Amendments to section 401 of the Federal Water Pollution Control Act

Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341) is amended— (1)in subsection (a)— (A)in paragraph (1)— (i)in the first sentence, by striking may result and inserting may directly result; (ii)in the second sentence, by striking activity and inserting discharge; (iii)in the third sentence, by striking applications each place it appears and inserting requests; (iv)by inserting after the fourth sentence the following: Not later than 30 days after the date of enactment of this Act, each State and interstate agency that has authority to give such a certification, and the Administrator, shall publish requirements for certification to demonstrate to such State, such interstate agency, or the Administrator, as the case may be, compliance with the applicable provisions of sections 301, 302, 303, 306, and 307. A decision to grant or deny a request for certification shall be based only on compliance with the applicable provisions of sections 301, 302, 303, 306, and 307, and the grounds for the decision shall be set forth in writing and provided to the applicant. Not later than 90 days after receipt of a request for certification, the State, interstate agency, or Administrator, as the case may be, shall identify in writing all specific additional materials or information necessary for the request for certification to be complete, as described in subsection (f). The State, interstate agency, or the Administrator, as the case may be, may grant a request for certification with or without conditions, deny a request for certification, or waive the requirement for certification under this subsection with respect to such Federal application.; (v)in the fifth sentence, by striking act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection and inserting grant the request for certification with or without conditions, deny the request for certification, or waive the requirement for certification under this subsection with respect to such Federal application, within a reasonable period of time to be determined by the licensing or permitting agency (which shall not exceed one year after receipt of such request), the requirement for certification under this subsection; (vi)by inserting after the fifth sentence the following: For purposes of this paragraph, receipt of a request for certification shall be determined by the date on which the State, interstate agency, or Administrator, as the case may be, receives the request, regardless of whether the State, interstate agency, or Administrator deems the request complete. The requirement that the period determined by the licensing or permitting agency may not exceed one year shall be absolute and may not be tolled, paused, or extended for any reason, including through requests for additional information, solicitation of public comment, or environmental reviews, except that the agency may extend the period at the request of the applicant.; and (vii)in the sixth sentence, by striking waived as provided in the preceding sentence and inserting waived under this paragraph; (B)in paragraph (2)— (i)in the second sentence, by striking notice of application for such Federal license or permit and inserting receipt of a notice under the preceding sentence; (ii)in the third sentence— (I)by striking any water quality requirement in such State and inserting any water quality standard in effect for the State under section 303; and (II)by inserting before the period at a time that is agreed to by such State and the applicant; (iii)in the fifth sentence, by striking insure compliance with applicable water quality requirements. and inserting ensure compliance with the applicable provisions of sections 301, 302, 303, 306, and 307.; (iv)in the final sentence, by striking insure and inserting ensure; (v)by striking the first sentence and inserting On receipt of a request for certification, the certifying State or interstate agency, as applicable, shall immediately notify the Administrator of the request.; and (vi)by inserting after the second sentence the following: If the Administrator determines under the preceding sentence that such a discharge will not affect the waters of any other State, no such notification is required.; (C)in paragraph (3)— (i)in the first sentence, by striking there will be compliance and inserting any such discharge will comply; and (ii)in the second sentence, by striking section and inserting any applicable provision of section; (D)in paragraph (4)— (i)in the first sentence— (I)by inserting directly before result in any discharge; and (II)by striking applicable effluent limitations or other limitations or other applicable water quality requirements will not be violated and inserting no applicable provision of section 301, 302, 303, 306, or 307 will be violated; (ii)in the second sentence, by striking will violate applicable effluent limitations or other limitations or other water quality requirements and inserting will directly result in a discharge that violates an applicable provision of section 301, 302, 303, 306, or 307,; and (iii) in the third sentence, by striking such facility or activity will not violate the applicable provisions and inserting operation of such facility or activity will not directly result in a discharge that violates any applicable provision; and (E)in paragraph (5)— (i)by striking the applicable provisions and inserting any applicable provision; and (ii)by adding at the end the following: A certification obtained under this section may not be reopened, modified, supplemented, withdrawn, or otherwise revised except in response to a request by the applicant or an order by a court of jurisdiction that is specific to the certification.; (2)in subsection (b), by striking Nothing in this section and inserting Except as provided in subsection (e), nothing in this section; (3)by striking subsection (d) and inserting the following:

(d)

Conditions

(1)

In general

Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any discharge subject to this section will comply with the applicable provisions of sections 301, 302, 303, 306, and 307, and any such limitations or requirements shall be imposed by the licensing or permitting agency as a condition on any Federal license or permit subject to the provisions of this section. (2)

Requirements for denials and conditioned certifications

The State, interstate agency, or the Administrator, as the case may be, may not deny a request for certification with respect to an application for a Federal license or permit under subsection (a), or impose a condition on such license or permit, unless the State, interstate agency, or the Administrator, as applicable, demonstrates, by clear and convincing evidence, that— (A)there is no reasonable condition upon the activity proposed to be carried out under such license or permit that meets the requirements of this paragraph that could make it possible for the discharge subject to this section to comply with the applicable provisions of section 301, 302, 303, 306, or 307 of this Act; or (B)such a condition— (i)is the least burdensome of possible conditions, taking into account— (I)technical feasibility; (II)cost; (III)the purposes of the proposed activity; (IV)impacts of the condition on the schedule for such proposed activity; and (V)the commercial viability of such proposed activity; and (ii)is consistent with the requirements of the Federal license or permit that is the subject of the certification. (3)

Enforcement

Notwithstanding section 505, any condition imposed on a Federal license or permit by a licensing or permitting agency under this section may be enforced only by such licensing or permitting agency. (4)

Exception for hydroelectric projects

Notwithstanding paragraph (1), a certification provided under this section may not include conditions relating to the quantity, timing, or rate of water flow over, through, or around a hydroelectric project.

; and

(4)by adding at the end the following:

(e)

Applicable provisions

For purposes of this section, the applicable provisions of sections 301, 302, 303, 306, and 307 are any applicable effluent limitations and other limitations under section 301 or 302, any water quality standard in effect for a State under section 303, any standard of performance under section 306, and any prohibition, effluent standard, or pretreatment standard under section 307. (f)

Requirements for requests for certification

A request for certification under this section shall be made in writing to the State, interstate agency, or Administrator, as the case may be. A complete request for certification shall consist of the following: (1)Identification of each applicant for the Federal license or permit with respect to which the certification is requested. (2)A statement that information included in the request for certification is truthful, accurate, and complete, to the best knowledge of each such applicant. (3)In the case of a request for certification with respect to an individual permit or license— (A)identification of the Federal license or permit that is the subject of the application with respect to which the certification is requested; (B)identification of any activity the conduct of which is subject to such Federal license or permit; (C)identification of the location and nature of any discharge that may directly result from such activity, and the location of the receiving waters; (D)a description of means that may be used to monitor, control, or manage any such discharge; and (E)a list of all other Federal, interstate, Tribal, State, or local agency authorizations required for the conduct of such activity, and any approval or denial of such an authorization already received. (4)In the case of a request for certification with respect to the issuance of a general license or general permit— (A)identification of the proposed categories of activities to be covered by the general license or general permit for which certification is requested; (B)a description of the proposed general license or general permit, which may include a draft of the proposed general license or permit; and (C)an estimate of the number of discharges expected to result from the proposed general license or general permit annually. (g)

Judicial review

(1)

Affected certification actions

This subsection shall apply to any civil action for the review of a certification action with respect to an applicant for a license or permit— (A)for the construction or operation of facilities for the transmission of electric energy or energy fuels or the transportation of carbon dioxide (including pipelines or associated infrastructure) in interstate or foreign commerce; or (B)from the Federal Energy Regulatory Commission. (2)

Jurisdiction

(A)

In general

Notwithstanding section 19(d)(1) of the Natural Gas Act (15 U.S.C. 717r(d)(1)), a civil action subject to this subsection shall be filed in a court of appeals of the United States— (i)for the circuit in which the applicant is located or has its place of business; (ii)for the circuit for the State for which the certification action applies; or (iii)for the District of Columbia Circuit. (B)

Original and exclusive jurisdiction

A court of appeals described in subparagraph (A) shall have original and exclusive jurisdiction over the civil action. (3)

Expedited consideration

A court described in paragraph (2) shall— (A)set any civil action subject to this subsection for expedited consideration; and (B)issue a final decision not later than 120 days after the filing of the civil action, unless the court finds extraordinary circumstances, in which case the court may take up to 60 additional days to issue a final decision. (4)

Standard of review

A court shall hold unlawful a denial of certification under this section if the State, interstate agency, or Administrator, as the case may be, fails to demonstrate by clear and convincing evidence that no reasonable condition upon the applicant’s activity that meets the requirements of subsection (d)(2) exists that could make it possible for the activity to avoid violating the applicable provisions of section 301, 302, 303, 306, or 307 of this Act.