Energy infrastructure under the Federal Water Pollution Control Act

(a)

State certification programs

Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341) is amended—(1)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:

401.

Certification

(a)

State certifications

(1)

Certification required

(A)

Definitions

In this paragraph:(i)

Certification application

The term certification application means a request from an applicant for a certification described in subparagraph (B).(ii)

Certifying authority

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).(iii)

Discharge

The term discharge, without any qualification, means the discharge of a pollutant from a point source.(B)

Compliance with limitations

(i)

In general

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—(I)the State in which the discharge originates or will originate;(II)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(III)if no State or interstate water pollution control agency has the authority to give such a certification, the Administrator.(ii)

Certification of no limitation and standard

(I)

In general

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.(II)

Effect

A certification under subclause (I) does not satisfy section 511(c).(iii)

Certification required

(I)

Construction prohibited until certification

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.(II)

Effect of denial

If a certifying authority denies a certification application, the Federal license or permit for which the certification application was made may not be granted.(iv)

Scope of certification

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 point source discharge for which the certification application was made complies with applicable water quality requirements.(C)

Required procedures

(i)

Notice and hearings

Each certifying authority shall establish procedures for—(I)public notice in the case of all certification applications;(II)to the extent the certifying authority determines to be appropriate, public hearings in connection with specific certification applications; and(III)a prefiling meeting as described in clause (ii).(ii)

Prefiling meeting

(I)

Request

Before submitting a certification application, the prospective applicant may request a prefiling meeting with the certifying authority—(aa)to ensure that the certifying authority receives early notification of projects for which a certification under subparagraph (B) is necessary; and(bb)to discuss informational needs with the certifying authority before submitting the application.(II)

Response required

If a prospective applicant requests a prefiling meeting with a certifying authority pursuant to subclause (I), the certifying authority shall—(aa)respond to the request not later than 30 days after the date on which the request is received; and(bb)hold the prefiling meeting with the prospective applicant by not later than 60 days after the date on which the request is received.(iii)

Denials of certification; conditions on certification

(I)

Denial requirement

A certifying authority may only deny a certification application if the certifying authority determines, based on clear and convincing evidence, that there is no modification to or reasonable condition on the activities of the applicant that could make it possible for the activity to avoid violating the applicable water quality requirements.(II)

Requirements for conditions

A certifying authority may include a condition in a certification under this subparagraph that requires an applicant to modify the activity of the applicant only if the certifying authority determines, based on clear and convincing evidence, that the modification is—(aa)necessary for the activity to avoid violating the applicable water quality requirements;(bb)the least burdensome of possible modifications for the applicant, taking into account—(AA)technical feasibility;(BB)cost;(CC)the purpose of the applicant in proposing the activity;(DD)impacts on the schedule for the activity; and(EE)commercial viability of the activity; and(cc)consistent with the requirements of the Federal license or permit that is the subject of the certification.(III)

Individual licenses and permits

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—(aa)the specific applicable water quality requirements with which the discharge will not comply;(bb)a statement explaining why the discharge will not comply with the identified applicable water quality requirements; and(cc)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.(IV)

General licenses or permits

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—(aa)the specific applicable water quality requirements with which discharges that could be authorized by the general license or permit will not comply;(bb)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 (cc) 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 range of discharges that could be authorized by the general license or permit from potential projects will comply with applicable water quality requirements. (iv)

Review

(I)

In general

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).(II)

Denials

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—(aa)deem the certifying authority to have failed to act on the certification application; and(bb)pursuant to subparagraph (D)(iii), consider the requirement for a certification under subparagraph (B) waived.(III)

Conditions

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 subclauses (I), (II), and (III) of subparagraph (D)(ii), the Federal licensing or permitting agency shall consider the certification conditions void.(D)

Review period

(i)

In general

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—(I)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(II)(aa)shall begin on the date on which the certification application is received by the certifying authority; and(bb)shall not exceed 1 year from the date on which the certifying authority receives the certification application.(ii)

Determination of reasonable period

In determining the reasonable period of time under clause (i)(I), a certifying authority shall consider—(I)the complexity of the project described in the certification application;(II)the nature of any potential discharge from that project; and(III)the potential need for additional study or evaluation of water quality effects from the discharge.(iii)

Failure to act within period

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.(iv)

No pausing or tolling

The reasonable period of time established for a certification application under this subparagraph may not be paused or tolled for any reason.(E)

Final action

(i)

In general

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:(I)The certification application is granted.(II)The certification application is granted with conditions.(III)The certification application is denied.(IV)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.(ii)

No other final actions

No other final action may apply to a certification application except as described in clause (i).(F)

Enforcement of conditions

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.

;

(2)in subsection (a) (as so amended)—(A)in paragraph (2), by striking (2) Upon receipt and inserting the following:

(2)

Notice to Administrator; effect on other States

On receipt

;

(B)in paragraph (3), by striking (3) The certification and inserting the following:

(3)

Fulfillment of requirements

The certification

;

(C)in paragraph (4), by striking (4) Prior to and inserting the following:

(4)

Review for compliance

Prior to

;

(D)in paragraph (5), by striking (5) Any Federal and inserting the following:

(5)

Suspension and revocation

Any Federal

; and

(E)in paragraph (6), by striking (6) Except with and inserting the following:

(6)

Applicability to certain facilities

Except with

;

(3)in subsection (b), by striking (b) Nothing and inserting the following:

(b)

Compliance with other provisions of law setting applicable water quality requirements

Nothing

;

(4)in subsection (c), by striking (c) In order and inserting the following:

(c)

Authority of secretary of the army To permit use of spoil disposal areas by Federal licensees or permittees

In order

;

(5)by striking subsection (d) and inserting the following:

(d)

Limitations and monitoring requirements of certification

Any certification provided under this section shall set forth any effluent limitations and other limitations and monitoring requirements necessary to ensure that any discharge into navigable waters will comply with applicable water quality requirements and shall become a condition on any Federal license or permit subject to the provisions of this section.

; and

(6)by adding at the end the following:

(e)

Judicial review

(1)

Energy projects

(A)

Definition of affected certification action

In this paragraph, the term affected certification action means a civil action for the judicial review of a certification under subsection (a)(1) for a Federal license or permit—(i)for the construction or operation of a facility for—(I)the transmission of electric energy or energy fuels in interstate or foreign commerce; or(II)the transportation of carbon dioxide (including pipelines or associated infrastructure) in interstate or foreign commerce; or(ii)from the Federal Energy Regulatory Commission.(B)

Jurisdiction

(i)

In general

Notwithstanding section 19(d)(1) of the Natural Gas Act (15 U.S.C. 717r(d)(1)), an affected certification action shall be filed in a court of appeals of the United States—(I)for the circuit in which the applicant for certification under subsection (a) is located or has its place of business;(II)for the circuit for the State for which the affected certification action applies; or(III)for the District of Columbia Circuit.(ii)

Original and exclusive jurisdiction

The court of appeals in which an affected certification action is filed pursuant to clause (i) shall have original and exclusive jurisdiction over the affected certification action.(iii)

Standing and filing deadline

Notwithstanding any other provision of law, no court shall have jurisdiction over an affected certification action unless the affected certification action has been filed not later than 30 days after the date on which final action was taken on the certification under subsection (a) for which review was sought by—(I)the applicant for the underlying Federal license or permit; or(II)a person who has suffered, or likely and imminently will suffer, direct and irreparable economic harm from the authorization, certification under subsection (a), Federal license or permit for which a certification under subsection (a) was sought, or activity for which that certification was sought.(C)

Expedited consideration

(i)

In general

With respect to an affected certification action, a court shall—(I)set any petition for review for expedited consideration; and(II)subject to clause (ii), issue a final decision not later than 120 days after the date on which the affected certification action was filed.(ii)

Extension

A court may extend the 120-day period under clause (i)(II) by not more than 60 days if the court determines that extraordinary circumstances exist that warrant the extended period.(iii)

Failure to comply with deadline

With respect to an affected certification action seeking review of a certification under subsection (a)(1) the certification application (as defined in subsection (a)(1)) for which was granted, if a court fails to issue a final decision on the affected certification action by the end of the period described in clause (i)(II) and, if applicable, extended under clause (ii), the affected certification action shall be dismissed with prejudice.(2)

Timeline for action

If a Federal court remands a civil action for the judicial review of a certification under subsection (a)(1) for a Federal license or permit, 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 the certification, for the certifying agency to act on the remand.(f)

Definition of applicable water quality requirements

In this section, the term applicable water quality requirements means the applicable provisions of sections 301, 302, 303, 306, and 307.

(b)

Permits for dredged or fill material

(1)

In general

Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) is amended—(A)by striking the heading and section designation and all that follows through (a) The Secretary and inserting the following:

404.

Permits for dredged or fill material

(a)

Discharge into navigable waters at specified disposal sites

(1)

In general

The Secretary

;

(B)in subsection (a)(1) (as so designated), in the second sentence—(i)by striking this subsection each place it appears and inserting paragraph (1); and(ii)by striking Not later than the fifteenth day and inserting the following:

(2)

Notice

Not later than the 15th day

;

(C)in subsection (c)—(i)in the third sentence—(I)by striking his finding and his reasons and inserting the findings and reasons of the Administrator; and(II)by striking The Administrator and inserting the following:

(4)

Findings and reasoning

The Administrator

;

(ii)in the second sentence, by striking Before making such determination and inserting the following:

(3)

Consultation

Before making a determination under paragraph (1)

;

(iii)by striking (c) The Administrator and inserting the following:

(c)

Prohibition of specification of areas as disposal sites

(1)

In general

Subject to paragraph (2), the Administrator

; and

(iv)by inserting after paragraph (1) (as so designated) the following:

(2)

Limitation

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.

;

(D)in subsection (e)—(i)in paragraph (1), in the second sentence—(I)by striking subsection (b)(1) of this section, and (B) set forth and inserting the following:

subsection (b)(1); and(ii)set forth

;

(II)by striking shall (A) be based and inserting the following:

shall—(i)be based

; and

(III)by striking Any general and inserting the following:

(B)

Requirements for issuance

Any general

;

(ii)by striking (e)(1) In carrying and inserting the following:

(e)

General permits on State, regional, or nationwide basis

(1)

Permits authorized

(A)

In general

In carrying

;

(iii)in paragraph (2)—(I)by striking (2) No general and inserting the following:

(2)

Term

No general

; and

(II)by striking five years and inserting 10 years; and(iv)by adding at the end the following:

(3)

Considerations

In determining the environmental effects of an activity under paragraph (1) or (2), the Secretary—(A)shall consider only the effects of any discharge of dredged or fill material resulting from the activity;(B)shall consider any effects of a discharge of dredged or fill material into fewer than 3 acres of navigable waters to be a minimal adverse environmental effect; and(C)may consider any effects of a discharge of dredged or fill material into 3 acres or more of navigable waters to be a minimal adverse environmental effect.(4)

Single and complete projects

(A)

Definition of single and complete project

(i)

In general

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—(I)a single owner or developer;(II)a partnership of 1 or more owners or developers; or(III)an association of owners or developers.(ii)

Linear projects

(I)

Definition

In this clause, the term linear project means a project constructed for the purpose of getting people, goods, energy, 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.(II)

General rule

For purposes of this paragraph, with respect to projects described in clause (i) that are linear projects—(aa)the crossings of separate waters of the United States at a specific location shall be considered 1 single and complete project; but(bb)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.(III)

Additional exclusions

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.(B)

Requirement

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.(C)

Use of multiple permits

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.(5)

Reissuance of nationwide permits

In determining whether to reissue a general permit issued under this subsection on a nationwide basis—(A)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; (B)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(C)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.(6)

Nationwide permit for oil and natural gas pipelines

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 fewer than 3 acres for each single and complete project (as defined in paragraph (4)(A)), which shall be known as nationwide permit 12.

;

(E)in subsection (h)—(i)in paragraph (1), by adding at the end the following:

(I)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.(J)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.(K)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

(ii)by adding at the end the following:

(6)

Action required

(A)

In general

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.(B)

Failure to act

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).(C)

No pausing or tolling

The 1-year period described in subparagraph (A) may not be paused or tolled for any reason.

;

(F)in subsection (s)(3), in the third sentence, by striking acton and inserting action;(G)in subsection (t), by striking (t) Nothing and inserting the following:

(u)

Savings provision

Nothing

; and

(H)by inserting after subsection (s) the following:

(t)

Judicial review

(1)

Statute of limitations

(A)

In general

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.(B)

Savings provision

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.(2)

Timeline to act on remand

If a Federal court remands 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 the permit, for the issuer of the permit to act on that remand.

(2)

Ratification of current permits

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—(A)not more than minimal adverse environmental effects when actions authorized under those permits are carried out separately; and(B)not more than minimal cumulative adverse effects on the environment.(3)

Savings provision

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.

Judicial review under NEPA

Title I of the National Environmental Policy Act of 1969 is amended—(1)by redesignating section 112 (42 U.S.C. 4336f) as section 110A, and moving the section so as to appear after section 110; and(2)by inserting after section 110A (as so redesignated) the following:

110B.

Judicial review

(a)

Remand

(1)

In general

If a court holds, under section 706(2)(A) of title 5, United States Code, that a final agency action does not comply with the requirements of this Act, the only remedy the court may order, notwithstanding chapter 7 of that title, is to remand, without vacatur or injunction, the final agency action to the Federal agency with—(A)specific instruction to correct the errors or deficiencies found by the court; and(B)a reasonable schedule and deadline to correct such errors or deficiencies, which may not exceed—(i)with respect to an order entered before the date of enactment of this section, the date that is 180 days after that date of enactment; and(ii)with respect to an order entered on or after the date of enactment of this section, the date that is 180 days after the date on which the order was entered.(2)

Continued effect of final agency action

A final agency action remanded under paragraph (1) shall remain in effect while the Federal agency corrects any errors or deficiencies found by the court.(b)

Limitations on claims

(1)

In general

Notwithstanding any other provision of law, a claim relating to whether a final agency action complies with the requirements of this Act shall be barred unless—(A)the claim is filed not later than 150 days after the final agency action is made public, unless a shorter deadline is specified under Federal law;(B)in the case of a final agency action for which there was a public comment period on an environmental document, the claim—(i)is filed by a party that submitted a substantive and unique comment during that public comment period by the noticed comment deadline for the environmental document and the comment was sufficiently detailed to put the applicable Federal agency on notice of the issue on which the party seeks review; and(ii)concerns the same subject matter raised in the comment submitted during the public comment period;(C)the claim is filed by a party that has suffered or imminently will suffer direct harm from the final agency action; and(D)the claim does not challenge the establishment of a categorical exclusion.(2)

Supplemental environmental documents

(A)

In general

If a Federal agency issues a supplemental environmental document in response to a court order remanding a final agency action, the deadline described in paragraph (1)(A) shall be the date on which the Federal agency makes public the agency action for which the supplemental environmental document is prepared.(B)

Limitation

A claim for review of a final agency action described in subparagraph (A) shall be limited to information contained in the final supplemental environmental document that was not contained in a previous environmental document for the final agency action.(3)

Actions for use of tribal trust resources

(A)

In general

Except as provided in subparagraph (B), for any final agency action that authorizes or affects the use of land, minerals, or other resources held in trust at the time of the final agency action by the United States for the benefit of a federally recognized Indian Tribe, there shall be no administrative or judicial review of the final agency action based on a claim of failure to comply with the requirements of this Act.(B)

Exception

Subparagraph (A) shall not apply to actions for administrative or judicial review—(i)brought by the federally recognized Indian Tribe for which the United States holds the land, minerals, or other resources in trust; or(ii)that involve reasonably foreseeable effects of the final agency action that occur outside the land, minerals, or other resources held in trust by the United States for the benefit of a federally recognized Indian Tribe.(c)

Deadline for resolution

(1)

In general

A court shall issue a final judgment on a claim relating to whether a final agency action complies with the requirements of this Act—(A)as expeditiously as practicable; and(B)unless a shorter deadline is specified under Federal law, not later than the date that is 180 days after the date on which the agency record for the review is filed with the reviewing court, which shall be not more than 60 days after the filing of the claim.(2)

Accelerated deadlines

Nothing in this subsection prevents a court from further expediting review of a claim relating to whether a final agency action complies with the requirements of this Act.(3)

Appeals

(A)

Filing

(i)

In general

A notice of appeal of a final judgment described in this subsection shall be filed not later than 60 days after the final judgment is issued.(ii)

Remanded actions

In the case of a final agency action remanded under subsection (a)(1), the Federal agency and, if applicable, the applicant shall have the right to appeal during the pendency of the remand.(B)

Deadline for review

A court shall issue a final decision on an appeal filed under subparagraph (A)—(i)as expeditiously as practicable; and(ii)not later than the date that is 180 days after the date on which the notice of the appeal is filed.(d)

No effect on review of compliance with other deadlines

Nothing in this section affects the right to obtain review under section 107(g)(3).