 

reviewed by the Secretary not less than once every 5 years. 

‘‘(2) PUBLIC NOTICE AND COMMENT.—In conducting the review 

process under paragraph (1), the Secretary shall provide notice 

and an opportunity for public comment. 

‘‘(3) EXTENSIONS AND TERMINATIONS.—At the conclusion of 

the review process, the Secretary may extend the State alternative environmental review and approval procedures for an 

additional 5-year period or terminate the State program. 

‘‘(g) REPORT TO CONGRESS.—Not later than 2 years after the date 

of enactment of this section and annually thereafter, the Secretary 

shall submit to Congress a report that describes the administration 

of the program. 


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‘‘(h) DEFINITIONS.—For purposes of this section: 

‘‘(1) ENVIRONMENTAL LAW.—The term ‘environmental law’ includes any law that provides procedural or substantive protection, as applicable, for the natural or built environment with 

regard to the construction and operation of projects. 

‘‘(2) FEDERAL ENVIRONMENTAL LAWS.—The term ‘Federal environmental laws’ means laws governing the review of environmental impacts of, and issuance of permits and other approvals 

for, the construction and operation of projects, including section 102(2)(C) of the National Environmental Policy Act of 

1969 (42 U.S.C. 4332(2)(C)), section 404 of the Federal Water 

Pollution Control Act (33 U.S.C. 1344), section 106 of the National Historic Preservation Act (16 U.S.C. 470f), and sections 

7(a)(2), 9(a)(1)(B), and 10(a)(1)(B) of the Endangered Species 

Act of 1973 (16 U.S.C. 1536(a)(2), 1538(a)(1)(B), 1539(a)(1)(B)). 

‘‘(3) MULTIMODAL PROJECT.—The term ‘multimodal project’ 

means a project funded, in whole or in part, under this title 

or chapter 53 of title 49 and involving the participation of more 

than one Department of Transportation administration or 

agency. 

‘‘(4) PROJECT.—The term ‘project’ means any highway 

project, public transportation capital project, or multimodal 

project that requires the approval of the Secretary.’’. 

(b) CLERICAL AMENDMENT.—The analysis for such chapter (as 

amended by title I of this Act) is further amended by adding at the 

end the following: 

‘‘330. Program for eliminating duplication of environmental reviews.’’. 

SEC. 416. STATE PERFORMANCE OF LEGAL SUFFICIENCY REVIEWS. 

(a) IN GENERAL.—Chapter 3 (as amended by this title) is further 

amended by adding at the end the following: 

‘‘§ 331. State performance of legal sufficiency reviews 

‘‘(a) IN GENERAL.—At the request of any State transportation department, the Federal Highway Administration shall enter into an 

agreement with the State transportation department to authorize 

the State to carry out the legal sufficiency reviews for environmental impact statements and environmental assessments under 

the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 

seq.) in accordance with this section. 

‘‘(b) TERMS OF AGREEMENT.—An agreement authorizing a State 

to carry out legal sufficiency reviews for Federal-aid highway 

projects shall contain the following provisions: 

‘‘(1) A finding by the Federal Highway Administration that 

the State has the capacity to carry out legal sufficiency reviews 

that are equivalent in quality and consistency to the reviews 

that would otherwise be conducted by attorneys employed by 

such Administration. 

‘‘(2) An oversight process, including periodic reviews conducted by attorneys employed by such Administration, to 

evaluate the quality of the legal sufficiency reviews carried out 

by the State transportation department under the agreement. 

‘‘(3) A requirement for the State transportation department 

to submit a written finding of legal sufficiency to the Federal 

Highway Administration concurrently with the request by the 


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State for Federal approval of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) document. 

‘‘(4) An opportunity for the Federal Highway Administration 

to conduct an additional legal sufficiency review for any 

project, for not more than 30 days, if considered necessary by 

the Federal Highway Administration. 

‘‘(5) Procedures allowing either party to the agreement to terminate the agreement for any reason with 30 days notice to 

the other party. 

‘‘(c) EFFECT OF AGREEMENT.—A legal sufficiency review carried 

out by a State transportation department under this section shall 

be deemed by the Federal Highway Administration to satisfy the 

requirement for a legal sufficiency review in sections 771.125(b) 

and 774.7(d) of title 23, Code of Federal Regulations, or other applicable regulations issued by the Federal Highway Administration.’’. 

(b) CLERICAL AMENDMENT.—The analysis for such chapter (as 

amended by this title) is further amended by adding at the end the 

following: 

‘‘331. State performance of legal sufficiency reviews.’’. 

SEC. 417. CATEGORICAL EXCLUSIONS. 

(a) IN GENERAL.—The Secretary shall treat an activity carried 

out under title 23, United States Code, or project within a rightof-way as a class of action categorically excluded from the requirements relating to environmental assessments or environmental impact statements under section 771.117(c) of title 23, Code of Federal Regulations. 

(b) DEFINITIONS.—In this section, the following definitions apply: 

(1) MULTIMODAL PROJECT.—The term ‘‘multimodal project’’ 

means a project funded, in whole or in part, under title 23, 

United States Code, or chapter 53 of title 49 of such Code and 

involving the participation of more than one Department of 

Transportation administration or agency. 

(2) PROJECT.—The term ‘‘project’’ means any highway 

project, public transportation capital project, or multimodal 

project that requires the approval of the Secretary. 

SEC. 418. ENVIRONMENTAL REVIEW PROCESS DEADLINE. 

(a) IN GENERAL.— 

(1) DEADLINE.—Notwithstanding any other provision of law, 

the environmental review process for a project shall be completed not later than 270 days after the date on which the notice of project initiation under section 139(e) of title 23, United 

States Code, is published in the Federal Register. 

(2) CONSEQUENCES OF MISSED DEADLINE.—If the environmental review process for a project is not completed in accordance with paragraph (1)— 

(A) the project shall be considered to have no significant 

impact to the human environment for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 

seq.); and 

(B) that classification shall be considered to be a final 

agency action. 

(b) DEFINITIONS.—In this section, the following definitions apply: 

(1) ENVIRONMENTAL REVIEW PROCESS.— 


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(A) IN GENERAL.—The term ‘‘environmental review process’’ means the process for preparing for a project an environmental impact statement, environmental assessment, 

categorical exclusion, or other document prepared under 

the National Environmental Policy Act of 1969 (42 U.S.C. 

4321 et seq.). 

(B) INCLUSIONS.—The term ‘‘environmental review process’’ includes the process for and completion of any environmental permit, approval, review, or study required for 

a project under any Federal law other than the National 

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). 

(2) LEAD AGENCY.—The term ‘‘lead agency’’ means the Department of Transportation and, if applicable, any State or 

local governmental entity serving as a joint lead agency pursuant to this section. 

(3) MULTIMODAL PROJECT.—The term ‘‘multimodal project’’ 

means a project funded, in whole or in part, under title 23, 

United States Code, or chapter 53 of title 49 of such Code and 

involving the participation of more than one Department of 

Transportation administration or agency. 

(4) PROJECT.—The term ‘‘project’’ means any highway 

project, public transportation capital project, or multimodal 

project that requires the approval of the Secretary. 

SEC. 419. RELOCATION ASSISTANCE. 

(a) ALTERNATIVE RELOCATION PAYMENT PROCESS.— (1) ESTABLISHMENT.—For the purpose of identifying improvements in the timeliness of providing relocation assistance to 

persons displaced as a result of Federal or federally assisted 

programs and projects, the Secretary shall establish an alternative relocation payment process under which payments to 

displaced persons eligible for relocation assistance pursuant to 

the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.), are calculated 

based on reasonable estimates and paid in advance of the 

physical displacement of the displaced person. 

(2) PAYMENTS.— (A) TIMING OF PAYMENTS.—Relocation assistance payments may be provided to the displaced person at the 

same time as payments of just compensation for real property acquired for a program or project of the State. 

(B) COMBINED PAYMENT.—Payments for relocation and 

just compensation may be combined into a single 

unallocated amount. 

(3) CONDITIONS FOR STATE USE OF ALTERNATIVE PROCESS.— 

(A) IN GENERAL.—After public notice and an opportunity 

to comment, the Secretary shall adopt criteria for States to 

use the alternative relocation payment process established 

by the Secretary. 

(B) MEMORANDUM OF AGREEMENT.—In order to use the 

alternative relocation payment process, a State shall enter 

into a memorandum of agreement with the Secretary that 

includes provisions relating to— 

(i) the selection of projects or programs within the 

State to which the alternative relocation payment 

process will be applied; 


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(ii) program and project-level monitoring; 

(iii) performance measurement; 

(iv) reporting requirements; and 

(v) the circumstances under which the Secretary 

may terminate or suspend the authority of the State 

to use the alternative relocation payment process. 

(C) REQUIRED INFORMATION.—A State may use the alternative relocation payment process only after the displaced 

persons affected by a program or project— 

(i) are informed in writing— 

(I) that the relocation payments the displaced 

persons receive under the alternative relocation 

payment process may be higher or lower than the 

amount that the displaced persons would have received under the standard relocation assistance 

process; and 

(II) of their right not to participate in the alternative relocation payment process; and 

(ii) agree in writing to the alternative relocation 

payment process. 

(D) ELECTION NOT TO PARTICIPATE.—The displacing 

agency shall provide any displaced person who elects not 

to participate in the alternative relocation payment process with relocation assistance in accordance with the Uniform Relocation Assistance and Real Property Acquisition 

Policies Act of 1970 (42 U.S.C. 4601 et seq.). 

(4) PROTECTIONS AGAINST INCONSISTENT TREATMENT.—If 

other Federal agencies plan displacements in or adjacent to an 

area of a project using the alternative relocation payment process within the same time period as a project acquisition and 

relocation action of the project, the Secretary shall adopt measures to protect against inconsistent treatment of displaced persons. Such measures may include a determination that the alternative relocation payment process authority may not be 

used on a specific project. 

(5) REPORT.— (A) IN GENERAL.—The Secretary shall submit to Congress an annual report on the implementation of the alternative relocation payment process. 

(B) CONTENTS.—The report shall include an evaluation 

of the merits of the alternative relocation payment process, 

including the effects of the alternative relocation payment 

process on— 

(i) displaced persons and the protections afforded to 

such persons by the Uniform Relocation Assistance 

and Real Property Acquisition Policies Act of 1970 (42 

U.S.C. 4601 et seq.); 

(ii) the efficiency of the delivery of Federal-aid highway projects and overall effects on the Federal-aid 

highway program; and 

(iii) the achievement of the purposes of the Uniform 

Relocation Assistance and Real Property Acquisition 

Policies Act of 1970 (42 U.S.C. 4601 et seq.). 

(6) LIMITATION.—The alternative relocation payment process 

under this section may be used only on projects funded under 


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title 23, United States Code, in cases in which the funds are 

administered by the Federal Highway Administration. 

(7) NEPA APPLICABILITY.—Notwithstanding any other provision of law, the use of the alternative relocation payment process established under this section on a project funded under 

title 23, United States Code, and administered by the Federal 

Highway Administration is not a major Federal action requiring analysis or approval under the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et seq.). 

(b) UNIFORM RELOCATION ASSISTANCE ACT AMENDMENTS.— (1) MOVING AND RELATED EXPENSES.—Section 202 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4622) is amended— 

(A) in subsection (a)(4) by striking ‘‘$10,000’’ and insert- ing ‘‘$25,000, as adjusted by regulation, in accordance with 

section 213(d)’’; and 

(B) in the second sentence of subsection (c) by striking ‘‘$20,000’’ and inserting ‘‘$40,000, as adjusted by regulation, in accordance with section 213(d)’’. 

(2) REPLACEMENT HOUSING FOR HOMEOWNERS.—The first 

sentence of section 203(a)(1) of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 

U.S.C. 4623(a)(1)) is amended by— (A) striking ‘‘$22,500’’ and inserting ‘‘$31,000, as adjusted by regulation, in accordance with section 213(d),’’; 

and 

(B) striking ‘‘one hundred and eighty days prior to’’ and 

inserting ‘‘90 days before’’. 

(3) REPLACEMENT HOUSING FOR TENANTS AND CERTAIN OTH- ERS.—Section 204 of the Uniform Relocation Assistance and 

Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4624) 

is amended— 

(A) in the second sentence of subsection (a) by striking ‘‘$5,250’’ and inserting ‘‘$7,200, as adjusted by regulation, 

in accordance with section 213(d)’’; and 

(B) in the second sentence of subsection (b) by striking 

‘‘, except’’ and all that follows through the end of the subsection and inserting a period. 

(4) DUTIES OF LEAD AGENCY.—Section 213 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act 

of 1970 (42 U.S.C. 4633) is amended— 

(A) in subsection (b)— 

(i) in paragraph (2) by striking ‘‘and’’; 

(ii) in paragraph (3) by striking the period and inserting ‘‘; and’’; and 

(iii) by adding at the end the following: 

‘‘(4) that each Federal agency that has programs or projects 

requiring the acquisition of real property or causing a displacement from real property subject to the provisions of this Act 

shall provide to the lead agency an annual summary report 

that describes the activities conducted by the Federal agency.’’; 

and 

(B) by adding at the end the following: 

‘‘(d) ADJUSTMENT OF PAYMENTS.—The head of the lead agency 

may adjust, by regulation, the amounts of relocation payments proVerDate Mar 15 2010 06:23 Apr 18, 2012 Jkt 019008 PO 00000 Frm 00028 Fmt 6659 Sfmt 6602 E:\HR\OC\HR446.XXX HR446

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vided under sections 202(a)(4), 202(c), 203(a), and 204(a) if the 

head of the lead agency determines that cost of living, inflation, or 

other factors indicate that the payments should be adjusted to meet 

the policy objectives of this Act.’’. 

(5) AGENCY COORDINATION.—Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 

1970 (42 U.S.C. 4601 et seq.) is amended by inserting after section 213 (42 U.S.C. 4633) the following: 

‘‘SEC. 214. AGENCY COORDINATION. 

‘‘(a) AGENCY CAPACITY.—Each Federal agency responsible for 

funding or carrying out relocation and acquisition activities shall 

have adequately trained personnel and such other resources as are 

necessary to manage and oversee the relocation and acquisition 

program of the Federal agency in accordance with this Act. 

‘‘(b) INTERAGENCY AGREEMENTS.—Not later than 1 year after the 

date of the enactment of this section, each Federal agency responsible for funding relocation and acquisition activities (other than 

the agency serving as the lead agency) shall enter into a memorandum of understanding with the lead agency that— 

‘‘(1) provides for periodic training of the personnel of the 

Federal agency, which in the case of a Federal agency that provides Federal financial assistance, may include personnel of 

any displacing agency that receives Federal financial assistance; 

‘‘(2) addresses ways in which the lead agency may provide 

assistance and coordination to the Federal agency relating to 

compliance with this Act on a program or project basis; and 

‘‘(3) addresses the funding of the training, assistance, and coordination activities provided by the lead agency, in accordance 

with subsection (c). 

‘‘(c) INTERAGENCY PAYMENTS.— ‘‘(1) IN GENERAL.—For the fiscal year that begins 1 year after 

the date of the enactment of this section, and each fiscal year 

thereafter, each Federal agency responsible for funding relocation and acquisition activities (other than the agency serving 

as the lead agency) shall transfer to the lead agency for the fiscal year, such funds as are necessary, but not less than 

$35,000, to support the training, assistance, and coordination 

activities of the lead agency described in subsection (b). 

‘‘(2) INCLUDED COSTS.—The cost to a Federal agency of providing the funds described in paragraph (1) shall be included 

as part of the cost of 1 or more programs or projects undertaken by the Federal agency or with Federal financial assistance that result in the displacement of persons or the acquisition of real property.’’. 

(c) COOPERATION WITH FEDERAL AGENCIES.—Section 308(a) is 

amended to read as follows: 

‘‘(a) AUTHORIZED ACTIVITIES.— 

‘‘(1) IN GENERAL.—The Secretary may perform, by contract or 

otherwise, authorized engineering or other services in connection with the survey, construction, maintenance, or improvement of highways for other Federal agencies, cooperating foreign countries, and State cooperating agencies. 

‘‘(2) INCLUSIONS.—Services authorized under paragraph (1) 

may include activities authorized under section 214 of the UniVerDate Mar 15 2010 06:23 Apr 18, 2012 Jkt 019008 PO 00000 Frm 00029 Fmt 6659 Sfmt 6602 E:\HR\OC\HR446.XXX HR446

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form Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.). 

‘‘(3) REIMBURSEMENT.—Reimbursement for services carried 

out under this subsection, including depreciation on engineering and road-building equipment, shall be credited to the applicable appropriation.’’. 

————— 

3. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE MCKINLEY

OF WEST VIRGINIA OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

At the end of the bill, add the following (and conform the table 

of contents of the bill accordingly): 

TITLE IV—COAL COMBUSTION 

RESIDUALS 

SEC. 401. HIGHWAY AND INFRASTRUCTURE SAFETY THROUGH THE 

PROTECTION OF COAL COMBUSTION RESIDUAL RECYCLING. 

(a) IN GENERAL.—Subtitle D of the Solid Waste Disposal Act (42 

U.S.C. 6941 et seq.) is amended by adding at the end the following 

new section: 

‘‘SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS. 

‘‘(a) STATE PERMIT PROGRAMS FOR COAL COMBUSTION RESIDU- ALS.—Each State may adopt and implement a coal combustion residuals permit program. 

‘‘(b) STATE ACTIONS.— ‘‘(1) NOTIFICATION.—Not later than 6 months after the date 

of enactment of this section (except as provided by the deadline 

identified under subsection (d)(2)(B)), the Governor of each 

State shall notify the Administrator, in writing, whether such 

State will adopt and implement a coal combustion residuals 

permit program. 

‘‘(2) CERTIFICATION.— ‘‘(A) IN GENERAL.—Not later than 36 months after the 

date of enactment of this section (except as provided in 

subsections (f)(1)(A) and (f)(1)(C)), in the case of a State 

that has notified the Administrator that it will implement 

a coal combustion residuals permit program, the head of 

the lead State agency responsible for implementing the 

coal combustion residuals permit program shall submit to 

the Administrator a certification that such coal combustion 

residuals permit program meets the specifications described in subsection (c)(1). 

‘‘(B) CONTENTS.—A certification submitted under this 

paragraph shall include— 

‘‘(i) a letter identifying the lead State agency responsible for implementing the coal combustion residuals 

permit program, signed by the head of such agency; 

‘‘(ii) identification of any other State agencies involved with the implementation of the coal combustion 

residuals permit program; 


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‘‘(iii) a narrative description that provides an explanation of how the State will ensure that the coal combustion residuals permit program meets the requirements of this section, including a description of the 

State’s— 

‘‘(I) process to inspect or otherwise determine 

compliance with such permit program; 

‘‘(II) process to enforce the requirements of such 

permit program; and 

‘‘(III) public participation process for the promulgation, amendment, or repeal of regulations 

for, and the issuance of permits under, such permit program; 

‘‘(iv) a legal certification that the State has, at the 

time of certification, fully effective statutes or regulations necessary to implement a coal combustion residuals permit program that meets the specifications 

described in subsection (c)(1); and 

‘‘(v) copies of State statutes and regulations described in clause (iv). 

‘‘(3) MAINTENANCE OF 4005(C) OR 3006 PROGRAM.—In order to 

adopt or implement a coal combustion residuals permit program under this section (including pursuant to subsection (f)), 

the State agency responsible for implementing a coal combustion residuals permit program in a State shall maintain an approved program under section 4005(c) or an authorized program under section 3006. 

‘‘(c) PERMIT PROGRAM SPECIFICATIONS.— 

‘‘(1) MINIMUM REQUIREMENTS.—The specifications described 

in this subsection for a coal combustion residuals permit program are as follows: 

‘‘(A) The revised criteria described in paragraph (2) shall 

apply to a coal combustion residuals permit program, except as provided in paragraph (3). 

‘‘(B) Each structure shall be, in accordance with generally accepted engineering standards for the structural integrity of such structures, designed, constructed, and 

maintained to provide for containment of the maximum 

volumes of coal combustion residuals appropriate for the 

structure. If a structure is determined by the head of the 

agency responsible for implementing the coal combustion 

residuals permit program to be deficient, the head of such 

agency has authority to require action to correct the deficiency according to a schedule determined by such agency. 

If the identified deficiency is not corrected according to 

such schedule, the head of such agency has authority to require that the structure close in accordance with subsection (h). 

‘‘(C) The coal combustion residuals permit program shall 

apply the revised criteria promulgated pursuant to section 

4010(c) for location, design, groundwater monitoring, corrective action, financial assurance, closure, and post-closure described in paragraph (2) and the specifications described in this paragraph to surface impoundments. 


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‘‘(D) If a structure that is classified as posing a high hazard potential pursuant to the guidelines published by the 

Federal Emergency Management Agency entitled ‘Federal 

Guidelines for Dam Safety: Hazard Potential Classification 

System for Dams’ (FEMA Publication Number 333) is determined by the head of the agency responsible for implementing the coal combustion residuals permit program to 

be deficient with respect to the structural integrity requirement in subparagraph (B), the head of such agency 

has authority to require action to correct the deficiency according to a schedule determined by such agency. If the 

identified deficiency is not corrected according to such 

schedule, the head of such agency has authority to require 

that the structure close in accordance with subsection (h). 

‘‘(E) New structures that first receive coal combustion residuals after the date of enactment of this section shall be 

constructed with a base located a minimum of two feet 

above the upper limit of the natural water table. 

‘‘(F) In the case of a coal combustion residuals permit 

program implemented by a State, the State has the authority to inspect structures and implement and enforce 

such permit program. 

‘‘(G) In the case of a coal combustion residuals permit 

program implemented by a State, the State has the authority to address wind dispersal of dust from coal combustion residuals by requiring dust control measures, as determined appropriate by the head of the lead State agency 

responsible for implementing the coal combustion residuals 

permit program. 

‘‘(2) REVISED CRITERIA.—The revised criteria described in this 

paragraph are— 

‘‘(A) the revised criteria for design, groundwater monitoring, corrective action, closure, and post-closure, for 

structures, including— 

‘‘(i) for new structures, and lateral expansions of existing structures, that first receive coal combustion residuals after the date of enactment of this section, the 

revised criteria regarding design requirements described in section 258.40 of title 40, Code of Federal 

Regulations; and 

‘‘(ii) for all structures that receive coal combustion 

residuals after the date of enactment of this section, 

the revised criteria regarding groundwater monitoring 

and corrective action requirements described in subpart E of part 258 of title 40, Code of Federal Regulations, except that, for the purposes of this paragraph, 

such revised criteria shall also include— 

‘‘(I) for the purposes of detection monitoring, the 

constituents boron, chloride, conductivity, fluoride, 

mercury, pH, sulfate, sulfide, and total dissolved 

solids; and 

‘‘(II) for the purposes of assessment monitoring, 

the constituents aluminum, boron, chloride, fluoride, iron, manganese, molybdenum, pH, sulfate, 

and total dissolved solids; 


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‘‘(B) the revised criteria for location restrictions described in— 

‘‘(i) for new structures, and lateral expansions of existing structures, that first receive coal combustion residuals after the date of enactment of this section, sections 258.11 through 258.15 of title 40, Code of Federal Regulations; and 

‘‘(ii) for existing structures that receive coal combustion residuals after the date of enactment of this section, sections 258.11 and 258.15 of title 40, Code of 

Federal Regulations; 

‘‘(C) for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for air quality described in section 258.24 of 

title 40, Code of Federal Regulations; 

‘‘(D) for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for financial assurance described in subpart 

G of part 258 of title 40, Code of Federal Regulations; 

‘‘(E) for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for surface water described in section 258.27 

of title 40, Code of Federal Regulations; 

‘‘(F) for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for recordkeeping described in section 258.29 

of title 40, Code of Federal Regulations; 

‘‘(G) for landfills and other land-based units, other than 

surface impoundments, that receive coal combustion residuals after the date of enactment of this section, the revised criteria for run-on and run-off control systems described in section 258.26 of title 40, Code of Federal Regulations; and 

‘‘(H) for surface impoundments that receive coal combustion residuals after the date of enactment of this section, 

the revised criteria for run-off control systems described in 

section 258.26(a)(2) of title 40, Code of Federal Regulations. 

‘‘(3) APPLICABILITY OF CERTAIN REQUIREMENTS.—A State may 

determine that one or more of the requirements of the revised 

criteria described in paragraph (2) is not needed for the management of coal combustion residuals in that State, and may 

decline to apply such requirement as part of its coal combustion residuals permit program. If a State declines to apply a 

requirement under this paragraph, the State shall include in 

the certification under subsection (b)(2) a description of such 

requirement and the reasons such requirement is not needed 

in the State. If the Administrator determines that a State determination under this paragraph does not accurately reflect 

the needs for the management of coal combustion residuals in 

the State, the Administrator may treat such State determination as a deficiency under subsection (d). 

‘‘(d) WRITTEN NOTICE AND OPPORTUNITY TO REMEDY.— 


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‘‘(1) IN GENERAL.—The Administrator shall provide to a State 

written notice and an opportunity to remedy deficiencies in accordance with paragraph (2) if at any time the State— 

‘‘(A) does not satisfy the notification requirement under 

subsection (b)(1); 

‘‘(B) has not submitted a certification under subsection 

(b)(2); 

‘‘(C) does not satisfy the maintenance requirement under 

subsection (b)(3); or 

‘‘(D) is not implementing a coal combustion residuals 

permit program that meets the specifications described in 

subsection (c)(1). 

‘‘(2) CONTENTS OF NOTICE; DEADLINE FOR RESPONSE.—A notice provided under this subsection shall— 

‘‘(A) include findings of the Administrator detailing any 

applicable deficiencies in— 

‘‘(i) compliance by the State with the notification requirement under subsection (b)(1); 

‘‘(ii) compliance by the State with the certification 

requirement under subsection (b)(2); 

‘‘(iii) compliance by the State with the maintenance 

requirement under subsection (b)(3); and 

‘‘(iv) the State coal combustion residuals permit program in meeting the specifications described in subsection (c)(1); and 

‘‘(B) identify, in collaboration with the State, a reasonable deadline, which shall be not sooner than 6 months 

after the State receives the notice, by which the State shall 

remedy the deficiencies detailed under subparagraph (A). 

‘‘(e) IMPLEMENTATION BY ADMINISTRATOR.— ‘‘(1) IN GENERAL.—The Administrator shall implement a coal 

combustion residuals permit program for a State only in the 

following circumstances: 

‘‘(A) If the Governor of such State notifies the Administrator under subsection (b)(1) that such State will not 

adopt and implement such a permit program. 

‘‘(B) If such State has received a notice under subsection 

(d) and, after any review brought by the State under section 7006, fails, by the deadline identified in such notice 

under subsection (d)(2)(B), to remedy the deficiencies detailed in such notice under subsection (d)(2)(A). 

‘‘(C) If such State informs the Administrator, in writing, 

that such State will no longer implement such a permit 

program. 

‘‘(2) REQUIREMENTS.—If the Administrator implements a coal 

combustion residuals permit program for a State under paragraph (1), such permit program shall consist of the specifications described in subsection (c)(1). 

‘‘(3) ENFORCEMENT.—If the Administrator implements a coal 

combustion residuals permit program for a State under paragraph (1), the authorities referred to in section 4005(c)(2)(A) 

shall apply with respect to coal combustion residuals and 

structures and the Administrator may use such authorities to 

inspect, gather information, and enforce the requirements of 

this section in the State. 


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‘‘(f) STATE CONTROL AFTER IMPLEMENTATION BY ADMINISTRATOR.— 

‘‘(1) STATE CONTROL.— 

‘‘(A) NEW ADOPTION AND IMPLEMENTATION BY STATE.— 

For a State for which the Administrator is implementing 

a coal combustion residuals permit program under subsection (e)(1)(A), the State may adopt and implement such 

a permit program by— 

‘‘(i) notifying the Administrator that the State will 

adopt and implement such a permit program; 

‘‘(ii) not later than 6 months after the date of such 

notification, submitting to the Administrator a certification under subsection (b)(2); and 

‘‘(iii) receiving from the Administrator— 

‘‘(I) a determination that the State coal combustion residuals permit program meets the specifications described in subsection (c)(1); and 

‘‘(II) a timeline for transition of control of the 

coal combustion residuals permit program. 

‘‘(B) REMEDYING DEFICIENT PERMIT PROGRAM.—For a 

State for which the Administrator is implementing a coal 

combustion residuals permit program under subsection 

(e)(1)(B), the State may adopt and implement such a permit program by— 

‘‘(i) remedying the deficiencies detailed in the notice 

provided under subsection (d)(2)(A); and 

‘‘(ii) receiving from the Administrator— 

‘‘(I) a determination that the deficiencies detailed in such notice have been remedied; and 

‘‘(II) a timeline for transition of control of the 

coal combustion residuals permit program. 

‘‘(C) RESUMPTION OF IMPLEMENTATION BY STATE.—For a 

State for which the Administrator is implementing a coal 

combustion residuals permit program under subsection 

(e)(1)(C), the State may adopt and implement such a permit program by— 

‘‘(i) notifying the Administrator that the State will 

adopt and implement such a permit program; 

‘‘(ii) not later than 6 months after the date of such 

notification, submitting to the Administrator a certification under subsection (b)(2); and 

‘‘(iii) receiving from the Administrator— 

‘‘(I) a determination that the State coal combustion residuals permit program meets the specifications described in subsection (c)(1); and 

‘‘(II) a timeline for transition of control of the 

coal combustion residuals permit program. 

‘‘(2) REVIEW OF DETERMINATION.— 

‘‘(A) DETERMINATION REQUIRED.—The Administrator 

shall make a determination under paragraph (1) not later 

than 90 days after the date on which the State submits a 

certification under paragraph (1)(A)(ii) or (1)(C)(ii), or notifies the Administrator that the deficiencies have been remedied pursuant to paragraph (1)(B)(i), as applicable. 


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‘‘(B) REVIEW.—A State may obtain a review of a determination by the Administrator under paragraph (1) as if 

such determination was a final regulation for purposes of 

section 7006. 

‘‘(3) IMPLEMENTATION DURING TRANSITION.— ‘‘(A) EFFECT ON ACTIONS AND ORDERS.—Actions taken or 

orders issued pursuant to a coal combustion residuals permit program shall remain in effect if— 

‘‘(i) a State takes control of its coal combustion residuals permit program from the Administrator under 

paragraph (1); or 

‘‘(ii) the Administrator takes control of a coal combustion residuals permit program from a State under 

subsection (e). 

‘‘(B) CHANGE IN REQUIREMENTS.—Subparagraph (A) shall 

apply to such actions and orders until such time as the Administrator or the head of the lead State agency responsible for implementing the coal combustion residuals permit program, as applicable— 

‘‘(i) implements changes to the requirements of the 

coal combustion residuals permit program with respect 

to the basis for the action or order; or 

‘‘(ii) certifies the completion of a corrective action 

that is the subject of the action or order. 

‘‘(4) SINGLE PERMIT PROGRAM.—If a State adopts and implements a coal combustion residuals permit program under this 

subsection, the Administrator shall cease to implement the 

permit program implemented under subsection (e) for such 

State. 

‘‘(g) EFFECT ON DETERMINATION UNDER 4005(C) OR 3006.—The 

Administrator shall not consider the implementation of a coal combustion residuals permit program by the Administrator under subsection (e) in making a determination of approval for a permit program or other system of prior approval and conditions under section 4005(c) or of authorization for a program under section 3006. 

‘‘(h) CLOSURE.—If it is determined, pursuant to a coal combustion 

residuals permit program, that a structure should close, the time 

period and method for the closure of such structure shall be set 

forth in a closure plan that establishes a deadline for completion 

and that takes into account the nature and the site-specific characteristics of the structure to be closed. In the case of a surface impoundment, the closure plan shall require, at a minimum, the removal of liquid and the stabilization of remaining waste, as necessary to support the final cover. 

‘‘(i) AUTHORITY.— 

‘‘(1) STATE AUTHORITY.—Nothing in this section shall preclude or deny any right of any State to adopt or enforce any 

regulation or requirement respecting coal combustion residuals 

that is more stringent or broader in scope than a regulation or 

requirement under this section. 

‘‘(2) AUTHORITY OF THE ADMINISTRATOR.— 

‘‘(A) IN GENERAL.—Except as provided in subsection (e) 

of this section and section 6005 of this title, the Administrator shall, with respect to the regulation of coal combustion residuals, defer to the States pursuant to this section. 


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‘‘(B) IMMINENT HAZARD.—Nothing in this section shall be 

construed to affect the authority of the Administrator 

under section 7003 with respect to coal combustion residuals. 

‘‘(C) TECHNICAL AND ENFORCEMENT ASSISTANCE ONLY

UPON REQUEST.—Upon request from the head of a lead 

State agency that is implementing a coal combustion residuals permit program, the Administrator may provide to 

such State agency only the technical or enforcement assistance requested. 

‘‘(3) CITIZEN SUITS.—Nothing in this section shall be construed to affect the authority of a person to commence a civil 

action in accordance with section 7002. 

‘‘(j) MINE RECLAMATION ACTIVITIES.—A coal combustion residuals 

permit program implemented under subsection (e) by the Administrator shall not apply to the utilization, placement, and storage of 

coal combustion residuals at surface mining and reclamation operations. 

‘‘(k) DEFINITIONS.—In this section: 

‘‘(1) COAL COMBUSTION RESIDUALS.—The term ‘coal combustion residuals’ means— 

‘‘(A) the solid wastes listed in section 3001(b)(3)(A)(i), including recoverable materials from such wastes; 

‘‘(B) coal combustion wastes that are co-managed with 

wastes produced in conjunction with the combustion of 

coal, provided that such wastes are not segregated and disposed of separately from the coal combustion wastes and 

comprise a relatively small proportion of the total wastes 

being disposed in the structure; 

‘‘(C) fluidized bed combustion wastes; 

‘‘(D) wastes from the co-burning of coal with non-hazardous secondary materials provided that coal makes up at 

least 50 percent of the total fuel burned; and 

‘‘(E) wastes from the co-burning of coal with materials 

described in subparagraph (A) that are recovered from 

monofills. 

‘‘(2) COAL COMBUSTION RESIDUALS PERMIT PROGRAM.—The 

term ‘coal combustion residuals permit program’ means a permit program or other system of prior approval and conditions 

that is adopted by or for a State for the management and disposal of coal combustion residuals to the extent such activities 

occur in structures in such State. 

‘‘(3) STRUCTURE.—The term ‘structure’ means a landfill, surface impoundment, or other land-based unit which may receive 

coal combustion residuals. 

‘‘(4) REVISED CRITERIA.—The term ‘revised criteria’ means 

the criteria promulgated for municipal solid waste landfill 

units under section 4004(a) and under section 1008(a)(3), as revised under section 4010(c) in accordance with the requirement 

of such section that the criteria protect human health and the 

environment.’’. 

(b) 2000 REGULATORY DETERMINATION.—Nothing in this section, 

or the amendments made by this section, shall be construed to 

alter in any manner the Environmental Protection Agency’s regulatory determination entitled ‘‘Notice of Regulatory Determination 


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on Wastes from the Combustion of Fossil Fuels’’, published at 65 

Fed. Reg. 32214 (May 22, 2000), that the fossil fuel combustion 

wastes addressed in that determination do not warrant regulation 

under subtitle C of the Solid Waste Disposal Act (42 U.S.C. 6921 

et seq.). 

(c) CONFORMING AMENDMENT.—The table of contents contained 

in section 1001 of the Solid Waste Disposal Act is amended by inserting after the item relating to section 4010 the following: 

‘‘Sec. 4011. Management and disposal of coal combustion residuals.’’. 

Æ 


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