II 

115TH CONGRESS 

2D SESSION S. 2588 

To amend title 54, United States Code, to establish a program to allow 

States to assume certain Federal responsibilities under that title with 

respect to agency actions applicable to highway projects within the States, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 21, 2018 

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

A BILL 

To amend title 54, United States Code, to establish a program to allow States to assume certain Federal responsibilities under that title with respect to agency actions 

applicable to highway projects within the States, 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. ASSUMPTION BY STATES OF CERTAIN HIS4 TORIC PRESERVATION RESPONSIBILITIES. 

5 (a) IN GENERAL.—Subchapter I of chapter 3061 of 

6 title 54, United States Code, is amended by adding at the 

7 end the following: 


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1 ‘‘§ 306115. Assumption by States of certain respon2 sibilities relating to highway projects 

3 ‘‘(a) ESTABLISHMENT.— 

4 ‘‘(1) IN GENERAL.—The head of each agency 

5 (referred to in this section as the ‘agency head’) 

6 shall carry out an assignment program (referred to 

7 in this section as the ‘program’) to allow States that 

8 are eligible under subsection (b)(1) to assume cer9 tain responsibilities of the agency under section 

10 306108 with respect to agency actions applicable to 

11 highway projects within the State. 

12 ‘‘(2) ASSUMPTION OF RESPONSIBILITY.— 

13 ‘‘(A) IN GENERAL.—Subject to the other 

14 requirements of this section, on written agree15 ment of the agency head and a State (which 

16 may be in the form of a memorandum of under17 standing), the agency head may assign, and the 

18 State may assume, the responsibilities of the 

19 agency head under section 306108 with respect 

20 to the undertakings of the agency described in 

21 that section that are applicable to 1 or more 

22 highway projects in the State. 

23 ‘‘(B) ADDITIONAL RESPONSIBILITY.— 

24 ‘‘(i) IN GENERAL.—If a State as25 sumes responsibility under subparagraph 

26 (A), subject to clause (ii), on the request 


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1 of the State, the agency head may also as2 sign to the State, and the State may as3 sume, the responsibilities of the agency 

4 head described in that subparagraph for 1 

5 or more railroad, public transportation, or 

6 multimodal projects within the State. 

7 ‘‘(ii) EXCLUSION OF PROJECTS.—In 

8 any State that assumes a responsibility of 

9 the agency head under clause (i), a recipi10 ent of assistance under chapter 53 of title 

11 49, may submit to the agency head a re12 quest that the agency head shall maintain 

13 the responsibility of the agency head with 

14 respect to 1 or more public transportation 

15 projects carried out by the recipient in the 

16 State. 

17 ‘‘(C) PROCEDURAL AND SUBSTANTIVE RE18 QUIREMENTS.—A State shall assume responsi19 bility under this section subject to the same 

20 procedural and substantive requirements as 

21 would apply if the responsibility were carried 

22 out by the agency head. 

23 ‘‘(D) FEDERAL RESPONSIBILITY.—Any re24 sponsibility of an agency head that is not ex25 plicitly assumed by a State by written agreeVerDate Sep 11 2014 23:30 Mar 30, 2018 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2588.IS S2588

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1 ment under this section shall remain the re2 sponsibility of the agency head. 

3 ‘‘(E) NO EFFECT ON AUTHORITY.—Noth4 ing in this section preempts or interferes with 

5 any power, jurisdiction, responsibility, or au6 thority of the Secretary, the Council, or the ap7 plicable agency, except with respect to an au8 thority delegated by the agency head pursuant 

9 to subparagraph (A) under applicable law re10 garding a project or agency action described in 

11 subparagraph (A) or (B). 

12 ‘‘(F) PRESERVATION OF FLEXIBILITY.— 

13 The agency head may not require a State, as a 

14 condition of participation in the program, to 

15 forgo a project delivery method that is other16 wise permissible for a project described in sub17 paragraph (A) or (B). 

18 ‘‘(G) LEGAL FEES.—A State that assumes 

19 a responsibility of an agency head under this 

20 section for a project described in subparagraph 

21 (A) or (B) may use funds apportioned to the 

22 State under section 104(b)(2) of title 23, as 

23 necessary, for attorneys’ fees directly attrib24 utable to eligible activities associated with the 

25 project. 


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1 ‘‘(b) STATE PARTICIPATION.— 

2 ‘‘(1) PARTICIPATING STATES.—To be eligible to 

3 participate in the program, a State shall— 

4 ‘‘(A) be participating in the surface trans5 portation project delivery program under sec6 tion 327 of title 23; and 

7 ‘‘(B) assume the responsibilities of the 

8 Secretary of Transportation under the National 

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

10 4321 et seq.) pursuant to that section. 

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

12 after the date of enactment of this section, the Sec13 retary shall amend, as appropriate, regulations that 

14 establish requirements relating to information re15 quired in any application of a State to participate in 

16 the program, including, at a minimum— 

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

18 which the State anticipates exercising the au19 thority that may be granted under the program; 

20 ‘‘(B) verification of the financial resources 

21 necessary to carry out the authority that may 

22 be granted under the program; and 

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

24 of public comment by the State relating to par25 ticipation of the State in the program, including 


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1 copies of comments received from that solicita2 tion. 

3 ‘‘(3) PUBLIC NOTICE.— 

4 ‘‘(A) IN GENERAL.—Each State that sub5 mits an application in accordance with the reg6 ulations described in paragraph (2) shall pro7 vide to the relevant agency head and publish 

8 notice of the intent of the State to participate 

9 in the program by not later than 30 days before 

10 the date of submission of the application. 

11 ‘‘(B) METHOD OF NOTICE AND SOLICITA12 TION.—The State shall provide notice and so13 licit public comment under this paragraph by 

14 publishing the complete application of the State 

15 in accordance with the appropriate public notice 

16 requirements of the State. 

17 ‘‘(4) SELECTION CRITERIA.—The agency head 

18 may approve the application of a State under this 

19 subsection only if— 

20 ‘‘(A) any necessary changes to regulations 

21 pursuant to paragraph (2) have been carried 

22 out; 

23 ‘‘(B) the agency head determines that the 

24 State has the capability, including financial and 

25 personnel, to assume the responsibility; and 


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1 ‘‘(C) the head of the State agency with pri2 mary jurisdiction over highway matters enters 

3 into a written agreement with the agency head, 

4 as described in subsection (c). 

5 ‘‘(5) OTHER AGENCY VIEWS.—If a State applies 

6 to assume a responsibility of the agency head that 

7 would have required the agency head to consult with 

8 another agency, the agency head shall solicit the 

9 views of the other agency before approving the appli10 cation of the State under this subsection. 

11 ‘‘(c) WRITTEN AGREEMENT.—A written agreement 

12 under this section shall— 

13 ‘‘(1) be executed by— 

14 ‘‘(A) the Governor of the applicable State; 

15 or 

16 ‘‘(B) the top-ranking transportation offi17 cial in the State who is charged with responsi18 bility for highway construction; 

19 ‘‘(2) be in such form as the agency head may 

20 require; 

21 ‘‘(3) provide that the State— 

22 ‘‘(A) agrees to assume all or part of the re23 sponsibilities of the agency head referred to in 

24 subsection (a); 


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

2 State, to accept the jurisdiction of the Federal 

3 courts for the compliance, discharge, and en4 forcement of any responsibility of the agency 

5 head assumed by the State; 

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

7 regulations) are in effect that— 

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

9 actions necessary to carry out the respon10 sibilities being assumed; and 

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

12 title 5, including providing that any deci13 sion regarding the public availability of a 

14 document under those State laws is review15 able by a court of competent jurisdiction; 

16 and 

17 ‘‘(D) agrees to maintain the financial re18 sources necessary to carry out the responsibil19 ities being assumed; 

20 ‘‘(4) require the State to provide to the agency 

21 head any information the agency head reasonably 

22 considers necessary to ensure that the State is ade23 quately carrying out the responsibilities assigned to 

24 the State; 

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


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1 ‘‘(6) be renewable. 

2 ‘‘(d) JURISDICTION.— 

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

4 courts shall have exclusive jurisdiction over any civil 

5 action against a State for failure to carry out any 

6 responsibility assumed by the State pursuant to this 

7 section. 

8 ‘‘(2) LEGAL STANDARDS AND REQUIRE9 MENTS.—A civil action under paragraph (1) shall be 

10 governed by the legal standards and requirements 

11 that would apply in such a civil action against the 

12 applicable agency head had the agency head taken 

13 the actions in question. 

14 ‘‘(3) INTERVENTION.—The applicable agency 

15 head shall have the right to intervene in any action 

16 described in paragraph (1). 

17 ‘‘(e) EFFECT OF ASSUMPTION OF RESPONSI18 BILITY.—A State that assumes responsibility under sub19 section (a)(2) shall be solely responsible and solely liable 

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

21 of, the applicable agency head, those responsibilities, until 

22 the date on which the program is terminated in accordance 

23 with subsection (j). 

24 ‘‘(f) LIMITATIONS ON AGREEMENTS.—Nothing in 

25 this section permits a State to assume any rulemaking auVerDate Sep 11 2014 23:30 Mar 30, 2018 Jkt 079200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2588.IS S2588

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1 thority of the Secretary or the applicable agency head 

2 under any Federal law. 

3 ‘‘(g) AUDITS.— 

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

5 State with an agreement of the State under sub6 section (c) (including compliance by the State with 

7 all Federal laws for which responsibility is assumed 

8 under subsection (a)(2)), for each State partici9 pating in the program, the applicable agency head 

10 shall— 

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

12 of execution of the applicable agreement, meet 

13 with the State— 

14 ‘‘(i) to review the implementation of 

15 the agreement; and 

16 ‘‘(ii) to discuss plans for the first an17 nual audit; 

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

19 the first 4 years of State participation in the 

20 program; and 

21 ‘‘(C) ensure that the time period for com22 pleting an annual audit, from initiation to com23 pletion (including public comment and re24 sponses to those comments), does not exceed 

25 180 days. 


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

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

3 under paragraph (1) shall be provided to the 

4 public for comment. 

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

6 after the date on which the period for public 

7 comment ends, the applicable agency head shall 

8 respond to public comments received under sub9 paragraph (A). 

10 ‘‘(3) AUDIT TEAM.— 

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

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

13 audit team determined by the applicable agency 

14 head, in consultation with the State, in accord15 ance with subparagraph (B). 

16 ‘‘(B) CONSULTATION.—Consultation with 

17 the State under subparagraph (A) shall include 

18 a reasonable opportunity for the State to re19 view, and provide comments regarding, the pro20 posed members of the audit team. 

21 ‘‘(h) MONITORING.—After the end of the fourth year 

22 of the participation by a State in the program, the applica23 ble agency head shall monitor compliance by the State 

24 with the written agreement under subsection (c), including 


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1 the provision by the State of financial resources to carry 

2 out the written agreement. 

3 ‘‘(i) REPORT TO CONGRESS.—The Secretary or the 

4 Council shall submit to Congress an annual report that 

5 describes the administration of the program during the 

6 preceding calendar year. 

7 ‘‘(j) TERMINATION.— 

8 ‘‘(1) TERMINATION BY AGENCY.—The applica9 ble agency head may terminate the participation of 

10 a State in the program if— 

11 ‘‘(A) the agency head determines that the 

12 State is not adequately carrying out the respon13 sibilities assigned to the State pursuant to this 

14 section; 

15 ‘‘(B) the agency head provides to the 

16 State— 

17 ‘‘(i) a notification of the determina18 tion of noncompliance; 

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

20 days to take such corrective action as the 

21 agency head determines to be necessary to 

22 comply with the applicable agreement; and 

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

24 the State, a detailed description of each re25 sponsibility in need of corrective action reVerDate Sep 11 2014 23:30 Mar 30, 2018 Jkt 079200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2588.IS S2588

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1 garding an inadequacy identified under 

2 subparagraph (A); and 

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

4 period for corrective action provided under sub5 paragraph (B), fails to take satisfactory correc6 tive action, as determined by the agency head. 

7 ‘‘(2) TERMINATION BY STATE.—The State may 

8 terminate the participation of the State in the pro9 gram at any time by providing to the applicable 

10 agency head a notice, by not later than the date that 

11 is 90 days before the date of termination, subject to 

12 such terms and conditions as the agency head may 

13 provide. 

14 ‘‘(k) CAPACITY BUILDING.—The Council, in coopera15 tion with representatives of State officials, may carry out 

16 education, training, peer-exchange, and other initiatives as 

17 appropriate— 

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

19 to participate in the program; and 

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

22 the program. 

23 ‘‘(l) RELATIONSHIP TO LOCALLY ADMINISTERED

24 PROJECTS.—A State granted authority under this section 


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1 may, as appropriate and on the request of a local govern2 ment— 

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

4 local government for a locally administered project; 

5 or 

6 ‘‘(2) provide guidance and training regarding 

7 consolidating and minimizing the documentation and 

8 environmental analyses necessary for sponsors of a 

9 locally administered project to comply with— 

10 ‘‘(A) section 306108; and 

11 ‘‘(B) any comparable requirements under 

12 State law.’’. 

13 (b) TECHNICAL AMENDMENT.—The table of sections 

14 for chapter 3061 of title 54, United States Code, is 

15 amended by inserting after the item relating to section 

16 306114 the following: 

‘‘306115. Assumption by States of certain responsibilities relating to highway 

projects.’’. 

Æ 


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