I 

112TH CONGRESS 

1ST SESSION H. R. 2538 

To amend the National Environmental Policy Act of 1969 to authorize assignment to States of Federal agency environmental review responsibilities, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 14, 2011 

Mr. CALVERT (for himself, Mr. LEWIS of California, Mr. MCKEON, Mr. 

GALLEGLY, Mr. GARY G. MILLER of California, Mr. ROHRABACHER, Mr. 

CARDOZA, and Mr. DENHAM) introduced the following bill; which was referred to the Committee on Natural Resources 

A BILL 

To amend the National Environmental Policy Act of 1969 

to authorize assignment to States of Federal agency environmental review responsibilities, 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 ‘‘Reducing Environ5 mental Barriers to Unified Infrastructure and Land De6 velopment Act of 2011 Act’’ or the ‘‘REBUILD Act’’. 


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1 SEC. 2. ASSIGNMENT TO STATES OF FEDERAL ENVIRON2 MENTAL REVIEW RESPONSIBILITIES. 

3 Title I of the National Environmental Policy Act of 

4 1969 (42 U.S.C. 4331 et seq.) is amended by adding at 

5 the end the following new section: 

6 ‘‘SEC. 106. ASSIGNMENT TO STATES OF ENVIRONMENTAL 

7 REVIEW RESPONSIBILITIES WITH RESPECT 

8 TO CERTAIN PROJECTS IN THE STATE. 

9 ‘‘(a) ASSUMPTION OF RESPONSIBILITY.— 

10 ‘‘(1) IN GENERAL.—Subject to the other provi11 sions of this section, with the written agreement of 

12 the responsible Federal official and a State, which 

13 may be in the form of a memorandum of under14 standing, the responsible Federal official may assign, 

15 and the State may assume, the responsibilities of the 

16 responsible Federal official under the National Envi17 ronmental Policy Act of 1969 (42 U.S.C. 4321 et 

18 seq.) with respect to one or more covered Federal 

19 projects of the responsible Federal official within the 

20 State. 

21 ‘‘(2) ADDITIONAL RESPONSIBILITY.—If a State 

22 assumes responsibility under paragraph (1) the re23 sponsible Federal official may assign to the State, 

24 and the State may assume, all or part of the respon25 sibilities of the responsible Federal official for envi26 ronmental review, consultation, or other action reVerDate Mar 15 2010 01:26 Jul 15, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2538.IH H2538

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1 quired under any Federal environmental law per2 taining to the review or approval of covered projects 

3 of the responsible Federal official. 

4 ‘‘(3) PROCEDURAL AND SUBSTANTIVE RE5 QUIREMENTS.—A State shall assume responsibility 

6 under this section subject to the same procedural 

7 and substantive requirements as would apply if that 

8 responsibility were carried out by the responsible 

9 Federal official. 

10 ‘‘(4) FEDERAL RESPONSIBILITY.—Any respon11 sibility of the responsible Federal official not explic12 itly assumed by the State by written agreement 

13 under this section shall remain the responsibility of 

14 the responsible Federal official. 

15 ‘‘(5) NO EFFECT ON AUTHORITY.—Nothing in 

16 this section preempts or interferes with any power, 

17 jurisdiction, responsibility, or authority of an agen18 cy, other than the agency of the responsible Federal 

19 official for a covered project, under applicable law 

20 (including regulations) with respect to the project. 

21 ‘‘(b) STATE PARTICIPATION.— 

22 ‘‘(1) APPLICATION.—Not later than 180 days 

23 after the date of enactment of this section, each re24 sponsible Federal official shall promulgate regula25 tions that establish requirements relating to inforVerDate Mar 15 2010 01:26 Jul 15, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2538.IH H2538

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1 mation required to be contained in any application 

2 of a State to assume responsibility under this section 

3 with respect to covered Federal projects of the re4 sponsible Federal official, including, at a min5 imum— 

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

7 which the State anticipates exercising the au8 thority that may be granted under this section; 

9 ‘‘(B) verification of the financial resources 

10 necessary to carry out the authority that may 

11 be assigned under this section; and 

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

13 of public comment by the State relating to as14 sumption of responsibility under this section by 

15 the State, including copies of comments re16 ceived from that solicitation. 

17 ‘‘(2) PUBLIC NOTICE.— 

18 ‘‘(A) IN GENERAL.—Each State that sub19 mits an application under this subsection shall 

20 give notice of the intent of the State to submit 

21 such application not later than 30 days before 

22 the date of submission of the application. 

23 ‘‘(B) METHOD OF NOTICE AND SOLICITA24 TION.—The State shall provide notice and so25 licit public comment under this paragraph by 


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1 publishing the complete application of the State 

2 in accordance with the appropriate public notice 

3 law of the State. 

4 ‘‘(3) SELECTION CRITERIA.—A responsible Fed5 eral official may approve the application of a State 

6 under this section only if— 

7 ‘‘(A) the regulatory requirements under 

8 paragraph (2) have been met; 

9 ‘‘(B) the responsible Federal official deter10 mines that the State has the capability, includ11 ing financial and personnel, to assume the re12 sponsibility; and 

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

14 primary jurisdiction over covered projects with 

15 respect to which responsibility would be as16 signed to the State pursuant to the application 

17 enters into a written agreement with the re18 sponsible Federal official described in sub19 section (c). 

20 ‘‘(4) OTHER FEDERAL AGENCY VIEWS.—If a 

21 State applies to assume a responsibility of a respon22 sible Federal official that would have required the 

23 responsible Federal official to consult with another 

24 Federal agency, the responsible Federal official shall 


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1 solicit the views of the Federal agency before ap2 proving the application. 

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

4 under this section shall— 

5 ‘‘(1) be executed by the Governor of the State 

6 or the head of the State agency referred to in sub7 section (b)(3)(C); 

8 ‘‘(2) be in such form as the responsible Federal 

9 official may prescribe; and 

10 ‘‘(3) provide that the State— 

11 ‘‘(A) agrees to assume all or part of the re12 sponsibilities of the responsible Federal official 

13 described in subsection (a); 

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

15 State, to accept the jurisdiction of the Federal 

16 courts for the compliance, discharge, and en17 forcement of any responsibility of the respon18 sible Federal official assumed by the State; 

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

20 regulations) are in effect that— 

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

22 actions necessary to carry out the respon23 sibilities being assumed; and 

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

25 title 5, including providing that any deciVerDate Mar 15 2010 01:26 Jul 15, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2538.IH H2538

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1 sion regarding the public availability of a 

2 document under those State laws is review3 able by a court of competent jurisdiction; 

4 and 

5 ‘‘(D) agrees to maintain the financial re6 sources necessary to carry out the responsibil7 ities being assumed. 

8 ‘‘(d) JURISDICTION.— 

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

10 courts shall have exclusive jurisdiction over any civil 

11 action against a State for failure to carry out any 

12 responsibility of the State under this section. 

13 ‘‘(2) LEGAL STANDARDS AND REQUIRE14 MENTS.—A civil action under paragraph (1) shall be 

15 governed by the legal standards and requirements 

16 that would apply in such a civil action against the 

17 responsible Federal official had the responsible Fed18 eral official taken the actions in question. 

19 ‘‘(3) INTERVENTION.—The responsible Federal 

20 official shall have the right to intervene in any ac21 tion described in paragraph (1). 

22 ‘‘(e) EFFECT OF ASSUMPTION OF RESPONSI23 BILITY.—A State that assumes responsibility under sub24 section (a) shall be solely responsible and solely liable for 

25 carrying out, in lieu of the responsible Federal official, the 


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1 responsibilities assumed under subsection (a), until the 

2 termination of such assumption of responsibility. 

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

4 this section permits a State to assume any rulemaking au5 thority of the responsible Federal official under any Fed6 eral law. 

7 ‘‘(g) AUDITS.— 

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

9 State with any agreement of the State under sub10 section (c) (including compliance by the State with 

11 all Federal laws for which responsibility is assumed 

12 under subsection (a)), for each State participating in 

13 the program under this section, the responsible Fed14 eral official shall conduct— 

15 ‘‘(A) semiannual audits during each of the 

16 first 2 years of the effective period of the agree17 ment; and 

18 ‘‘(B) annual audits during each subsequent 

19 year of such effective period. 

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

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

22 under paragraph (1) shall be provided to the 

23 public for comment for a 30-day period. 

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

25 after the date on which the period for public 


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1 comment ends, the responsible Federal official 

2 shall respond to public comments received 

3 under subparagraph (A). 

4 ‘‘(h) REPORT TO CONGRESS.—Each responsible Fed5 eral official shall submit to Congress an annual report that 

6 describes the administration of this section by such offi7 cial. 

8 ‘‘(i) TERMINATION BY RESPONSIBLE FEDERAL OFFI9 CIAL.—The responsible Federal official with respect to an 

10 agreement with a State under this section may terminate 

11 the agreement and any responsibility or authority of the 

12 State under this section with respect to such agreement, 

13 if— 

14 ‘‘(1) the responsible Federal official determines 

15 that the State is not adequately carrying out the re16 sponsibilities assumed by the State under this sec17 tion; 

18 ‘‘(2) the responsible Federal official provides to 

19 the State— 

20 ‘‘(A) notification of the determination of 

21 noncompliance; and 

22 ‘‘(B) a period of at least 30 days during 

23 which to take such corrective action as the re24 sponsible Federal official determines is necVerDate Mar 15 2010 01:26 Jul 15, 2011 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2538.IH H2538

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1 essary to comply with the applicable agreement; 

2 and 

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

4 provided under subparagraph (B), fails to take satis5 factory corrective action, as determined by respon6 sible Federal official. 

7 ‘‘(j) DEFINITIONS.—In this section: 

8 ‘‘(1) COVERED FEDERAL PROJECT.—The term 

9 ‘covered Federal project’ means— 

10 ‘‘(A)(i) except as provided in clause (ii) 

11 and subparagraph (B), any project that is fund12 ed by, carried out by, or subject to approval or 

13 disapproval by a responsible official, including 

14 any project for which a permit or other author15 ization by a responsible Federal official is re16 quired; and 

17 ‘‘(ii) in the case of projects funded, carried 

18 out by, or subject to review, approval, or dis19 approval by the Secretary of the Army, and ex20 cept as provided in subparagraph (B), includes 

21 only such projects of the Corps of Engineers; 

22 and 

23 ‘‘(B) the preparation of any statement re24 quired by section 102(2)(C). 


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1 ‘‘(2) RESPONSIBLE FEDERAL OFFICIAL.—The 

2 term ‘responsible Federal official’ means— 

3 ‘‘(A) the Secretary of the Interior; 

4 ‘‘(B) the Secretary of Transportation; 

5 ‘‘(C) the Administrator of the Environ6 mental Protection Agency; 

7 ‘‘(D) the Secretary of the Army; and 

8 ‘‘(E) the head of a Federal agency, with 

9 respect to the preparation of statements under 

10 section 102(2)(C) for major Federal actions (as 

11 that term is used in that section) of the agen12 cy.’’. 

Æ 


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