I 
117TH CONGRESS 
1ST SESSION H. R. 4336 
To amend the National Environmental Policy Act of 1969 to provide for 
project delivery programs, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JULY 1, 2021 
Mr. SCHWEIKERT (for himself, Mrs. LESKO, and Mr. NEWHOUSE) introduced 
the following bill; which was referred to the Committee on Natural Re-
sources, and in addition to the Committee on Transportation and Infra-
structure, for a period to be subsequently determined by the Speaker, in 
each case for consideration of such provisions as fall within the jurisdic-
tion of the committee concerned 
A BILL 
To amend the National Environmental Policy Act of 1969 
to provide for project delivery programs, and for other 
purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘NEPA State Assign-
ment Expansion Act’’. 
SEC. 2. PROJECT DELIVERY PROGRAMS. 
(a) IN GENERAL.—Title I of the National Environ-
mental Policy Act of 1969 is amended— 
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(1) by redesignating section 105 (42 U.S.C. 
4335) as section 106; and 
(2) by inserting after section 104 (42 U.S.C. 
4334) the following: 
‘‘SEC. 105. PROJECT DELIVERY PROGRAMS. 
‘‘(a) DEFINITION OF AGENCY PROGRAM.—In this 
section, the term ‘agency program’ means a project deliv-
ery program established by a Federal agency under sub-
section (b)(1). 
‘‘(b) ESTABLISHMENT.— 
‘‘(1) IN GENERAL.—The head of each Federal 
agency, including the Secretary of Transportation, 
shall carry out a project delivery program. 
‘‘(2) ASSUMPTION OF RESPONSIBILITY.— 
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), the head of each Federal agency 
shall, on request of a State, enter into a written 
agreement with the State, which may be in the 
form of a memorandum of understanding, in 
which the head of each Federal agency may as-
sign, and the State may assume, the respon-
sibilities of the head of the Federal agency 
under this title with respect to 1 or more 
projects within the State that are under the ju-
risdiction of the Federal agency. 
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‘‘(B) EXCEPTION.—The head of a Federal 
agency shall not enter into a written agreement 
under subparagraph (A) if the head of the Fed-
eral agency determines that the State is not in 
compliance with the requirements described in 
subsection (c)(4). 
‘‘(C) ADDITIONAL RESPONSIBILITY.—If a 
State assumes responsibility under subpara-
graph (A)— 
‘‘(i) the head of the Federal agency 
may assign to the State, and the State 
may assume, all or part of the responsibil-
ities of the head of the Federal agency for 
environmental 
review, 
consultation, 
or 
other action required under any Federal 
environmental law pertaining to the review 
or approval of a specific project; 
‘‘(ii) at the request of the State, the 
head of the Federal agency may also as-
sign to the State, and the State may as-
sume, the responsibilities of the head of 
the Federal agency under this title with re-
spect to 1 or more projects within the 
State that are under the jurisdiction of the 
Federal agency; but 
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‘‘(iii) the head of the Federal agency 
may not assign responsibility for any re-
gional conformity determination required 
under section 176 of the Clean Air Act (42 
U.S.C. 7506) currently made by a Metro-
politan Planning Organization. 
‘‘(D) PROCEDURAL AND SUBSTANTIVE RE-
QUIREMENTS.—A State shall assume responsi-
bility under this section subject to the same 
procedural and substantive requirements as 
would apply if that responsibility were carried 
out by the Federal agency. 
‘‘(E) FEDERAL RESPONSIBILITY.—Any re-
sponsibility of a Federal agency not explicitly 
assumed by the State by written agreement 
under subparagraph (A) shall remain the re-
sponsibility of the Federal agency. 
‘‘(F) NO EFFECT ON AUTHORITY.—Noth-
ing in this section preempts or interferes with 
any power, jurisdiction, responsibility, or au-
thority of an agency, other than the Federal 
agency for which the written agreement applies, 
under applicable law (including regulations) 
with respect to a project. 
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‘‘(G) PRESERVATION
OF
FLEXIBILITY.— 
The head of the Federal agency may not re-
quire a State, as a condition of participation in 
the agency program of the Federal agency, to 
forego project delivery methods that are other-
wise permissible for projects under applicable 
law. 
‘‘(H) LEGAL FEES.—A State assuming the 
responsibilities of a Federal agency under this 
section for a specific project may use funds 
awarded to the State for that project for attor-
neys’ fees directly attributable to eligible activi-
ties associated with the project. 
‘‘(c) STATE PARTICIPATION.— 
‘‘(1) PARTICIPATING STATES.—Except as pro-
vided in subsection (b)(2)(B), all States are eligible 
to participate in an agency program. 
‘‘(2) APPLICATION.—Not later than 270 days 
after the date of enactment of this section, the head 
of each Federal agency shall amend, as appropriate, 
regulations that establish requirements relating to 
information required to be contained in any applica-
tion of a State to participate in the agency program, 
including, at a minimum— 
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‘‘(A) the projects or classes of projects for 
which the State anticipates exercising the au-
thority that may be granted under the agency 
program; 
‘‘(B) verification of the financial resources 
necessary to carry out the authority that may 
be granted under the agency program; and 
‘‘(C) evidence of the notice and solicitation 
of public comment by the State relating to par-
ticipation of the State in the agency program, 
including copies of comments received from that 
solicitation. 
‘‘(3) PUBLIC NOTICE.— 
‘‘(A) IN GENERAL.—Each State that sub-
mits an application under this subsection shall 
give notice of the intent of the State to partici-
pate in an agency program not later than 30 
days before the date of submission of the appli-
cation. 
‘‘(B) METHOD OF NOTICE AND SOLICITA-
TION.—The State shall provide notice and so-
licit public comment under this paragraph by 
publishing the complete application of the State 
in accordance with the appropriate public notice 
law of the State. 
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‘‘(4) SELECTION
CRITERIA.—The head of a 
Federal agency may approve the application of a 
State under this section only if— 
‘‘(A) the regulatory requirements under 
paragraph (2) have been met; 
‘‘(B) the head of the Federal agency deter-
mines that the State has the capability, includ-
ing financial and personnel, to assume the re-
sponsibility; and 
‘‘(C) the head of the State agency having 
primary jurisdiction over the project enters into 
a written agreement with the head of the Fed-
eral agency as described in subsection (d). 
‘‘(5) OTHER
FEDERAL
AGENCY
VIEWS.—If a 
State applies to assume a responsibility of the Fed-
eral agency that would have required the head of the 
Federal agency to consult with the head of another 
Federal agency, the head of the Federal agency shall 
solicit the views of the head of the other Federal 
agency before approving the application. 
‘‘(d) WRITTEN AGREEMENT.—A written agreement 
under subsection (b)(2)(A) shall— 
‘‘(1) be executed by the Governor or the top- 
ranking official in the State who is charged with re-
sponsibility for the project; 
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‘‘(2) be in such form as the head of the Federal 
agency may prescribe; 
‘‘(3) provide that the State— 
‘‘(A) agrees to assume all or part of the re-
sponsibilities of the Federal agency described in 
subparagraphs (A) and (C) of subsection (b)(2); 
‘‘(B) expressly consents, on behalf of the 
State, to accept the jurisdiction of the Federal 
courts for the compliance, discharge, and en-
forcement of any responsibility of the Federal 
agency assumed by the State; 
‘‘(C) certifies that State laws (including 
regulations) are in effect that— 
‘‘(i) authorize the State to take the 
actions necessary to carry out the respon-
sibilities being assumed; and 
‘‘(ii) are comparable to section 552 of 
title 5, including providing that any deci-
sion regarding the public availability of a 
document under those State laws is review-
able by a court of competent jurisdiction; 
and 
‘‘(D) agrees to maintain the financial re-
sources necessary to carry out the responsibil-
ities being assumed; 
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‘‘(4) require the State to provide to the head of 
the Federal agency any information the head of the 
Federal agency reasonably considers necessary to en-
sure that the State is adequately carrying out the 
responsibilities assigned to the State; 
‘‘(5) have a term of not more than 5 years; and 
‘‘(6) be renewable. 
‘‘(e) JURISDICTION.— 
‘‘(1) IN GENERAL.—The United States district 
courts shall have exclusive jurisdiction over any civil 
action against a State for failure to carry out any 
responsibility of the State under this section. 
‘‘(2) 
LEGAL
STANDARDS
AND
REQUIRE-
MENTS.—A civil action under paragraph (1) shall be 
governed by the legal standards and requirements 
that would apply in such a civil action against the 
head of a Federal agency had the head of the Fed-
eral agency taken the actions in question. 
‘‘(3) INTERVENTION.—The head of a Federal 
agency shall have the right to intervene in any ac-
tion described in paragraph (1). 
‘‘(f) EFFECT
OF
ASSUMPTION
OF
RESPONSI-
BILITY.—A State that assumes responsibility under sub-
section (b)(2) shall be solely responsible and solely liable 
for carrying out, in lieu of and without further approval 
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of the head of the Federal agency, the responsibilities as-
sumed under subsection (b)(2), until the agency program 
is terminated under subsection (k). 
‘‘(g) LIMITATIONS
ON AGREEMENTS.—Nothing in 
this section permits a State to assume any rulemaking au-
thority of the head of a Federal agency under any Federal 
law. 
‘‘(h) AUDITS.— 
‘‘(1) IN GENERAL.—To ensure compliance by a 
State with any agreement of the State under sub-
section (d) (including compliance by the State with 
all Federal laws for which responsibility is assumed 
under subsection (b)(2)), for each State partici-
pating in an agency program, the head of a Federal 
agency shall— 
‘‘(A) not later than 180 days after the date 
of execution of the agreement, meet with the 
State to review implementation of the agree-
ment and discuss plans for the first annual 
audit; 
‘‘(B) conduct annual audits during each of 
the first 4 years of State participation; and 
‘‘(C) ensure that the time period for com-
pleting an annual audit, from initiation to com-
pletion (including public comment and re-
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sponses to those comments), does not exceed 
180 days. 
‘‘(2) PUBLIC AVAILABILITY AND COMMENT.— 
‘‘(A) IN
GENERAL.—An audit conducted 
under paragraph (1) shall be provided to the 
public for comment. 
‘‘(B) RESPONSE.—Not later than 60 days 
after the date on which the period for public 
comment ends, the head of the Federal agency 
shall respond to public comments received 
under subparagraph (A). 
‘‘(3) AUDIT TEAM.— 
‘‘(A) IN
GENERAL.—An audit conducted 
under paragraph (1) shall be carried out by an 
audit team determined by the head of the Fed-
eral agency, in consultation with the State, in 
accordance with subparagraph (B). 
‘‘(B) CONSULTATION.—Consultation with 
the State under subparagraph (A) shall include 
a reasonable opportunity for the State to review 
and provide comments on the proposed mem-
bers of the audit team. 
‘‘(i) MONITORING.—After the fourth year of the par-
ticipation of a State in an agency program, the head of 
the Federal agency shall monitor compliance by the State 
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with the written agreement, including the provision by the 
State of financial resources to carry out the written agree-
ment. 
‘‘(j) REPORT TO CONGRESS.—The head of each Fed-
eral agency shall submit to Congress an annual report that 
describes the administration of the agency program. 
‘‘(k) TERMINATION.— 
‘‘(1) TERMINATION BY FEDERAL AGENCY.—The 
head of a Federal agency may terminate the partici-
pation of a State in the agency program of the Fed-
eral agency if— 
‘‘(A) the head of the Federal agency deter-
mines that the State is not— 
‘‘(i) meeting time lines or other re-
quirements under Federal law that became 
the responsibility of the State under the 
agency program; or 
‘‘(ii) adequately carrying out other the 
responsibilities assigned to the State under 
the agency program; 
‘‘(B) the head of the Federal agency pro-
vides to the State— 
‘‘(i) a notification of the determina-
tion of noncompliance; 
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‘‘(ii) a period of not less than 120 
days to take such corrective action as the 
head of the Federal agency determines to 
be necessary to comply with the applicable 
agreement; and 
‘‘(iii) on request of the Governor of 
the State, a detailed description of each re-
sponsibility in need of corrective action re-
garding an inadequacy identified under 
subparagraph (A); and 
‘‘(C) the State, after the notification and 
period provided under subparagraph (B), fails 
to take satisfactory corrective action, as deter-
mined by the head of the Federal agency. 
‘‘(2) TERMINATION BY THE STATE.—A State 
may terminate the participation of the State in an 
agency program at any time by providing to the 
head of the applicable Federal agency a notice by 
not later than the date that is 90 days before the 
date of termination, and subject to such terms and 
conditions as the head of the Federal agency may 
provide. 
‘‘(l) CAPACITY BUILDING.—The head of a Federal 
agency, in cooperation with representatives of State offi-
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cials, may carry out education, training, peer-exchange, 
and other initiatives as appropriate— 
‘‘(1) to assist States in developing the capacity 
to participate in the agency program of the Federal 
agency; and 
‘‘(2) to promote information sharing and col-
laboration among States that are participating in 
the agency program of the Federal agency. 
‘‘(m) RELATIONSHIP TO LOCALLY ADMINISTERED 
PROJECTS.—A State granted authority under an agency 
program may, as appropriate and at the request of a local 
government— 
‘‘(1) exercise that authority on behalf of the 
local government for a locally administered project; 
or 
‘‘(2) provide guidance and training on consoli-
dating and minimizing the documentation and envi-
ronmental analyses necessary for sponsors of a lo-
cally administered project to comply with this title 
and any comparable requirements under State law.’’. 
(b) CONFORMING AMENDMENT.—Section 327 of title 
23, United States Code, is amended— 
(1) in subsection (a)(1), by striking ‘‘The Sec-
retary’’ and inserting ‘‘Subject to subsection (m), 
the Secretary’’; and 
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(2) by adding at the end the following: 
‘‘(m) SUNSET.— 
‘‘(1) IN GENERAL.—Except as provided under 
paragraph (2), the authority provided by this section 
terminates on the date of enactment of this sub-
section. 
‘‘(2) EXISTING AGREEMENTS.—Subject to the 
requirements of this section, the Secretary may con-
tinue to enforce any agreement entered into under 
this section before the date of enactment of this sub-
section.’’. 
Æ 
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