Sec. 2. Clean Water Act permitting
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Section 401 of the Federal Water Pollution Control Act ( 33 U.S.C. 1341 ) is amended— by striking the heading and section designation and all that follows through may be. at the end of subsection (a)(1) and inserting the following: In this paragraph: The term certification application means a request from an applicant for a certification described in subparagraph (B). The term certifying authority , with respect to a certification described in subparagraph (B), means the applicable entity described in subclause (I), (II), or
(III)of subparagraph (B)(i). Any applicant for a Federal license or permit to conduct an activity, including the construction or operation of facilities, that may result in a discharge from a point source into the waters of the United States shall provide the Federal licensing or permitting agency a certification that the discharge will comply with applicable water quality requirements from— the State in which the discharge originates or will originate; if appropriate, the interstate water pollution control agency with jurisdiction over the waters of the United States at the point where the discharge originates or will originate; or if no State or interstate water pollution control agency has the authority to give such a certification, the Administrator. In the case of any activity described in clause
(i)for which there is not an applicable effluent limitation or other limitation under sections 301(b) and 302 and for which there is not an applicable standard under sections 306 and 307, the certifying authority shall so certify. A certification under subclause
(I)does not satisfy section 511(c). Construction for which a certification is required under this subparagraph may not begin until the certification has been obtained, unless the requirement for the certification has been waived in accordance with this paragraph. If a certifying authority denies a certification application, the Federal license or permit for which the certification application was made may not be granted. In determining whether to issue a certification under this subparagraph and in determining what conditions to impose on a certification under this subparagraph, a certifying authority may only consider whether the discharge for which the certification application was made complies with applicable water quality requirements. Each certifying authority shall establish procedures for— public notice in the case of all certification applications; to the extent the certifying authority determines to be appropriate, public hearings in connection with specific certification applications; and a prefiling meeting as described in clause (ii). Before submitting a certification application, the prospective applicant may request a prefiling meeting with the certifying authority— to ensure that the certifying authority receives early notification of projects for which a certification under subparagraph
(B)is necessary; and to discuss informational needs with the certifying authority before submitting the application. If a prospective applicant requests a prefiling meeting with a certifying authority pursuant to subclause (I), the certifying authority shall— respond to the request not later than 30 days after the date on which the request is received; and hold the prefiling meeting with the prospective applicant by not later than 60 days after the date on which the request is received. If a certifying authority denies a certification application for an individual license or permit, the certifying authority shall provide to the applicable Federal licensing or permitting agency— the specific applicable water quality requirements with which the discharge will not comply; a statement explaining why the discharge will not comply with the identified applicable water quality requirements; and if the denial is due to insufficient information, a description of the specific water quality data or information, if any, that would be needed to ensure that the discharge from the proposed project will comply with applicable water quality requirements. If a certifying authority denies a certification application for a general license or permit, the certifying authority shall provide to the applicable Federal licensing or permitting agency— the specific applicable water quality requirements with which discharges that could be authorized by the general license or permit will not comply; a statement explaining why discharges that could be authorized by the general license or permit will not comply with the identified applicable water quality requirements; and if the denial is due to insufficient information, a description of the specific water quality data or information, if any, that would be needed to assure that the range of discharges that could be authorized by the general license or permit from potential projects will comply with applicable water quality requirements. Not later than 60 days after the date on which a Federal licensing or permitting agency receives a notice described in clause
(iii)or a certification under subparagraph
(B)that includes conditions to that certification, the Federal licensing or permitting agency shall complete a review of the process undertaken by the certifying authority in reviewing the applicable certification application to determine whether the certifying authority established a reasonable period of time within which to review that certification application in accordance with subparagraph (D)(ii). If, after carrying out a review under subclause
(I)of the process undertaken by a certifying authority with respect to a denial of a certification application, a Federal licensing or permitting agency determines that the certifying authority did not, in determining the reasonable period of time within which to review the certification application, consider all of the factors described in subclause (I), (II), or
(III)of subparagraph (D)(ii), the Federal licensing or permitting agency shall— deem the certifying authority to have failed to act on the certification application; and pursuant to subparagraph (D)(iii), consider the requirement for a certification under subparagraph
(B)waived. If, after carrying out a review under subclause
(I)of the process undertaken by a certifying authority with respect to including conditions to a certification under subparagraph (B), a Federal licensing or permitting agency determines that the certifying authority did not, in determining the reasonable period of time within which to review the applicable certification application, consider all of the factors described in subclause (I), (II), or
(III)of subparagraph (D)(ii), the Federal licensing or permitting agency shall consider the certification conditions void. A certifying authority shall, subject to this subparagraph, issue to the applicable Federal licensing or permitting authority a final action on a certification application within a reasonable period of time, which— shall be determined by the certifying authority by not later than 60 days after the date on which the certification application is received by the certifying authority; but shall begin on the date on which the certification application is received by the certifying authority; and shall not exceed 1 year from the date on which the certifying authority receives the certification application. In determining the reasonable period of time under clause (i)(I), a certifying authority shall consider— the complexity of the project described in the certification application; the nature of any potential discharge from that project; and the potential need for additional study or evaluation of water quality effects from the discharge. If a certifying authority fails or refuses to issue a final action on a certification application by the end of the reasonable period of time established under this subparagraph, the requirement for a certification under subparagraph
(B)shall be waived. The reasonable period of time established for a certification application under this subparagraph may not be paused or tolled for any reason. After completion of the reasonable period of time established under subparagraph
(D)and any review that may be required under subparagraph (C)(iv) for a certification application, the certifying authority or Federal licensing or permitting authority, as applicable, shall apply only 1 of the following final actions to the certification application: The certification application is granted. The certification application is granted with conditions. The certification application is denied. The certification requirements under subparagraph
(B)have been waived in accordance with this paragraph with respect to the activity for which the certification application was submitted. No other final action may apply to a certification application except as described in clause (i). The Federal licensing or permitting authority to which a certification under this subsection was issued shall be responsible for enforcing any conditions included with that certification. If a Federal court remands or vacates a certification under this paragraph, the Federal court shall set and enforce a reasonable schedule and deadline, not to exceed 180 days from the date on which the Federal court remands or vacates the certification, for the certifying agency to act on the remand or vacatur. ; in subsection
(a)(as so amended)— in paragraph (2), by striking
(2)Upon receipt and inserting the following: On receipt ; in paragraph (3), by striking
(3)The certification and inserting the following: The certification ; in paragraph (4), by striking
(4)Prior to and inserting the following: Prior to ; in paragraph (5), by striking
(5)Any Federal and inserting the following: Any Federal ; and in paragraph (6), by striking
(6)Except with and inserting the following: Except with ; in subsection (b), by striking
(b)Nothing and inserting the following: Nothing ; in subsection (c), by striking
(c)In order and inserting the following: In order ; in subsection (d), by striking
(d)Any certification and inserting the following: Any certification ; and by adding at the end the following: In this section, the term applicable water quality requirements means— the applicable provisions of sections 301, 302, 303, 306, and 307; and applicable State or Tribal regulatory requirements for the discharge from point sources into the waters of the United States. . Section 404 of the Federal Water Pollution Control Act ( 33 U.S.C. 1344 ) is amended— by striking the heading and section designation and all that follows through
(a)The Secretary and inserting the following: The Secretary ; in subsection (a)(1) (as so designated), in the second sentence— by striking this subsection each place it appears and inserting paragraph
(1); and by striking Not later than the fifteenth day and inserting the following: Not later than the 15th day ; in subsection (c)— in the third sentence— by striking his finding and his reasons and inserting the findings and reasons of the Administrator ; and by striking The Administrator and inserting the following: The Administrator ; in the second sentence, by striking Before making such determination and inserting the following: Before making a determination under paragraph
(1); by striking
(c)The Administrator and inserting the following: Subject to paragraph (2), the Administrator ; and by inserting after paragraph
(1)(as so designated) the following: The Administrator may not prohibit the specification of a defined area as a disposal site, or otherwise deny or restrict the use of a defined area as a disposal site after a permit under this section for the area has been issued by the Secretary. ; in subsection (e)— in paragraph (1), in the second sentence— by striking subsection (b)(1) of this section, and
(B)set forth and inserting the following: subsection (b)(1); and set forth ; by striking shall
(A)be based and inserting the following: “shall— be based ; and by striking Any general and inserting the following: Any general ; by striking (e)(1) In carrying and inserting the following: In carrying ; in paragraph (2), by striking
(2)No general and inserting the following: No general ; and by adding at the end the following: In this paragraph, the term single and complete project , with respect to a project for which the Secretary is determining whether a general permit issued under this subsection applies, means that portion of the total project proposed or accomplished by— a single owner or developer; a partnership of 1 or more owners or developers; or an association of owners or developers. In this clause, the term linear project means a project constructed for the purpose of getting people, goods, or services from a point of origin to a terminal point, which may involve multiple crossings of 1 or more waters of the United States at separate and distant locations. For purposes of this paragraph, with respect to projects described in clause
(i)that are linear projects— the crossings of separate waters of the United States at a specific location shall be considered 1 single and complete project; but each crossing of a single water of the United States shall be considered a separate single and complete project if those crossings are at separate and distant locations. For purposes of subclause (II), individual channels in a braided stream or river, individual arms of a large, irregularly-shaped wetland or lake, and other, similar bodies of water shall not be considered to be separate waters of the United States. In determining whether a general permit issued under this subsection applies to an activity, the Secretary shall consider the estimated total of all losses of waters of the United States expected to result from the single and complete project. The Secretary may combine 2 or more general permits issued under this subsection to authorize a single and complete project, but the same general permit issued under this subsection may not be used more than once for a single and complete project. In determining whether to reissue a general permit issued under this subsection on a nationwide basis— no consultation with an applicable State pursuant to section 6(a) of the Endangered Species Act of 1973 ( 16 U.S.C. 1535(a) ) is required; no consultation with a Federal agency pursuant to section 7(a)(2) of that Act ( 16 U.S.C. 1536(a)(2) ) is required; and for purposes of carrying out the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ) with respect to that reissuance, conducting an environmental assessment on a nationwide basis is sufficient for purposes of compliance with that Act. Notwithstanding any other provision of this section, the Secretary shall maintain a nationwide permit for the activities required for the construction, maintenance, repair, operation, and removal of oil and natural gas pipelines and associated facilities that result in the loss of, with respect to waters of the United States, an area of more than 1/2 acre for each single and complete project (as defined in paragraph (3)(A)), which shall be known as nationwide permit 12 . ; in subsection (h)— in paragraph (1), by adding at the end the following: To issue permits not later than the date that is 1 year after the date on which the State receives an application for the permit, which may not be paused or tolled for any reason. To ensure that, if the State does not issue a final action with respect to an application for a permit within the 1-year period described in subparagraph (I), the application is considered to be approved. To carry out a programmatic review of the program annually to ensure that the program does not exceed the authority granted to the State under this section. ; and by adding at the end the following: A State with a permit program approved under this subsection shall issue a final action with respect to an application for a permit described in subsection (g)(1) not later than 1 year after the date of receipt of the application. An application for a permit described in subsection (g)(1) submitted to a State with a permit program approved under this subsection shall be considered to be approved if the State fails to issue a final action with respect to the application by the end of the 1-year period described in subparagraph (A). The 1-year period described in subparagraph
(A)may not be paused or tolled for any reason. ; in subsection (s)(3), in the third sentence, by striking acton and inserting action ; in subsection (t), by striking
(t)Nothing and inserting the following: Nothing ; and by inserting after subsection
(s)the following: Notwithstanding any other provision of law, an action seeking judicial review of an individual or general permit issued under this section shall be filed not later than the date that is 60 days after the date on which the permit was issued. Nothing in subparagraph
(A)authorizes an action seeking judicial review of the structure of or authorization for a State permit program approved pursuant to this section. If a Federal court remands or vacates a permit under this section, the Federal court shall set and enforce a reasonable schedule and deadline, which may not exceed 180 days from the date on which the Federal court remands or vacates the permit, for the issuer of the permit to act on that remand or vacatur. . Notwithstanding any other provision of law, each category of activities authorized by a general permit issued under section 404(e) of the Federal Water Pollution Control Act ( 33 U.S.C. 1344(e) ) (including nationwide permit 12) or under section 10 of the Act of March 3, 1899 ( 33 U.S.C. 403 ), that is in effect on the date of enactment of this Act shall, consistent with subparagraph
(A)of section 404(e)(1) of the Federal Water Pollution Control Act ( 33 U.S.C. 1344(e)(1) ), be considered to cause— not more than minimal adverse environmental effects when actions authorized under those permits are carried out separately; and not more than minimal cumulative adverse effects on the environment. Nothing in this subsection or the amendments made by this subsection requires a State (including an Indian tribe that is treated as a State pursuant to section 518(e) of the Federal Water Pollution Control Act ( 33 U.S.C. 1377(e) )) for which the Administrator of the Environmental Protection Agency has approved a permit program pursuant to subsections
(g)and
(h)of section 404 of the Federal Water Pollution Control Act ( 33 U.S.C. 1344 ) to seek reapproval of the permit program in accordance with those subsections. Section 502 of the Federal Water Pollution Control Act ( 33 U.S.C. 1362 ) is amended— in each of paragraphs
(1)through (20), by inserting a paragraph heading, the text of which comprises the term defined in that paragraph; by indenting paragraphs
(1)through
(20)appropriately; and by striking paragraph
(7)and inserting the following: The terms navigable waters and waters of the United States mean— the territorial seas and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters that are subject to the ebb and flow of the tide; a tributary; a lake, pond, or impoundment of water from a body of water otherwise described in this subparagraph that— contributes to surface water flow to a body of water described in clause
(i)in a typical year; or is inundated by flooding from a body of water otherwise described in this subparagraph during a typical year; and adjacent wetlands. The terms navigable waters and waters of the United States do not include— an ephemeral feature, including an ephemeral stream, swale, gully, rill, pool, or tributary that is ephemeral during a typical year; groundwater, including groundwater drained through subsurface drainage systems; an artificially irrigated area that would revert to upland or dry land if that artificial irrigation ceased; an artificial lake or pond that— is not an impoundment described in subparagraph (A)(iii); and is constructed or excavated in upland or dry land; a water-filled depression that is— constructed or excavated in upland or dry land; and incidental to mining or construction activity; a pit that is excavated in upland for the purpose of obtaining fill, sand, or gravel; a stormwater control feature that is constructed or excavated in upland or dry land to convey, treat, infiltrate, or store stormwater runoff; a groundwater recharge, water reuse, or wastewater treatment recycling structure that is constructed or excavated in upland or dryland; a waste treatment system; prior converted cropland; a ditch that is not a body of water described in clause
(i)or
(ii)of subparagraph (A); and any portion of a ditch constructed in adjacent wetlands that does not meet the requirements described in subparagraph (C)(i); diffuse stormwater runoff and directional sheet flow over upland; and a water or water feature that is not identified in subparagraph (A). For purposes of this paragraph: The term adjacent wetlands means wetlands that— touch at least one point or side of a body of water described in clause (i), (ii), or
(iii)of subparagraph (A); are inundated by flooding from a body of water described in clause (i), (ii), or
(iii)of subparagraph
(A)during a typical year; or are physically separated from a body of water described in clause (i), (ii), or
(iii)of subparagraph
(A)only by— a natural berm, bank, dune, or similar natural feature; or an artificial dike, barrier, or similar artificial structure, if that structure allows for a direct hydrological surface connection to the body of water described in that clause (i), (ii), or
(iii)in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. The term ditch means a constructed or excavated channel used to convey water. The term ephemeral , with respect to a surface water, means flowing or pooling only in direct response to precipitation (such as rain or snowfall). The term high tide line means the line of intersection of the land with the surface of a body of water at the maximum height reached by a rising tide (including a spring high tide or another high tide that occurs with periodic frequency), which may, in the absence of actual data, be determined by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, vegetation lines, tidal gages, other physical markings or characteristics, or other suitable means that delineate the general height reached by a rising tide. The term high tide line does not include the line of intersection described in subclause
(I)at the maximum height reached by a storm surge in which there is a departure from the normal or predicted reach of a tide due to the piling up of water against a coast by strong winds, such as a surge accompanying a hurricane or another intense storm. The term intermittent , with respect to a surface water, means flowing continuously during certain times of the year and more than in direct response to precipitation (such as seasonally, when the groundwater table is elevated, or when snowpack melts). The term ordinary high water mark means the line on a shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank, shelving, changes in the character of the soil, destruction of terrestrial vegetation, the presence of litter and debris, or another appropriate means that considers the characteristics of the surrounding areas. The term perennial , with respect to a surface water, means surface water that flows continuously year round. The term prior converted cropland means any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose, or having the effect, of making production of an agricultural product possible. The term prior converted cropland includes any designation of an area as prior converted cropland made by the Secretary of Agriculture. The term prior converted cropland does not include any area described in subclause
(I)that is abandoned or has reverted to wetlands. In this clause, the term abandoned , with respect to an area described in subclause (I), means the area has not been used for, or in support of, agricultural purposes at least once during the 5-year period ending on the date of determination, as determined by the Administrator. The term snowpack means layers of snow that accumulate over extended periods of time in certain geographic regions or at high elevation (such as in northern climes or in mountainous regions). The term tributary includes a river, stream, or similar naturally occurring surface water channel that— contributes to surface water flow to a body of water described in subparagraph (A)(i); and is perennial or intermittent in a typical year. The term typical year means a year in which precipitation and other climatic variables are within the normal periodic range (such as seasonally or annually) for the geographic area of the applicable body of water, based on a rolling 30-year period. The term upland means any land area that, under normal conditions— is not wetlands; and does not lie below the ordinary high water mark or the high tide line of a body of water described in subparagraph (A). The term waste treatment system includes all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge). The term wetlands means areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs, and similar areas. .
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Sec. 2
Clean Water Act permitting
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