II

104TH CONGRESS

2D SESSION S. 2185

To improve Federal environmental policy by providing incentives for State

and local growth management and land use programs, and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 1, 1996

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

to the Committee on Environment and Public Works

A BILL

To improve Federal environmental policy by providing incentives for State and local growth management and land

use programs, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Local Growth Manage5 ment Incentives Act of 1996’’.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are to—

8 (1) provide better coordination of Federal,

9 State, and local programs affecting land use and
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1 growth so as to address environmental impacts of

2 Federal agency actions more effectively;

3 (2) make the Federal programs more efficient

4 by authorizing Federal agencies to recognize quali5 fied growth management and land use programs;

6 and

7 (3) establish incentives for States and localities

8 to adopt environmentally protective growth manage9 ment and land use programs.

10 SEC. 3. ELIMINATION OF DUPLICATION OF STATE AND

11 LOCAL REQUIREMENTS.

12 (a) DEFINITIONS.—In this section:

13 (1) QUALIFIED LOCAL LAND USE JURISDIC14 TION.—The term ‘‘qualified local land use jurisdic15 tion’’ means a local land use jurisdiction that has in

16 effect a qualified program (as defined in section

17 4(a)(3)).

18 (2) QUALIFIED STATE AGENCY.—The term

19 ‘‘qualified State agency’’ means a State agency of

20 statewide jurisdiction in a State that has in effect a

21 State qualified program (as defined in section

22 4(a)(3)).

23 (b) COOPERATION WITH STATE AGENCIES.—In ac24 cordance with this Act, each Federal agency shall cooper-
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1 ate with qualified State agencies and qualified local land

2 use jurisdictions.

3 (c) REDUCTION OF DUPLICATION.—Except as other4 wise specifically provided by law, a Federal agency shall

5 cooperate with qualified State agencies and qualified local

6 land use jurisdictions, to the maximum extent practicable,

7 to reduce duplication by the requirements of title I of the

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

9 4331 et seq.) of the requirements of State and local law.

10 (d) JOINT PLANNING, RESEARCH, HEARINGS, AND

11 ASSESSMENTS.—Cooperation under subsection (c) shall,

12 to the maximum extent practicable, include—

13 (1) joint planning processes;

14 (2) joint environmental research and studies;

15 (3) joint public hearings (except as otherwise

16 specifically provided by law); and

17 (4) joint environmental assessments.

18 (e) JOINT ENVIRONMENTAL IMPACT STATEMENTS.—

19 (1) IN GENERAL.—Cooperation under sub20 section (c) shall, to the maximum extent practicable,

21 include joint environmental impact statements.

22 (2) JOINT LEAD AGENCIES.—In the case of a

23 joint environmental impact statement, 1 or more

24 Federal agencies and 1 or more qualified State

25 agencies or qualified local land use jurisdictions shall
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1 be joint lead agencies, unless the participating State

2 agencies and local land use jurisdictions jointly de3 termine that a Federal agency shall be the sole lead

4 agency.

5 (3) COMPLIANCE WITH FEDERAL, STATE, AND

6 LOCAL REQUIREMENTS.—If a State or local law im7 poses environmental impact assessment, avoidance,

8 reduction, or mitigation requirements that are in ad9 dition to, but not in conflict with, the requirements

10 of title I of the National Environmental Policy Act

11 of 1969 (42 U.S.C. 4331 et seq.), a Federal agency

12 shall cooperate with other Federal agencies and

13 qualified State agencies and qualified local land use

14 jurisdictions to permit 1 document to be used to

15 comply with all applicable requirements.

16 (f) CONSISTENCY OF PROPOSED ACTION WITH

17 STATE AND LOCAL REQUIREMENTS.—

18 (1) IN GENERAL.—To better integrate environ19 mental impact statement requirements with the

20 planning processes of qualified State agencies and

21 qualified local land use jurisdictions, a statement re22 quired under title I of the National Environmental

23 Policy Act of 1969 (42 U.S.C. 4331 et seq.) shall

24 address any inconsistency of a proposed action with

25 any approved plan, or other applicable requirement
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1 (whether or not federally approved), of a qualified

2 State agency or qualified local land use jurisdiction.

3 (2) INCONSISTENCY.—In the case of an incon4 sistency, the statement shall describe the extent to

5 which the agency or jurisdiction will reconcile its

6 proposed action with the plan or requirement.

7 SEC. 4. AUTHORITY OF FEDERAL AGENCIES TO RECOGNIZE

8 QUALIFIED GROWTH MANAGEMENT AND

9 LAND USE PROGRAMS.

10 (a) DEFINITIONS.—In this section:

11 (1) AREA OF CRITICAL ENVIRONMENTAL CON12 CERN.—The term ‘‘area of critical environmental

13 concern’’—

14 (A) means an area in which development

15 could result in—

16 (i) damage to 1 or more important

17 historic, cultural, or aesthetic values, or

18 natural systems or processes; or

19 (ii) the potential for a threat to

20 human life and safety from natural haz21 ards; and

22 (B) includes—

23 (i) areas of land or water that affect

24 aquifers used for potable water;
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1 (ii) critical habitat for fish and wild2 life designated under the Endangered Spe3 cies Act of 1973 (16 U.S.C. 1531 et seq.)

4 and fish and wildlife conservation areas;

5 (iii) frequently flooded areas; and

6 (iv) geologically hazardous areas.

7 (2) KEY PUBLIC FACILITY.—The term ‘‘key

8 public facility’’—

9 (A) means a publicly owned, publicly oper10 ated, or publicly financed facility that is likely

11 to induce development and urbanization having

12 more than local impact; and

13 (B) includes an airport, road, highway,

14 highway interchange, public water system,

15 storm or sanitary sewer system, marine channel

16 or terminal, park, and recreational facility.

17 (3) QUALIFIED PROGRAM.—The term ‘‘qualified

18 program’’ means a State or local growth manage19 ment and land use program that satisfies (or a com20 bination of programs of the State or local land use

21 jurisdiction that collectively satisfy) the require22 ments for certification under this section.

23 (b) ADDITIONAL TIME.—

24 (1) FOR STATES AND LOCAL LAND USE JURIS25 DICTIONS.—On certification by the Governor of a
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1 State or, in the case of a local land use jurisdiction,

2 the chief executive officer of the jurisdiction that

3 time, in addition to any other time otherwise avail4 able, is needed to integrate the requirements of a

5 qualified program with any Federal requirement that

6 the Federal official responsible for enforcing the

7 Federal requirement determines is a new Federal re8 quirement, the Federal official responsible for en9 forcing the Federal requirement shall provide the

10 Governor or chief executive officer up to 1 year of

11 additional time to comply with the Federal require12 ment, unless the official determines that additional

13 time would adversely affect public health or the envi14 ronment and notifies the Governor or chief executive

15 officer of the reasons for the determination.

16 (2) FOR PERSONS.—If, with respect to a new

17 Federal requirement, additional time is provided to

18 a Governor of a State or chief executive officer of a

19 local land use jurisdiction under paragraph (1), the

20 Federal official responsible for enforcing the Federal

21 requirement shall also provide the same amount of

22 additional time for compliance with the Federal re23 quirement to any person in the State or local land

24 use jurisdiction that is subject to a compliance dead25 line pursuant to the Federal requirement, unless the
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1 official determines that the additional time would

2 adversely affect public health or the environment

3 and publishes a notice in the Federal Register pro4 viding the reasons for the determination.

5 (c) CERTIFICATION.—

6 (1) IN GENERAL.—A certification by a Gov7 ernor or chief executive officer under subsection

8 (b)(1) shall—

9 (A) be in a form prescribed by the official

10 from whom time is sought under subsection

11 (b)(1);

12 (B) request the minimum time needed to

13 integrate the requirements of a qualified pro14 gram with a Federal requirement; and

15 (C) certify and provide evidence that—

16 (i) there is a qualified program in ef17 fect under the laws of the State or local

18 land use jurisdiction, and the laws meet

19 the requirements of subsection (d);

20 (ii) the requirements of the qualified

21 program have been fully met; and

22 (iii) the qualified program (including

23 any applicable local laws (including regula24 tions) adopted under the program) pro25 vides an adequate analysis of, and avoids,
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1 minimizes, or mitigates, any environmental

2 impact on areas of critical environmental

3 concern.

4 (2) PROGRAMMATIC CERTIFICATION.—

5 (A) IN GENERAL.—A certification under

6 subsection (b)(1) may apply only to a specific

7 requirement or may apply to an entire class of

8 projects or programs that involve similar re9 quirements.

10 (B) RECERTIFICATION.—A certification of

11 an entire class of projects or programs shall

12 cease to be effective if there is any substantial

13 change in the projects or programs or on the

14 date that is 5 years after the date of the certifi15 cation.

16 (d) LAWS.—

17 (1) IN GENERAL.—To support a certification

18 under subsection (b)(1), the laws of the State or

19 local land use jurisdiction must establish a qualified

20 program that includes—

21 (A) a mechanism for inventorying and des22 ignating areas of critical environmental concern;

23 (B) a mechanism for ensuring the compat24 ibility of key public facilities with surrounding

25 land uses and activities;
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1 (C) a mechanism for assessing whether the

2 potential impacts of development activities (in3 cluding activities conducted by Federal agen4 cies) would result in a violation of any applica5 ble law intended to protect human health or the

6 environment;

7 (D) a mechanism for avoiding, minimizing,

8 or mitigating impacts on the environment and

9 communities that result from proposed develop10 ment activities (including activities that are

11 conducted by Federal agencies and subject to

12 the National Environmental Policy Act of 1969

13 (42 U.S.C. 4321 et seq.)), including the cumu14 lative impacts of all such development activities;

15 (E) a process for obtaining public comment

16 on the potential impact on the environment and

17 communities of a proposed development activ18 ity; and

19 (F) a mechanism for ensuring that analy20 ses of the potential impact of a proposed devel21 opment activity also consider the potential im22 pact of alternatives to the proposed activity, in23 cluding not proceeding with the proposed activ24 ity.
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1 (2) ADDITIONAL PROGRAMMATIC CERTIFI2 CATION REQUIREMENTS.—To support a certification

3 under subsection (b)(1), the laws of the State or

4 local land use jurisdiction must also establish a

5 qualified program that includes—

6 (A) a mechanism for State or local en7 forcement of controls on areas of critical envi8 ronmental concern and areas affected by key

9 public facilities;

10 (B) a mechanism for ensuring that local

11 laws (including regulations) do not unneces12 sarily restrict or exclude development and land

13 use of regional benefit permitted under the

14 State or local qualified program;

15 (C) a mechanism for seeking to influence

16 the location of Federal activities and a mecha17 nism for ensuring appropriate controls over the

18 use of land around new Federal activities;

19 (D) a system of controls and regulations

20 pertaining to areas and development activities

21 (including activities conducted by Federal agen22 cies) that are designed to conserve important

23 natural resources and to ensure that any source

24 of air, water, noise, or other pollution will not

25 be located where the source would result in a
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1 violation of any applicable air, water, noise, or

2 other pollution standard or implementation

3 plan;

4 (E) a mechanism for periodically revising

5 and updating the State or local qualified pro6 gram to meet changing conditions;

7 (F) a detailed schedule for implementing

8 all aspects of the State or local qualified pro9 gram; and

10 (G) a mechanism for encouraging the rede11 velopment of abandoned, previously developed

12 industrial and commercial properties.

13 (3) METHODS FOR ESTABLISHMENT.—For the

14 purposes of paragraphs (1) and (2), the laws of a

15 State or local land use jurisdiction may establish a

16 qualified program by means of any combination of—

17 (A) the establishment of criteria and

18 standards that implement local laws (including

19 regulations) and that are subject to—

20 (i) judicial review; and

21 (ii) judicial enforcement of local im22 plementation and compliance;

23 (B) direct land use planning and regula24 tion under the laws of the State or local land

25 use jurisdiction; and
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1 (C) State administrative review of local

2 laws (including regulations) and land use plans

3 and the implementation of the laws and land

4 use plans, including full authority for the State

5 government to approve or disapprove the local

6 laws and land use plans and implementation of

7 the laws and land use plans.

8 (e) ADMINISTRATION.—The Governor of a State or

9 chief executive officer of a local land use jurisdiction may

10 not make the certifications described in subsection (c) un11 less the Governor or chief executive officer finds that—

12 (1) applicable laws (including regulations) and

13 criteria affecting areas and development activities

14 are in accordance with the policy, purposes, and re15 quirements of this Act;

16 (2) the mechanism of the State or local land

17 use jurisdiction referred to in subsection (d)(1)(A)

18 does not exclude from designation areas of critical

19 environmental concern to the United States;

20 (3) in controlling land use in areas of critical

21 environmental concern to the United States, the

22 State or local land use jurisdiction has not acted in

23 substantial disregard of the purposes, policies, and

24 requirements of the State or local qualified program;
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1 (4) the government of the State or local land

2 use jurisdiction is appropriately organized to imple3 ment the qualified program;

4 (5) the qualified program has been reviewed

5 and approved by—

6 (A) in the case of a State qualified pro7 gram, the Governor; or

8 (B) in the case of a local qualified pro9 gram, the chief executive officer of the jurisdic10 tion;

11 (6) the Governor or chief executive officer has

12 in place appropriate arrangements for administering

13 the qualified program;

14 (7) in the development, revision, and implemen15 tation of the qualified program, the State or local

16 land use jurisdiction has provided for adequate dis17 semination of information and for adequate public

18 notice and public hearings;

19 (8) in the case of a State qualified program, the

20 State has—

21 (A) coordinated with appropriate neighbor22 ing States with respect to land and water in

23 interstate areas; and
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1 (B) taken into account the plans and pro2 grams of other State agencies and of Federal

3 agencies and local governments;

4 (9) in the case of a local qualified program, the

5 local land use jurisdiction has coordinated and taken

6 into account the plans and programs of Federal and

7 State agencies; and

8 (10) the State or local land use jurisdiction has

9 in effect procedures for determining whether Federal

10 and federally assisted projects are consistent with

11 the qualified program.

12 (f) DISCRETION.—Nothing in this section requires

13 the Governor of a State or chief executive officer of a local

14 land use jurisdiction to make a certification under sub15 section (c).

16 (g) NOTICE.—On providing additional time under

17 subsection (b), the responsible Federal official shall pub18 lish notice of the time provided and publish the certifi19 cation filed pursuant to subsection (c).

20 (h) RELIANCE ON CERTIFICATION.—Before publish21 ing notice under subsection (g), the responsible official for

22 the activity shall provide notice of, and allow not less than

23 30 days for public comment on, the extent to which provid24 ing additional time is justified and any adverse public
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1 health or environmental impacts that may result from pro2 viding the additional time.

3 (i) EXCEPTION.—This section shall not apply to an

4 activity if the application of State or local law to the activ5 ity is specifically prohibited by Federal law.

6 (j) CONSISTENCY OF FEDERAL ACTIVITIES WITH

7 QUALIFIED PROGRAMS.—

8 (1) ACTIVITIES AFFECTING QUALIFIED PRO9 GRAM.—A Federal agency conducting or supporting

10 an activity that directly affects land use or that is

11 otherwise regulated under a qualified program shall

12 conduct or support the activity in a manner that is,

13 to the maximum extent practicable, consistent with

14 the qualified program.

15 (2) UNDERTAKING DEVELOPMENT PROJECTS.—

16 A Federal agency undertaking a development project

17 in a State or local land use jurisdiction shall ensure

18 that the project is, to the maximum extent prac19 ticable, consistent with the qualified program.

20 SEC. 5. PRIORITY IN DISCRETIONARY HIGHWAY SPENDING.

21 Section 118 of title 23, United States Code, is

22 amended by adding at the end the following:

23 ‘‘(g) PRIORITY FOR CERTAIN STATES AND LOCAL

24 LAND USE JURISDICTIONS.—
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1 ‘‘(1) IN GENERAL.—In making available under

2 this title and the Intermodal Surface Transportation

3 Efficiency Act of 1991 (Public Law 102–240) funds

4 that are designated to be distributed, obligated, or

5 otherwise made available at the discretion of the

6 Secretary, the Secretary shall give priority to States

7 and local land use jurisdictions that the Secretary,

8 in consultation with the Council on Environmental

9 Quality, determines have in effect a State or local

10 growth management and land use program that sat11 isfies (or a combination of programs of the State or

12 local land use jurisdiction that collectively satisfy)

13 the requirements for certification under section 4 of

14 the Local Growth Management Incentives Act of

15 1996.

16 ‘‘(2) PROCEDURES.—In carrying out paragraph

17 (1), the Secretary shall establish by regulation pro18 cedures to be used in determining whether the pro19 gram of a State or local land use jurisdiction meets

20 the requirements for certification.’’.

21 SEC. 6. REPORT TO CONGRESS.

22 Not later than 1 year after the date of enactment

23 of this Act, in consultation with States that have in effect

24 programs substantially similar to growth management and

25 land use programs certified under this Act, the Council
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1 on Environmental Quality shall submit to Congress a re2 port on the impacts of Federal activities on growth and

3 land use and the effectiveness of growth management and

4 land use programs in addressing the cumulative impacts

5 of Federal activities on the environment. On request by

6 the Council, any Federal agency shall assist the Council

7 in preparing the report.

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