H. R. 2538
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
To amend the National Environmental Policy Act of 1969 to authorize assignment to States of Federal agency environmental review responsibilities, and for other purposes.
This Act may be cited as the
Reducing Environmental Barriers to
Unified Infrastructure and Land Development Act of 2011
Act or the
Assignment to States of Federal environmental review responsibilities
Title I of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) is amended by adding at the end the following new section:
Assignment to States of environmental review responsibilities with respect to certain projects in the State
Assumption of responsibility
Subject to the other provisions of this section, with the written agreement of the responsible Federal official and a State, which may be in the form of a memorandum of understanding, the responsible Federal official may assign, and the State may assume, the responsibilities of the responsible Federal official under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to one or more covered Federal projects of the responsible Federal official within the State.
If a State assumes responsibility under paragraph (1) the responsible Federal official may assign to the State, and the State may assume, all or part of the responsibilities of the responsible Federal official for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review or approval of covered projects of the responsible Federal official.
Procedural and substantive requirements
A State shall assume responsibility under this section subject to the same procedural and substantive requirements as would apply if that responsibility were carried out by the responsible Federal official.
Any responsibility of the responsible Federal official not explicitly assumed by the State by written agreement under this section shall remain the responsibility of the responsible Federal official.
No effect on authority
Nothing in this section preempts or interferes with any power, jurisdiction, responsibility, or authority of an agency, other than the agency of the responsible Federal official for a covered project, under applicable law (including regulations) with respect to the project.
Not later than 180 days after the date of enactment of this section, each responsible Federal official shall promulgate regulations that establish requirements relating to information required to be contained in any application of a State to assume responsibility under this section with respect to covered Federal projects of the responsible Federal official, including, at a minimum—
the projects or classes of projects for which the State anticipates exercising the authority that may be granted under this section;
verification of the financial resources necessary to carry out the authority that may be assigned under this section; and
evidence of the notice and solicitation of public comment by the State relating to assumption of responsibility under this section by the State, including copies of comments received from that solicitation.
Each State that submits an application under this subsection shall give notice of the intent of the State to submit such application not later than 30 days before the date of submission of the application.
Method of notice and solicitation
The State shall provide notice and solicit public comment under this paragraph by publishing the complete application of the State in accordance with the appropriate public notice law of the State.
A responsible Federal official may approve the application of a State under this section only if—
the regulatory requirements under paragraph (2) have been met;
the responsible Federal official determines that the State has the capability, including financial and personnel, to assume the responsibility; and
the head of the State agency having primary jurisdiction over covered projects with respect to which responsibility would be assigned to the State pursuant to the application enters into a written agreement with the responsible Federal official described in subsection (c).
Other Federal agency views
If a State applies to assume a responsibility of a responsible Federal official that would have required the responsible Federal official to consult with another Federal agency, the responsible Federal official shall solicit the views of the Federal agency before approving the application.
A written agreement under this section shall—
be executed by the Governor of the State or the head of the State agency referred to in subsection (b)(3)(C);
be in such form as the responsible Federal official may prescribe; and
provide that the State—
agrees to assume all or part of the responsibilities of the responsible Federal official described in subsection (a);
expressly consents, on behalf of the State, to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the responsible Federal official assumed by the State;
certifies that State laws (including regulations) are in effect that—
authorize the State to take the actions necessary to carry out the responsibilities being assumed; and
are comparable to section 552 of title 5, including providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and
agrees to maintain the financial resources necessary to carry out the responsibilities being assumed.
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.
Legal standards and requirements
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 responsible Federal official had the responsible Federal official taken the actions in question.
The responsible Federal official shall have the right to intervene in any action described in paragraph (1).
Effect of Assumption of Responsibility
A State that assumes responsibility under subsection (a) shall be solely responsible and solely liable for carrying out, in lieu of the responsible Federal official, the responsibilities assumed under subsection (a), until the termination of such assumption of responsibility.
Limitations on Agreements
Nothing in this section permits a State to assume any rulemaking authority of the responsible Federal official under any Federal law.
To ensure compliance by a State with any agreement of the State under subsection (c) (including compliance by the State with all Federal laws for which responsibility is assumed under subsection (a)), for each State participating in the program under this section, the responsible Federal official shall conduct—
semiannual audits during each of the first 2 years of the effective period of the agreement; and
annual audits during each subsequent year of such effective period.
Public availability and comment
An audit conducted under paragraph (1) shall be provided to the public for comment for a 30-day period.
Not later than 60 days after the date on which the period for public comment ends, the responsible Federal official shall respond to public comments received under subparagraph (A).
Report to Congress
Each responsible Federal official shall submit to Congress an annual report that describes the administration of this section by such official.
Termination by responsible Federal official
The responsible Federal official with respect to an agreement with a State under this section may terminate the agreement and any responsibility or authority of the State under this section with respect to such agreement, if—
the responsible Federal official determines that the State is not adequately carrying out the responsibilities assumed by the State under this section;
the responsible Federal official provides to the State—
notification of the determination of noncompliance; and
a period of at least 30 days during which to take such corrective action as the responsible Federal official determines is necessary to comply with the applicable agreement; and
the State, after the notification and period provided under subparagraph (B), fails to take satisfactory corrective action, as determined by responsible Federal official.
In this section:
covered Federal project
covered Federal project
except as provided in clause (ii) and subparagraph (B), any project that is funded by, carried out by, or subject to approval or disapproval by a responsible official, including any project for which a permit or other authorization by a responsible Federal official is required; and
in the case of projects funded, carried out by, or subject to review, approval, or disapproval by the Secretary of the Army, and except as provided in subparagraph (B), includes only such projects of the Corps of Engineers; and
the preparation of any statement required by section 102(2)(C).
responsible Federal official
the Secretary of the Interior;
the Secretary of Transportation;
the Administrator of the Environmental Protection Agency;
the Secretary of the Army; and
the head of a Federal agency, with respect to the preparation of statements under section 102(2)(C) for major Federal actions (as that term is used in that section) of the agency.