[House Report 119-180]
[From the U.S. Government Publishing Office]
119th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 119-180
======================================================================
PROMOTING EFFICIENT REVIEW FOR MODERN
INFRASTRUCTURE TODAY ACT
_______
July 2, 2025.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Graves, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 3898]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 3898) to amend the Federal Water
Pollution Control Act to ma.ke targeted reforms with respect to
waters of the United States and other matters, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
CONTENTS
Page
Purpose of Legislation........................................... 11
Background and Need for Legislation.............................. 11
Hearings......................................................... 24
Legislative History and Consideration............................ 26
Committee Votes.................................................. 33
Committee Oversight Findings and Recommendations................. 50
New Budget Authority and Tax Expenditures........................ 50
Congressional Budget Office Cost Estimate........................ 50
Performance Goals and Objectives................................. 50
Duplication of Federal Programs.................................. 50
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 50
Federal Mandates Statement....................................... 51
Preemption Clarification......................................... 51
Advisory Committee Statement..................................... 51
Applicability to Legislative Branch.............................. 51
Section-by-Section Analysis of The Legislation................... 51
Changes in Existing Law Made by the Bill, as Reported............ 53
Committee Correspondence......................................... 104
Supplemental, Minority, Additional, or Dissenting Views.......... 109
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Promoting Efficient
Review for Modern Infrastructure Today Act'' or the ``PERMIT Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Water quality standards attainability.
Sec. 3. Water quality criteria development and transparency.
Sec. 4. Water quality technology availability.
Sec. 5. Improving water quality certifications and American energy
infrastructure.
Sec. 6. Clarifying Federal general permits.
Sec. 7. NPDES permit terms.
Sec. 8. Confidence in clean water permits.
Sec. 9. Forest protection and wildland firefighter safety.
Sec. 10. Agricultural stormwater discharge.
Sec. 11. Reducing regulatory burdens.
Sec. 12. Reducing permitting uncertainty.
Sec. 13. Nationwide permitting improvement.
Sec. 14. Deadline for request for submission of additional information
for permit programs for dredged or fill material.
Sec. 15. Judicial review timeline clarity.
Sec. 16. Restoring federalism in clean water permitting.
Sec. 17. Jurisdictional determination backlog reduction.
Sec. 18. Definition of navigable waters.
Sec. 19. Applicability of Spill Prevention, Control, and Countermeasure
rule.
Sec. 20. Coordination with Federal Permitting Improvement Steering
Council.
Sec. 21. Sense of Congress on Chesapeake Bay Watershed Agreement.
SEC. 2. WATER QUALITY STANDARDS ATTAINABILITY.
(a) State Water Quality Standards.--Section 303(c) (33 U.S.C.
1313(c)) of the Federal Water Pollution Control Act is amended--
(1) in paragraph (1)--
(A) by striking ``The Governor of a State'' and
inserting ``(A) The Governor of a State''; and
(B) by striking ``Results of such review shall be
made available to the Administrator.'' and inserting
the following:
``(B) Reviews under this paragraph shall include review, for purposes
of ensuring that combined sewer overflow controls are cost effective,
of any water quality standard applicable to a body of water into which,
pursuant to a permit, order, or decree issued pursuant to this Act, a
municipal combined storm and sanitary sewer discharges.
``(C) Results of each review under this paragraph shall be made
available to the Administrator.''; and
(2) in paragraph (2)(A)--
(A) by inserting ``(i)'' before ``their use and value
for public water supplies'';
(B) by striking ``, and also taking into
consideration'' and inserting ``; (ii)''; and
(C) by inserting before the period at the end the
following: ``; and (iii) the cost and commercial
availability in the United States of treatment
technologies (including whether the technologies have
been demonstrated at an applicable scale) that may be
required to be applied to point sources in order to
result in compliance with such standards''.
(b) State Water Quality Criteria.--Section 304(a) of the Federal
Water Pollution Control Act (33 U.S.C. 1314(a)) is amended by adding at
the end the following new paragraph:
``(10) Consideration of treatment technologies.--In
developing or revising water quality criteria under this
subsection, the Administrator shall take into consideration the
cost and commercial availability in the United States of
treatment technologies (including whether the technologies have
been demonstrated at an applicable scale) that may be required
to be applied to point sources in order to result in compliance
with water quality standards adopted or promulgated under
section 303.''.
SEC. 3. WATER QUALITY CRITERIA DEVELOPMENT AND TRANSPARENCY.
(a) Information and Guidelines.--Section 304(a) of the Federal Water
Pollution Control Act (33 U.S.C. 1314(a)) is further amended by adding
at the end the following:
``(11) Administrative procedure.--After the date of enactment
of this paragraph, the Administrator shall issue any new or
revised water quality criteria under paragraph (1) or (9) by
rule.''.
(b) Administrative Procedure and Judicial Review.--Section 509(b)(1)
of the Federal Water Pollution Control Act (33 U.S.C. 1369(b)(1)) is
amended--
(1) by striking ``section 402, and'' and inserting ``section
402,''; and
(2) by inserting ``and (H) in issuing any criteria for water
quality pursuant to section 304(a)(11),'' after ``strategy
under section 304(l),''.
SEC. 4. WATER QUALITY TECHNOLOGY AVAILABILITY.
Section 304(b) of the Federal Water Pollution Control Act (33 U.S.C.
1314(b)) is amended--
(1) in paragraph (1)(B), by inserting ``the commercial
availability in the United States of the technology (including
whether the technology has been demonstrated at an applicable
scale),'' before ``and such other factors'';
(2) in paragraph (2)(B), by inserting ``the commercial
availability in the United States of the technology (including
whether the technology has been demonstrated at an applicable
scale),'' before ``and such other factors''; and
(3) in paragraph (4)(B), by inserting ``the commercial
availability in the United States of the technology (including
whether the technology has been demonstrated at an applicable
scale),'' before ``and such other factors''.
SEC. 5. IMPROVING WATER QUALITY CERTIFICATIONS AND AMERICAN ENERGY
INFRASTRUCTURE.
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) 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'';
(v) in the sixth sentence, by striking
``waived as provided in the preceding
sentence'' and inserting ``waived under this
paragraph''; and
(vi) by inserting after the fourth sentence
the following: ``Not later than 30 days after
the date of enactment of the PERMIT 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 (g). 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.'';
(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), by striking ``the applicable
provisions'' and inserting ``any applicable
provision'';
(2) in subsection (b), by striking ``Nothing in this
section'' and inserting ``Except as provided in subsection (e),
nothing in this section'';
(3) in subsection (d), by striking ``applicant for a Federal
license or permit will comply with any applicable effluent
limitations and other limitations, under section 301 or 302 of
this Act, standard of performance under section 306 of this
Act, or prohibition, effluent standard, or pretreatment
standard under section 307 of this Act, and with any other
appropriate requirement of State law set forth in such
certification, and shall become a condition on any Federal
license or permit subject to the provisions of this section''
and inserting ``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''; and
(4) by adding at the end the following:
``(e) 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.
``(f) 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.
``(g) 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.''.
SEC. 6. CLARIFYING FEDERAL GENERAL PERMITS.
Section 402(a) of the Federal Water Pollution Control Act (33 U.S.C.
1342(a)) is amended by adding at the end the following:
``(6) General permits.--
``(A) Permits authorized.--The Administrator may
issue general permits under this section on a State,
regional, or nationwide basis, or for a delineated
area, for discharges associated with any category of
activities, which discharges are of similar types and
from similar sources.
``(B) Permit expiration notification requirement.--If
a general permit issued under this section will expire
and the Administrator decides not to issue a new
general permit for discharges similar to those covered
by the expiring general permit, the Administrator shall
publish in the Federal Register a notice of such
decision at least two years prior to the expiration of
the general permit.
``(C) Application of permit terms of an expired
permit.--
``(i) In general.--If a general permit issued
under this section expires and the
Administrator has not published a notice in
accordance with subparagraph (B), the
Administrator shall, until the date described
in clause (ii)--
``(I) continue to apply the terms,
conditions, and requirements of the
expired general permit to any discharge
that was covered by the expired general
permit; and
``(II) apply such terms, conditions,
and requirements to any discharge that
would have been covered by the expired
general permit (in accordance with any
relevant requirements for such
coverage) if the discharge had occurred
before such expiration.
``(ii) Date described.--The date described in
this clause is the earlier of--
``(I) the date on which the
Administrator issues a new general
permit for discharges similar to those
covered by the expired general permit;
or
``(II) the date that is two years
after the date on which the
Administrator publishes in the Federal
Register a notice of a decision not to
issue a new general permit for
discharges similar to those covered by
the expired general permit.''.
SEC. 7. NPDES PERMIT TERMS.
Section 402(b)(1)(B) of the Federal Water Pollution Control Act (33
U.S.C. 1342(b)(1)(B)) is amended by striking ``five years'' and
inserting ``ten years''.
SEC. 8. CONFIDENCE IN CLEAN WATER PERMITS.
(a) Compliance With Permits.--Section 402(k) of the Federal Water
Pollution Control Act (33 U.S.C. 1342(k)) is amended--
(1) by striking ``(k) Compliance with'' and inserting the
following:
``(k) Compliance With Permits.--
``(1) In general.--Subject to paragraph (2), compliance
with''; and
(2) by adding at the end the following:
``(2) Scope.--For purposes of paragraph (1), compliance with
the conditions of a permit issued under this section shall be
considered compliance with respect to a discharge of--
``(A) any pollutant for which an effluent limitation
is included in the permit; and
``(B) any pollutant for which an effluent limitation
is not included in the permit that is--
``(i) specifically identified as controlled
or monitored through indicator parameters in
the permit, the fact sheet for the permit, or
the administrative record relating to the
permit;
``(ii) specifically identified during the
permit application process as present in
discharges to which the permit will apply; or
``(iii) whether or not specifically
identified in the permit or during the permit
application process--
``(I) present in any waste streams or
processes of the point source to which
the permit applies, which waste streams
or processes are specifically
identified during the permit
application process; or
``(II) otherwise within the scope of
any operations of the point source to
which the permit applies, which scope
of operations is specifically
identified during the permit
application process.''.
(b) Expression of Water Quality-Based Effluent Limitations.--Section
402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) is
amended by adding at the end the following:
``(t) Expression of Water Quality-Based Effluent Limitations.--If the
Administrator (or a State, in the case of a permit program approved by
the Administrator) determines that a water quality-based limitation on
a discharge of a pollutant is necessary to include in a permit under
this section in addition to any appropriate technology-based effluent
limitations included in such permit, the Administrator (or the State)
may include such water quality-based limitation in such permit only in
the form of a limitation that--
``(1) specifies the pollutant to which it applies; and
``(2) clearly describes the manner in which compliance with
the limitation may be achieved, which shall include--
``(A) a numerical limit on the discharge of such
pollutant;
``(B) a narrative description of required actions to
be applied to the discharge (including any measures or
practices required to be applied); or
``(C) a narrative description of a limitation on the
discharge that specifies the level of control to be
applied.''.
SEC. 9. FOREST PROTECTION AND WILDLAND FIREFIGHTER SAFETY.
Section 402(l)(3)(A) of the Federal Water Pollution Control Act (33
U.S.C. 1342(l)(3)(A)) is amended--
(1) by striking ``for a discharge from'' and inserting the
following: ``for--
``(i) a discharge from'';
(2) in clause (i) (as so designated), by striking the period
at the end and inserting ``; or''; and
(3) by adding at the end the following:
``(ii) a discharge resulting from the aerial
application of a product used for fire control
and suppression purposes that appears on the
most current Forest Service Qualified Products
List (or any successor list).''.
SEC. 10. AGRICULTURAL STORMWATER DISCHARGE.
Section 402(l) of the Federal Water Pollution Control Act (33 U.S.C.
1342(l)) is amended by adding at the end the following:
``(4) Agricultural stormwater discharge.--
``(A) In general.--The Administrator shall not
require a permit, nor directly or indirectly require
any State to require a permit, under this section for
discharges of stormwater, including from subsurface
drainage, from agricultural land that occur in direct
response to a precipitation event.
``(B) Agricultural land defined.--In this paragraph,
the term `agricultural land' includes--
``(i) land on which an agricultural input
(such as manure and other crop nutrients, crop
protection, or seed) is applied;
``(ii) land on which animals (including fish
and shellfish), crops (including fruit and nut
trees), crop residue, plants, seed, or
vegetation are present for purposes of farming
or ranching; and
``(iii) land that is--
``(I) immediately adjacent to, and
functionally related to, land described
in clause (i) or (ii); and
``(II) necessary to support
agricultural production, soil
conservation, flood control, or water
quality.''.
SEC. 11. REDUCING REGULATORY BURDENS.
Section 402 of the Federal Water Pollution Control Act (33 U.S.C.
1342) is further amended by adding at the end the following:
``(u) Discharges of Pesticides.--
``(1) No permit requirement.--Except as provided in paragraph
(2), a permit shall not be required by the Administrator or a
State under this Act for a discharge from a point source into
navigable waters of a pesticide authorized for sale,
distribution, or use under the Federal Insecticide, Fungicide,
and Rodenticide Act, or the residue of such a pesticide,
resulting from the application of such pesticide.
``(2) Exceptions.--Paragraph (1) shall not apply to the
following discharges of a pesticide or pesticide residue:
``(A) A discharge resulting from the application of a
pesticide in violation of a provision of the Federal
Insecticide, Fungicide, and Rodenticide Act that is
relevant to protecting water quality, if--
``(i) the discharge would not have occurred
but for the violation; or
``(ii) the amount of pesticide or pesticide
residue in the discharge is greater than would
have occurred without the violation.
``(B) Stormwater discharges subject to regulation
under subsection (p).
``(C) The following discharges subject to regulation
under this section:
``(i) Manufacturing or industrial effluent.
``(ii) Treatment works effluent.
``(iii) Discharges incidental to the normal
operation of a vessel, including a discharge
resulting from ballasting operations or vessel
biofouling prevention.''.
SEC. 12. REDUCING PERMITTING UNCERTAINTY.
(a) In General.--Section 404(c) of the Federal Water Pollution
Control Act (33 U.S.C. 1344(c)) is amended--
(1) by striking ``(c) The Administrator'' and inserting the
following:
``(c) Specification or Use of Defined Area.--
``(1) In general.--The Administrator'';
(2) in paragraph (1), as so designated, by inserting ``during
the period described in paragraph (2) and'' before ``after
notice and opportunity for public hearings''; and
(3) by adding at the end the following:
``(2) Period of prohibition.--The period during which the
Administrator may prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal
site, or deny or restrict the use of any defined area for
specification (including the withdrawal of specification) as a
disposal site, under paragraph (1) shall--
``(A) begin on the date on which an applicant submits
all the information required to complete an application
for a permit under this section; and
``(B) end on the date on which the Secretary issues
the permit.''.
(b) Applicability.--The amendments made by subsection (a) shall apply
to a permit application submitted under section 404 of the Federal
Water Pollution Control Act (33 U.S.C. 1344) after the date of
enactment of this Act.
SEC. 13. NATIONWIDE PERMITTING IMPROVEMENT.
(a) In General.--Section 404(e) of the Federal Water Pollution
Control Act (33 U.S.C. 1344) is amended--
(1) by striking ``(e)(1) In carrying'' and inserting the
following:
``(e) General Permits.--
``(1) Permits authorized.--In carrying'';
(2) in paragraph (2)--
(A) by striking ``(2) No general'' and inserting the
following:
``(2) Term.--No general''; and
(B) by striking ``five years'' and inserting ``ten
years''; and
(3) 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
such activity;
``(B) shall consider any effects of a discharge of
dredged or fill material into less 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) Nationwide permits for linear projects.--
``(A) In general.--Notwithstanding any other
provision of this section, the Secretary shall maintain
general permits on a nationwide basis for--
``(i) linear infrastructure projects that
result in a discharge of dredged or fill
material into less than 3 acres of navigable
waters for each single and complete project;
and
``(ii) linear pipeline projects that do not
result in the loss of navigable waters in an
amount that is greater than 0.5 acres for each
single and complete project.
``(B) Definitions.--In this paragraph:
``(i) Linear infrastructure project.--The
term `linear infrastructure project' means a
project to carry out any activity required for
the construction, expansion, maintenance,
modification, or removal of infrastructure and
associated facilities for the transmission from
a point of origin to a terminal point of
communications or electricity, or for the
transportation from a point of origin to a
terminal point of people, water, or wastewater.
``(ii) Linear pipeline project.--The term
`linear pipeline project' means a project to
carry out any activity required for the
construction, expansion, maintenance,
modification, or removal of infrastructure and
associated facilities for the transportation
from a point of origin to a terminal point of
carbon dioxide, fuel, or hydrocarbons, in the
form of a liquid, liquescent, gaseous, or
slurry substance or supercritical fluid,
including oil and gas pipeline facilities.
``(iii) Single and complete project.--The
term `single and complete project' has the
meaning given that term in section 330.2 of
title 33, Code of Federal Regulations (as in
effect on the date of enactment of this
paragraph).
``(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 such Act (16 U.S.C. 1536(a)(2))
is required; and
``(C) the requirements of section 102(2)(C) of the
National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)) shall be satisfied by preparing an
environmental assessment with respect to such general
permit.''.
(b) Regulatory Revisions Required.--The Secretary of the Army, acting
through the Chief of Engineers, shall expeditiously revise the
regulations applicable to carrying out section 404(e) of the Federal
Water Pollution Control Act (33 U.S.C. 1344) in order to streamline the
processes for issuing general permits under such section to promote
efficient and consistent implementation of such section.
(c) Administration of Nationwide Permit Program.--In carrying out
section 404(e) of the Federal Water Pollution Control Act (33 U.S.C.
1344), including in revising regulations under subsection (b) of this
section, the Secretary of the Army, acting through the Chief of
Engineers, may not finalize or implement any modification to--
(1) general condition 15 (relating to single and complete
projects), as included in the final rule titled ``Reissuance
and Modification of Nationwide Permits'' and published on
January 13, 2021, by the Department of the Army, Corps of
Engineers (86 Fed. Reg. 2868);
(2) the definition of the term ``single and complete linear
project'', as included in such final rule (86 Fed. Reg. 2877);
or
(3) the definition of the term ``single and complete
project'', as included in section 330.2 of title 33, Code of
Federal Regulations (as in effect on the date of enactment of
this Act).
SEC. 14. DEADLINE FOR REQUEST FOR SUBMISSION OF ADDITIONAL INFORMATION
FOR PERMIT PROGRAMS FOR DREDGED OR FILL MATERIAL.
Section 404 of the Federal Water Pollution Control Act (33 U.S.C.
1344) is amended--
(1) in subsection (g)--
(A) by redesignating paragraph (3) as paragraph (4);
and
(B) by inserting after paragraph (2) the following:
``(3) If the Administrator determines that additional information is
necessary for the description of a program submitted by a State to be
full and complete under paragraph (1), the Administrator shall, not
later than 45 days after the date of the receipt of the program and
statement submitted by the State under such paragraph, submit to the
State a written request for all such information.''; and
(2) in subsection (h)(1), by striking ``paragraph (1) of this
subsection'' and inserting ``subsection (g)(1)''.
SEC. 15. JUDICIAL REVIEW TIMELINE CLARITY.
Section 404 of the Federal Water Pollution Control Act (33 U.S.C.
1344) is amended--
(1) by redesignating subsection (t) as subsection (u);
(2) in subsection (u), as so redesignated, by striking
``Nothing in the section'' and inserting ``Savings Provision.--
Nothing in this section''; and
(3) by inserting after subsection (s) the following:
``(t) Judicial Review.--
``(1) Statute of limitations.--Notwithstanding any applicable
provision of law relating to statutes of limitations--
``(A) an action seeking judicial review of the
approval by the Administrator of a State permit program
pursuant to this section shall be filed not later than
the date that is 60 days after the date on which the
approval was issued;
``(B) an action seeking judicial review of an
individual permit 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;
and
``(C) an action seeking judicial review of a
verification that an activity involving a discharge of
dredged or fill material is authorized by a general
permit issued under this section shall be filed not
later than the date that is 60 days after the date on
which such verification was issued.
``(2) Limitation on commencement of certain actions.--
Notwithstanding any other provision of law, no action described
in subparagraph (A) or (B) of paragraph (1) may be commenced
unless the action--
``(A) is filed by a party that submitted a comment--
``(i) during the public comment period for
the administrative proceedings related to the
action; and
``(ii) which was sufficiently detailed to put
the Administrator, the Secretary, or the State,
as applicable, on notice of the issue upon
which the party seeks judicial review; and
``(B) is related to such comment.
``(3) Remedies.--
``(A) Actions relating to permit programs.--If a
court determines that the Administrator did not comply
with the requirements of this section in issuing an
approval of a State permit program pursuant to this
section--
``(i) the court shall remand the matter to
the Administrator for further proceedings
consistent with the determination of the court;
and
``(ii) the court may not vacate, revoke,
enjoin, or otherwise limit the authority of the
State to issue permits under such State permit
program.
``(B) Actions relating to permits.--If a court
determines that the Secretary or the State, as
applicable, did not comply with the requirements of
this section in issuing an individual or general permit
under this section, or in verifying that an activity
involving a discharge of dredged or fill material is
authorized by a general permit issued under this
section, as applicable--
``(i) the court shall remand the matter to
the Secretary or the State, as applicable, for
further proceedings consistent with the
determination of the court;
``(ii) with respect to a determination
regarding the issuance of an individual or
general permit under this section, the court
may not vacate, revoke, enjoin, or otherwise
limit the permit, unless the court finds that
activities authorized under the permit would
present an imminent and substantial danger to
human health or the environment for which there
is no other equitable remedy available under
the law; and
``(iii) with respect to a determination
regarding a verification that an activity
involving a discharge of dredged or fill
material is authorized by a general permit
issued under this section, the court may not
enjoin or otherwise limit the discharge unless
the court finds that the activity would present
an imminent and substantial danger to human
health or the environment for which there is no
other equitable remedy available under the law.
``(4) Timeline to act on court order.--If a court remands a
matter under paragraph (3), the court shall set and enforce a
reasonable schedule and deadline, which may not exceed 180 days
from the date on which the court remands such matter, except as
otherwise required by law, for the Administrator, the
Secretary, or the State, as applicable, to take such actions as
the court may order.''.
SEC. 16. RESTORING FEDERALISM IN CLEAN WATER PERMITTING.
Not later than 180 days after the date of enactment of this Act, the
Administrator of the Environmental Protection Agency shall complete a
review of the regulations applicable to the approval of State permit
programs under section 404 of the Federal Water Pollution Control Act
(33 U.S.C. 1344) in order to identify revisions to such regulations
necessary to streamline the approval process, reduce administrative
burdens, and encourage additional States to administer a permit program
under such section, and the Administrator shall implement any such
revisions as appropriate.
SEC. 17. JURISDICTIONAL DETERMINATION BACKLOG REDUCTION.
Not later than 60 days after the date of enactment of this Act, the
Secretary of the Army, acting through the Chief of Engineers, shall
expedite such procedures and reallocate or augment such personnel and
resources of the Corps of Engineers as the Secretary determines
necessary to eliminate any backlog existing as of June 5, 2025, of--
(1) applications for permits under section 404 of the Federal
Water Pollution Control Act (33 U.S.C. 1344); or
(2) requests for jurisdictional determinations or wetlands
delineations under the jurisdiction of the Secretary.
SEC. 18. DEFINITION OF NAVIGABLE WATERS.
Section 502(7) of the Federal Water Pollution Control Act (33 U.S.C.
1362(7)) is amended--
(1) by striking ``(7) The term'' and inserting the following:
``(7) Navigable waters.--
``(A) In general.--The term''; and
(2) by adding at the end the following:
``(B) Exclusions.--The term `navigable waters' does
not include the following:
``(i) Any component of a waste treatment
system, including any lagoon or treatment pond
(such as a settling or cooling pond), designed
to actively or passively--
``(I) convey or retain wastewater; or
``(II) concentrate, settle, reduce,
or remove pollutants from wastewater.
``(ii) Ephemeral features that flow only in
direct response to precipitation.
``(iii) Any area that--
``(I) 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, as determined by the
Administrator and the Secretary of the
Army, acting through the Chief of
Engineers, which determinations shall
be consistent with any designations of
prior converted cropland made by the
Secretary of Agriculture; and
``(II) as determined by the
Administrator--
``(aa) at least once in the
immediately preceding five
years has been used for, or in
support of, agricultural
purposes, including grazing,
haying, idling land for
conservation use (such as
habitat management, pollinator
and wildlife management, water
storage and supply management,
and flood management),
irrigation tailwater storage,
farm-raised fish production,
cranberry production, nutrient
retention, and idling land for
soil recovery after natural
disasters such as hurricanes
and drought; and
``(bb) has not reverted to
wetlands (as defined in section
120.2 of title 40, Code of
Federal Regulations, as in
effect on the date of enactment
of this clause).
``(iv) Groundwater.
``(v) Any other features determined to be
excluded by the Administrator and the Secretary
of the Army, acting through the Chief of
Engineers.''.
SEC. 19. APPLICABILITY OF SPILL PREVENTION, CONTROL, AND COUNTERMEASURE
RULE.
Section 1049 of the Water Resources Reform and Development Act of
2014 (33 U.S.C. 1361 note) is amended--
(1) in subsection (b)--
(A) in paragraph (1)(B), by striking ``20,000'' and
inserting ``42,000'';
(B) by amending paragraph (2)(A) to read as follows:
``(A) an aggregate aboveground storage capacity
greater than 10,000 gallons but less than 42,000
gallons; and'';
(C) in paragraph (3)--
(i) by amending subparagraph (A) to read as
follows:
``(A) with an aggregate aboveground storage capacity
of less than or equal to 10,000 gallons; and''; and
(ii) in subparagraph (B), by striking ``;
and'' and inserting a period; and
(D) by striking paragraph (4);
(2) in subsection (c)(2)(A)--
(A) in clause (i), by striking ``1,000'' and
inserting ``1,320''; and
(B) in clause (ii), by striking ``2,500'' and
inserting ``3,000''; and
(3) by striking subsection (d).
SEC. 20. COORDINATION WITH FEDERAL PERMITTING IMPROVEMENT STEERING
COUNCIL.
With respect to any covered project (as defined under section 41001
of the FAST Act (42 U.S.C. 4370m)) for which a certification or permit
from a State under section 401, 402, or 404 of the Federal Water
Pollution Control Act is required, the State is encouraged to choose to
participate, to the maximum extent practicable, in the environmental
review and authorization process under section 41003(c) of the FAST Act
(42 U.S.C. 4370m-2(c)), pursuant to paragraph (3)(A) of such section.
SEC. 21. SENSE OF CONGRESS ON CHESAPEAKE BAY WATERSHED AGREEMENT.
It is the sense of Congress that the Chesapeake Bay Watershed
Agreement is a voluntary, cooperative agreement between the Federal
Government, the State of Delaware, the District of Columbia, the State
of Maryland, the Commonwealth of Pennsylvania, the State of New York,
the Commonwealth of Virginia, and the State of West Virginia. As such,
the Federal Government should take a collaborative and cooperative
approach to the parties with regard to their compliance with the
Chesapeake Bay Total Maximum Daily Load outlined in such agreement.
Purpose of Legislation
The purpose of H.R. 3898, as amended, is to amend the
Federal Water Pollution Control Act to make targeted with
respect to waters of the United States, and for other purposes.
Background and Need for Legislation
The Clean Water Act (CWA) is the primary law governing
water quality of the Nation's surface waters.\1\ Congress
enacted the 1972 amendments to the Federal Water Pollution
Control Act, which is commonly referred to as the CWA, with the
objective to ``restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.''\2\
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\1\H. Comm. on Transp. & Infrastructure, Jurisdiction and
Activities of the Subcomm. on Water Resources and Environment, 119th
Cong., (2025) (on file with Comm.).
\2\CWA, Pub. L. 92-500, 86 Stat. 816 [hereinafter CWA].
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The CWA consists of two major parts: (1) the authorization
of financial assistance for construction of municipal
wastewater treatment plants, and (2) the regulatory
requirements that apply to those who discharge into navigable
waters, including for industrial and municipal actors.\3\
Planning, financial, and technical assistance for various
regions and issues are also addressed.\4\ Title III of the CWA
establishes the authority for the technological and water
quality-based effluent limitation guidelines that must be
abided by point source dischargers.\5\ Whereas Title III of the
CWA largely focuses on the creation of water quality guidelines
and limitations, Title IV primarily deals with application of
the regulatory program, informed by the guidelines created
pursuant to Title III, through which dischargers must receive
permits or certifications.\6\
---------------------------------------------------------------------------
\3\See Laura Gatz, CONG. RSCH. SERV. (RL30030), Clean Water Act: A
Summary of the Law, (Updated Oct. 18, 2016), available at https://
www.crs.gov/Reports/RL30030 [hereinafter CRS Report RL30030].
\4\Id.
\5\See CRS Report RL30030, supra note 3; see also CWA, supra note
2, Sec. Sec. 301-320.
\6\See CRS Report RL30030, supra note 3; see also CWA, supra note
2, Sec. Sec. 301, 402, 404.
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In order to achieve its objectives, the CWA is predicated
on the principle that discharges into waters of the United
States are only lawful if authorized by a permit.\7\ Therefore,
the application of various CWA components require a regulatory
program. While certain regulatory programs under the law may
only be carried out by the Federal Government, through either
the Environmental Protection Agency (EPA) or the United States
Army Corps of Engineers (Corps), certain responsibilities can
be assumed by states approved by the EPA.\8\
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\7\See CRS Report RL30030, supra note 3.
\8\See e.g. CWA, supra note 2, Sec. Sec. 401, 402, 404.
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Broadly, H.R. 3898, as amended, strives to once again find
balance within the regulatory and permitting process originally
envisioned by the CWA by providing a comprehensive package of
commonsense reforms to support energy producers, the
agriculture sector, builders, and utilities. The bill includes
necessary reforms to promote regulatory efficiency, increase
transparency, avoid frivolous litigation, and protect and
promote clean water, all while balancing states' rights.
Prior to enactment of the CWA, water quality was seen as an
issue primarily concerning states and localities, except where
interstate waters were concerned.\9\ As such, the CWA continued
this recognition that states and localities play an essential
role in maintaining the quality of their own waters, rather
than only the Federal Government.\10\ At the Federal level, EPA
is the primary agency tasked with carrying out the CWA, while
the Corps is also tasked with certain responsibilities.
Additionally, the various permitting and environmental
protection statutes in the CWA were meant to be shared between
the Federal Government and state and local governments.\11\ The
CWA is a law predicated on the principle of cooperative
Federalism, with the Federal Government and states each playing
a role in protecting water quality.
---------------------------------------------------------------------------
\9\CRS Report RL30030, supra note 3.
\10\Id.
\11\See e.g. Brief of Sen. Shelley Moore Capito, Rep. Sam Graves,
and a Coalition of 199 Members of Congress as Amici Curiae supporting
Petitioners, Sackett v. EPA, No. 21-154, (Oct. 3, 2022).
---------------------------------------------------------------------------
In keeping with the Federal-state goals of the CWA, Section
401 requires an applicant for a Federal license or permit that
may result in a discharge into navigable waters to obtain a
water quality certification from the state or Tribe (or EPA, in
the case of tribal lands where a tribe has not been granted
treatment as a state) in which a discharge is to take
place.\12\ The purpose of the water quality certification
issued by the state or Tribe is to certify that any discharges
from a Federally permitted activity will comply with certain
water quality requirements of the CWA, including effluent
limitations and performance standards, water quality standards,
and toxic pretreatment standards.\13\
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\12\Laura Gatz & Kate R. Bowers, Cong. Rsch. Serv. (R46615), Clean
Water Act Section 401: Overview and Recent Developments, (updated Feb.
7, 2025), available at https://www.crs.gov/Reports/R46615 [hereinafter
CRS Report R46615].
\13\Eric Christensen & Allyn Stern, The Biden Boomerang Effect
Reaches Clean Water Act Section 401, National Law Review, (Sept. 21,
2023); see CWA, supra note 2 at Sec. 401.
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Examples of Federally licensed or permitted projects
commonly requiring water quality certification include those
requiring discharge permits under sections 402 and 404 of the
CWA, or sections 9 and 10 of the Rivers and Harbors Act,
licenses from the Federal Energy Regulatory Commission (FERC),
bridge permits from the Coast Guard, shoreline permits from the
Tennessee Valley Authority, and more.\14\ These statutes cover
a wide variety of projects, including hydropower projects,
wastewater treatment plants, pipeline projects, infrastructure
development, mining projects, water resource development
projects, and residential or commercial development.\15\
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\14\See EPA, Overview of CWA Section 401 Certification, available
at https://www.epa.gov/cwa-401/overview-cwa-section-401-certification.
\15\Id.
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Current implementation practices of section 401, however,
have been shaped by decades-worth of litigation and unclear
guidance. Until 2020, implementation regulations for section
401 published in 1971 were in effect.\16\ These regulations
implemented the certification provisions of section 21(b) of
the Federal Water Pollution Control Act of 1948, but EPA did
not update the regulations to reflect the changes in the
statutory text for nearly fifty years.\17\ During this time,
many processes evolved in practice that were not reflected in
the statute. H.R. 3898, as amended, codifies certain practices
and clarifies others, to balance the role of state and Federal
Government, and provide certainty and predictability to
permittees and licensees that depend on a clear and useable 401
process.
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\16\State Certification of Activities Requiring a Federal Permit or
License, 36 Fed. Reg. 22487 (Nov. 25, 1971) (formerly codified at 40
C.F.R. Sec. 121).
\17\Id.; CRS Report R46615, supra note 12.
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In particular, some stakeholders have raised concerns that
states have misused the section 401 process, specifically
weaponizing section 401 to prevent important energy projects
from obtaining certification and halting their progress in
construction.\18\ For example, some states have cited non-water
quality related reasons in the 401 process to delay projects,
expanded the scope of review beyond the direct effects of a
discharge, and circumvented the timelines set out in statute.
---------------------------------------------------------------------------
\18\See e.g. Letter from Interstate Natural Gas Association of
America to Reps. Mike Collins & Frederica Wilson (Feb. 10, 2025) (on
file with Comm.).
---------------------------------------------------------------------------
In 2017, the Washington Department of Ecology denied water
quality certification with prejudice for a proposed energy
export terminal project, meaning that the applicants could not
reapply in the future. In doing so, the Department cited nine
adverse impacts for denial--air quality, vehicle
transportation, noise and vibration, social and community
resources, rail transportation, rail safety, vessel
transportation, cultural resources, and tribal resources--none
of which affected water quality.\19\
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\19\See Letter from Maia D. Bello, Director, Washington Department
of Ecology, to Kristin Gaines, Millennium Bulk Terminals-Longview, LLC,
(Sept. 26, 2017), available at https://ecology .wa.gov/getattachment/
8349469b-a94f-492b-acca-d8277e1ad237/MBTL-Denial.pdf.
---------------------------------------------------------------------------
In 2020, the New York Department of Environmental
Protection denied water quality certification to a proposed
natural gas pipeline expansion project into Raritan Bay,
despite FERC in 2019 determining that with project proponent's
``plan of impact avoidance, minimization and mitigation
measures . . . all project effects would be reduced to less-
than-significant levels.''\20\
---------------------------------------------------------------------------
\20\Letter from Daniel Whitehead to Joseph Dean, Transcontinental
Gas Pipe Line Company, LLC, (May 15, 2020), available at https://
extapps.dec.ny.gov/docs/permits_ej_operations_pdf/
nesewqcdenial05152020.pdf; Transcontinental Gas Pipe Line Company, LLC;
Notice of Final General Conformity Determination for the Proposed
Northeast Supply Enhancement Project, 84 Fed. Reg. 5078, (Feb. 20,
2019), available at https://www.federalregister.gov/documents/2019/
02/20/2019-02830/transcontinental-gas-pipe-line-company-llc-notice-of-
final-general-conformity-determination-for-the.
---------------------------------------------------------------------------
The State of Oregon delayed a proposed LNG export terminal
by requesting more information from project proponents before
eventually denying certification.\21\ By citing the need for
additional information, the state was able to argue that the
one-year ``shot clock'' for review of a request for
certification should start over once a request is
resubmitted.\22\
---------------------------------------------------------------------------
\21\Oregon Department of Environmental Quality, Jordan Cove Energy
Project: Current Actions, available at https://www.oregon.gov/deq/
Programs/Pages/Jordan-Cove.aspx.
\22\Id.
---------------------------------------------------------------------------
In California, some hydropower relicensing projects have
been delayed for decades due to the State's various attempts to
circumvent the one-year timeline for review. For example, at a
Water Resources and Environment Subcommittee hearing in
February 2025, the Committee received testimony for the record
from the Modesto Irrigation District and Turlock Irrigation
District that explained the State ``has abused and expanded
this opportunity, using it not as the opportunity to ensure
that any federally authorized discharge complies with
applicable water quality, but rather as an opportunity to seize
control and oversight of the [Don Pedro irrigation] Project as
a whole to achieve policy goals that are often only
tangentially related to water quality and which have nothing to
do with the licensed activity itself.''\23\
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\23\America Builds: Clean Water Act Permitting and Project
Delivery, Before the Subcomm. On Water Resources and Environment of the
H. Comm. On Transp. And Infrastructure, 119th Cong. (Feb. 10, 2025)
(Testimony for the Record from Modesto Irrigation District and Turlock
Irrigation District) (on file with Comm.).
---------------------------------------------------------------------------
Section five of H.R. 3898, as amended, aims to mitigate the
problems of permitting uncertainty and weaponization of Section
401 under the CWA. This section promotes the development of the
Nation's energy infrastructure and myriad other projects by
clarifying the scope of review to include only water quality
reasons from the discharge at issue, defines what is required
to be included in a request for certification, codifies what
actions states may take after receipt of a request for
certification, and clarifies the entity in charge of enforcing
conditions added in through the 401 process.
Another key aspect of the CWA's framework of cooperative
Federalism is the ability for States to carry out the
permitting programs set up by sections 402 and 404 of the CWA.
While 47 states have assumed the ability to carry out the
National Pollution Discharge Elimination System (NPDES)
programs under section 402, only two states (Michigan and New
Jersey) have been delegated authority to administer their own
404 dredge and fill programs.\24\ Florida had begun
administering its own 404 permitting program after the program
was approved in December 2020; currently, however, the program
has been divested of its authority due to a Federal judicial
order.\25\ Other states have acknowledged interest in
implementing their own 404 program, but concerns about taking
on the costs of running such a program are often a barrier.\26\
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\24\Id.
\25\EPA, State and Tribal Assumption of Section 404 of the Clean
Water Act, available at https://www.epa.gov/cwa404g/us-interactive-map-
state-and-tribal-assumption-under-cwa-section-404; see also State of
Florida, State 404 Program, available at https://floridadep.gov/water/
submerged-lands-environmental-resources-coordination/content/state-404-
program.
\26\America Builds: The State of the Nation's Transportation
System: Hearing Before the H. Comm. on Transp. and Infrastructure,
119th Cong. (Jan. 15, 2025), (Testimony of Hon. Jeff Landry, Governor,
State of Louisiana).
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Sections 14 and 16 of H.R. 3898, as amended, are focused on
providing clarity to the process of state assumption of dredge
and fill permitting under section 404 of the CWA. Section 16
requires EPA to complete a review of the applicable regulations
to state assumption of the section 404 program and implement
revisions necessary to encourage state assumption. Section 14
establishes a deadline relating to EPA's review of a state's
application to assume section 404 permitting. Section 20 of
H.R. 3898, as amended, encourages states with delegated
permitting authorities under the CWA to utilize the Federal
Permitting Improvement Steering Council to improve coordination
across relevant Federal and state agencies. In general, H.R.
3898, as amended, furthers the goals of cooperative Federalism
that the CWA is based upon by encouraging states to take the
lead in administering CWA permits.
Furthermore, CWA section 303(c) directs states to adopt
water quality standards (WQS) for navigable waters. The EPA is
charged with approving the state-developed standards. WQS serve
as the basis for several CWA programs, including the
development of total maximum daily loads (TMDLs),
certifications of Federal licenses and permits under section
401, NPDES permits under section 402, and dredge and fill
permits under section 404.
Currently, CWA section 402(q) requires municipalities with
combined sewer overflows to develop long-term control plans
(LTCPs) to minimize or eliminate discharges. It also instructs
states to review and, as appropriate, modify existing WQS while
municipalities are developing and implementing LTCPs to support
compliance with the CWA. Those reviews, however, have largely
not happened, and despite municipalities investing millions of
dollars in upgrading their facilities, many are no closer to
being deemed in compliance with the CWA.\27\ Many stakeholders
have also raised concerns about states developing WQS that are
not attainable based on available technology.\28\ For example,
the State of Washington has set WQS that are so low many
industries are concerned they will not be able to comply with
the CWA.\29\
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\27\National Association of Clean Water Agencies, Comments on EPA's
Draft Guidance for Future NPDES Permitting of Combined Sewer Systems
(Docket ID No. EPA-HQ-OW-2023-0475).
\28\Id.
\29\Brief of the American Exploration & Mining Association,
American Farm Bureau Association, Fertilizer Institute, National
Association of Home Builders, National Association of Manufacturers,
and National Mining Association as Amici Curiae supporting Plaintiffs'
motion for summary judgement, Association of Washington Business, et
al. v. EPA (May 20, 2024).
---------------------------------------------------------------------------
While the CWA protects ``navigable waters,'' which are
broadly defined in the CWA as the ``waters of the United
States, including the territorial seas,''\30\ the CWA does not
further define the term ``waters of the United States''
(WOTUS). Ultimately, the CWA grants authority to the EPA and
the Corps to implement the CWA, and EPA and the Corps have
promulgated several sets of rules defining WOTUS as it governs
the scope of CWA authority. There has been a substantial amount
of regulation and litigation in the Federal Courts on the scope
of CWA jurisdiction over the years, including multiple United
States Supreme Court cases. In May 2023, the Supreme Court
concluded in Sackett v. EPA (Sackett) that the CWA's
jurisdiction encompasses waters that are ``relatively
permanent, standing or continuously flowing bodies of water
`forming geographical features' that are described in ordinary
parlance as `streams, oceans, rivers, and lakes.'''\31\ The
Supreme Court also held that jurisdictional wetlands ``must be
indistinguishably part of a body of water that itself
constitutes `waters'' under the CWA.''\32\
---------------------------------------------------------------------------
\30\CWA, supra note 2.
\31\Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023)
[Hereinafter Sackett].
\32\Id.
---------------------------------------------------------------------------
The recent Sackett decision provided additional direction
on the WOTUS definition, and therefore, the jurisdiction of the
CWA. However, the conforming rule issued by the EPA and the
Corps during the Biden Administration did not include or
clarify certain phrases and terms applied in Sackett. The Biden
Administration developed additional guidance to implement the
``continuous surface connection'' test outlined by Sackett,
while simultaneously working through individual requests for
CWA jurisdictional determinations in light of the Sackett
decision. However, many stakeholders in the regulated community
have raised concerns about the slow pace at which the Biden
Administration directed EPA and the Corps to implement Sackett,
as well as the lack of clear direction the Biden Administration
provided to the regulated public, even through its supplemental
guidance.
Although the Trump Administration is initiating a process
to revise the Biden rule and published updated implementation
guidance,\33\ the regulatory ambiguities following the Sackett
decision caused confusion in applying the rule, especially for
Corps districts who are tasked with issuing jurisdictional
determinations (JDs), which are generally required as part of
the CWA section 404 permit process.\34\ For example, the Army
Corps of Engineers has recently reported there are currently
3,588 pending JDs.\35\ This backlog is delaying permits from
moving forward that are critical to building new roads, homes,
and other important infrastructure projects across the country.
Because of this, section 17 of H.R. 3898, as amended, requires
the Army Corps of Engineers to allocate all necessary resources
and staff to address the backlog of JDs.
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\33\EPA and Department of the Army, Corps of Engineers, The Final
Response to SCOTUS; Establishment of a Public Docket; Request for
Recommendations 40 Fed. Reg. 120, (March 24, 2025), available at
https://www.epa.gov/system/files/documents/2025-03/wotus_notice_march
2025.pdf.
\34\Jurisdictional determinations are performed on a property in
order to delineate which waters are Waters of the U.S. and are
therefore subject to CWA Sec. 404.
\35\E-mail from Amy Klein, Congressional Affairs Program Manager,
U.S. Army Corps of Engineers HQ to Lydia Denis, Professional Staff, H.
Comm. On Transp. and Infrastructure (June 5, 2025) (on file with
Comm.).
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Despite the continuously changing definition of a WOTUS,
there have been certain exclusions to the definition that have
endured both Democrat and Republican administrations for waste
treatment systems,\36\ ephemeral features,\37\ prior converted
cropland,\38\ and groundwater.\39\ Section 18 of H.R. 3898, as
amended, codifies those exclusions into law, providing
certainty and durability for the regulated community who have
utilized those exemptions for decades.
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\36\The waste treatment system exclusion, which includes features
like treatment ponds and lagoons that are intended to improve water
quality, was first codified ion in 1979. This exclusion was maintained
by subsequent administrations, including the Biden Administration.
\37\Ephemeral features, which flow only in direct response to
precipitation, have been consistently excluded from the WOTUS
definition. The Reagan and Bush Administrations generally treated these
features as non-jurisdictional, but the Obama Administration included
some ephemeral streams as jurisdictional, which was a flashpoint for
litigation. The Trump Administration explicitly excluded ephemeral
features in their 2020 regulations, which was ultimately maintained by
the Biden Administration because of the Supreme Court ruling in
Sackett.
\38\Prior Converted Cropland, which are wetlands that were
converted to agricultural lands and cultivated with a commodity crop
prior to December 23, 1985, have been continuously excluded from the
WOTUS definition since 1993.
\39\There has been increased interest from environmental
organizations in making groundwater jurisdictional under the CWA.
However, the CWA is only authorized to regulate surface waters.
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Section 402 of the CWA authorizes the National Pollutant
Discharge Elimination System (NPDES) program to regulate
discharges of pollutants from point sources into navigable
waters.\40\ Point sources are defined as ``any discernible,
confined and discrete conveyance, such as a pipe, ditch,
channel, conduit, discrete fissure, or container,''\41\ and
also include ``vessels or other floating craft'' from which
pollutants may be discharged.\42\ Certain agriculture,
silviculture, and stormwater runoff are exempted from requiring
a NPDES permit.\43\ Sections 9 and 10 of H.R. 3898, as amended,
further clarifies these exemptions for agriculture runoff and
aerial fire-retardant, respectively, which have experienced
legal uncertainty over the last decade.
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\40\CWA, supra note 2, Sec. 402.
\41\Id.
\42\Id.; see generally also EPA, NPDES Permit Basics, available at
https://www.epa.gov/npdes/npdes-permit-basics [Hereinafter NPDES
Basics].
\43\Id.
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The CWA explicitly excludes ``agricultural stormwater
discharges'' and ``return flows from irrigated agriculture''
from the definition of a point source, which means these
discharges are not required to be regulated under the NPDES
program.\44\ Despite this clear exemption, in 2011, the EPA
ordered a poultry farmer, Lois Alt, in West Virginia to obtain
a NPDES permit for stormwater runoff from her farmyard, which
is the area directly outside of the poultry production
house.\45\ The EPA claimed that chicken feathers, manure,
dander, and other debris that had been pushed out of the
poultry house through the ventilation system, and landed in
areas outside the poultry production houses, qualify as a
discharge. Ms. Alt challenged this order, and the United States
Court for the Northern District of West Virginia ruled against
EPA in 2013, rejecting its argument that the CWA regulates
ordinary stormwater runoff from non-production areas at
livestock or poultry farms.\46\
---------------------------------------------------------------------------
\44\CWA, supra note 2, Sec. 402(l).
\45\Alt v. EPA, 979 F. Supp. 2d 701 (N.D.W. Va. 2013).
\46\Id.
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The EPA initially appealed the case, but it voluntarily
withdrew the appeal a few months later. In a public statement,
the EPA stated that it ``remains committed to working with the
agricultural community to ensure compliance with this legal
requirement and to pursue enforcement when necessary,''\47\
indicating its intent to circumvent the agricultural stormwater
exemption in the CWA. Section 9 of H.R. 3898, as amended,
clarifies the scope of the agriculture stormwater exemption
under the NPDES program to prevent future EPA's from unlawfully
requiring agricultural operations from requiring a NPDES permit
for stormwater discharges.
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\47\See Cynthia Giles, A Commitment to Keep Our Waters Clean and
Safe, http://blog.epa.gov/blog/2014/09/a-commitment-to-keep-our-
watersclean-and-safe/.
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Conversely, the EPA has historically not required a permit
for aerial fire-retardant discharges under the NPDES program.
However, in October 2022, the Forest Service Employees for
Environmental Ethics (FSEEE) brough suit against the United
States Forest Service (USFS) for discharging aerially deployed
fire retardant into navigable waters without a NPDES permit, in
violation of the CWA.\48\ The United States District Court for
the District of Montana subsequently granted, in part, FSEEE's
motion for summary judgement on the basis that USFS had
violated the CWA for the discharge of aerial fire retardant
without a NPDES permit and required the EPA to work with USFS
to develop a permit.\49\ Section 10 of H.R. 3898, as amended,
clarifies that aerially discharged fire-retardant does not
require a NPDES permit.
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\48\Forest Service Employees for Environmental Ethics v. United
States Forest Service, 2023 WL 3687454, (D. Mont. May 26, 2023); CWA
Sec. 402 (prohibiting the discharge of any pollutant from any point
source to navigable waters unless authorized by a permit. These permits
are referred to as ``National Pollutant Discharge Elimination System''
permits.).
\49\Forest Service Employees for Environmental Ethics, 2023 WL
3687454.
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Similarly, for more than three decades following the
enactment of the CWA, EPA did not consider registered
pesticides used in compliance with the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) as pollutants that
required additional permits through the NPDES program,
formalized in a 2006 Rule promulgated by EPA.\50\ However, in
2009, the United States Sixth Circuit Court of Appeals held in
National Cotton Council, et al, v. EPA, that the final rule was
not a reasonable interpretation of the CWA and vacated the
rule.\51\ The court held that NPDES permits are required for
the application of biological pesticides or the application of
chemical pesticides that leave a residue in water when such
applications are made to, or conveyed into, a WOTUS.\52\
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\50\Laura Gatz, et al., Cong. Rsch. Serv. (IF10919), Permitting for
Pesticide Discharges into Navigable Waters: Issues and Legislation in
the 117th Congress, (Updated May 27, 2022), available at https://
www.crs.gov/Reports/IF10919; EPA, Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) and Federal Facilities, available at https://
www.epa.gov/
enforcement/federal-insecticide-fungicide-and-rodenticide-act-fifra-
and-federal-facilities.
\51\National Cotton Council of America v. U.S. Environmental
Protection Agency, 553 F.3d 927 (6th Cir. 2009).
\52\Id.
---------------------------------------------------------------------------
Concerns were raised at the time of the National Cotton
Council case that requiring additional regulation of pesticides
under the CWA would create a duplicative permitting process
without providing any additional health benefits. For example,
then-Secretary of Agriculture Tom Vilsack wrote to then-EPA
Administrator Lisa Jackson, stating, ``subjecting FIFRA-
compliant pesticides to the additional regulatory regime of the
CWA is duplicative and will not help protect the
environment.''\53\ Section 11 of H.R. 3898, as amended,
restores EPA's longstanding interpretation that FIFRA-compliant
pesticides do not require a duplicative permitting process
through the NPDES program.
---------------------------------------------------------------------------
\53\Letter from Hon. Thomas J. Vilsack, Secretary, United States
Dep't of Agriculture, to Hon. Lisa P. Jackson, Fmr. Administrator,
United States Environmental Protection Agency, Re: The National Cotton
Council, et. al., v. United States Environmental Protection Agency,
(Mar. 6, 2009) (on file with Comm.).
---------------------------------------------------------------------------
Since all point source dischargers are subject to the NPDES
program, a total of more than 65,000 industrial and municipal
conventional dischargers are required to obtain permits
pursuant to section 402.\54\ In addition, NPDES permits are
required for stormwater discharges from industrial and
municipal sources, including over 150,000 individual
sources.\55\ NPDES permits require the point source to attain
technology-based effluent limits, while specifying the
numerical effluent limitations that sources must meet in order
to guarantee water quality where possible, and a deadline for
compliance.\56\ Point sources may, in some instances, apply for
a NPDES general permit as opposed to a NPDES individual permit.
An individual NPDES permit is written for site-specific
discharges that are unique to a specific location or
discharge.\57\
---------------------------------------------------------------------------
\54\CRS Report RL30030, supra note 3.
\55\Id.
\56\Id.
\57\See NPDES Permit Basics, supra note 42.
---------------------------------------------------------------------------
Currently, general and individual NPDES permits are issued
for up to five years and must be renewed thereafter if
discharges continue.\58\ However, if the permittee provides a
complete application, but is not reissued a permit prior the
date of expiration, the permit may be ``administratively
continued.''\59\ Permit applications are considered backlogged
for new applications if they are not issued or denied within
365 days of receipt, and for extensions if they are
administratively continued for 180 days or more.\60\ H.R. 3898,
as amended, seeks to provide more certainty for all NPDES
permit holders. Section 7 authorizes NPDES permits to be issued
for up to ten years, and Section 7 requires EPA to provide two-
year notice to general permit holders if that permit will not
be renewed and allows the permit to continue past its
expiration date if two-year notice is not provided to the
permit holder.
---------------------------------------------------------------------------
\58\See id. (stating applicants for NPDES permit renewals must
complete an application for renewal at least 180 days prior to original
expiration).
\59\Id.
\60\Id.
---------------------------------------------------------------------------
Under section 304(a) of the CWA, the EPA is required to
develop, publish, and, from time to time, revise criteria for
water quality. These criteria serve as recommendations to
states for defining ambient surface water conditions of a water
body to protect against adverse effects to aquatic life and
human health.\61\ These criteria are often adopted by states
and help inform the development of water quality-based effluent
limits included in NPDES permits.\62\ Currently, the EPA
voluntarily accepts comments on proposed criteria under 304(a)
and subjects them to review from its own Science Advisory
Board. In a hearing before the Subcommittee on May 16, 2023, a
witness representing the National Association of Clean Water
Agencies, Mickey Conway, Chief Executive Officer (CEO) of Metro
Water Recovery in Denver, CO, testified, ``[a]s utilities face
complex and costly infrastructure challenges over the next
fifty years, it is critical that the limits imposed in NPDES
permits be based on the best available science and a complete
record, not political whim or expedience.''\63\ Section 3 of
H.R. 3898, as amended, increases the transparency of the
process of creating limits for NPDES permits by requiring that
water quality criteria are developed through an official
rulemaking, which allows outside comments made by stakeholders,
experts, and others, to be considered. It also ensures that the
rulemaking is subject to limited judicial review.
---------------------------------------------------------------------------
\61\EPA, NPDES Permit Writers' Manual, available at https://
www.epa.gov/sites/default/files/2015-09/documents/pwm_2010.pdf.
\62\Id.
\63\The Next Fifty Years of the Clean Water Act: Examining the Law
and Infrastructure Project Completion, Before the Subcomm. on Water
Resources and Environment of the H. Comm. on Transp. And
Infrastructure, 118th Cong., (May 16, 2023) (written testimony of Mr.
Mickey Conway, CEO, Metro Water Recovery, Denver Colorado, on behalf of
National Association of Clean Water Agencies).
---------------------------------------------------------------------------
The CWA provides for two types of general limits on
pollution discharges--a technology-based limit (TBEL) and a
more-stringent water quality-based limit (WQBEL) when
technology-based limits alone, are insufficient to address
local water quality concerns. Permit writers must consider the
potential impact of every proposed surface water discharge on
the quality of the receiving water. If TBELs are not sufficient
to meet the water quality standards in the receiving water, the
CWA (section 303(b)(1)(B)) and NPDES regulations (40 C.F.R.
122.44(d)) require that the permit writer develop more
stringent, water quality-based effluent limits (WQBELs).\64\
---------------------------------------------------------------------------
\64\EPA, Permit Limits-TBELs and WQBELs, available at https://
www.epa.gov/npdes/permit-limits-tbels-and-wqbels.
---------------------------------------------------------------------------
TBELs for industrial dischargers reflect effluent
limitation guidelines (ELGs). ELGs are technology-based,
wastewater discharge standards that are developed by the EPA on
an industry-by-industry basis. ELGs are intended to represent
the greatest pollutant reductions that are economically
achievable for an industry and are based on available
technologies.\65\ Since 1972, EPA has promulgated ELGs for 59
industrial categories, including the steam electric power
industry--which covers power plants that use nuclear or fossil
fuels to generate steam used to produce electricity.\66\ Some
have raised concerns that the technologies used to develop the
ELG for steam electric power under the Biden Administration was
based on data from foreign countries, including China.\67\
Section 4 of H.R. 3898, as amended, requires ELGs to be based
on technology that is commercially available in the United
States that has also been demonstrated at an applicable scale.
---------------------------------------------------------------------------
\65\EPA, Learn about Effluent Guidelines, available at https://
www.epa.gov/eg/learn-about-
effluent-guidelines.
\66\Laura Gatz, Cong. Rsch. Serv. (IF12705), Effluent Limitation
Guidelines (ELGS) for Steam Electric Power Plants (updated Mar. 26,
2025), available at https://www.crs.gov/
Reports/IF12705.
\67\See Comments of the National Mining Association on EPA's
Proposed Supplemental Effluent Limitations Guidelines and Standards for
the Steam Electric Power Generating Point Source Category; Docket ID
No. EPA-HQ-OW-2009-0812.
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Section 402(k) of the CWA provides a ``permit shield'' for
permit holders.\68\ Under this provision, if a permittee is in
compliance with its NPDES permit terms, they are shielded from
enforcement action from agencies and third parties. The United
States Supreme Court has held that this permit shield serves to
``insulate permit holders from changes in various regulations
during the period of a permit and to relieve permit holders of
having to litigate the question of whether their permits are
sufficiently strict. In short, section 402(k) serves the
purpose of giving permits finality.''\69\
---------------------------------------------------------------------------
\68\CWA, supra note 2, Sec. 402(k).
\69\E. I. du Pont de Nemours & and Co. v. Train, 430 U.S. 112
(1977).
---------------------------------------------------------------------------
Some permit holders contend that permit writers are
inappropriately incorporating generic requirements within NPDES
permits as enforceable effluent limitations, which have
attracted legal challenges. For example, the San Francisco
Public Utilities Commission (SFPUC) sued the EPA for requiring
their NPDES permit to include broad language outside of clear
effluent limitations mandating their discharges to not ``cause
or contribute to the violation of water quality
standards.''\70\
---------------------------------------------------------------------------
\70\San Francisco v. EPA, 604 U.S. __ (2025).
---------------------------------------------------------------------------
In March 2025, the Supreme Court held in City and County of
San Francisco v. Environmental Protection Agency that the CWA
allows EPA to issue permits that limit a permitholder's
discharges and that these ``end-result'' requirements,
routinely imposed in NPDES permits through generic language,
were inconsistent with the CW.\71\ Specifically, the court
stated: ``[W]e hold that Sec. 1311(b)(1)(C) does not authorize
the EPA to include ``end-result'' provisions in NPDES permits.
Determining what steps a permittee must take to ensure that
water quality standards are met is the EPA's responsibility,
and Congress has given it the tools needed to make that
determination. If the EPA does what the CWA demands, water
quality will not suffer.''\72\
---------------------------------------------------------------------------
\71\Id.
\72\Id.
---------------------------------------------------------------------------
Section 8 of H.R. 3898, as amended, would reaffirm the
Supreme Court's ruling in San Francisco v. EPA and clarify the
scope of the permit shield as outlined by a 1994 EPA policy
guidance document.\73\ The 1994 guidance specified that
permittees are shielded from liability under lawful NPDES
permits for (1) pollutants specifically limited in a permit;
(2) pollutants specifically identified as present in a permit;
or (3) pollutants not specifically identified as present, but
which are constituents of operations or processes that are
specifically identified in a permit.\74\ It also requires
permit writers to include specific information on the pollutant
limitation, therefore reducing ambiguity and the use of generic
language in NPDES permits.
---------------------------------------------------------------------------
\73\EPA, Policy Statement on Scope of Discharge Authorization and
Shield Associated with NPDES Permits, available at https://
www3.epa.gov/npdes/pubs/owm615.pdf.
\74\Id.
---------------------------------------------------------------------------
A Total Maximum Daily Load (TMDL) is often referred to as a
``pollution diet'' and is defined as the ``calculation of the
maximum amount of a pollutant allowed to enter a waterbody so
that the waterbody will meet and continue to meet water quality
standards for that particular pollutant''.\75\ In waters where
industrial and municipal sources have achieved TBELs, but WQS
have not been met, dischargers may be required to meet
additional pollution control requirements through a TMDL, which
can impact both point source and non-point source
dischargers.\76\ The Chesapeake Bay TMDL is the largest, most
comprehensive TMDL developed by EPA. It encompasses 64,000
square miles across six states and the District of
Columbia.\77\
---------------------------------------------------------------------------
\75\EPA, Overview of Total Maximum Daily Loads (TMDLs), available
at https://www.epa.gov/tmdl/overview-total-maximum-daily-loads-tmdls.
\76\Id.
\77\EPA, Chesapeake Bay TMDL Fact Sheet, available at https://
www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-tmdl-fact-sheet.
---------------------------------------------------------------------------
EPA established the Chesapeake Bay TMDL in 2010 pursuant to
consent decrees resolving litigation over impairment of waters
in Virginia and the District of Columbia, following years of
voluntary and cooperative measures taken amongst states within
the Chesapeake Bay Watershed.\78\ The TMDL set two broad goals:
an interim goal of having 60 percent of pollution control
measures needed to attain water quality standards in place by
2017 and a final goal of having 100 percent of the measures in
place by 2025.\79\ Litigation has taken place over the last
fifteen years against the EPA for the implementation of the
TMDL, as well as against certain Bay states--Pennsylvania in
particular--due to concerns surrounding implementation. Section
21 of H.R. 3898, as amended, expresses that it's the sense of
Congress that the EPA should take a collaborative and
cooperative approach in working with the states and the
District of Columbia to achieve compliance with the Chesapeake
Bay TMDL.
---------------------------------------------------------------------------
\78\Laura Gatz, Cong. Rsch. Serv. (IF11402), Status of Efforts to
Restore Chesapeake Bay Water Quality (updated June 30, 2025), available
at https://crs.gov/reports/pdf/if11402/if11402.pdf.
\79\Id.
---------------------------------------------------------------------------
Section 404 of the CWA authorizes a separate type of permit
required to discharge dredged or fill materials into navigable
waters. Activities covered under the section 404 program
include those associated with pipeline projects; water
resources projects such as levees and dams; mining projects
such as those for critical minerals; infrastructure development
such as highways and airports; and other development.\80\ Some
activities are exempt from section 404 permitting requirements,
such as certain farming and forestry activities.\81\
---------------------------------------------------------------------------
\80\EPA, Permit Program under CWA Section 404, available at https:/
/www.epa.gov/cwa-404/permit-program-under-cwa-section-404 [hereinafter
Permit Program under CWA Section 404].
\81\Id.
---------------------------------------------------------------------------
Pursuant to section 404, the Corps issues two types of
permits: general and individual. The CWA authorizes the
issuance of general permits for discharges that are ``similar
in nature, will cause only minimal adverse environmental
effects when performed separately, and will have only minimal
cumulative adverse effect on the environment''\82\ and are
issued on a Nationwide, regional, or state basis for particular
categories of activities.\83\ Nationwide Permits (NWPs) and
Regional General Permits are issued by the Corps on a National
basis and are designed to ``enhance regulatory efficiency and
provide clarity for the regulated public without decreasing
environmental protections.''\84\ The most recent reissuance of
NWPs went into effect in February 2022, covering 59 distinct
activity categories, including mooring buoys, residential
developments, utility lines, road crossings, and mining
activities.\85\ On June 18, 2025, the Corps released a proposed
rule titled ``Proposal to Reissue and Modify Nationwide
Permits''.\86\ Similar to other permits, NWPs are often subject
to litigation.\87\ Section 13 of H.R. 3898, as amended, would,
in effect, codify the current process followed by the Corps in
relation to its NWP program. The section also establishes
minimum acreage requirements for all NWPs.
---------------------------------------------------------------------------
\82\CWA, supra note 2, Sec. 404(e).
\83\Id.; see also Permit Program under CWA Section 404, supra note
80.
\84\Press Release, Corps., Army Corps of Engineers announces
publication of 2021 Nationwide Permits (Jan. 13, 2021), available at
https://www.usace.army.mil/Media/News-Releases/News-
Release-Article-View/Article/2470506/army-corps-of-engineers-announces-
publication-of-2021-na tionwide-permits.
\85\See Corps., 2021 Nationwide Permit Information, available at
https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-
Permits/Nationwide-Permits.
\86\Corps, Proposed Rule, ``Proposal to Reissue and Modify
Nationwide Permits,'' 90 Fed. Reg. 26100, (June 18, 2025).
\87\See generally Sierra Club, Inc. v. Bostick, CASE NO CIV-12-742-
R (W.D. Okla. Dec. 30, 2013) and Sierra Club v. U.S. Army Corps of
Engineers, 803 F.3d 31 (D.C. Cir. 2015).
---------------------------------------------------------------------------
Section 404 also authorizes the EPA to restrict, prohibit,
deny, or withdraw the specification by the Corps of a site for
the discharge of dredged or fill material, if the agency
determines that the discharge will have an unacceptable adverse
effect on municipal water supplies, shellfish beds and fishery
areas, wildlife, or recreational areas.\88\ Section 404(c) is
commonly referred to as the EPA's ``veto authority.'' Since the
CWA's enactment, the EPA has issued fourteen section 404(c)
determinations, most recently for the Pebble Deposit Area in
Alaska.\89\ Concerns have been raised about the EPA's use of
the 404(c) authority to retroactively issue a veto after a
project has received a permit or preemptively veto a project
before an application for a 404 permit is filed.
---------------------------------------------------------------------------
\88\CWA, supra note 2, Sec. 404(c); See also EPA, Clean Water Act
Section 404(c) ``Veto Authority'', available at https://www.epa.gov/
sites/default/files/2016-03/documents/404c.pdf.
\89\EPA, Chronology of CWA Section 404(c) Actions, available at
https://www.epa.gov/cwa-404/chronology-cwa-section-404c-actions.
---------------------------------------------------------------------------
For example, in 2007, the Corps issued a permit for Spruce
No. 1 Mine located in Logan Co., West Virginia. After a change
in Administration and legal action delaying the beginning of
construction, the EPA vetoed the permit retroactively in
2011.\90\ In January 2023, the EPA preemptively vetoed a
Section 404 permit for mine development at the Pebble Deposit
Area in Bristol Bay, Alaska. This determination was made
without an active section 404 permit and based on Pebble
Limited Partnership's mine plan from 2020.\91\ Section 12 of
H.R. 3898, as amended, would only permit the EPA to issue a
veto when there is an active application for a Section 404
permit, providing more certainty to permit seekers and holders,
as well as permitted projects. This legislation would not have
any retroactive impact on projects that have already underwent
a veto process.
---------------------------------------------------------------------------
\90\ EPA, Final Determination of the U.S. Environmental Protection
Agency Pursuant to Sec. 404(c) of the Clean Water Act Concerning the
Spruce No. 1 Mine, Logan County, West Virginia, available at https://
www.epa.gov/sites/default/files/2015-12/documents/
1_spruce_no_1_mine_final_
determination_011311.pdf.
\91\Final Determination to Prohibit the Specification of and
Restrict the Use for Specification of Certain Waters Within Defined
Areas as Disposal Sites; Pebble Deposit Area, Southwest Alaska, 88 Fed.
Reg. 7441 (February 3, 2023).
---------------------------------------------------------------------------
In addition to the EPA's veto authority, the Administrative
Procedure Act provides a six-year statute of limitations for
challenges to section 404 permits, which provides third parties
an opportunity to legally challenge the issuance of a
permit.\92\ This six-year window for legal action has caused
project delays, added costs, and created uncertainty for permit
seekers, as well as for the Federal Government. Mr. Noah
Hanners, on behalf of the National Association of
Manufacturers, at a Water Resources and Environment
Subcommittee Hearing in February 2025 stated:
---------------------------------------------------------------------------
\92\28 U.S.C. Sec. 2401(a).
---------------------------------------------------------------------------
``Limiting the timeline for judicial review and
supporting the permit shield will cut down on
unnecessary litigation that delays projects and adds
costs. Reasonable restrictions to the EPA's authority
under Section 404(c) of the CWA to prohibit areas as
disposal sites--limiting retroactive vetoes of
permits--will likewise increase confidence in the
permitting process.''\93\
---------------------------------------------------------------------------
\93\America Builds: Clean Water Act Permitting and Project Delivery
Before the Subcomm. On Water Resources and Environment of the H. Comm.
On Transp. And Infrastructure, 119th Cong. (Feb. 10, 2025) (written
testimony of Noah Hanners, Executive Vice President, Nucor
Corporation).
---------------------------------------------------------------------------
Section 15 of H.R. 3898, as amended, would apply a 60-day
statute of limitations to Section 404 individual permits and
general permit verifications, in addition to EPA's approval of
a state's assumption of the 404 permit program. If a court does
identify compliance issues with the underlying statute, the
court would be required to remand the permit back to the agency
with specific timelines to take court-ordered action, generally
within 180 days.
Section 19 of H.R. 3898, as amended, aims to better balance
the scales of regulation and financial resources for
agricultural producers under the CWA. Section 311(j)(1)(C) of
the CWA directs the Federal Government to establish procedures,
methods, and equipment requirements to prevent the discharge of
oil and hazardous substances, which EPA has done through
various rules.\94\ Section 1049 of the Water Resources Reform
and Development Act of 2014 (WRRDA) set parameters for which
farms require no certification, self-certification, or
certification from a professional engineer under the Spill
Prevention, Control, and Countermeasure (SPCC) Rule, based on
storage size of individual tanks, aggregate storage amounts,
and history of discharges.\95\ Section 19 raises the threshold
for which farms require certification under which category,
allowing more farmers to take responsibility, rather than
forcing them to hire the services of certified professional
engineers.
---------------------------------------------------------------------------
\94\CWA, supra note 2, Sec. 311.
\95\Water Resources Reform and Development Act of 2014, Pub. L.
113-121, Sec. 1049.
---------------------------------------------------------------------------
Hearings
For the purposes of rule XIII, clause 3(c)(6)(A) of the
119th Congress, the following related hearings were held to
develop or consider H.R. 3898, as amended:
On February 11, 2025, the Subcommittee on Water Resources
and Environment of the Committee on Transportation and
Infrastructure held a hearing entitled, ``America Builds: Clean
Water Act permitting and Project Delivery.'' At the hearing,
Members received testimony from Mr. Robert Singletary,
Executive Director, Oklahoma Department of Environmental
Quality; the Honorable Shawn LaTourette, Commissioner, New
Jersey Department of Environmental Protection; Mr. Noah
Hanners, Executive Vice President, Nucor Corporation, on behalf
of the National Association of Manufacturers; and Mr. Buddy
Hasten, President and Chief Executive officer, Arkansas
Electric Cooperative Corporation, on behalf of the National
Rural Electric Cooperative Association. This examined how
Congress can ensure that the Clean Water Act (CWA) balances the
goals of protecting water quality and ensuring project
completion, reducing supply chain challenges, and promoting
commerce.
On January 15, 2025, the Committee on Transportation and
Infrastructure held a hearing entitled ``America Builds: The
State of the Nation's Transportation System.' At the hearing,
Members received testimony from Hon. Jeff Landry, Governor,
State of Louisiana; Hon. Vanessa Fuentes, Council Member and
Mayor Pro Tem, City of Austin, TX, and Chair, National League
of Cities Transportation and Infrastructure Services Committee,
on behalf of the National League of Cities; Ms. Sarah Galicia,
Vice President, Transportation, The Home Depot; and Mr. Seth
Schulgen, Vice President, Williams Brothers Construction, on
behalf of The Associated General Contractors of America. The
hearing examined the state of our Nation's transportation
system, investing in the country's infrastructure, and
challenges facing the supply chain, including Clean Water Act
permitting.
For the purposes of rule XIII, clause 3(c)(6)(A) of the
118th Congress, the following related hearings were held to
develop or consider H.R. 3898, as amended:
On September 11, 2024, the Subcommittee on Water Resources
and Environment of the Committee on Transportation and
Infrastructure held a hearing entitled, ``Waters of the United
States Implementation Post-Sackett Decision: Experiences and
Perspectives.'' At the hearing, Members received testimony from
Ms. Emma Pokon, Commissioner, Alaska Department of
Environmental Conservation; Nicole Rowan, Director, Water
Quality Control Division Colorado Department of Public Health
and Environment; Courtney Briggs, Chairman, Waters Advocacy
Coalition, on behalf of the American Farm Bureau Federation;
Vincent E. Messerly, P.E., President and CEO, Stream and
Wetlands Foundation, on behalf of the National Association of
Home Builders. The hearing examined implementation of the
Administration's conforming rule on the definition of the
definition of ``waters of the United States'' (WOTUS) under the
Clean Water Act (CWA), following the 2023 Supreme Court
decision in Sackett v. EPA (Sackett).\96\
---------------------------------------------------------------------------
\96\Sackett, supra note 31.
---------------------------------------------------------------------------
On Wednesday, January 17, 2024, the Full Committee on
Transportation and Infrastructure held a hearing entitled,
``The State of Transportation.'' At the hearing, Members
received testimony from Mr. Stephen A. Edwards, CEO and
Executive Director, Virginia Port Authority; Mr. Roger Millar,
Secretary of Transportation, Washington State Department of
Transportation; Mr. Jeffrey G. Tucker, CEO, Tucker Company
Worldwide, on behalf of Transportation Intermediaries
Association (TIA); and Ms. Lauren Benford, Controller, Reiman
Corporation, on behalf of Associated General Contractors of
America (AGC). The hearing provided a forum for Members to
discuss the current state of transportation infrastructure and
supply chain challenges, along with potential improvements that
could be made, including streamlining permitting process to
provide certainty and efficiency.
On February 8, 2023, the Subcommittee on Water Resources
and Environment of the Committee on Transportation and
Infrastructure held a hearing entitled, ``Stakeholder
Perspectives on the Impacts of the Biden Administration's
Waters of the United States (WOTUS) Rule.'' At the hearing
Members received testimony from Mr. Garrett Hawkins, President,
Missouri Farm Bureau; Ms. Alicia Huey, Chairman, National
Association of Home Builders; Mr. Mark Williams, Environmental
Manager, Luck Companies, on behalf of National Stone, Sand &
Gravel Association; Ms. Susan Parker Bodine, Partner, Earth &
Water Law LLC; and Mr. Dave Owen, Professor of Law and Faculty
Director of Scholarly Publications, UC College of the Law, San
Francisco. This hearing examined the EPA and the Corps defining
``waters of the United States'' under the CWA, and its
regulatory impact on stakeholders. During the hearing,
witnesses also broadly discussed the need for permitting and
regulatory reform under the CWA.
On Tuesday, May 16, 2023, the Subcommittee on Water
Resources and Environment of the Committee on Transportation
and Infrastructure held a hearing entitled, ``The Next Fifty
Years of the Clean Water Act: Examining the Law and
Infrastructure Project Completion.'' The Subcommittee received
testimony from Dr. Andrea Travnicek, Director, Department of
Resources, State of North Dakota; Hon. Serena Coleman McIlwain,
Secretary of the Environment, State of Maryland; Mr. Mickey
Conway, CEO, Metro Water Recovery, Denver, Colorado on behalf
of the National Association of Clean Water Agencies; and Mr.
Brandon Farris, Vice President, Energy and Resources Policy,
National Association of Manufacturers. This hearing examined
proposals on how to modernize the CWA to ensure the completion
of infrastructure and energy projects, reduce supply chain
challenges, and promote commerce, while protecting water
quality.
On Thursday, June 22, 2023, the Subcommittee on Water
Resources and Environment of the Committee on Transportation
and Infrastructure held a hearing entitled, ``Review of Fiscal
Year 2024 Budget Request: Agency Perspectives (Part I). The
Subcommittee received testimony from The Honorable Michael L.
Connor, Assistant Secretary of the Army for Civil Works,
Department of the Army; Major General William ``Butch'' H.
Graham, Deputy Chief of Engineers and Deputy Commanding
General, United States Army Corps of Engineers; Mr. Jeff Lyash,
President and CEO, Tennessee Valley Authority; and Mr. Adam
Tindall-Schlicht, Administrator, Great Lakes St. Lawrence
Seaway Development Corporation. This hearing provided Members
with an opportunity to review the President's Fiscal Year 2024
Budget Request, as well as the Administration's program
priorities within the jurisdiction of the Subcommittee,
including permitting issues pursuant to the CWA.
On July 13, 2023, the Subcommittee on Water Resources and
Environment of the Committee on Transportation and
Infrastructure held a hearing entitled, ``Review of Fiscal Year
2024 Budget Request: Agency Perspectives (Part II).'' The
hearing gave Members the opportunity to review the Fiscal Year
2024 budget request, as well as the Administration's program
priorities within the jurisdiction of the Subcommittee,
including permitting issues pursuant to the CWA. The
Subcommittee received testimony from the Honorable Radhika Fox,
Assistant Administrator, Office of Water, EPA; Dr. Maria-Elena
Giner, Commissioner, IWBC, United States Section; Mr. Louis
Aspey Associate Chief, Natural Resources Conservation Service,
United States Department of Agriculture; Dr. Aaron Bernstein,
Director, Agency for Toxic Substances and Disease Registry; and
Ms. Nicole R. LeBoeuf, Assistant Administrator, National Ocean
Service, National Oceanic and Atmospheric Administration.
On December 5, 2023, the Subcommittee on Water Resources
and Environment of the Committee on Transportation and
Infrastructure held a hearing entitled, ``Water Resources
Development Acts: Status of Past Provisions and Future Needs.''
At the hearing Members received testimony from The Honorable
Michael L. Connor, Assistant Secretary of the Army for Civil
Works, Department of the Army and Lieutenant General Scott A.
Spellmon, Commanding General and Chief of Engineers, United
States Army Corps of Engineers. The hearing gave Members the
opportunity to review past provisions in Water Resources
Development Acts (WRDAs) and discuss needs for future WRDAs.
Also at the hearing, Members discussed various CWA permitting
processes, including implementation of the post-Sackett WOTUS
rule.
Legislative History and Consideration
H.R. 3898, the ``Promoting Efficient Review for Modern
Infrastructure Today Act'' or ``PERMIT Act,'' was introduced in
the United States House of Representatives on June 11, 2025, by
Mr. Collins of Georgia, with Mr. Graves as an original
cosponsor, and referred to the Committee on Transportation and
Infrastructure. Within the Committee on Transportation and
Infrastructure, H.R. 3898 was referred to the Subcommittee on
Water Resources and Environment. The Subcommittee on Water
Resources on Environment was discharged from further
consideration of H.R. 3898 on June 25, 2025.
The Committee considered H.R. 3898 on June 25, 2025, and
ordered the measure to be reported to the House with a
favorable recommendation, as amended, by a recorded vote of 34
yeas to 30 nays.
The following amendments were offered:
An Amendment in the Nature of a Substitute to H.R. 3898,
offered by Mr. Collins of Georgia; was AGREED TO by voice vote.
A Manager's Amendment to the Amendment in the Nature of a
Substitute to H.R. 3898, offered by Chairman Graves of Missouri
(Graves 01): Page 3, line 4, insert ``(including whether the
technologies have been demonstrated at an applicable scale)''
after ``treatment technologies''. Page 3, line 15, strike
``availability of treatment technologies'' and insert
``availability in the United States of treatment technologies
(including whether the technologies have been demonstrated at
an applicable scale)''. Page 4, line 19, strike ``comparable''
and insert ``an applicable''. Page 4, line 24, strike
``comparable'' and insert ``an applicable''. Page 5, line 4,
strike ``comparable'' and insert ``an applicable''. Page 8,
strike lines 3 through 7 and insert the following: (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''; After section 13, insert the
following: SEC. ll9. DEADLINE FOR REQUEST FOR SUBMISSION OF
ADDITIONAL INFORMATION FOR PERMIT PROGRAMS FOR DREDGED OR FILL
MATERIAL. Section 404 of the Federal Water Pollution Control
Act (33 U.S.C. 1344) is amended-- (1) in subsection (g)-- (A)
by redesignating paragraph (3) as paragraph (4); and (B) by
inserting after paragraph (2) the following: ``(3) If the
Administrator determines that additional information is
necessary for the description of a program submitted by a State
to be full and complete under paragraph (1), the Administrator
shall, not later than 45 days after the date of the receipt of
the program and statement submitted by the State under such
paragraph, submit to the State a written request for all such
information.''; and (2) in subsection (h)(1), by striking
``paragraph (1) of this subsection'' and inserting ``subsection
(g)(1)''. Strike section 19 and insert the following: SEC. __.
COORDINATION WITH FEDERAL PERMITTING IMPROVEMENT STEERING
COUNCIL. With respect to any covered project (as defined under
section 41001 of the FAST Act (42 U.S.C. 4370m)) for which a
certification or permit from a State under section 401, 402, or
404 of the Federal Water Pollution Control Act is required, the
State is encouraged to choose to participate, to the maximum
extent practicable, in the environmental review and
authorization process under section 41003(c) of the FAST Act
(42 U.S.C. 4370m-2(c)), pursuant to paragraph (3)(A) of such
section.; was AGREED TO by voice vote.
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ranking Member Larsen of Washington
(Larsen 01): Strike sections 2, 3, and 5.; was NOT AGREED TO by
a recorded vote of 30 Yeas and 35 Nays (RC#45).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Mr. Garamendi of California (Garamendi
036): Strike section 7 and insert the following: SEC. 7.
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM TERMS. (a) IN
GENERAL.--Section 402(b)(1)(B) of the Federal Water Pollution
Control Act (33 U.S.C. 1342(b)(1)(B)) is amended to read as
follows: ``(B) are for fixed terms-- (i) not exceeding 10
years, for a permit issued to a State or municipality; and (ii)
not exceeding 5 years, for a permit issued to any person not
described in clause (i); and''. (b) TECHNICAL CORRECTIONS.--
Section 402(l)(3) of the Federal Water Pollution Control Act
(33 U.S.C. 1342(1)(3)) is amended-- (1) in subparagraph (B)--
(A) by striking ``section 402'' and inserting ``this section'';
and (B) by striking ``federal'' and inserting ``Federal''; and
(2) in subparagraph (C)-- (A) by striking ``Section'' and
inserting ``section''; (B) by striking ``402(p)(6)'' and
inserting ``subsection (p)(6)''; (C) by striking
``402(l)(3)(A),'' and inserting ``subparagraph (A),''; and (D)
by striking ``402(1)(3)(A).'' and inserting ``such
subparagraph.''.; was WITHDRAWN.
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. Titus of Nevada (Titus 173): Page
34, line 2, strike ``Section 502(7)'' and insert ``(a) IN
GENERAL.--Section 502(7)''. Page 36, after line 12, insert the
following: (b) SAVINGS CLAUSE.--This section, including the
amendments made by this section, shall not take effect until
the date on which the Administrator of the Environmental
Protection Agency issues a determination that the
implementation of this section, including the amendments made
by this section, will not result in 70 percent or more of the
waters in any State losing any protection that such waters were
provided under the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.) before May 25, 2023.; was NOT AGREED TO by
a recorded vote of 30 Yeas and 35 Nays (RC#46).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. Wilson of Florida (Wilson 037):
Add at the end the following: SEC. __. STUDY ON DISPARATE
IMPACTS. Not later than 60 days after the date of enactment of
this Act, the Administrator of the Environmental Protection
Agency and the Secretary of the Army, acting through the Chief
of Engineers, shall submit to Congress a report on any
disparate impacts on minority, rural, disadvantaged, and Tribal
communities, including impacts to human health, environmental
quality, and local economies, that may result from the
implementation of this Act, including the amendments made by
this Act.; was NOT AGREED TO by voice vote.
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. Titus of Nevada on behalf of Mr.
Stanton of Arizona (Stanton 031): Add at the end the following:
SEC. __. DETERMINATION ON WATER SUPPLY SOURCES. This Act,
including the amendments made by this Act, shall not take
effect until the date on which the Administrator of the
Environmental Protection Agency issues a determination that the
implementation of this Act, including the amendments made by
this Act, will not-- (1) result in a surface water body failing
to meet its State-designated uses under the Federal Water
Pollution Control Act, including use as a source of public
water supply; or (2) adversely affect the availability and
quality of surface water for communities in arid regions or
drought-prone areas.; was NOT AGREED TO by a recorded vote of
30 Yeas and 35 Nays (RC#47).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Mr. Garamendi of California, on behalf
of Ms. Hoyle of Oregon (Hoyle 013): Strike section 9 and insert
the following: SEC. 9. SAFE HARBOR FOR CERTAIN DISCHARGES OF
WILDLAND FIRE CHEMICALS. (a) IN GENERAL.--Subject to subsection
(b), no court may enjoin under the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.) a covered entity from
conducting an aerial application of a covered fire retardant
and water enhancer for wildfire suppression, control, or
prevention activities that results in a discharge, if such
aerial application is conducted in accordance with the
requirements of the Federal Facility Compliance Agreement
between the Environmental Protection Agency and the U.S. Forest
Service, as agreed to on February 16, 2023. (b) PERIOD OF
APPLICATION.--Subsection (a) shall apply to any aerial
application described in such subsection that is conducted
before the effective date of a permit issued by the
Administrator of the Environmental Protection Agency or a
State, as applicable, under section 402 of the Federal Water
Pollution Control Act (33 U.S.C. 1342) that authorizes the
discharge, from such aerial application, of a covered fire
retardant and water enhancer for wildfire suppression, control,
or prevention activities. (c) EFFECT.--Nothing in this section
affects the authority of any court under the Federal Water
Pollution Control Act with respect to any discharge resulting
from an aerial application not conducted in accordance with the
requirements described in subsection (a). (d) DEFINITIONS.--In
this section: (1) COVERED ENTITY.--The term ``covered entity''
means--(A) any Federal agency, agency of a State or political
subdivision thereof, or Tribal agency, authorized by law to
conduct an aerial application of fire retardants and water
enhancers for wildfire suppression, control, or prevention
activities; and (B) any contractor, subcontractor, or other
agent of an agency described in subparagraph (A). (2) COVERED
FIRE RETARDANT AND WATER ENHANCER.--The term ``covered fire
retardant and water enhancer'' means a fire retardant and water
enhancer that-- (A) has been evaluated, qualified, and approved
by the Secretary of Agriculture; and (B) appears on the most
current Forest Service Qualified Products List. (3) DISCHARGE;
STATE.--The terms ``discharge'' and ``State'' have the meanings
given those terms in section 502 of the Federal Water Pollution
Control Act (33 U.S.C. 1362). (e) SUNSET.--This section shall
cease to be effective on the date that is 5 years after the
date of enactment of this section.; was NOT AGREED TO by a
recorded vote of 30 Yeas and 35 Nays (RC#48).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. Sykes of Ohio (Sykes 046): Strike
section 17 and insert the following: SEC. 17. NO NET LOSS OF
WETLANDS. Not later than 180 days after the date of enactment
of this Act, the Administrator of the Environmental Protection
Agency and the Secretary of the Army shall reinstate the no-net
loss of wetlands policy, as outlined in the Executive Order
11990, titled ``Protection of Wetlands'', issued on May 24,
1977 (42 Fed. Reg. 26961), and reaffirmed by the Presidential
administrations of President George Herbert Walker Bush,
William J. Clinton, George W. Bush, and Barack H. Obama,
through the implementation of the Federal Water Pollution
Control Act and other Federal programs. The Administrator and
the Secretary shall reinstate such policy through public notice
and comment procedures that provide for a minimum of 30 days
public comment and shall publish the final policy in the
Federal Register. The Administrator and the Secretary shall
consider all available measures to ensure that there is a no
net loss of wetlands in the United States and shall jointly
report annually to the Congress on the implementation of such
policy.; was NOT AGREED TO by a recorded vote of 30 Yeas and 35
Nays (RC#49).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. Scholten of Michigan (Scholten
027): Page 22, line 11, strike the closed quotation mark and
final period. Page 22, after line 11, add the following: ``(D)
Any discharge with respect to which there is evidence, based on
peer-reviewed science, that the pesticide is known or suspected
to-- (i) cause adverse health effects on pregnant women; (ii)
cause adverse effects to fetal growth or development; (iii)
harm the neurological or physiological development of infants
or children; or (iv) cause adverse effects on early childhood
development. (E) Any discharge in a geographic area in which
there is the occurrence of a greater than expected number of
cancer cases among infants or children over a specific time
period''.; was NOT AGREED TO by a recorded vote of 30 Yeas and
34 Nays (RC#50).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. McDonald Rivet of Michigan
(McDonald Rivet 015): Add at the end the following: SEC. 20.
DETERMINATION ON INCREASE IN DISCHARGES TO GREAT LAKES AND
OTHER WATERBODIES. This Act, including the amendments made by
this Act, shall not take effect until the date on which the
Administrator of the Environmental Protection Agency issues a
determination that the implementation of this Act, including
the amendments made by this Act, will not result in an increase
in the discharge of pollutants (within the meaning of the
Federal Water Pollution Control Act), to the navigable waters
contained within the geographic programs of the Federal Water
Pollution Control Act, such as those within the Great Lakes
System, as defined in section 118 of the Federal Water
Pollution Control Act (33 U.S.C. 1268), including an increase
in the discharge of-- (1) any emerging contaminant, toxic
pollutant, or forever chemical, as determined by the
Administrator, such as a perfluoroalkyl substance or
polyfluoroalkyl substance; or (2) any nutrient, including those
associated with excessive algae growth and harmful algal
blooms.; was NOT AGREED TO by a recorded vote of 30 Yeas and 33
Nays (RC#51).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. Friedman of California (Friedman
011): Add at the end the following: SEC. 20. DETERMINATION ON
RISK OF POLLUTANT DISCHARGE. This Act, including the amendments
made by this Act, shall not take effect until the date on which
the Administrator of the Environmental Protection Agency issues
a determination that the implementation of this Act, including
the amendments made by this Act, will not result in an increase
in the discharge of any pollutant into waters that are used (or
are likely to be used) for water recapture, water recycling, or
groundwater recharge.; was NOT AGREED TO by a recorded vote of
30 Yeas and 33 Nays (RC#52).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. Gillen of New York (Gillen 024):
Add at the end the following: SEC. 20. DETERMINATION ON
INCREASE IN RISK OF DISCHARGE OF POLLUTANTS ASSOCIATED WITH
CANCER. This Act, including the amendments made by this Act,
shall not take effect until the date on which the Administrator
of the Environmental Protection Agency issues a determination
that the implementation of this Act, including the amendments
made by this Act, will not result in an increase in the
discharge of any pollutant (as such term is defined in section
502 of the Federal Water Pollution Control Act (33 U.S.C.
1362)) that is associated with cancer risk in humans, including
(1) perfluoroalkyl and polyfluoroalkyl substances; (2) arsenic;
(3) nitrates, nitrites, and any other byproduct associated with
pesticides; (4) chromium; (5) radium; and (6) uranium.; was NOT
AGREED TO by voice vote.
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Mr. Perry of Pennsylvania (Perry 040):
Add at the end the following: SEC. __. SENSE OF CONGRESS ON
CHESAPEAKE BAY WATERSHED AGREEMENT. It is the sense of Congress
that the Chesapeake Bay Watershed Agreement is a voluntary,
cooperative agreement between the Federal Government, the State
of Delaware, the District of Columbia, the State of Maryland,
the Commonwealth of Pennsylvania, the State of New York, the
Commonwealth of Virginia, and the State of West Virginia. As
such, the Federal Government should take a collaborative and
cooperative approach to the parties with regard to their
compliance with the Chesapeake Bay Total Maximum Daily Load
outlined in such agreement.; was AGREED TO by voice vote.
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Mr. DeSaulnier of California
(DeSaulnier 010): Add at the end the following: SEC. __. REPORT
AND CERTIFICATION ON HARMFUL ALGAL BLOOMS. This Act, including
the amendments made by this Act, shall not take effect until
the date on which the Administrator of the Environmental
Protection Agency publishes (1) a report on the estimated
effects of the implementation of this Act, including the
amendments made by this Act, on harmful algal blooms; and (2) a
certification that the implementation of this Act, including
the amendments made by this Act, will not cause an increase in
harmful algal blooms.; was NOT AGREED TO by a recorded vote of
30 Yeas and 33 Nays (RC#53).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. Sykes of Ohio (Sykes 047): Add at
the end the following: SEC. 20. DETERMINATION ON POTENTIAL
INCREASED POLLUTANT LOADINGS AND COSTS TO RATEPAYERS. This Act,
and the amendments made by this Act, shall not take effect
until the date on which the Administrator of the Environmental
Protection Agency issues a determination that the
implementation of this Act, including the amendments made by
this Act, will not result in an (1) increase in the volume,
toxicity, or concentration of pollutants in a waterbody that
has been designated by a State or an Indian Tribe for use
supplying, or supporting the supply of, public water; or (2)
increase in rates charged for wastewater treatment services
(including in rural, tribal, or economically disadvantaged
communities) as a result of removing any pollutants, or
treating such waterbody, to protect the public health or
welfare.; was NOT AGREED TO by a recorded vote of 30 Yeas and
33 Nays (RC#54).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Mr. Figures of Alabama (Figures 028):
Add at the end the following: SEC. __. DETERMINATION ON RISKS
OF FLOODING AND POLLUTION. This Act, including the amendments
made by this Act, shall not take effect until the date on which
the Administrator of the Environmental Protection Agency issues
a determination that the implementation of this Act, including
the amendments made by this Act, will not worsen the risks of
flooding or pollution in low-income or rural communities.; was
NOT AGREED TO by voice vote.
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Mr. Huffman of California (Huffman
024): Add at the end the following: SEC. __. NO EFFECT ON
TRIBAL RIGHTS. Nothing in this Act, or the amendments made by
this Act, shall be construed to affect any Tribal rights or
authorities under the Federal Water Pollution Control Act,
including any review by a Tribal Government of a discharge or
activity under a Federal permit in order to protect treaty
rights, including water rights, fishing rights, and cultural
resources.; was NOT AGREED TO by a recorded vote of 30 Yeas and
33 Nays (RC#55).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Mr. Huffman of California (Huffman
01): Page 22, line 22, insert ``, if applicable,'' after
``(2)''. Page 23, line 1, strike ``The period'' and insert
``Except as provided in paragraph (3), the period''. Page 23,
line 13, strike the closed quotation mark and final period and
insert the following: Page 23, after line 13, insert the
following: ``(3) EXCEPTION.--Paragraph (2) shall not apply with
respect to any application for a permit under this section for
the discharge of dredged or fill material at a disposal site in
a defined area the specification of which has been prohibited
(including the withdrawal of specification) by the
Administrator before the date of enactment of this
paragraph''.; was NOT AGREED TO by a recorded vote of 30 Yeas
and 33 Nays (RC#56).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Mr. Johnson of Georgia (Johnson 027):
Add at the end the following: SEC. __. SENSE OF CONGRESS
RELATING TO INFRASTRUCTURE FUNDING. It is the sense of Congress
that (1) clean water infrastructure supports the health of our
ecosystems and keeps our water resources available for
swimming, fishing, and drinking; (2) Federal funding for clean
water infrastructure is critical to municipalities to update
and modernize this infrastructure, keeping it fully operational
and effective; (3) the Administration's fiscal year 2026
Presidential Budget Request significantly underfunds programs
that support clean water infrastructure, and if enacted, would
substantially impede, or stop altogether, clean water
infrastructure projects nationwide; (4) rural, small, and
economically disadvantaged communities would be
disproportionately impacted by funding cuts, and those with
affordability concerns would be unable to address their aging
water infrastructure or forced to significantly raise rates on
communities already struggling financially; and (5) funds for
clean water infrastructure programs should be appropriated in
the full Congressionally authorized amounts.; was NOT AGREED TO
by a recorded vote of 30 Yeas and 33 Nays (RC#57).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Ms. Pou of New Jersey (Pou 005): Add
at the end the following: SEC. __. DETERMINATION ON INCREASE IN
RISK OF SEWER OVERFLOWS, STORMWATER, AND FLOODING. This Act,
including the amendments made by this Act, shall not take
effect until the date on which the Administrator of the
Environmental Protection Agency issues a determination that the
implementation of this Act, including the amendments made by
this Act, will not (1) result in an increase in the discharge
of pollutants (within the meaning of the Federal Water
Pollution Control Act), including an increase in the discharge
of raw or partially treated sewage associated with combined
sewer overflows or sanitary sewer overflows; (2) result in an
increase in the discharge of municipal or industrial
stormwater; or (3) exacerbate the risk or consequence of
flooding, including flooding associated with precipitation
events, to (A) public or private property; (B) private
businesses (including small businesses); (C) local, regional,
or national economies; (D) critical public infrastructure or
essential public services; or (E) human life or safety.; was
NOT AGREED TO by a recorded vote of 30 Yeas and 33 Nays
(RC#58).
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 3898, offered by Mr. Ryan of New York (Ryan 042): Add
at the end the following: SEC. __. DETERMINATION ON INCREASE IN
DISCHARGES. This Act, including the amendments made by this
Act, shall not take effect until the date on which the
Administrator of the Environmental Protection Agency issues a
determination that the implementation of this Act, including
the amendments made by this Act, will not result in an increase
in the discharge of pollutants (within the meaning of the
Federal Water Pollution Control Act), including an increase in
the discharge of (1) any emerging contaminant or forever
chemical, as determined by the Administrator, such as a
perfluoroalkyl substance or polyfluoroalkyl substance; or (2)
any nutrient, including those associated with excessive algae
growth and harmful algal blooms.; was NOT AGREED TO by a
recorded vote of 30 Yeas and 33 Nays (RC#59).
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires each committee report to include the
total number of votes cast for and against on each record vote
on a motion to report and on any amendment offered to the
measure or matter, and the names of those members voting for
and against.
Committee Oversight Findings and Recommendations
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
New Budget Authority and Tax Expenditures
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but has not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee has also
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. The Chairman of the Committee shall cause such
estimate and statement to be printed in the Congressional
Record upon its receipt by the Committee.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives, a cost
estimate provided by the Congressional Budget Office pursuant
to section 402 of the Congressional Budget Act of 1974 was not
made available to the Committee in time for the filing of this
report. The Chairman of the Committee shall cause such estimate
to be printed in the Congressional Record upon its receipt by
the Committee.
Performance Goals and Objectives
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goal and objective of this legislation is to
provide regulatory and judicial certainty for regulated
entities and communities, increase transparency, and promote
water quality, and for other purposes.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 3898, as amended, establishes or reauthorizes a program
of the Federal government known to be duplicative of another
Federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Congressional Earmarks, Limited Tax Benefits,
and Limited Tariff Benefits
In compliance with clause 9 of rule XXI of the Rules of the
House of Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule
XXI.
Federal Mandates Statement
An estimate of Federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Preemption Clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local,
or tribal law. The Committee finds that H.R. 3898, as amended,
does not preempt any state, local, or tribal law.
Advisory Committee Statement
No advisory committees within the definition of Section
5(b) of the appendix to Title 5, United States Code, are
created by this legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Public Law
104-1).
Section-by-Section Analysis of the Legislation
Section 1. Short title; table of contents
This section lays out the table of contents for the bill,
and states that the bill may be referred to as the ``Promoting
Efficient Review for Modern Infrastructure Today Act'' or
``PERMIT Act''.
Section 2. Water quality standards attainability
This section requires water quality standards, developed
under Clean Water Act (CWA) section 303(c), to consider
municipal combined sewer storm and sanitary sewer long-term
control plans, as well as the ability of a permit holder to
maintain compliance with the standards through commercially
available technologies.
Section 3. Water quality criteria development and transparency
This section establishes a more transparent procedure for
the development of water quality criteria by the Environmental
Protection Agency (EPA) for National Pollutant Discharge
Elimination System (NPDES) permits, which provides additional
opportunities for public participation and limited judicial
review.
Section 4. Water quality technology availability
This section requires that the technology used to develop
effluent limitation guidelines wastewater discharges is viably
commercially available in the United States.
Section 5. Improving water quality certifications and American energy
infrastructure
This section modernizes and clarifies the water quality
certification process and scope of review under CWA section
401.
Section 6. Clarifying Federal general permits
This section codifies EPA's practice of issuing general
permits under CWA section 402 and requires EPA to provide a
two-year notice if a general permit will not be renewed.
Section 7. NPDES permit terms
This section amends CWA section 402 to authorize NPDES
permits to be issued for up to ten years
Section 8. Confidence in clean water permits
This section requires NPDES permit writers to use clear
limits and terms when writing permits. It also codifies
longstanding EPA policy related to when permit holders are
shielded from liability.
Section 9. Forest protection and wildland firefighter safety
This section amends CWA section 402 to clarify that aerial
discharges of fire retardants that appear on the Forest Service
Qualified Products List do not require a NPDES permit.
Section 10. Agricultural stormwater discharge
This section amends CWA section 402 to clarify that
agricultural stormwater discharges do not require a NPDES
permit.
Section 11. Reducing regulatory burdens
This section amends CWA section 402 to clarify that
pesticides regulated under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) do not require a NPDES permit.
Section 12. Reducing permitting uncertainty
This section clarifies that EPA cannot veto a CWA section
404 dredge and fill permit before an application is filed or
after a permit has been issued by the United States Army Corps
of Engineers (Corps).
Section 13. Nationwide permitting improvement
This section codifies and sets standards for Corps-issued
Nationwide permits.
Section 14. Deadline for request for submission of additional
information for permit programs for dredged or fill material
This section puts in place a timeline for the EPA to adhere
to in the event more information from a State seeking authority
to administer a CWA section 404 dredge and fill permitting
program is required.
Section 15. Judicial review timeline clarity
This section sets judicial review timelines for CWA section
404 dredge and fill permits, as well as for the EPA's approval
of state assumptions of 404 permit programs.
Section 16. Restoring federalism in clean water permitting
This section directs EPA to complete a review of the
regulations applicable to state assumption of the CWA section
404 dredge and fill permitting program and identify revisions
necessary to streamline the process.
Section 17. Jurisdictional determination backlog reduction
This section directs the Corps to reduce the backlog of
jurisdictional determinations, wetlands delineations, and
permit applications.
Section 18. Definition of navigable waters
This section codifies longstanding exclusions from the
definition of ``waters of the United States'' for waste
treatment systems, ephemeral features, prior converted
cropland, and groundwater.
Section 19. Applicability of Spill Prevention, Control, and
Countermeasure rule
This section increases the aggregate exemption level for
oil tanks on certain farms under EPA's Spill Prevention,
Control, and Countermeasure Rule under CWA section 311.
Section 20. Coordination with Federal Permitting Improvement Steering
Council
This section directs the EPA, the Corps, and states, to the
maximum extent practicable, to coordinate with the Federal
Permitting Improvement Steering Council on the status of permit
applications and requests for certification under sections 401,
402 and 404 of the CWA.
Section 21. Sense of Congress on Chesapeake Bay Watershed Agreement
This section provides the Sense of Congress that the
Chesapeake Bay Watershed Agreement is a voluntary, cooperative
agreement.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
TITLE III--STANDARDS AND ENFORCEMENT
* * * * * * *
water quality standards and implementation plans
Sec. 303. (a)(1) In order to carry out the purpose of this
Act, any water quality standard applicable to interstate waters
which was adopted by any State and submitted to, and approved
by, or is awaiting approval by, the Administrator pursuant to
this Act as in effect immediately prior to the date of
enactment of the Federal Water Pollution Control Act Amendments
of 1972, shall remain in effect unless the Administrator
determined that such standard is not consistent with the
applicable requirements of this Act as in effect immediately
prior to the date of enactment of the Federal Water Pollution
Control Act Amendments of 1972. If the Administrator makes such
a determination he shall, within three months after the date of
enactment of the Federal Water Pollution Control Act Amendments
of 1972, notify the State and specify the changes needed to
meet such requirements. If such changes are not adopted by the
State within ninety days after the date of such notification,
the Administrator shall promulgate such changes in accordance
with subsection (b) of this section.
(2) Any State which, before the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972, has
adopted, pursuant to its own law, water quality standards
applicable to intrastate waters shall submit such standards to
the Administrator within thirty days after the date of
enactment of the Federal Water Pollution Control Act Amendments
of 1972. Each such standard shall remain in effect, in the same
manner and to the same extent as any other water quality
standard established under this Act unless the Administrator
determines that such standard is inconsistent with the
applicable requirements of this Act as in effect immediately
prior to the date of enactment of the Federal Water Pollution
Control Act Amendments of 1972. If the Administrator makes such
a determination he shall not later than the one hundred and
twentieth day after the date of submission of such standards,
notify the State and specify the changes needed to meet such
requirements. If such changes are not adopted by the State
within ninety days after such notification, the Administrator
shall promulgate such changes in accordance with subsection (b)
of this section.
(3)(A) Any State which prior to the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972 has not
adopted pursuant to its own laws water quality standards
applicable to intrastate waters shall, not later than one
hundred and eighty days after the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972, adopt
and submit such standards to the Administrator.
(B) If the Administrator determines that any such standards
are consistent with the applicable requirements of this Act as
in effect immediately prior to the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972, he
shall approve such standards.
(C) If the Administrator determines that any such standards
are not consistent with the applicable requirements of this Act
as in effect immediately prior to the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972, he
shall, not later than the ninetieth day after the date of
submission of such standards, notify the State and specify the
changes to meet such requirements. If such changes are not
adopted by the State within ninety days after the date of
notification, the Administrator shall promulgate such standards
pursuant to subsection (b) of this section.
(b)(1) The Administrator shall promptly prepare and publish
proposed regulations setting forth water quality standards for
a State in accordance with the applicable requirements of this
Act as in effect immediately prior to the date of enactment of
the Federal Water Pollution Control Act Amendments of 1972,
if--
(A) the State fails to submit water quality standards
within the times prescribed in subsection (a) of this
section,
(B) a water quality standard submitted by such State
under subsection (a) of this section is determined by
the Administrator not to be consistent with the
applicable requirements of subsection (a) of this
section.
(2) The Administrator shall promulgate any water quality
standard published in a proposed regulation not later than one
hundred and ninety days after the date he publishes any such
proposed standard, unless prior to such promulgation, such
State has adopted a water quality standard which the
Administrator determines to be in accordance with subsection
(a) of this section.
(c)(1) [The Governor of a State] (A) The Governor of a State
or the State water pollution control agency of such State shall
from time to time (but at least once each three year period
beginning with the date of enactment of the Federal Water
Pollution Control Act Amendments of 1972) hold public hearings
for the purpose of reviewing applicable water quality standards
and, as appropriate, modifying and adopting standards. [Results
of such review shall be made available to the Administrator.]
(B) Reviews under this paragraph shall include review, for
purposes of ensuring that combined sewer overflow controls are
cost effective, of any water quality standard applicable to a
body of water into which, pursuant to a permit, order, or
decree issued pursuant to this Act, a municipal combined storm
and sanitary sewer discharges.
(C) Results of each review under this paragraph shall be made
available to the Administrator.
(2)(A) Whenever the State revises or adopts a new standard,
such revised or new standard shall be submitted to the
Administrator. Such revised or new water quality standard shall
consist of the designated uses of the navigable waters involved
and the water quality criteria for such waters based upon such
uses. Such standards shall be such as to protect the public
health or welfare, enhance the quality of water and serve the
purposes of this Act. Such standards shall be established
taking into consideration (i) their use and value for public
water supplies, propagation of fish and wildlife, recreational
purposes, and agricultural, industrial, and other purposes[,
and also taking into consideration]; (ii) their use and value
for navigation; and (iii) the cost and commercial availability
in the United States of treatment technologies (including
whether the technologies have been demonstrated at an
applicable scale) that may be required to be applied to point
sources in order to result in compliance with such standards.
(B) Whenever a State reviews water quality standards pursuant
to paragraph (1) of this subsection, or revises or adopts new
standards pursuant to this paragraph, such State shall adopt
criteria for all toxic pollutants listed pursuant to section
307(a)(1) of this Act for which criteria have been published
under section 304(a), the discharge or presence of which in the
affected waters could reasonably be expected to interfere with
those designated uses adopted by the State, as necessary to
support such designated uses. Such criteria shall be specific
numerical criteria for such toxic pollutants. Where such
numerical criteria are not available, whenever a State reviews
water quality standards pursuant to paragraph (1), or revises
or adopts new standards pursuant to this paragraph, such State
shall adopt criteria based on biological monitoring or
assessment methods consistent with information published
pursuant to section 304(a)(8). Nothing in this section shall be
construed to limit or delay the use of effluent limitations or
other permit conditions based on or involving biological
monitoring or assessment methods or previously adopted
numerical criteria.
(3) If the Administrator, within sixty days after the date of
submission of the revised or new standard, determines that such
standard meets the requirements of this Act, such standard
shall thereafter be the water quality standard for the
applicable waters of that State. If the Administrator
determines that any such revised or new standard is not
consistent with the applicable requirements of this Act, he
shall not later than the ninetieth day after the date of
submission of such standard notify the State and specify the
changes to meet such requirements. If such changes are not
adopted by the State within ninety days after the date of
notification, the Administrator shall promulgate such standard
pursuant to paragraph (4) of this subsection.
(4) The Administrator shall promptly prepare and publish
proposed regulations setting forth a revised or new water
quality standard for the navigable waters involved--
(A) if a revised or new water quality standard
submitted by such State under paragraph (3) of this
subsection for such waters is determined by the
Administrator not to be consistent with the applicable
requirements of this Act, or
(B) in any case where the Administrator determines
that a revised or new standard is necessary to meet the
requirements of this Act.
The Administrator shall promulgate any revised or new standard
under this paragraph not later than ninety days after he
publishes such proposed standards, unless prior to such
promulgation, such State has adopted a revised or new water
quality standard which the Administrator determines to be in
accordance with this Act.
(d)(1)(A) Each State shall identify those waters within its
boundaries for which the effluent limitations required by
section 301(b)(1)(A) and section 301(b)(1)(B) are not stringent
enough to implement any water quality standard applicable to
such waters. The State shall establish a priority ranking for
such waters, taking into account the severity of the pollution
and the uses to be made of such waters.
(B) Each State shall identify those waters or parts thereof
within its boundaries for which controls on thermal discharges
under section 301 are not stringent enough to assure protection
and propagation of a balanced indigenous population of
shellfish, fish, and wildlife.
(C) Each State shall establish for the waters identified in
paragraph (1)(A) of this subsection, and in accordance with the
priority ranking, the total maximum daily load, for those
pollutants which the Administrator identifies under section
304(a)(2) as suitable for such calculation. Such load shall be
established at a level necessary to implement the applicable
water quality standards with seasonal variations and a margin
of safety which takes into account any lack of knowledge
concerning the relationship between effluent limitations and
water quality.
(D) Each State shall estimate for the waters identified in
paragraph (1)(B) of this subsection the total maximum daily
thermal load required to assure protection and propagation of a
balanced, indigenous population of shellfish, fish and
wildlife. Such estimates shall take into account the normal
water temperatures, flow rates, seasonal variations, existing
sources of heat input, and the dissipative capacity of the
identified waters or parts thereof. Such estimates shall
include a calculation of the maximum heat input that can be
made into each such part and shall include a margin of safety
which takes into account any lack of knowledge concerning the
development of thermal water quality criteria for such
protection and propagation in the identified waters or parts
thereof.
(2) Each State shall submit to the Administrator from time to
time, with the first such submission not later than one hundred
and eighty days after the date of publication of the first
identification of pollutants under section 304(a)(2)(D), for
his approval the waters identified and the loads established
under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this
subsection. The Administrator shall either approve or
disapprove such identification and load not later than thirty
days after the date of submission. If the Administrator
approves such identification and load, such State shall
incorporate them into its current plan under subsection (e) of
this section. If the Administrator disapproves such
identification and load, he shall not later than thirty days
after the date of such disapproval identify such waters in such
State and establish such loads for such waters as he determines
necessary to implement the water quality standards applicable
to such waters and upon such identification and establishment
the State shall incorporate them into its current plan under
subsection (e) of this section.
(3) For the specific purpose of developing information, each
State shall identify all waters within its boundaries which it
has not identified under paragraph (1)(A) and (1)(B) of this
subsection and estimate for such waters the total maximum daily
load with seasonal variations and margins of safety, for those
pollutants which the Administrator identifies under section
304(a)(2) as suitable for such calculation and for thermal
discharges, at a level that would assure protection and
propagation of a balanced indigenous population of fish,
shellfish and wildlife.
(4) Limitations on revision of certain effluent
limitations.--
(A) Standard not attained.--For waters
identified under paragraph (1)(A) where the
applicable water quality standard has not yet
been attained, any effluent limitation based on
a total maximum daily load or other waste load
allocation established under this section may
be revised only if (i) the cumulative effect of
all such revised effluent limitations based on
such total maximum daily load or waste load
allocation will assure the attainment of such
water quality standard, or (ii) the designated
use which is not being attained is removed in
accordance with regulations established under
this section.
(B) Standard attained.--For waters identified
under paragraph (1)(A) where the quality of
such waters equals or exceeds levels necessary
to protect the designated use for such waters
or otherwise required by applicable water
quality standards, any effluent limitation
based on a total maximum daily load or other
waste load allocation established under this
section, or any water quality standard
established under this section, or any other
permitting standard may be revised only if such
revision is subject to and consistent with the
antidegradation policy established under this
section.
(e)(1) Each State shall have a continuing planning process
approved under paragraph (2) of this subsection which is
consistent with this Act.
(2) Each State shall submit not later than 120 days after the
date of the enactment of the Water Pollution Control Amendments
of 1972 to the Administrator for his approval a proposed
continuing planning process which is consistent with this Act.
Not later than thirty days after the date of submission of such
a process the Administrator shall either approve or disapprove
such process. The Administrator shall from time to time review
each State's approved planning process for the purpose of
insuring that such planning process is at all times consistent
with this Act. The Administrator shall not approve any State
permit program under title IV of this Act for any State which
does not have an approved continuing planning process under
this section.
(3) The Administrator shall approve any continuing planning
process submitted to him under this section which will result
in plans for all navigable waters within such State, which
include, but are not limited to, the following:
(A) effluent limitations and schedules of compliance
at least as stringent as those required by section
301(b)(1), section 301(b)(2), section 306, and section
307, and at least as stringent as any requirements
contained in any applicable water quality standard in
effect under authority of this section;
(B) the incorporation of all elements of any
applicable areawide waste management plans under
section 208, and applicable basin plans under section
209 of this Act;
(C) total maximum daily load for pollutants in
accordance with subsection (d) of this section;
(D) procedures for revision;
(E) adequate authority for intergovernmental
cooperation;
(F) adequate implementation, including schedules of
compliance, for revised or new water quality standards,
under subsection (c) of this section;
(G) controls over the disposition of all residual
waste from any water treatment processing;
(H) an inventory and ranking, in order of priority,
of needs for construction of waste treatment works
required to meet the applicable requirements of
sections 301 and 302.
(f) Nothing in this section shall be construed to affect any
effluent limitation, or schedule of compliance required by any
State to be implemented prior to the dates set forth in
sections 301(b)(1) and 301(b)(2) nor to preclude any State from
requiring compliance with any effluent limitation or schedule
of compliance at dates earlier than such dates.
(g) Water quality standards relating to heat shall be
consistent with the requirements of section 316 of this Act.
(h) For the purposes of this Act the term ``water quality
standards'' includes thermal water quality standards.
(i) Coastal Recreation Water Quality Criteria.--
(1) Adoption by states.--
(A) Initial criteria and standards.--Not
later than 42 months after the date of the
enactment of this subsection, each State having
coastal recreation waters shall adopt and
submit to the Administrator water quality
criteria and standards for the coastal
recreation waters of the State for those
pathogens and pathogen indicators for which the
Administrator has published criteria under
section 304(a).
(B) New or revised criteria and standards.--
Not later than 36 months after the date of
publication by the Administrator of new or
revised water quality criteria under section
304(a)(9), each State having coastal recreation
waters shall adopt and submit to the
Administrator new or revised water quality
standards for the coastal recreation waters of
the State for all pathogens and pathogen
indicators to which the new or revised water
quality criteria are applicable.
(2) Failure of states to adopt.--
(A) In general.--If a State fails to adopt
water quality criteria and standards in
accordance with paragraph (1)(A) that are as
protective of human health as the criteria for
pathogens and pathogen indicators for coastal
recreation waters published by the
Administrator, the Administrator shall promptly
propose regulations for the State setting forth
revised or new water quality standards for
pathogens and pathogen indicators described in
paragraph (1)(A) for coastal recreation waters
of the State.
(B) Exception.--If the Administrator proposes
regulations for a State described in
subparagraph (A) under subsection (c)(4)(B),
the Administrator shall publish any revised or
new standard under this subsection not later
than 42 months after the date of the enactment
of this subsection.
(3) Applicability.--Except as expressly provided by
this subsection, the requirements and procedures of
subsection (c) apply to this subsection, including the
requirement in subsection (c)(2)(A) that the criteria
protect public health and welfare.
information and guidelines
Sec. 304. (a)(1) The Administrator, after consultation with
appropriate Federal and State agencies and other interested
persons, shall develop and publish, within one year after the
date of enactment of this title (and from time to time
thereafter revise) criteria for water quality accurately
reflecting the latest scientific knowledge (A) on the kind and
extent of all identifiable effects on health and welfare
including, but not limited to, plankton, fish, shellfish,
wildlife, plant life, shorelines, beaches, esthetics, and
recreation which may be expected from the presence of
pollutants in any body of water, including ground water; (B) on
the concentration and dispersal of pollutants, or their
byproducts, through biological, physical, and chemical
processes; and (C) on the effects of pollutants on biological
community diversity, productivity, and stability, including
information on the factors affecting rates of eutrophication
and rates of organic and inorganic sedimentation for varying
types of receiving waters.
(2) The Administrator, after consultation with appropriate
Federal and State agencies and other interested persons, shall
develop and publish, within one year after the date of
enactment of this title (and from time to time thereafter
revise) information (A) on the factors necessary to restore and
maintain the chemical, physical, and biological integrity of
all navigable waters, ground waters, waters of the contiguous
zone, and the oceans; (B) on the factors necessary for the
protection and propagation of shellfish, fish, and wildlife for
classes and categories of receiving waters and to allow
recreational activities in and on the water; and (C) on the
measurement and classification of water quality; and (D) for
the purpose of section 303, on and the identification of
pollutants suitable for maximum daily load measurement
correlated with the achievement of water quality objectives.
(3) Such criteria and information and revisions thereof shall
be issued to the States and shall be published in the Federal
Register and otherwise made available to the public.
(4) The Administrator shall, within 90 days after the date of
enactment of the Clean Water Act of 1977 and from time to time
thereafter, publish and revise as appropriate information
identifying conventional pollutants, including but not limited
to, pollutants classified as biological oxygen demanding,
suspended solids, fecal coliform, and pH. The thermal component
of any discharge shall not be identified as a conventional
pollutant under this paragraph.
(5)(A) The Administrator, to the extent practicable before
consideration of any request under section 301(g) of this Act
and within six months after the date of enactment of the Clean
Water Act of 1977, shall develop and publish information on the
factors necessary for the protection of public water supplies,
and the protection and propagation of a balanced population of
shellfish, fish and wildlife, and to allow recreational
activities, in and on the water.
(B) The Administrator, to the extent practicable before
consideration of any application under section 301(h) of this
Act and within six months after the date of enactment of Clean
Water Act of 1977, shall develop and publish information on the
factors necessary for the protection of public water supplies,
and the protection and propagation of a balanced indigenous
population of shellfish, fish and wildlife, and to allow
recreational activities, in and on the water.
(6) The Administrator shall, within three months after
enactment of the Clean Water Act of 1977 and annually
thereafter, for purposes of section 301(h) of this Act publish
and revise as appropriate information identifying each water
quality standard in effect under this Act or State law, the
specific pollutants associated with such water quality
standard, and the particular waters to which such water quality
standard applies.
(7) Guidance to states.--The Administrator, after
consultation with appropriate State agencies and on the
basis of criteria and information published under
paragraphs (1) and (2) of this subsection, shall
develop and publish, within 9 months after the date of
the enactment of the Water Quality Act of 1987,
guidance to the States on performing the identification
required by section 304(l)(1) of this Act.
(8) Information on water quality criteria.--The
Administrator, after consultation with appropriate
State agencies and within 2 years after the date of the
enactment of the Water Quality Act of 1987, shall
develop and publish information on methods for
establishing and measuring water quality criteria for
toxic pollutants on other bases than pollutant-by-
pollutant criteria, including biological monitoring and
assessment methods.
(9) Revised criteria for coastal recreation waters.--
(A) In general.--Not later than 5 years after
the date of the enactment of this paragraph,
after consultation and in cooperation with
appropriate Federal, State, tribal, and local
officials (including local health officials),
the Administrator shall publish new or revised
water quality criteria for pathogens and
pathogen indicators (including a revised list
of testing methods, as appropriate), based on
the results of the studies conducted under
section 104(v), for the purpose of protecting
human health in coastal recreation waters.
(B) Reviews.--Not later than the date that is
5 years after the date of publication of water
quality criteria under this paragraph, and at
least once every 5 years thereafter, the
Administrator shall review and, as necessary,
revise the water quality criteria.
(10) Consideration of treatment technologies.--In
developing or revising water quality criteria under
this subsection, the Administrator shall take into
consideration the cost and commercial availability in
the United States of treatment technologies (including
whether the technologies have been demonstrated at an
applicable scale) that may be required to be applied to
point sources in order to result in compliance with
water quality standards adopted or promulgated under
section 303.
(11) Administrative procedure.--After the date of
enactment of this paragraph, the Administrator shall
issue any new or revised water quality criteria under
paragraph (1) or (9) by rule.
(b) For the purpose of adopting or revising effluent
limitations under this Act the Administrator shall, after
consultation with appropriate Federal and State agencies and
other interested persons, publish within one year of enactment
of this title, regulations, providing guidelines for effluent
limitations, and, at least annually thereafter, revise, if
appropriate, such regulations. Such regulations shall--
(1)(A) identify, in terms of amounts of constituents
and chemical, physical, and biological characteristics
of pollutants, the degree of effluent reduction
attainable through the application of the best
practicable control technology currently available for
classes and categories of point sources (other than
publicly owned treatment works); and
(B) specify factors to be taken into account in
determining the control measures and practices to be
applicable to point sources (other than publicly owned
treatment works) within such categories or classes.
Factors relating to the assessment of best practical
control technology currently available to comply with
subsection (b)(1) of section 301 of this Act shall
include consideration of the total cost of application
of technology in relation to the effluent reduction
benefits to be achieved from such application, and
shall also take into account the age of equipment and
facilities involved, the process employed, the
engineering aspects of the application of various types
of control techniques, process changes, non-water
quality environmental impact (including energy
requirements), the commercial availability in the
United States of the technology (including whether the
technology has been demonstrated at an applicable
scale), and such other factors as the Administrator
deems appropriate;
(2)(A) identify, in terms of amounts of constituents
and chemical, physical, and biological characteristics
of pollutants, the degree of effluent reduction
attainable through the application of the best control
measures and practices achievable including treatment
techniques, process and procedure innovations,
operating methods, and other alternatives for classes
and categories of point sources (other than publicly
owned treatment works); and
(B) specify factors to be taken into account in
determining the best measures and practices available
to comply with subsection (b)(2) of section 301 of this
Act to be applicable to any point source (other than
publicly owned treatment works) within such categories
or classes. Factors relating to the assessment of best
available technology shall take into account the age of
equipment and facilities involved, the process
employed, the engineering aspects of the application of
various types of control techniques, process changes,
the cost of achieving such effluent reduction, non-
water quality environmental impact (including energy
requirements), the commercial availability in the
United States of the technology (including whether the
technology has been demonstrated at an applicable
scale), and such other factors as the Administrator
deems appropriate;
(3) identify control measures and practices available
to eliminate the discharge of pollutants from
categories and classes of point sources, taking into
account the cost of achieving such elimination of the
discharge of pollutants; and
(4)(A) identify, in terms of amounts of constituents
and chemical, physical, and biological characteristics
of pollutants, the degree of effluent reduction
attainable through the application of the best
conventional pollutant control technology (including
measures and practices) for classes and categories of
point sources (other than publicly owned treatment
works); and
(B) specify factors to be taken into account in
determining the best conventional pollutant control
technology measures and practices to comply with
section 301(b)(2)(E) of this Act to be applicable to
any point source (other than publicly owned treatment
works) within such categories or classes. Factors
relating to the assessment of best conventional
pollutant control technology (including measures and
practices) shall include consideration of the
reasonableness of the relationship between the costs of
attaining a reduction in effluents and the effluent
reduction benefits derived, and the comparison of the
cost and level of reduction of such pollutants from the
discharge from publicly owned treatment works to the
cost and level of reduction of such pollutants from a
class or category of industrial sources, and shall take
into account the age of equipment and facilities
involved, the process employed, the engineering aspects
of the application of various types of control
techniques, process changes, non-water quality
environmental impact (including energy requirements),
the commercial availability in the United States of the
technology (including whether the technology has been
demonstrated at an applicable scale), and such other
factors as the Administrator deems appropriate.
(c) The Administrator, after consultation, with appropriate
Federal and State agencies and other interested persons, shall
issue to the States and appropriate water pollution control
agencies within 270 days after enactment of this title (and
from time to time thereafter) information on the processes,
procedures, or operating methods which result in the
elimination or reduction of the discharge of pollutants to
implement standards of performance under section 306 of this
Act. Such information shall include technical and other data,
including costs, as are available on alternative methods of
elimination or reduction of the discharge of pollutants. Such
information, and revisions thereof, shall be published in the
Federal Register and otherwise shall be made available to the
public.
(d)(1) The Administrator, after consultation with appropriate
Federal and State agencies and other interested persons, shall
publish within sixty days after enactment of this title (and
from time to time thereafter) information, in terms of amounts
of constituents and chemical, physical, and biological
characteristics of pollutants, on the degree of effluent
reduction attainable through the application of secondary
treatment.
(2) The Administrator, after consultation with appropriate
Federal and State agencies and other interested persons, shall
publish within nine months after the date of enactment of this
title (and from time to time thereafter) information on
alternative waste treatment management techniques and systems
available to implement section 201 of this Act.
(3) The Administrator, after consultation with appropriate
Federal and State agencies and other interested persons, shall
promulgate within one hundred and eighty days after the date of
enactment of this subsection guidelines for identifying and
evaluating innovative and alternative wastewater treatment
processes and techniques referred to in section 201(g)(5) of
this Act.
(4) For the purposes of this subsection, such biological
treatment facilities as oxidation ponds, lagoons, and ditches
and trickling filters shall be deemed the equivalent of
secondary treatment. The Administrator shall provide guidance
under paragraph (1) of this subsection on design criteria for
such facilities, taking into account pollutant removal
efficiencies and, consistent with the objective of the Act,
assuring that water quality will not be adversely affected by
deeming such facilities as the equivalent of secondary
treatment.
(e) The Administrator, after consultation with appropriate
Federal and State agencies and other interested persons, may
publish regulations, supplemental to any effluent limitations
specified under subsections (b) and (c) of this section for a
class or category of point sources, for any specific pollutant
which the Administrator is charged with a duty to regulate as a
toxic or hazardous pollutant under section 307(a)(1) or 311 of
this Act, to control plant site runoff, spillage or leaks,
sludge or waste disposal, and drainage from raw material
storage which the Administrator determines are associated with
or ancillary to the industrial manufacturing or treatment
process within such class or category of point sources and may
contribute significant amounts of such pollutants, to navigable
waters. Any applicable controls established under this
subsection shall be included as a requirement for the purposes
of section 301, 302, 306, 307, or 403, as the case may be, in
any permit issued to a point source pursuant to section 402 of
this Act.
(f) The Administrator, after consultation with appropriate
Federal and State agencies and other interested persons, shall
issue to appropriate Federal agencies, the States, water
pollution control agencies, and agencies designated under
section 208 of this Act, within one year after the effective
date of this subsection (and from time to time thereafter)
information including (1) guidelines for identifying and
evaluating the nature and extent of nonpoint sources of
pollutants, and (2) processes, procedures, and methods to
control pollution resulting from--
(A) agricultural and silvicultural activities,
including runoff from fields and crop and forest lands;
(B) mining activities, including runoff and siltation
from new, currently operating, and abandoned surface
and underground mines;
(C) all construction activity, including runoff from
the facilities resulting from such construction;
(D) the disposal of pollutants in wells or in
subsurface excavations;
(E) salt water intrusion resulting from reductions of
fresh water flow from any cause, including extraction
of ground water, irrigation, obstruction, and
diversion; and
(F) changes in the movement, flow, or circulation of
any navigable waters or ground waters, including
changes caused by the construction of dams, levees,
channels, causeways, or flow diversion facilities.
Such information and revisions thereof shall be published in
the Federal Register and otherwise made available to the
public.
(g)(1) For the purpose of assisting States in carrying out
programs under section 402 of this Act, the Administrator shall
publish, within one hundred and twenty days after the date of
enactment of this title, and review at least annually
thereafter and, if appropriate, revise guidelines for
pretreatment of pollutants which he determines are not
susceptible to treatment by publicly owned treatment works.
Guidelines under this subsection shall be established to
control and prevent the discharge into the navigable waters,
the contiguous zone, or the ocean (either directly or through
publicly owned treatment works) of any pollutant which
interferes with, passes through, or otherwise is incompatible
with such works.
(2) When publishing guidelines under this subsection, the
Administrator shall designate the category or categories of
treatment works to which the guidelines shall apply.
(h) The Administrator shall, within one hundred and eighty
days from the date of enactment of this title, promulgate
guidelines establishing test procedures for the analysis of
pollutants that shall include the factors which must be
provided in any certification pursuant to section 401 of this
Act or permit application pursuant to section 402 of this Act.
(i) The Administrator shall (1) within sixty days after the
enactment of this title promulgate guidelines for the purpose
of establishing uniform application forms and other minimum
requirements for the acquisition of information from owners and
operators of point-sources of discharge subject to any State
program under section 402 of this Act, and (2) within sixty
days from the date of enactment of this title promulgate
guidelines establishing the minimum procedural and other
elements of any State program under section 402 of this Act
which shall include:
(A) monitoring requirements;
(B) reporting requirements (including procedures to
make information available to the public);
(C) enforcement provisions; and
(D) funding, personnel qualifications, and manpower
requirements (including a requirement that no board or
body which approves permit applications or portions
thereof shall include, as a member, any person who
receives, or has during the previous two years
received, a significant portion of his income directly
or indirectly from permit holders or applicants for a
permit).
(j) Lake Restoration Guidance Manual.--The Administrator
shall, within 1 year after the date of the enactment of the
Water Quality Act of 1987 and biennially thereafter, publish
and disseminate a lake restoration guidance manual describing
methods, procedures, and processes to guide State and local
efforts to improve, restore, and enhance water quality in the
Nation's publicly owned lakes.
(k)(1) The Administrator shall enter into agreements with the
Secretary of Agriculture, the Secretary of the Army, and the
Secretary of the Interior, and the heads of such other
departments, agencies, and instrumentalities of the United
States as the Administrator determines, to provide for the
maximum utilization of other Federal laws and programs for the
purpose of achieving and maintaining water quality through
appropriate implementation of plans approved under section 208
of this Act and nonpoint source pollution management programs
approved under section 319 of this Act.
(2) The Administrator is authorized to transfer to the
Secretary of Agriculture, the Secretary of the Army, and the
Secretary of the Interior and the heads of such other
departments, agencies, and instrumentalities of the United
States as the Administrator determines, any funds appropriated
under paragraph (3) of this subsection to supplement funds
otherwise appropriated to programs authorized pursuant to any
agreement under paragraph (1).
(3) There is authorized to be appropriated to carry out the
provisions of this subsection, $100,000,000 per fiscal year for
the fiscal years 1979 through 1983 and such sums as may be
necessary for fiscal years 1984 through 1990.
(l) Individual Control Strategies for Toxic Pollutants.--
(1) State list of navigable waters and development of
strategies.--Not later than 2 years after the date of
the enactment of this subsection, each State shall
submit to the Administrator for review, approval, and
implementation under this subsection--
(A) a list of those waters within the State
which after the application of effluent
limitations required under section 301(b)(2) of
this Act cannot reasonably be anticipated to
attain or maintain (i) water quality standards
for such waters reviewed, revised, or adopted
in accordance with section 303(c)(2)(B) of this
Act, due to toxic pollutants, or (ii) that
water quality which shall assure protection of
public health, public water supplies,
agricultural and industrial uses, and the
protection and propagation of a balanced
population of shellfish, fish and wildlife, and
allow recreational activities in and on the
water;
(B) a list of all navigable waters in such
State for which the State does not expect the
applicable standard under section 303 of this
Act will be achieved after the requirements of
sections 301(b), 306, and 307(b) are met, due
entirely or substantially to discharges from
point sources of any toxic pollutants listed
pursuant to section 307(a);
(C) for each segment of the navigable waters
included on such lists, a determination of the
specific point sources discharging any such
toxic pollutant which is believed to be
preventing or impairing such water quality and
the amount of each toxic pollutant discharged
by each such source; and
(D) for each such segment, an individual
control strategy which the State determines
will produce a reduction in the discharge of
toxic pollutants from point sources identified
by the State under this paragraph through the
establishment of effluent limitations under
section 402 of this Act and water quality
standards under section 303(c)(2)(B) of this
Act, which reduction is sufficient, in
combination with existing controls on point and
nonpoint sources of pollution, to achieve the
applicable water quality standard as soon as
possible, but not later than 3 years after the
date of the establishment of such strategy.
(2) Approval or disapproval.--Not later than 120 days
after the last day of the 2-year period referred to in
paragraph (1), the Administrator shall approve or
disapprove the control strategies submitted under
paragraph (1) by any State.
(3) Administrator's action.--If a State fails to
submit control strategies in accordance with paragraph
(1) or the Administrator does not approve the control
strategies submitted by such State in accordance with
paragraph (1), then, not later than 1 year after the
last day of the period referred to in paragraph (2),
the Administrator, in cooperation with such State and
after notice and opportunity for public comment, shall
implement the requirements of paragraph (1) in such
State. In the implementation of such requirements, the
Administrator shall, at a minimum, consider for listing
under this subsection any navigable waters for which
any person submits a petition to the Administrator for
listing not later than 120 days after such last day.
(m) Schedule for Review of Guidelines.--
(1) Publication.--Within 12 months after the date of
the enactment of the Water Quality Act of 1987, and
biennially thereafter, the Administrator shall publish
in the Federal Register a plan which shall--
(A) establish a schedule for the annual
review and revision of promulgated effluent
guidelines, in accordance with subsection (b)
of this section;
(B) identify categories of sources
discharging toxic or nonconventional pollutants
for which guidelines under subsection (b)(2) of
this section and section 306 have not
previously been published; and
(C) establish a schedule for promulgation of
effluent guidelines for categories identified
in subparagraph (B), under which promulgation
of such guidelines shall be no later than 4
years after such date of enactment for
categories identified in the first published
plan or 3 years after the publication of the
plan for categories identified in later
published plans.
(2) Public review.--The Administrator shall provide
for public review and comment on the plan prior to
final publication.
* * * * * * *
TITLE IV--PERMITS AND LICENSES
certification
Sec. 401. (a)(1) Any applicant for a Federal license or
permit to conduct any activity including, but not limited to,
the construction or operation of facilities, which [may result]
may directly result in any discharge into the navigable waters,
shall provide the licensing or permitting agency a
certification from the State in which the discharge originates
or will originate, or, if appropriate, from the interstate
water pollution control agency having jurisdiction over the
navigable waters at the point where the discharge originates or
will originate, that any such discharge will comply with the
applicable provisions of sections 301, 302, 303, 306, and 307
of this Act. In the case of any such [activity] discharge for
which there is not an applicable effluent limitation or other
limitation under sections 301(b) and 302, and there is not an
applicable standard under sections 306 and 307, the State shall
so certify, except that any such certification shall not be
deemed to satisfy section 511(c) of this Act. Such State or
interstate agency shall establish procedures for public notice
in the case of all [applications] requests for certification by
it and, to the extent it deems appropriate, procedures for
public hearings in connection with specific [applications]
requests. In any case where a State or interstate agency has no
authority to give such a certification, such certification
shall be from the Administrator. Not later than 30 days after
the date of enactment of the PERMIT 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 (g). 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. If
the State, interstate agency, or Administrator, as the case may
be, fails or refuses to [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] 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 shall be waived with
respect to such Federal application. No license or permit shall
be granted until the certification required by this section has
been obtained or has been [waived as provided in the preceding
sentence] waived under this paragraph. No license or permit
shall be granted if certification has been denied by the State,
interstate agency, or the Administrator, as the case may be.
(2) [Upon receipt of such application and certification the
licensing or permitting agency shall immediately notify the
Administrator of such application and certification.] On
receipt of a request for certification, the certifying State or
interstate agency, as applicable, shall immediately notify the
Administrator of the request. Whenever such a discharge may
affect, as determined by the Administrator, the quality of the
waters of any other State, the Administrator within thirty days
of the date of [notice of application for such Federal license
or permit] receipt of a notice under the preceding sentence
shall so notify such other State, the licensing or permitting
agency, and the applicant. 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. If, within sixty days after receipt of such
notification, such other State determines that such discharge
will affect the quality of its waters so as to violate [any
water quality requirement in such State] any water quality
standard in effect for the State under section 303, and within
such sixty-day period notifies the Administrator and the
licensing or permitting agency in writing of its objection to
the issuance of such license or permit and requests a public
hearing on such objection, the licensing or permitting agency
shall hold such a hearing at a time that is agreed to by such
State and the applicant. The Administrator shall at such
hearing submit his evaluation and recommendations with respect
to any such objection to the licensing or permitting agency.
Such agency, based upon the recommendations of such State, the
Administrator, and upon any additional evidence, if any,
presented to the agency at the hearing, shall condition such
license or permit in such manner as may be necessary to [insure
compliance with applicable water quality requirements.] ensure
compliance with the applicable provisions of sections 301, 302,
303, 306, and 307. If the imposition of conditions cannot
[insure] ensure such compliance such agency shall not issue
such license or permit.
(3) The certification obtained pursuant to paragraph (1) of
this subsection with respect to the construction of any
facility shall fulfill the requirements of this subsection with
respect to certification in connection with any other Federal
license or permit required for the operation of such facility
unless, after notice to the certifying State, agency, or
Administrator, as the case may be, which shall be given by the
Federal agency to whom application is made for such operating
license or permit, the State, or if appropriate, the interstate
agency or the Administrator, notifies such agency within sixty
days after receipt of such notice that there is no longer
reasonable assurance that [there will be compliance] any such
discharge will comply with the applicable provisions of
sections 301, 302, 303, 306, and 307 of this Act because of
changes since the construction license or permit certification
was issued in (A) the construction or operation of the
facility, (B) the characteristics of the waters into which such
discharge is made, (C) the water quality criteria applicable to
such waters or (D) applicable effluent limitations or other
requirements. This paragraph shall be inapplicable in any case
where the applicant for such operating license or permit has
failed to provide the certifying State, or, if appropriate, the
interstate agency or the Administrator, with notice of any
proposed changes in the construction or operation of the
facility with respect to which a construction license or permit
has been granted, which changes may result in violation of
[section] any applicable provision of section 301, 302, 303,
306, or 307 of this Act.
(4) Prior to the initial operation of any federally licensed
or permitted facility or activity which may directly result in
any discharge into the navigable waters and with respect to
which a certification has been obtained pursuant to paragraph
(1) of this subsection, which facility or activity is not
subject to a Federal operating license or permit, the licensee
or permittee shall provide an opportunity for such certifying
State, or, if appropriate, the interstate agency or the
Administrator to review the manner in which the facility or
activity shall be operated or conducted for the purposes of
assuring that [applicable effluent limitations or other
limitations or other applicable water quality requirements will
not be violated] no applicable provision of section 301, 302,
303, 306, or 307 will be violated. Upon notification by the
certifying State, or if appropriate, the interstate agency or
the Administrator that the operation of any such federally
licensed or permitted facility or activity [will violate
applicable effluent limitations or other limitations or other
water quality requirements] will directly result in a discharge
that violates an applicable provision of section 301, 302, 303,
306, or 307, such Federal agency may, after public hearing,
suspend such license or permit. If such license or permit is
suspended, it shall remain suspended until notification is
received from the certifying State, agency, or Administrator,
as the case may be, that there is reasonable assurance that
[such facility or activity will not violate the applicable
provisions] operation of such facility or activity will not
directly result in a discharge that violates any applicable
provision of section 301, 302, 303, 306, or 307 of this Act.
(5) Any Federal license or permit with respect to which a
certification has been obtained under paragraph (1) of this
subsection may be suspended or revoked by the Federal agency
issuing such license or permit upon the entering of a judgment
under this Act that such facility or activity has been operated
in violation of [the applicable provisions] any applicable
provision of section 301, 302, 303, 306, or 307 of this Act.
(6) Except with respect to a permit issued under section 402
of this Act, in any case where actual construction of a
facility has been lawfully commenced prior to April 3, 1970, no
certification shall be required under this subsection for a
license or permit issued after April 3, 1970, to operate such
facility, except that any such license or permit issued without
certification shall terminate April 3, 1973, unless prior to
such termination date the person having such license or permit
submits to the Federal agency which issued such license or
permit a certification and otherwise meets the requirements of
this section.
(b) [Nothing in this section] Except as provided in
subsection (e), nothing in this section shall be construed to
limit the authority of any department or agency pursuant to any
other provision of law to require compliance with any
applicable water quality requirements. The Administrator shall,
upon the request of any Federal department or agency, or State
or interstate agency, or applicant, provide, for the purpose of
this section, any relevant information on applicable effluent
limitations, or other limitations, standards, regulations, or
requirements, or water quality criteria, and shall, when
requested by any such department or agency or State or
interstate agency, or applicant, comment on any methods to
comply with such limitations, standards, regulations,
requirements, or criteria.
(c) In order to implement the provisions of this section, the
Secretary of the Army, acting through the Chief of Engineers,
is authorized, if he deems it to be in the public interest, to
permit the use of spoil disposal areas under his jurisdiction
by Federal licensees or permittees, and to make an appropriate
charge for such use. Moneys received from such licensees or
permittees shall be deposited in the Treasury as miscellaneous
receipts.
(d) Any certification provided under this section shall set
forth any effluent limitations and other limitations, and
monitoring requirements necessary to assure that any [applicant
for a Federal license or permit will comply with any applicable
effluent limitations and other limitations, under section 301
or 302 of this Act, standard of performance under section 306
of this Act, or prohibition, effluent standard, or pretreatment
standard under section 307 of this Act, and with any other
appropriate requirement of State law set forth in such
certification, and shall become a condition on any Federal
license or permit subject to the provisions of this section]
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.
(e) 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.
(f) 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.
(g) 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.
national pollutant discharge elimination system
Sec. 402. (a)(1) Except as provided in sections 318 and 404
of this Act, the Administrator may, after opportunity for
public hearing, issue a permit for the discharge of any
pollutant, or combination of pollutants, notwithstanding
section 301(a), upon condition that such discharge will meet
either (A) all applicable requirements under sections 301, 302,
306, 307, 308, and 403 of this Act, or (B) prior to the taking
of necessary implementing actions relating to all such
requirements, such conditions as the Administrator determines
are necessary to carry out the provisions of this Act.
(2) The Administrator shall prescribe conditions for such
permits to assure compliance with the requirements of paragraph
(1) of this subsection, including conditions on data and
information collection, reporting, and such other requirements
as he deems appropriate.
(3) The permit program of the Administrator under paragraph
(1) of this subsection, and permits issued thereunder, shall be
subject to the same terms, conditions, and requirements as
apply to a State permit program and permits issued thereunder
under subsection (b) of this section.
(4) All permits for discharges into the navigable waters
issued pursuant to section 13 of the Act of March 3, 1899,
shall be deemed to be permits issued under this title, and
permits issued under this title shall be deemed to be permits
issued under section 13 of the Act of March 3, 1899, and shall
continue in force and effect for their term unless revoked,
modified, or suspended in accordance with the provisions of
this Act.
(5) No permit for a discharge into the navigable waters shall
be issued under section 13 of the Act of March 3, 1899, after
the date of enactment of this title. Each application for a
permit under section 13 of the Act of March 3, 1899, pending on
the date of enactment of this Act shall be deemed to be an
application for a permit under this section. The Administrator
shall authorize a State, which he determines has the capability
of administering a permit program which will carry out the
objective of this Act, to issue permits for discharges into the
navigable waters within the jurisdiction of such State. The
Administrator may exercise the authority granted him by the
preceding sentence only during the period which begins on the
date of enactment of this Act and ends either on the ninetieth
day after the date of the first promulgation of guidelines
required by section 304(i)(2) of this Act, or the date of
approval by the Administrator of a permit program for such
State under subsection (b) of this section, whichever date
first occurs, and no such authorization to a State shall extend
beyond the last day of such period. Each such permit shall be
subject to such conditions as the Administrator determines are
necessary to carry out the provisions of this Act. No such
permit shall issue if the Administrator objects to such
issuance.
(6) General permits.--
(A) Permits authorized.--The Administrator
may issue general permits under this section on
a State, regional, or nationwide basis, or for
a delineated area, for discharges associated
with any category of activities, which
discharges are of similar types and from
similar sources.
(B) Permit expiration notification
requirement.--If a general permit issued under
this section will expire and the Administrator
decides not to issue a new general permit for
discharges similar to those covered by the
expiring general permit, the Administrator
shall publish in the Federal Register a notice
of such decision at least two years prior to
the expiration of the general permit.
(C) Application of permit terms of an expired
permit.--
(i) In general.--If a general permit
issued under this section expires and
the Administrator has not published a
notice in accordance with subparagraph
(B), the Administrator shall, until the
date described in clause (ii)--
(I) continue to apply the
terms, conditions, and
requirements of the expired
general permit to any discharge
that was covered by the expired
general permit; and
(II) apply such terms,
conditions, and requirements to
any discharge that would have
been covered by the expired
general permit (in accordance
with any relevant requirements
for such coverage) if the
discharge had occurred before
such expiration.
(ii) Date described.--The date
described in this clause is the earlier
of--
(I) the date on which the
Administrator issues a new
general permit for discharges
similar to those covered by the
expired general permit; or
(II) the date that is two
years after the date on which
the Administrator publishes in
the Federal Register a notice
of a decision not to issue a
new general permit for
discharges similar to those
covered by the expired general
permit.
(b) At any time after the promulgation of the guidelines
required by subsection (i)(2) of section 304 of this Act, the
Governor of each State desiring to administer its own permit
program for discharges into navigable waters within its
jurisdiction may submit to the Administrator a full and
complete description of the program it proposes to establish
and administer under State law or under an interstate compact.
In addition, such State shall submit a statement from the
attorney general (or the attorney for those State water
pollution control agencies which have independent legal
counsel), or from the chief legal officer in the case of an
interstate agency, that the laws of such State, or the
interstate compact, as the case may be, provide adequate
authority to carry out the described program. The Administrator
shall approve each such submitted program unless he determines
that adequate authority does not exist:
(1) To issue permits which--
(A) apply, and insure compliance with, any applicable
requirements of sections 301, 302, 306, 307, and 403;
(B) are for fixed terms not exceeding [five years]
ten years; and
(C) can be terminated or modified for cause
including, but not limited to, the following:
(i) violation of any condition of the permit;
(ii) obtaining a permit by misrepresentation,
or failure to disclose fully all relevant
facts;
(iii) change in any condition that requires
either a temporary or permanent reduction or
elimination of the permitted discharge;
(D) control the disposal of pollutants into wells;
(2)(A) To issue permits which apply, and insure compliance
with, all applicable requirements of section 308 of this Act,
or
(B) To inspect, monitor, enter, and require reports to at
least the same extent as required in section 308 of this Act;
(3) To insure that the public, and any other State the waters
of which may be affected, receive notice of each application
for a permit and to provide an opportunity for public hearing
before a ruling on each such application;
(4) To insure that the Administrator receives notice of each
application (including a copy thereof) for a permit;
(5) To insure that any State (other than the permitting
State), whose waters may be affected by the issuance of a
permit may submit written recommendations to the permitting
State (and the Administrator) with respect to any permit
application and, if any part of such written recommendations
are not accepted by the permitting State, that the permitting
State will notify such affected State (and the Administrator)
in writing of its failure to so accept such recommendations
together with its reasons for so doing;
(6) To insure that no permit will be issued if, in the
judgment of the Secretary of the Army acting through the Chief
of Engineers, after consultation with the Secretary of the
department in which the Coast Guard is operating, anchorage and
navigation of any of the navigable waters would be
substantially impaired thereby;
(7) To abate violations of the permit or the permit program,
including civil and criminal penalties and other ways and means
of enforcement;
(8) To insure that any permit for a discharge from a publicly
owned treatment works includes conditions to require the
identification in terms of character and volume of pollutants
of any significant source introducing pollutants subject to
pretreatment standards under section 307(b) of this Act into
such works and a program to assure compliance with such
pretreatment standards by each such source, in addition to
adequate notice to the permitting agency of (A) new
introductions into such works of pollutants from any source
which would be a new source as defined in section 306 if such
source were discharging pollutants, (B) new introductions of
pollutants into such works from a source which would be subject
to section 301 if it were discharging such pollutants, or (C) a
substantial change in volume or character of pollutants being
introduced into such works by a source introducing pollutants
into such works at the time of issuance of the permit. Such
notice shall include information on the quality and quantity of
effluent to be introduced into such treatment works and any
anticipated impact of such change in the quantity or quality of
effluent to be discharged from such publicly owned treatment
works; and
(9) To insure that any industrial user of any publicly owned
treatment works will comply with sections 204(b), 307, and 308.
(c)(1) Not later than ninety days after the date on which a
State has submitted a program (or revision thereof) pursuant to
subsection (b) of this section, the Administrator shall suspend
the issuance of permits under subsection (a) of this section as
to those discharges subject to such program unless he
determines that the State permit program does not meet the
requirements of subsection (b) of this section or does not
conform to the guidelines issued under section 304(i)(2) of
this Act. If the Administrator so determines, he shall notify
the State of any revisions or modifications necessary to
conform to such requirements or guidelines.
(2) Any State permit program under this section shall at all
times be in accordance with this section and guidelines
promulgated pursuant to section 304(i)(2) of this Act.
(3) Whenever the Administrator determines after public
hearing that a State is not administering a program approved
under this section in accordance with requirements of this
section, he shall so notify the State and, if appropriate
corrective action is not taken within a reasonable time, not to
exceed ninety days, the Administrator shall withdraw approval
of such program. The Administrator shall not withdraw approval
of any such program unless he shall first have notified the
State, and made public, in writing, the reasons for such
withdrawal.
(4) Limitations on partial permit program returns and
withdrawals.--A State may return to the Administrator
administration, and the Administrator may withdraw
under paragraph (3) of this subsection approval, of--
(A) a State partial permit program approved
under subsection (n)(3) only if the entire
permit program being administered by the State
department or agency at the time is returned or
withdrawn; and
(B) a State partial permit program approved
under subsection (n)(4) only if an entire
phased component of the permit program being
administered by the State at the time is
returned or withdrawn.
(d)(1) Each State shall transmit to the Administrator a copy
of each permit application received by such State and provide
notice to the Administrator of every action related to the
consideration of such permit application, including each permit
proposed to be issued by such State.
(2) No permit shall issue (A) if the Administrator within
ninety days of the date of his notification under subsection
(b)(5) of this section objects in writing to the issuance of
such permit, or (B) if the Administrator within ninety days of
the date of transmittal of the proposed permit by the State
objects in writing to the issuance of such permit as being
outside the guidelines and requirements of this Act. Whenever
the Administrator objects to the issuance of a permit under
this paragraph such written objection shall contain a statement
of the reasons for such objection and the effluent limitations
and conditions which such permit would include if it were
issued by the Administrator.
(3) The Administrator may, as to any permit application,
waive paragraph (2) of this subsection.
(4) In any case where, after the date of enactment of this
paragraph, the Administrator, pursuant to paragraph (2) of this
subsection, objects to the issuance of a permit, on request of
the State, a public hearing shall be held by the Administrator
on such objection. If the State does not resubmit such permit
revised to meet such objection within 30 days after completion
of the hearing, or, if no hearing is requested within 90 days
after the date of such objection, the Administrator may issue
the permit pursuant to subsection (a) of this section for such
source in accordance with the guidelines and requirements of
this Act.
(e) In accordance with guidelines promulgated pursuant to
subsection (i)(2) of section 304 of this Act, the Administrator
is authorized to waive the requirements of subsection (d) of
this section at the time he approves a program pursuant to
subsection (b) of this section for any category (including any
class, type, or size within such category) of point sources
within the State submitting such program.
(f) The Administrator shall promulgate regulations
establishing categories of point sources which he determines
shall not be subject to the requirements of subsection (d) of
this section in any State with a program approved pursuant to
subsection (b) of this section. The Administrator may
distinguish among classes, types, and sizes within any category
of point sources.
(g) Any permit issued under this section for the discharge of
pollutants into the navigable waters from a vessel or other
floating craft shall be subject to any applicable regulations
promulgated by the Secretary of the Department in which the
Coast Guard is operating, establishing specifications for safe
transportation, handling, carriage, storage, and stowage of
pollutants.
(h) In the event any condition of a permit for discharges
from a treatment works (as defined in section 212 of this Act)
which is publicly owned is violated, a State with a program
approved under subsection (b) of this section or the
Administrator, where no State program is approved or where the
Administrator determines pursuant to section 309(a) of this Act
that a State with an approved program has not commenced
appropriate enforcement action with respect to such permit, may
proceed in a court of competent jurisdiction to restrict or
prohibit the introduction of any pollutant into such treatment
works by a source not utilizing such treatment works prior to
the finding that such condition was violated.
(i) Nothing in this section shall be construed to limit the
authority of the Administrator to take action pursuant to
section 309 of this Act.
(j) A copy of each permit application and each permit issued
under this section shall be available to the public. Such
permit application or permit, or portion thereof, shall further
be available on request for the purpose of reproduction.
[(k) Compliance with] (k) Compliance With Permits._
(1) In general._Subject to paragraph (2), compliance
with a permit issued pursuant to this section shall be
deemed compliance, for purposes of sections 309 and
505, with sections 301, 302, 306, 307, and 403, except
any standard imposed under section 307 for a toxic
pollutant injurious to human health. Until December 31,
1974, in any case where a permit for discharge has been
applied for pursuant to this section, but final
administrative disposition of such application has not
been made, such discharge shall not be a violation of
(1) section 301, 306, or 402 of this Act, or (2)
section 13 of the Act of March 3, 1899, unless the
Administrator or other plaintiff proves that final
administrative disposition of such application has not
been made because of the failure of the applicant to
furnish information reasonably required or requested in
order to process the application. For the 180-day
period beginning on the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972,
in the case of any point source discharging any
pollutant or combination of pollutants immediately
prior to such date of enactment which source is not
subject to section 13 of the Act of March 3, 1899, the
discharge by such source shall not be a violation of
this Act if such a source applies for a permit for
discharge pursuant to this section within such 180-day
period.
(2) Scope.--For purposes of paragraph (1), compliance
with the conditions of a permit issued under this
section shall be considered compliance with respect to
a discharge of--
(A) any pollutant for which an effluent
limitation is included in the permit; and
(B) any pollutant for which an effluent
limitation is not included in the permit that
is--
(i) specifically identified as
controlled or monitored through
indicator parameters in the permit, the
fact sheet for the permit, or the
administrative record relating to the
permit;
(ii) specifically identified during
the permit application process as
present in discharges to which the
permit will apply; or
(iii) whether or not specifically
identified in the permit or during the
permit application process--
(I) present in any waste
streams or processes of the
point source to which the
permit applies, which waste
streams or processes are
specifically identified during
the permit application process;
or
(II) otherwise within the
scope of any operations of the
point source to which the
permit applies, which scope of
operations is specifically
identified during the permit
application process.
(l) Limitation on Permit Requirement.--
(1) Agricultural return flows.--The Administrator
shall not require a permit under this section for
discharges composed entirely of return flows from
irrigated agriculture, nor shall the Administrator
directly or indirectly, require any State to require
such a permit.
(2) Stormwater runoff from oil, gas, and mining
operations.--The Administrator shall not require a
permit under this section, nor shall the Administrator
directly or indirectly require any State to require a
permit, for discharges of stormwater runoff from mining
operations or oil and gas exploration, production,
processing, or treatment operations or transmission
facilities, composed entirely of flows which are from
conveyances or systems of conveyances (including but
not limited to pipes, conduits, ditches, and channels)
used for collecting and conveying precipitation runoff
and which are not contaminated by contact with, or do
not come into contact with, any overburden, raw
material, intermediate products, finished product,
byproduct, or waste products located on the site of
such operations.
(3) Silvicultural activities.--
(A) NPDES permit requirements for
silvicultural activities.--The Administrator
shall not require a permit under this section
nor directly or indirectly require any State to
require a permit under this section [for a
discharge from] for--
(i) a discharge from runoff
resulting from the conduct of the
following silviculture activities
conducted in accordance with standard
industry practice: nursery operations,
site preparation, reforestation and
subsequent cultural treatment,
thinning, prescribed burning, pest and
fire control, harvesting operations,
surface drainage, or road construction
and maintenance[.]; or
(ii) a discharge resulting from the
aerial application of a product used
for fire control and suppression
purposes that appears on the most
current Forest Service Qualified
Products List (or any successor list).
(B) Other requirements.--Nothing in this
paragraph exempts a discharge from
silvicultural activity from any permitting
requirement under section 404, existing
permitting requirements under section 402, or
from any other federal law.
(C) The authorization provided in Section
505(a) does not apply to any non-permitting
program established under 402(p)(6) for the
silviculture activities listed in 402(l)(3)(A),
or to any other limitations that might be
deemed to apply to the silviculture activities
listed in 402(l)(3)(A).
(4) Agricultural stormwater discharge.--
(A) In general.--The Administrator shall not
require a permit, nor directly or indirectly
require any State to require a permit, under
this section for discharges of stormwater,
including from subsurface drainage, from
agricultural land that occur in direct response
to a precipitation event.
(B) Agricultural land defined.--In this
paragraph, the term ``agricultural land''
includes--
(i) land on which an agricultural
input (such as manure and other crop
nutrients, crop protection, or seed) is
applied;
(ii) land on which animals (including
fish and shellfish), crops (including
fruit and nut trees), crop residue,
plants, seed, or vegetation are present
for purposes of farming or ranching;
and
(iii) land that is--
(I) immediately adjacent to,
and functionally related to,
land described in clause (i) or
(ii); and
(II) necessary to support
agricultural production, soil
conservation, flood control, or
water quality.
(m) Additional Pretreatment of Conventional Pollutants Not
Required.--To the extent a treatment works (as defined in
section 212 of this Act) which is publicly owned is not meeting
the requirements of a permit issued under this section for such
treatment works as a result of inadequate design or operation
of such treatment works, the Administrator, in issuing a permit
under this section, shall not require pretreatment by a person
introducing conventional pollutants identified pursuant to a
section 304(a)(4) of this Act into such treatment works other
than pretreatment required to assure compliance with
pretreatment standards under subsection (b)(8) of this section
and section 307(b)(1) of this Act. Nothing in this subsection
shall affect the Administrator's authority under sections 307
and 309 of this Act, affect State and local authority under
sections 307(b)(4) and 510 of this Act, relieve such treatment
works of its obligations to meet requirements established under
this Act, or otherwise preclude such works from pursuing
whatever feasible options are available to meet its
responsibility to comply with its permit under this section.
(n) Partial Permit Program.--
(1) State submission.--The Governor of a State may
submit under subsection (b) of this section a permit
program for a portion of the discharges into the
navigable waters in such State.
(2) Minimum coverage.--A partial permit program under
this subsection shall cover, at a minimum,
administration of a major category of the discharges
into the navigable waters of the State or a major
component of the permit program required by subsection
(b).
(3) Approval of major category partial permit
programs.--The Administrator may approve a partial
permit program covering administration of a major
category of discharges under this subsection if--
(A) such program represents a complete permit
program and covers all of the discharges under
the jurisdiction of a department or agency of
the State; and
(B) the Administrator determines that the
partial program represents a significant and
identifiable part of the State program required
by subsection (b).
(4) Approval of major component partial permit
programs.--The Administrator may approve under this
subsection a partial and phased permit program covering
administration of a major component (including
discharge categories) of a State permit program
required by subsection (b) if--
(A) the Administrator determines that the
partial program represents a significant and
identifiable part of the State program required
by subsection (b); and
(B) the State submits, and the Administrator
approves, a plan for the State to assume
administration by phases of the remainder of
the State program required by subsection (b) by
a specified date not more than 5 years after
submission of the partial program under this
subsection and agrees to make all reasonable
efforts to assume such administration by such
date.
(o) Anti-Backsliding.--
(1) General prohibition.--In the case of effluent
limitations established on the basis of subsection
(a)(1)(B) of this section, a permit may not be renewed,
reissued, or modified on the basis of effluent
guidelines promulgated under section 304(b) subsequent
to the original issuance of such permit, to contain
effluent limitations which are less stringent than the
comparable effluent limitations in the previous permit.
In the case of effluent limitations established on the
basis of section 301(b)(1)(C) or section 303(d) or (e),
a permit may not be renewed, reissued, or modified to
contain effluent limitations which are less stringent
than the comparable effluent limitations in the
previous permit except in compliance with section
303(d)(4).
(2) Exceptions.--A permit with respect to which
paragraph (1) applies may be renewed, reissued, or
modified to contain a less stringent effluent
limitation applicable to a pollutant if--
(A) material and substantial alterations or
additions to the permitted facility occurred
after permit issuance which justify the
application of a less stringent effluent
limitation;
(B)(i) information is available which was not
available at the time of permit issuance (other
than revised regulations, guidance, or test
methods) and which would have justified the
application of a less stringent effluent
limitation at the time of permit issuance; or
(ii) the Administrator determines that
technical mistakes or mistaken interpretations
of law were made in issuing the permit under
subsection (a)(1)(B);
(C) a less stringent effluent limitation is
necessary because of events over which the
permittee has no control and for which there is
no reasonably available remedy;
(D) the permittee has received a permit
modification under section 301(c), 301(g),
301(h), 301(i), 301(k), 301(n), or 316(a); or
(E) the permittee has installed the treatment
facilities required to meet the effluent
limitations in the previous permit and has
properly operated and maintained the facilities
but has nevertheless been unable to achieve the
previous effluent limitations, in which case
the limitations in the reviewed, reissued, or
modified permit may reflect the level of
pollutant control actually achieved (but shall
not be less stringent than required by effluent
guidelines in effect at the time of permit
renewal, reissuance, or modification).
Subparagraph (B) shall not apply to any revised waste
load allocations or any alternative grounds for
translating water quality standards into effluent
limitations, except where the cumulative effect of such
revised allocations results in a decrease in the amount
of pollutants discharged into the concerned waters, and
such revised allocations are not the result of a
discharger eliminating or substantially reducing its
discharge of pollutants due to complying with the
requirements of this Act or for reasons otherwise
unrelated to water quality.
(3) Limitations.--In no event may a permit with
respect to which paragraph (1) applies be renewed,
reissued, or modified to contain an effluent limitation
which is less stringent than required by effluent
guidelines in effect at the time the permit is renewed,
reissued, or modified. In no event may such a permit to
discharge into waters be renewed, reissued, or modified
to contain a less stringent effluent limitation if the
implementation of such limitation would result in a
violation of a water quality standard under section 303
applicable to such waters.
(p) Municipal and Industrial Stormwater Discharges.--
(1) General rule.--Prior to October 1, 1994, the
Administrator or the State (in the case of a permit
program approved under section 402 of this Act) shall
not require a permit under this section for discharges
composed entirely of stormwater.
(2) Exceptions.--Paragraph (1) shall not apply with
respect to the following stormwater discharges:
(A) A discharge with respect to which a
permit has been issued under this section
before the date of the enactment of this
subsection.
(B) A discharge associated with industrial
activity.
(C) A discharge from a municipal separate
storm sewer system serving a population of
250,000 or more.
(D) A discharge from a municipal separate
storm sewer system serving a population of
100,000 or more but less than 250,000.
(E) A discharge for which the Administrator
or the State, as the case may be, determines
that the stormwater discharge contributes to a
violation of a water quality standard or is a
significant contributor of pollutants to waters
of the United States.
(3) Permit requirements.--
(A) Industrial discharges.--Permits for
discharges associated with industrial activity
shall meet all applicable provisions of this
section and section 301.
(B) Municipal discharge.--Permits for
discharges from municipal storm sewers--
(i) may be issued on a system- or
jurisdiction-wide basis;
(ii) shall include a requirement to
effectively prohibit non-stormwater
discharges into the storm sewers; and
(iii) shall require controls to
reduce the discharge of pollutants to
the maximum extent practicable,
including management practices, control
techniques and system, design and
engineering methods, and such other
provisions as the Administrator or the
State determines appropriate for the
control of such pollutants.
(4) Permit application requirements.--
(A) Industrial and large municipal
discharges.--Not later than 2 years after the
date of the enactment of this subsection, the
Administrator shall establish regulations
setting forth the permit application
requirements for stormwater discharges
described in paragraphs (2)(B) and (2)(C).
Applications for permits for such discharges
shall be filed no later than 3 years after such
date of enactment. Not later than 4 years after
such date of enactment the Administrator or the
State, as the case may be, shall issue or deny
each such permit. Any such permit shall provide
for compliance as expeditiously as practicable,
but in no event later than 3 years after the
date of issuance of such permit.
(B) Other municipal discharges.--Not later
than 4 years after the date of the enactment of
this subsection, the Administrator shall
establish regulations setting forth the permit
application requirements for stormwater
discharges described in paragraph (2)(D).
Applications for permits for such discharges
shall be filed no later than 5 years after such
date of enactment. Not later than 6 years after
such date of enactment, the Administrator or
the State, as the case may be, shall issue or
deny each such permit. Any such permit shall
provide for compliance as expeditiously as
practicable, but in no event later than 3 years
after the date of issuance of such permit.
(5) Studies.--The Administrator, in consultation with
the States, shall conduct a study for the purposes of--
(A) identifying those stormwater discharges
or classes of stormwater discharges for which
permits are not required pursuant to paragraphs
(1) and (2) of this subsection;
(B) determining, to the maximum extent
practicable, the nature and extent of
pollutants in such discharges; and
(C) establishing procedures and methods to
control stormwater discharges to the extent
necessary to mitigate impacts on water quality.
Not later than October 1, 1988, the Administrator shall
submit to Congress a report on the results of the study
described in subparagraphs (A) and (B). Not later than
October 1, 1989, the Administrator shall submit to
Congress a report on the results of the study described
in subparagraph (C).
(6) Regulations.--Not later than October 1, 1993, the
Administrator, in consultation with State and local
officials, shall issue regulations (based on the
results of the studies conducted under paragraph (5))
which designate stormwater discharges, other than those
discharges described in paragraph (2), to be regulated
to protect water quality and shall establish a
comprehensive program to regulate such designated
sources. The program shall, at a minimum, (A) establish
priorities, (B) establish requirements for State
stormwater management programs, and (C) establish
expeditious deadlines. The program may include
performance standards, guidelines, guidance, and
management practices and treatment requirements, as
appropriate.
(q) Combined Sewer Overflows.--
(1) Requirement for permits, orders, and decrees.--
Each permit, order, or decree issued pursuant to this
Act after the date of enactment of this subsection for
a discharge from a municipal combined storm and
sanitary sewer shall conform to the Combined Sewer
Overflow Control Policy signed by the Administrator on
April 11, 1994 (in this subsection referred to as the
``CSO control policy'').
(2) Water quality and designated use review
guidance.--Not later than July 31, 2001, and after
providing notice and opportunity for public comment,
the Administrator shall issue guidance to facilitate
the conduct of water quality and designated use reviews
for municipal combined sewer overflow receiving waters.
(3) Report.--Not later than September 1, 2001, the
Administrator shall transmit to Congress a report on
the progress made by the Environmental Protection
Agency, States, and municipalities in implementing and
enforcing the CSO control policy.
(r) Discharges Incidental to the Normal Operation of
Recreational Vessels.--No permit shall be required under this
Act by the Administrator (or a State, in the case of a permit
program approved under subsection (b)) for the discharge of any
graywater, bilge water, cooling water, weather deck runoff, oil
water separator effluent, or effluent from properly functioning
marine engines, or any other discharge that is incidental to
the normal operation of a vessel, if the discharge is from a
recreational vessel.
(s) Integrated Plans.--
(1) Definition of integrated plan.--In this
subsection, the term ``integrated plan'' means a plan
developed in accordance with the Integrated Municipal
Stormwater and Wastewater Planning Approach Framework,
issued by the Environmental Protection Agency and dated
June 5, 2012.
(2) In general.--The Administrator (or a State, in
the case of a permit program approved by the
Administrator) shall inform municipalities of the
opportunity to develop an integrated plan that may be
incorporated into a permit under this section.
(3) Scope.--
(A) Scope of permit incorporating integrated
plan.--A permit issued under this section that
incorporates an integrated plan may integrate
all requirements under this Act addressed in
the integrated plan, including requirements
relating to--
(i) a combined sewer overflow;
(ii) a capacity, management,
operation, and maintenance program for
sanitary sewer collection systems;
(iii) a municipal stormwater
discharge;
(iv) a municipal wastewater
discharge; and
(v) a water quality-based effluent
limitation to implement an applicable
wasteload allocation in a total maximum
daily load.
(B) Inclusions in integrated plan.--An
integrated plan incorporated into a permit
issued under this section may include the
implementation of--
(i) projects, including innovative
projects, to reclaim, recycle, or reuse
water; and
(ii) green infrastructure.
(4) Compliance schedules.--
(A) In general.--A permit issued under this
section that incorporates an integrated plan
may include a schedule of compliance, under
which actions taken to meet any applicable
water quality-based effluent limitation may be
implemented over more than 1 permit term if the
schedule of compliance--
(i) is authorized by State water
quality standards; and
(ii) meets the requirements of
section 122.47 of title 40, Code of
Federal Regulations (as in effect on
the date of enactment of this
subsection).
(B) Time for compliance.--For purposes of
subparagraph (A)(ii), the requirement of
section 122.47 of title 40, Code of Federal
Regulations, for compliance by an applicable
statutory deadline under this Act does not
prohibit implementation of an applicable water
quality-based effluent limitation over more
than 1 permit term.
(C) Review.--A schedule of compliance
incorporated into a permit issued under this
section may be reviewed at the time the permit
is renewed to determine whether the schedule
should be modified.
(5) Existing authorities retained.--
(A) Applicable standards.--Nothing in this
subsection modifies any obligation to comply
with applicable technology and water quality-
based effluent limitations under this Act.
(B) Flexibility.--Nothing in this subsection
reduces or eliminates any flexibility available
under this Act, including the authority of a
State to revise a water quality standard after
a use attainability analysis under section
131.10(g) of title 40, Code of Federal
Regulations (or a successor regulation),
subject to the approval of the Administrator
under section 303(c).
(6) Clarification of state authority.--
(A) In general.--Nothing in section
301(b)(1)(C) precludes a State from authorizing
in the water quality standards of the State the
issuance of a schedule of compliance to meet
water quality-based effluent limitations in
permits that incorporate provisions of an
integrated plan.
(B) Transition rule.--In any case in which a
discharge is subject to a judicial order or
consent decree, as of the date of enactment of
this subsection, resolving an enforcement
action under this Act, any schedule of
compliance issued pursuant to an authorization
in a State water quality standard may not
revise a schedule of compliance in that order
or decree to be less stringent, unless the
order or decree is modified by agreement of the
parties and the court.
(t) Expression of Water Quality-Based Effluent Limitations.--
If the Administrator (or a State, in the case of a permit
program approved by the Administrator) determines that a water
quality-based limitation on a discharge of a pollutant is
necessary to include in a permit under this section in addition
to any appropriate technology-based effluent limitations
included in such permit, the Administrator (or the State) may
include such water quality-based limitation in such permit only
in the form of a limitation that--
(1) specifies the pollutant to which it applies; and
(2) clearly describes the manner in which compliance
with the limitation may be achieved, which shall
include--
(A) a numerical limit on the discharge of
such pollutant;
(B) a narrative description of required
actions to be applied to the discharge
(including any measures or practices required
to be applied); or
(C) a narrative description of a limitation
on the discharge that specifies the level of
control to be applied.
(u) Discharges of Pesticides.--
(1) No permit requirement.--Except as provided in
paragraph (2), a permit shall not be required by the
Administrator or a State under this Act for a discharge
from a point source into navigable waters of a
pesticide authorized for sale, distribution, or use
under the Federal Insecticide, Fungicide, and
Rodenticide Act, or the residue of such a pesticide,
resulting from the application of such pesticide.
(2) Exceptions.--Paragraph (1) shall not apply to the
following discharges of a pesticide or pesticide
residue:
(A) A discharge resulting from the
application of a pesticide in violation of a
provision of the Federal Insecticide,
Fungicide, and Rodenticide Act that is relevant
to protecting water quality, if--
(i) the discharge would not have
occurred but for the violation; or
(ii) the amount of pesticide or
pesticide residue in the discharge is
greater than would have occurred
without the violation.
(B) Stormwater discharges subject to
regulation under subsection (p).
(C) The following discharges subject to
regulation under this section:
(i) Manufacturing or industrial
effluent.
(ii) Treatment works effluent.
(iii) Discharges incidental to the
normal operation of a vessel, including
a discharge resulting from ballasting
operations or vessel biofouling
prevention.
* * * * * * *
permits for dredged or fill material
Sec. 404. (a) The Secretary may issue permits, after notice
and opportunity for public hearings for the discharge of
dredged or fill material into the navigable waters at specified
disposal sites. Not later than the fifteenth day after the date
an applicant submits all the information required to complete
an application for a permit under this subsection, the
Secretary shall publish the notice required by this subsection.
(b) Subject to subsection (c) of this section, each such
disposal site shall be specified for each such permit by the
Secretary (1) through the application of guidelines developed
by the Administrator, in conjunction with the Secretary, which
guidelines shall be based upon criteria comparable to the
criteria applicable to the territorial seas, the contiguous
zone, and the ocean under section 403(c), and (2) in any case
where such guidelines under clause (1) alone would prohibit the
specification of a site, through the application additionally
of the economic impact of the site on navigation and anchorage.
[(c) The Administrator] (c) Specification or Use of Defined
Area._
(1) In general._The Administrator is authorized to
prohibit the specification (including the withdrawal of
specification) of any defined area as a disposal site,
and he is authorized to deny or restrict the use of any
defined area for specification (including the
withdrawal of specification) as a disposal site,
whenever he determines, during the period described in
paragraph (2) and after notice and opportunity for
public hearings, that the discharge of such materials
into such area will have an unacceptable adverse effect
on municipal water supplies, shellfish beds and fishery
areas (including spawning and breeding areas),
wildlife, or recreational areas. Before making such
determination, the Administrator shall consult with the
Secretary. The Administrator shall set forth in writing
and make public his findings and his reasons for making
any determination under this subsection.
(2) Period of prohibition.--The period during which
the Administrator may prohibit the specification
(including the withdrawal of specification) of any
defined area as a disposal site, or deny or restrict
the use of any defined area for specification
(including the withdrawal of specification) as a
disposal site, under paragraph (1) shall--
(A) begin on the date on which an applicant
submits all the information required to
complete an application for a permit under this
section; and
(B) end on the date on which the Secretary
issues the permit.
(d) The term ``Secretary'' as used in this section means the
Secretary of the Army, acting through the Chief of Engineers.
[(e)(1) In carrying] (e) General Permits._
(1) Permits authorized._In carrying out his
functions relating to the discharge of dredged or fill
material under this section, the Secretary may, after
notice and opportunity for public hearing, issue
general permits on a State, regional, or nationwide
basis for any category of activities involving
discharges of dredged or fill material if the Secretary
determines that the activities in such category are
similar in nature, will cause only minimal adverse
environmental effects when performed separately, and
will have only minimal cumulative adverse effect on the
environment. Any general permit issued under this
subsection shall (A) be based on the guidelines
described in subsection (b)(1) of this section, and (B)
set forth the requirements and standards which shall
apply to any activity authorized by such general
permit.
[(2) No general]
(2) Term._No general permit issued under this
subsection shall be for a period of more than [five
years] ten years after the date of its issuance and
such general permit may be revoked or modified by the
Secretary if, after opportunity for public hearing, the
Secretary determines that the activities authorized by
such general permit have an adverse impact on the
environment or such activities are more appropriately
authorized by individual permits.
(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 such activity;
(B) shall consider any effects of a discharge
of dredged or fill material into less 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) Nationwide permits for linear projects.--
(A) In general.--Notwithstanding any other
provision of this section, the Secretary shall
maintain general permits on a nationwide basis
for--
(i) linear infrastructure projects
that result in a discharge of dredged
or fill material into less than 3 acres
of navigable waters for each single and
complete project; and
(ii) linear pipeline projects that do
not result in the loss of navigable
waters in an amount that is greater
than 0.5 acres for each single and
complete project.
(B) Definitions.--In this paragraph:
(i) Linear infrastructure project.--
The term ``linear infrastructure
project'' means a project to carry out
any activity required for the
construction, expansion, maintenance,
modification, or removal of
infrastructure and associated
facilities for the transmission from a
point of origin to a terminal point of
communications or electricity, or for
the transportation from a point of
origin to a terminal point of people,
water, or wastewater.
(ii) Linear pipeline project.--The
term ``linear pipeline project'' means
a project to carry out any activity
required for the construction,
expansion, maintenance, modification,
or removal of infrastructure and
associated facilities for the
transportation from a point of origin
to a terminal point of carbon dioxide,
fuel, or hydrocarbons, in the form of a
liquid, liquescent, gaseous, or slurry
substance or supercritical fluid,
including oil and gas pipeline
facilities.
(iii) Single and complete project.--
The term ``single and complete
project'' has the meaning given that
term in section 330.2 of title 33, Code
of Federal Regulations (as in effect on
the date of enactment of this
paragraph).
(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 such Act (16
U.S.C. 1536(a)(2)) is required; and
(C) the requirements of section 102(2)(C) of
the National Environmental Policy Act of 1969
(42 U.S.C. 4332(2)(C)) shall be satisfied by
preparing an environmental assessment with
respect to such general permit.
(f)(1) Except as provided in paragraph (2) of this
subsection, the discharge of dredged or fill material--
(A) from normal farming, silviculture, and ranching
activities such as plowing, seeding, cultivating, minor
drainage, harvesting for the production of food, fiber,
and forest products, or upland soil and water
conservation practices;
(B) for the purpose of maintenance, including
emergency reconstruction of recently damaged parts, of
currently serviceable structures such as dikes, dams,
levees, groins, riprap, breakwaters, causeways, and
bridge abutments or approaches, and transportation
structures;
(C) for the purpose of construction or maintenance of
farm or stock ponds or irrigation ditches, or the
maintenance of drainage ditches;
(D) for the purpose of construction of temporary
sedimentation basins on a construction site which does
not include placement of fill material into the
navigable waters;
(E) for the purpose of construction or maintenance of
farm roads or forest roads, or temporary roads for
moving mining equipment, where such roads are
constructed and maintained, in accordance with best
management practices, to assure that flow and
circulation patterns and chemical and biological
characteristics of the navigable waters are not
impaired, that the reach of the navigable waters is not
reduced, and that any adverse effect on the aquatic
environment will be otherwise minimized;
(F) resulting from any activity with respect to which
a State has an approved program under section 208(b)(4)
which meets the requirements of subparagraphs (B) and
(C) of such section,
is not prohibited by or otherwise subject to regulation under
this section or section 301(a) or 402 of this Act (except for
effluent standards or prohibitions under section 307).
(2) Any discharge of dredged or fill material into the
navigable waters incidental to any activity having as its
purpose bringing an area of the navigable waters into a use to
which it was not previously subject, where the flow or
circulation of navigable waters may be impaired or the reach of
such waters be reduced, shall be required to have a permit
under this section.
(g)(1) The Governor of any State desiring to administer its
own individual and general permit program for the discharge of
dredged or fill material into the navigable waters (other than
those waters which are presently used, or are susceptible to
use in their natural condition or by reasonable improvement as
a means to transport interstate or foreign commerce shoreward
to their ordinary high water mark, including all waters which
are subject to the ebb and flow of the tide shoreward to their
mean high water mark, or mean higher high water mark on the
west coast, including wetlands adjacent thereto) within its
jurisdiction may submit to the Administrator a full and
complete description of the program it proposes to establish
and administer under State law or under an interstate compact.
In addition, such State shall submit a statement from the
attorney general (or the attorney for those State agencies
which have independent legal counsel), or from the chief legal
officer in the case of an interstate agency, that the laws of
such State, or the interstate compact, as the case may be,
provide adequate authority to carry out the described program.
(2) Not later than the tenth day after the date of the
receipt of the program and statement submitted by any State
under paragraph (1) of this subsection, the Administrator shall
provide copies of such program and statement to the Secretary
and the Secretary of the Interior, acting through the Director
of the United States Fish and Wildlife Service.
(3) If the Administrator determines that additional
information is necessary for the description of a program
submitted by a State to be full and complete under paragraph
(1), the Administrator shall, not later than 45 days after the
date of the receipt of the program and statement submitted by
the State under such paragraph, submit to the State a written
request for all such information.
[(3)] (4) Not later than the ninetieth day after the date of
the receipt by the Administrator of the program and statement
submitted by any State, under paragraph (1) of this subsection,
the Secretary and the Secretary of the Interior, acting through
the Director of the United States Fish and Wildlife Service,
shall submit any comments with respect to such program and
statement to the Administrator in writing.
(h)(1) Not later than the one-hundred-twentieth day after the
date of the receipt by the Administrator of a program and
statement submitted by any State under [paragraph (1) of this
subsection] subsection (g)(1), the Administrator shall
determine, taking into account any comments submitted by the
Secretary and the Secretary of the Interior, acting through the
Director of the United States Fish and Wildlife Service,
pursuant to subsection (g) of this section, whether such State
has the following authority with respect to the issuance of
permits pursuant to such program:
(A) To issue permits which--
(i) apply, and assure compliance with, any
applicable requirements of this section,
including, but not limited to, the guidelines
established under subsection (b)(1) of this
section, and sections 307 and 403 of this Act;
(ii) are for fixed terms not exceeding five
years; and
(iii) can be terminated or modified for cause
including, but not limited to, the following:
(I) violation of any condition of the
permit;
(II) obtaining a permit by
misrepresentation, or failure to
disclose fully all relevant facts;
(III) change in any condition that
requires either a temporary or
permanent reduction or elimination of
the permitted discharge.
(B) To issue permits which apply, and assure
compliance with, all applicable requirements of section
308 of this Act, or to inspect, monitor, enter, and
require reports to at least the same extent as required
in section 308 of this Act.
(C) To assure that the public, and any other State
the waters of which may be affected, receive notice of
each application for a permit and to provide an
opportunity for public hearing before a ruling on each
such application.
(D) To assure that the Administrator receives notice
of each application (including a copy thereof) for a
permit.
(E) To assure that any State (other than the
permitting State), whose waters may be affected by the
issuance of a permit may submit written recommendations
to the permitting State (and the Administrator) with
respect to any permit application and, if any part of
such written recommendations are not accepted by the
permitting State, that the permitting State will notify
such affected State (and the Administrator) in writing
of its failure to so accept such recommendations
together with its reasons for so doing.
(F) To assure that no permit will be issued if, in
the judgment of the Secretary, after consultation with
the Secretary of the department in which the Coast
Guard is operating, anchorage and navigation of any of
the navigable waters would be substantially impaired
thereby.
(G) To abate violations of the permit or the permit
program, including civil and criminal penalties and
other ways and means of enforcement.
(H) To assure continued coordination with Federal and
Federal-State water-related planning and review
processes.
(2) If, with respect to a State program submitted under
subsection (g)(1) of this section, the Administrator determines
that such State--
(A) has the authority set forth in paragraph (1) of
this subsection, the Administrator shall approve the
program and so notify (i) such State and (ii) the
Secretary, who upon subsequent notification from such
State that it is administering such program, shall
suspend the issuance of permits under subsection (a)
and (e) of this section for activities with respect to
which a permit may be issued pursuant to such State
program; or
(B) does not have the authority set forth in
paragraph (1) of this subsection, the Administrator
shall so notify such State, which notification shall
also describe the revisions or modifications necessary
so that such State may resubmit such program for a
determination by the Administrator under this
subsection.
(3) If the Administrator fails to make a determination with
respect to any program submitted by a State under subsection
(g)(1) of this section within one-hundred-twenty days after the
date of the receipt of such program, such program shall be
deemed approved pursuant to paragraph (2)(A) of this subsection
and the Administrator shall so notify such State and the
Secretary who, upon subsequent notification from such State
that it is administering such program, shall suspend the
issuance of permits under subsection (a) and (e) of this
section for activities with respect to which a permit may be
issued by such State.
(4) After the Secretary receives notification from the
Administrator under paragraph (2) or (3) of this subsection
that a State permit program has been approved, the Secretary
shall transfer any applications for permits pending before the
Secretary for activities with respect to which a permit may be
issued pursuant to such State program to such State for
appropriate action.
(5) Upon notification from a State with a permit program
approved under this subsection that such State intends to
administer and enforce the terms and conditions of a general
permit issued by the Secretary under subsection (e) of this
section with respect to activities in such State to which such
general permit applies, the Secretary shall suspend the
administration and enforcement of such general permit with
respect to such activities.
(i) Whenever the Administrator determines after public
hearing that a State is not administering a program approved
under section (h)(2)(A) of this section, in accordance with
this section, including, but not limited to, the guidelines
established under subsection (b)(1) of this section, the
Administrator shall so notify the State, and, if appropriate
corrective action is not taken within a reasonable time, not to
exceed ninety days after the date of the receipt of such
notification, the Administrator shall (1) withdraw approval of
such program until the Administrator determines such corrective
action has been taken, and (2) notify the Secretary that the
Secretary shall resume the program for the issuance of permits
under subsections (a) and (e) of this section for activities
with respect to which the State was issuing permits and that
such authority of the Secretary shall continue in effect until
such time as the Administrator makes the determination
described in clause (1) of this subsection and such State again
has an approved program.
(j) Each State which is administering a permit program
pursuant to this section shall transmit to the Administrator
(1) a copy of each permit application received by such State
and provide notice to the Administrator of every action related
to the consideration of such permit application, including each
permit proposed to be issued by such State, and (2) a copy of
each proposed general permit which such State intends to issue.
Not later than the tenth day after the date of the receipt of
such permit application or such proposed general permit, the
Administrator shall provide copies of such permit application
or such proposed general permit to the Secretary and the
Secretary of the Interior, acting through the Director of the
United States Fish and Wildlife Service. If the Administrator
intends to provide written comments to such State with respect
to such permit application or such proposed general permit, he
shall so notify such State not later than the thirtieth day
after the date of the receipt of such application or such
proposed general permit and provide such written comments to
such State, after consideration of any comments made in writing
with respect to such application or such proposed general
permit by the Secretary and the Secretary of the Interior,
acting through the Director of the United States Fish and
Wildlife Service, not later than the ninetieth day after the
date of such receipt. If such State is so notified by the
Administrator, it shall not issue the proposed permit until
after the receipt of such comments from the Administrator, or
after such ninetieth day, whichever first occurs. Such State
shall not issue such proposed permit after such ninetieth day
if it has received such written comments in which the
Administrator objects (A) to the issuance of such proposed
permit and such proposed permit is one that has been submitted
to the Administrator pursuant to subsection (h)(1)(E), or (B)
to the issuance of such proposed permit as being outside the
requirements of this section, including, but not limited to,
the guidelines developed under subsection (b)(1) of this
section unless it modifies such proposed permit in accordance
with such comments. Whenever the Administrator objects to the
issuance of a permit under the preceding sentence such written
objection shall contain a statement of the reasons for such
objection and the conditions which such permit would include if
it were issued by the Administrator. In any case where the
Administrator objects to the issuance of a permit, on request
of the State, a public hearing shall be held by the
Administrator on such objection. If the State does not resubmit
such permit revised to meet such objection within 30 days after
completion of the hearing or, if no hearing is requested within
90 days after the date of such objection, the Secretary may
issue the permit pursuant to subsection (a) or (e) of this
section, as the case may be, for such source in accordance with
the guidelines and requirements of this Act.
(k) In accordance with guidelines promulgated pursuant to
subsection (i)(2) of section 304 of this Act, the Administrator
is authorized to waive the requirements of subsection (j) of
this section at the time of the approval of a program pursuant
to subsection (h)(2)(A) of this section for any category
(including any class, type, or size within such category) of
discharge within the State submitting such program.
(l) The Administrator shall promulgate regulations
establishing categories of discharges which he determines shall
not be subject to the requirements of subsection (j) of this
section in any State with a program approved pursuant to
subsection (h)(2)(A) of this section. The Administrator may
distinguish among classes, types, and sizes within any category
of discharges.
(m) Not later than the ninetieth day after the date on which
the Secretary notifies the Secretary of the Interior, acting
through the Director of the United States Fish and Wildlife
Service that (1) an application for a permit under subsection
(a) of this section has been received by the Secretary, or (2)
the Secretary proposes to issue a general permit under
subsection (e) of this section, the Secretary of the Interior,
acting through the Director of the United States Fish and
Wildlife Service, shall submit any comments with respect to
such application or such proposed general permit in writing to
the Secretary.
(n) Nothing in this section shall be construed to limit the
authority of the Administrator to take action pursuant to
section 309 of this Act.
(o) A copy of each permit application and each permit issued
under this section shall be available to the public. Such
permit application or portion thereof, shall further be
available on request for the purpose of reproduction.
(p) Compliance with a permit issued pursuant to this section,
including any activity carried out pursuant to a general permit
issued under this section, shall be deemed compliance, for
purposes of sections 309 and 505, with sections 301, 307, and
403.
(q) Not later than the one-hundred-eightieth day after the
date of enactment of this subsection, the Secretary shall enter
into agreements with the Administrator, the Secretaries of the
Departments of Agriculture, Commerce, Interior, and
Transportation, and the heads of other appropriate Federal
agencies to minimize, to the maximum extent practicable,
duplication, needless paperwork, and delays in the issuance of
permits under this section. Such agreements shall be developed
to assure that, to the maximum extent practicable, a decision
with respect to an application for a permit under subsection
(a) of this section will be made not later than the ninetieth
day after the date the notice of such application is published
under subsection (a) of this section.
(r) The discharge of dredged or fill material as part of the
construction of a Federal project specifically authorized by
Congress, whether prior to or on or after the date of enactment
of this subsection, is not prohibited by or otherwise subject
to regulation under this section, or a State program approved
under this section, or section 301(a) or 402 of the Act (except
for effluent standards or prohibitions under section 307), if
information on the effects of such discharge, including
consideration of the guidelines developed under subsection
(b)(1) of this section, is included in an environmental impact
statement for such project pursuant to the National
Environmental Policy Act of 1969 and such environmental impact
statement has been submitted to Congress before the actual
discharge of dredged or fill material in connection with the
construction of such project and prior to either authorization
of such project or an appropriation of funds for such
construction.
(s)(1) Whenever on the basis of any information available to
him the Secretary finds that any person is in violation of any
condition or limitation set forth in a permit issued by the
Secretary under this section, the Secretary shall issue an
order requiring such persons to comply with such condition or
limitation, or the Secretary shall bring a civil action in
accordance with paragraph (3) of this subsection.
(2) A copy of any order issued under this subsection shall be
sent immediately by the Secretary to the State in which the
violation occurs and other affected States. Any order issued
under this subsection shall be by personal service and shall
state with reasonable specificity the nature of the violation,
specify a time for compliance, not to exceed thirty days, which
the Secretary determines is reasonable, taking into account the
seriousness of the violation and any good faith efforts to
comply with applicable requirements. In any case in which an
order under this subsection is issued to a corporation, a copy
of such order shall be served on any appropriate corporate
officers.
(3) The Secretary is authorized to commence a civil action
for appropriate relief, including a permanent or temporary
injunction for any violation for which he is authorized to
issue a compliance order under paragraph (1) of this
subsection. Any action under this paragraph may be brought in
the district court of the United States for the district in
which the defendant is located or resides or is doing business,
and such court shall have jurisdiction to restrain such
violation and to require compliance. Notice of the commencement
of such acton shall be given immediately to the appropriate
State.
(4) Any person who violates any condition or limitation in a
permit issued by the Secretary under this section, and any
person who violates any order issued by the Secretary under
paragraph (1) of this subsection, shall be subject to a civil
penalty not to exceed $25,000 per day for each violation. In
determining the amount of a civil penalty the court shall
consider the seriousness of the violation or violations, the
economic benefit (if any) resulting from the violation, any
history of such violations, any good-faith efforts to comply
with the applicable requirements, the economic impact of the
penalty on the violator, and such other matters as justice may
require.
(t) Judicial Review.--
(1) Statute of limitations.--Notwithstanding any
applicable provision of law relating to statutes of
limitations--
(A) an action seeking judicial review of the
approval by the Administrator of a State permit
program pursuant to this section shall be filed
not later than the date that is 60 days after
the date on which the approval was issued;
(B) an action seeking judicial review of an
individual permit 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; and
(C) an action seeking judicial review of a
verification that an activity involving a
discharge of dredged or fill material is
authorized by a general permit issued under
this section shall be filed not later than the
date that is 60 days after the date on which
such verification was issued.
(2) Limitation on commencement of certain actions.--
Notwithstanding any other provision of law, no action
described in subparagraph (A) or (B) of paragraph (1)
may be commenced unless the action--
(A) is filed by a party that submitted a
comment--
(i) during the public comment period
for the administrative proceedings
related to the action; and
(ii) which was sufficiently detailed
to put the Administrator, the
Secretary, or the State, as applicable,
on notice of the issue upon which the
party seeks judicial review; and
(B) is related to such comment.
(3) Remedies.--
(A) Actions relating to permit programs.--If
a court determines that the Administrator did
not comply with the requirements of this
section in issuing an approval of a State
permit program pursuant to this section--
(i) the court shall remand the matter
to the Administrator for further
proceedings consistent with the
determination of the court; and
(ii) the court may not vacate,
revoke, enjoin, or otherwise limit the
authority of the State to issue permits
under such State permit program.
(B) Actions relating to permits.--If a court
determines that the Secretary or the State, as
applicable, did not comply with the
requirements of this section in issuing an
individual or general permit under this
section, or in verifying that an activity
involving a discharge of dredged or fill
material is authorized by a general permit
issued under this section, as applicable--
(i) the court shall remand the matter
to the Secretary or the State, as
applicable, for further proceedings
consistent with the determination of
the court;
(ii) with respect to a determination
regarding the issuance of an individual
or general permit under this section,
the court may not vacate, revoke,
enjoin, or otherwise limit the permit,
unless the court finds that activities
authorized under the permit would
present an imminent and substantial
danger to human health or the
environment for which there is no other
equitable remedy available under the
law; and
(iii) with respect to a determination
regarding a verification that an
activity involving a discharge of
dredged or fill material is authorized
by a general permit issued under this
section, the court may not enjoin or
otherwise limit the discharge unless
the court finds that the activity would
present an imminent and substantial
danger to human health or the
environment for which there is no other
equitable remedy available under the
law.
(4) Timeline to act on court order.--If a court
remands a matter under paragraph (3), the court shall
set and enforce a reasonable schedule and deadline,
which may not exceed 180 days from the date on which
the court remands such matter, except as otherwise
required by law, for the Administrator, the Secretary,
or the State, as applicable, to take such actions as
the court may order.
[(t) Nothing in the section] (u) Savings Provision._Nothing
in this section shall preclude or deny the right of any State
or interstate agency to control the discharge of dredged or
fill material in any portion of the navigable waters within the
jurisdiction of such State, including any activity of any
Federal agency, and each such agency shall comply with such
State or interstate requirements both substantive and
procedural to control the discharge of dredged or fill material
to the same extent that any person is subject to such
requirements. This section shall not be construed as affecting
or impairing the authority of the Secretary to maintain
navigation.
* * * * * * *
TITLE V--GENERAL PROVISIONS
* * * * * * *
general definitions
Sec. 502. Except as otherwise specifically provided, when
used in this Act:
(1) The term ``State water pollution control agency'' means
the State agency designated by the Governor having
responsibility for enforcing State laws relating to the
abatement of pollution.
(2) The term ``interstate agency'' means an agency of two or
more States established by or pursuant to an agreement or
compact approved by the Congress, or any other agency of two or
more States, having substantial powers or duties pertaining to
the control of pollution as determined and approved by the
Administrator.
(3) The term ``State'' means a State, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, and the Trust Territory of the Pacific Islands.
(4) The term ``municipality'' means a city, town, borough,
county, parish, district, association, or other public body
created by or pursuant to State law and having jurisdiction
over disposal of sewage, industrial wastes, or other wastes, or
an Indian tribe or an authorized Indian tribal organization, or
a designated and approved management agency under section 208
of this Act.
(5) The term ``person'' means an individual, corporation,
partnership, association, State, municipality, commission, or
political subdivision of a State, or any interstate body.
(6) The term ``pollutant'' means dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials,
heat, wrecked or discarded equipment, rock, sand, cellar dirt
and industrial, municipal, and agricultural waste discharged
into water. This term does not mean (A) ``sewage from vessels
or a discharge incidental to the normal operation of a vessel
of the Armed Forces'' within the meaning of section 312 of this
Act; or (B) water, gas, or other material which is injected
into a well to facilitate production of oil or gas, or water
derived in association with oil or gas production and disposed
of in a well, if the well used either to facilitate production
or for disposal purposes is approved by authority of the State
in which the well is located, and if such State determines that
such injection or disposal will not result in the degradation
of ground or surface water resources.
[(7) The term]
(7) Navigable waters.--
(A) In general.--The term ``navigable
waters'' means the waters of the United States,
including the territorial seas.
(B) Exclusions.--The term ``navigable
waters'' does not include the following:
(i) Any component of a waste
treatment system, including any lagoon
or treatment pond (such as a settling
or cooling pond), designed to actively
or passively--
(I) convey or retain
wastewater; or
(II) concentrate, settle,
reduce, or remove pollutants
from wastewater.
(ii) Ephemeral features that flow
only in direct response to
precipitation.
(iii) Any area that--
(I) 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, as determined
by the Administrator and the
Secretary of the Army, acting
through the Chief of Engineers,
which determinations shall be
consistent with any
designations of prior converted
cropland made by the Secretary
of Agriculture; and
(II) as determined by the
Administrator--
(aa) at least once in
the immediately
preceding five years
has been used for, or
in support of,
agricultural purposes,
including grazing,
haying, idling land for
conservation use (such
as habitat management,
pollinator and wildlife
management, water
storage and supply
management, and flood
management), irrigation
tailwater storage,
farm-raised fish
production, cranberry
production, nutrient
retention, and idling
land for soil recovery
after natural disasters
such as hurricanes and
drought; and
(bb) has not reverted
to wetlands (as defined
in section 120.2 of
title 40, Code of
Federal Regulations, as
in effect on the date
of enactment of this
clause).
(iv) Groundwater.
(v) Any other features determined to
be excluded by the Administrator and
the Secretary of the Army, acting
through the Chief of Engineers.
(8) The term ``territorial seas'' means the belt of the seas
measured from the line of ordinary low water along that portion
of the coast which is in direct contact with the open sea and
the line marking the seaward limit of inland waters, and
extending seaward a distance of three miles.
(9) The term ``contiguous zone'' means the entire zone
established or to be established by the United States under
article 24 of the Convention of the Territorial Sea and the
Contiguous Zone.
(10) The term ``ocean'' means any portion of the high seas
beyond the contiguous zone.
(11) The term ``effluent limitation'' means any restriction
established by a State or the Administrator on quantities,
rates, and concentrations of chemical, physical, biological,
and other constituents which are discharged from point sources
into navigable waters, the waters of the contiguous zone, or
the ocean, including schedules of compliance.
(12) The term ``discharge of a pollutant'' and the term
``discharge of pollutants'' each means (A) any addition of any
pollutant to navigable waters from any point source, (B) any
addition of any pollutant to the waters of the contiguous zone
or the ocean from any point source other than a vessel or other
floating craft.
(13) The term ``toxic pollutant'' means those pollutants, or
combinations of pollutants, including disease-causing agents,
which after discharge and upon exposure, ingestion, inhalation
or assimilation into any organism, either directly from the
environment or indirectly by ingestion through food chains,
will, on the basis of information available to the
Administrator, cause death, disease, behavioral abnormalities,
cancer, genetic mutations, physiological malfunctions
(including malfunctions in reproduction) or physical
deformations, in such organisms or their offspring.
(14) The term ``point source'' means any discernible,
confined and discrete conveyance, including but not limited to
any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which
pollutants are or may be discharged. This term does not include
agricultural stormwater discharges and return flows from
irrigated agriculture.
(15) The term ``biological monitoring'' shall mean the
determination of the effects on aquatic life, including
accumulation of pollutants in tissue, in receiving waters due
to the discharge of pollutants (A) by techniques and
procedures, including sampling of organisms representative of
appropriate levels of the food chain appropriate to the volume
and the physical, chemical, and biological characteristics of
the effluent, and (B) at appropriate frequencies and locations.
(16) The term ``discharge'' when used without qualification
includes a discharge of a pollutant, and a discharge of
pollutants.
(17) The term ``schedule of compliance'' means a schedule of
remedial measures including an enforceable sequence of actions
or operations leading to compliance with an effluent
limitation, other limitation, prohibition, or standard.
(18) The term ``industrial user'' means those industries
identified in the Standard Industrial Classification Manual,
Bureau of the Budget, 1967, as amended and supplemented, under
the category ``Division D--Manufacturing'' and such other
classes of significant waste producers as, by regulation, the
Administrator deems appropriate.
(19) The term ``pollution'' means the man-made or man-induced
alteration of the chemical, physical, biological, and
radiological integrity of water.
(20) The term ``medical waste'' means isolation wastes;
infectious agents; human blood and blood products; pathological
wastes; sharps; body parts; contaminated bedding; surgical
wastes and potentially contaminated laboratory wastes; dialysis
wastes; and such additional medical items as the Administrator
shall prescribe by regulation.
(21) Coastal recreation waters.--
(A) In general.--The term ``coastal
recreation waters'' means--
(i) the Great Lakes; and
(ii) marine coastal waters (including
coastal estuaries) that are designated
under section 303(c) by a State for use
for swimming, bathing, surfing, or
similar water contact activities.
(B) Exclusions.--The term ``coastal
recreation waters'' does not include--
(i) inland waters; or
(ii) waters upstream of the mouth of
a river or stream having an unimpaired
natural connection with the open sea.
(22) Floatable material.--
(A) In general.--The term ``floatable
material'' means any foreign matter that may
float or remain suspended in the water column.
(B) Inclusions.--The term ``floatable
material'' includes--
(i) plastic;
(ii) aluminum cans;
(iii) wood products;
(iv) bottles; and
(v) paper products.
(23) Pathogen indicator.--The term ``pathogen
indicator'' means a substance that indicates the
potential for human infectious disease.
(24) Oil and gas exploration and production.--The
term ``oil and gas exploration, production, processing,
or treatment operations or transmission facilities''
means all field activities or operations associated
with exploration, production, processing, or treatment
operations, or transmission facilities, including
activities necessary to prepare a site for drilling and
for the movement and placement of drilling equipment,
whether or not such field activities or operations may
be considered to be construction activities.
(25) Recreational vessel.--
(A) In general.--The term ``recreational
vessel'' means any vessel that is--
(i) manufactured or used primarily
for pleasure; or
(ii) leased, rented, or chartered to
a person for the pleasure of that
person.
(B) Exclusion.--The term ``recreational
vessel'' does not include a vessel that is
subject to Coast Guard inspection and that--
(i) is engaged in commercial use; or
(ii) carries paying passengers.
(26) Treatment works.--The term ``treatment works''
has the meaning given the term in section 212.
(27) Green infrastructure.--The term ``green
infrastructure'' means the range of measures that use
plant or soil systems, permeable pavement or other
permeable surfaces or substrates, stormwater harvest
and reuse, or landscaping to store, infiltrate, or
evapotranspirate stormwater and reduce flows to sewer
systems or to surface waters.
* * * * * * *
administrative procedure and judicial review
Sec. 509. (a)(1) For purposes of obtaining information under
section 305 of this Act, or carrying out section 507(e) of this
Act, the Administrator may issue subpenas for the attendance
and testimony of witnesses and the production of relevant
papers, books, and documents, and he may administer oaths.
Except for effluent data, upon a showing satisfactory to the
Administrator that such papers, books, documents, or
information or particular part thereof, if made public, would
divulge trade secrets or secret processes, the Administrator
shall consider such record, report, or information or
particular portion thereof confidential in accordance with the
purposes of section 1905 of title 18 of the United States Code,
except that such paper, book, document, or information may be
disclosed to other officers, employees, or authorized
representatives of the United States concerned with carrying
out this Act, or when relevant in any proceeding under this
Act. Witnesses summoned shall be paid the same fees and mileage
that are paid witnesses in the courts of the United States. In
case of contumacy or refusal to obey a subpena served upon any
person under this subsection, the district court of the United
States for any district in which such person is found or
resides or transacts business, upon application by the United
States and after notice to such person, shall have jurisdiction
to issue an order requiring such person to appear and give
testimony before the Administrator, to appear and produce
papers, books, and documents before the Administrator, or both,
and any failure to obey such order of the court may be punished
by such court as a contempt thereof.
(2) The district courts of the United States are authorized,
upon application by the Administrator, to issue subpenas for
attendance and testimony of witnesses and the production of
relevant papers, books, and documents, for purposes of
obtaining information under sections 304 (b) and (c) of this
Act. Any papers, books, documents, or other information or part
thereof, obtained by reason of such a subpena shall be subject
to the same requirements as are provided in paragraph (1) of
this subsection.
(b)(1) Review of the Administrator's action (A) in
promulgating any standard of performance under section 306, (B)
in making any determination pursuant to section 306(b)(1)(C),
(C) in promulgating any effluent standard, prohibition, or
pretreatment standard under section 307, (D) in making any
determination as to a State permit program submitted under
section 402(b), (E) in approving or promulgating any effluent
limitation or other limitation under sections 301, 302, 306, or
405, (F) in issuing or denying any permit under [section 402,
and] section 402, (G) in promulgating any individual control
strategy under section 304(l), and (H) in issuing any criteria
for water quality pursuant to section 304(a)(11), may be had by
any interested person in the Circuit Court of Appeals of the
United States for the Federal judicial district in which such
person resides or transacts business which is directly affected
by such action upon application by such person. Any such
application shall be made within 120 days from the date of such
determination, approval, promulgation, issuance or denial, or
after such date only if such application is based solely on
grounds which arose after such 120th day.
(2) Action of the Administrator with respect to which review
could have been obtained under paragraph (1) of this subsection
shall not be subject to judicial review in any civil or
criminal proceeding for enforcement.
(3) Award of fees.--In any judicial proceeding under
this subsection, the court may award costs of
litigation (including reasonable attorney and expert
witness fees) to any prevailing or substantially
prevailing party whenever it determines that such award
is appropriate.
(4) Discharges incidental to normal operation of
vessels.--
(A) In general.--Except as provided in
subparagraph (B), any interested person may
file a petition for review of a final agency
action under section 312(p) of the
Administrator or the Secretary of the
department in which the Coast Guard is
operating in accordance with the requirements
of this subsection.
(B) Venue exception.--Subject to section
312(p)(7)(C)(v), a petition for review of a
final agency action under section 312(p) of the
Administrator or the Secretary of the
department in which the Coast Guard is
operating may be filed only in the United
States Court of Appeals for the District of
Columbia Circuit.
(c) In any judicial proceeding brought under subsection (b)
of this section in which review is sought of a determination
under this Act required to be made on the record after notice
and opportunity for hearing, if any party applies to the court
for leave to adduce additional evidence, and shows to the
satisfaction of the court that such additional evidence is
material and that there were reasonable grounds for the failure
to adduce such evidence in the proceeding before the
Administrator, the court may order such additional evidence
(and evidence in rebuttal thereof) to be taken before the
Administrator, in such manner and upon such terms and
conditions as the court may deem proper. The Administrator may
modify his findings as to the facts, or make new findings, by
reason of the additional evidence so taken and he shall file
such modified or new findings, and his recommendation, if any,
for the modification or setting aside of his original
determination, with the return of such additional evidence.
* * * * * * *
----------
WATER RESOURCES REFORM AND DEVELOPMENT ACT OF 2014
* * * * * * *
TITLE I--PROGRAM REFORMS AND STREAMLINING
* * * * * * *
SEC. 1049. APPLICABILITY OF SPILL PREVENTION, CONTROL, AND
COUNTERMEASURE RULE.
(a) Definitions.--In this section:
(1) Administrator.--The term ``Administrator'' means
the Administrator of the Environmental Protection
Agency.
(2) Farm.--The term ``farm'' has the meaning given
the term in section 112.2 of title 40, Code of Federal
Regulations (or successor regulations).
(3) Gallon.--The term ``gallon'' means a United
States gallon.
(4) Oil.--The term ``oil'' has the meaning given the
term in section 112.2 of title 40, Code of Federal
Regulations (or successor regulations).
(5) Oil discharge.--The term ``oil discharge'' has
the meaning given the term ``discharge'' in section
112.2 of title 40, Code of Federal Regulations (or
successor regulations).
(6) Reportable oil discharge history.--
(A) In general.--Subject to subparagraph (B),
the term ``reportable oil discharge history''
means a single oil discharge, as described in
section 112.1(b) of title 40, Code of Federal
Regulations (including successor regulations),
that exceeds 1,000 gallons or 2 oil discharges,
as described in section 112.1(b) of title 40,
Code of Federal Regulations (including
successor regulations), that each exceed 42
gallons within any 12-month period--
(i) in the 3 years prior to the
certification date of the Spill
Prevention, Control, and Countermeasure
plan (as described in section 112.3 of
title 40, Code of Federal Regulations
(including successor regulations); or
(ii) since becoming subject to part
112 of title 40, Code of Federal
Regulations, if the facility has been
in operation for less than 3 years.
(B) Exclusions.--The term ``reportable oil
discharge history'' does not include an oil
discharge, as described in section 112.1(b) of
title 40, Code of Federal Regulations
(including successor regulations), that is the
result of a natural disaster, an act of war, or
terrorism.
(7) Spill prevention, control, and countermeasure
rule.--The term ``Spill Prevention, Control, and
Countermeasure rule'' means the regulation, including
amendments, promulgated by the Administrator under part
112 of title 40, Code of Federal Regulations (or
successor regulations).
(b) Certification.--In implementing the Spill Prevention,
Control, and Countermeasure rule with respect to any farm, the
Administrator shall--
(1) require certification by a professional engineer
for a farm with--
(A) an individual tank with an aboveground
storage capacity greater than 10,000 gallons;
(B) an aggregate aboveground storage capacity
greater than or equal to [20,000] 42,000
gallons; or
(C) a reportable oil discharge history; or
(2) allow certification by the owner or operator of
the farm (via self-certification) for a farm with--
[(A) an aggregate aboveground storage
capacity less than 20,000 gallons and greater
than the lesser of--
[(i) 6,000 gallons; and
[(ii) the adjustment quantity
established under subsection (d)(2);
and]
(A) an aggregate aboveground storage capacity
greater than 10,000 gallons but less than
42,000 gallons; and
(B) no reportable oil discharge history; and
(3) not require compliance with the rule by any
farm--
[(A) with an aggregate aboveground storage
capacity greater than 2,500 gallons and less
than the lesser of--
[(i) 6,000 gallons; and
[(ii) the adjustment quantity
established under subsection (d)(2);
and]
(A) with an aggregate aboveground storage
capacity of less than or equal to 10,000
gallons; and
(B) no reportable oil discharge history[;
and].
[(4) not require compliance with the rule by any farm
with an aggregate aboveground storage capacity of less
than 2,500 gallons.]
(c) Regulation of Aboveground Storage at Farms.--
(1) Calculation of aggregate aboveground storage
capacity.--For purposes of subsection (b), the
aggregate aboveground storage capacity of a farm
excludes--
(A) all containers on separate parcels that
have a capacity that is 1,000 gallons or less;
and
(B) all containers holding animal feed
ingredients approved for use in livestock feed
by the Commissioner of Food and Drugs.
(2) Certain farm containers.--Part 112 of title 40,
Code of Federal Regulations (or successor regulations),
shall not apply to the following containers located at
a farm:
(A) Containers on a separate parcel that
have--
(i) an individual capacity of not
greater than [1,000] 1,320 gallons; and
(ii) an aggregate capacity of not
greater than [2,500] 3,000 gallons.
(B) A container holding animal feed
ingredients approved for use in livestock feed
by the Food and Drug Administration.
[(d) Study.--
[(1) In general.--Not later than 1 year after the
date of enactment of this Act, the Administrator, in
consultation with the Secretary of Agriculture, shall
conduct a study to determine the appropriate exemption
under paragraphs (2) and (3) of subsection (b), which
shall be not more than 6,000 gallons and not less than
2,500 gallons, based on a significant risk of discharge
to water.
[(2) Adjustment.--Not later than 18 months after the
date on which the study described in paragraph (1) is
complete, the Administrator, in consultation with the
Secretary of Agriculture, shall promulgate a rule to
adjust the exemption levels described in paragraphs (2)
and (3) of subsection (b) in accordance with the
study.]
* * * * * * *
MINORITY VIEWS
We oppose H.R. 3898. The Clean Water Act (CWA) is the
nation's bedrock environmental law for ``restoring and
maintaining the chemical, physical, and biological integrity of
the Nation's waters.'' H.R. 3898 defies the Act's overarching
intent to keep our nation's water clean, guts the authority of
federal agencies to minimize the impact that projects have on
water resources, and undermines the authority of states and
Tribes to protect locally important waterbodies.
This bill significantly restricts U.S. Environmental
Protection Agency (EPA) and U.S. Army Corps of Engineers
(Corps) oversight and regulatory authorities under the Act,
which, when paired with the Trump Administration's efforts to
eviscerate federal funding and purge agency personnel, will
leave the federal agencies powerless to fulfill their
responsibilities under the law. This bill also undermines the
``cooperative federalism'' partnership the federal government
has with states and Tribes to prevent pollution under the Clean
Water Act, weakening the ability of states and Tribes to defend
local waterbodies.
Simply put, this partisan bill makes it easier to release
harmful and toxic pollution into our nation's rivers, streams,
lakes, and other waterbodies through loopholes, legal shields,
and limited oversight of polluters. The bill eviscerates over
50 years of Clean Water Act success that has doubled the
percentage of waters that are safe for fishing, swimming, and
use as drinking water. H.R. 3898 undermines permitting
requirements; eliminates judicial review and public engagement;
rolls back oversight of mining companies and industrial
polluters; slows down permit processing with increased
bureaucracy; and weakens state-led decisions on locally
important waters.
Congressional Republicans offer these overarching, anti-
Clean Water Act changes as their response to specific projects
that have been blocked or to address the grievances of special
interests and polluters rather than provide a sustainable
solution for reasonable permitting efforts or to ensure the
protection of water quality for current or future generations.
For example, large-scale mining proposals, such as Pebble
Mine in Alaska or Spruce Mine in West Virginia, or ecologically
devastating flood control projects, such as the Yazoo Pumps in
Mississippi, were blocked by presidential administrations from
both parties under the EPA's Section 404(c) authority once the
impacts were thoroughly documented and publicly evaluated.
Although EPA has utilized this authority very sparingly (only
14 times among the tens-of-millions of permitted activities
since 1972), H.R. 3898 will effectively eliminate the authority
altogether.
Similarly, for over 50 years, states and Tribes have
judiciously used section 401 of the CWA to ensure that projects
or activities carried out within their jurisdictions are
consistent with state water quality standards and other
relevant state and Tribal laws. Yet, in response to two
specific instances where states legitimately used this
authority to prevent the construction of fossil fuel-related
facilities within their borders, H.R. 3898 changes the law to
allow special interests to override state and Tribal concerns
over potential development within their own borders.
In a multitude of ways, H.R. 3898 will weaken federal,
state, and local efforts to restore, maintain, or clean up
local waterbodies. The bill tells communities of all sizes,
especially rural, minority, and economically-disadvantaged
communities, that clean water is simply too costly for them to
have. At the same time, the bill increases the likelihood that
American families will have to spend more for safe drinking
water for their homes or to access water-related recreational
areas, if such resources are still available. For example, H.R.
3898 increases the likelihood for discharges of toxic chemicals
and pesticides, such as PFAS, mercury, and arsenic--chemicals
that, once in a local drinking water source, are extremely
expensive, and potentially impossible, to remove completely.
Under this bill, permittees are discouraged from investigating
what toxic chemicals might be in their waste-stream, which
increases the likelihood of exposure to American families,
including vulnerable populations, such as pregnant women,
infants, and children. Yet, even the Trump Administration's
Make America Healthy Again Commission's report recognizes the
obvious risk to human health from increased exposure to toxic
chemicals and pesticides.\1\
---------------------------------------------------------------------------
\1\See https://www.whitehouse.gov/wp-content/uploads/2025/05/WH-
The-MAHA-Report-Assess
ment.pdf.
---------------------------------------------------------------------------
The bill also exacerbates the likelihood of downstream
contamination and flooding as upstream waters and wetlands are
developed or destroyed--increasing the risk and the cost to
American families, businesses, and economies. H.R. 3898 rewards
polluters and special interests by reducing their
responsibility to prevent or treat their waste--shifting the
cost from polluters to American families who will be forced to
pay more for clean water.
H.R. 3898 also allows private industry and development to
steamroll through towns and states, polluting waterbodies due
to minimal review and disregarding local perspectives. The bill
greenlights large projects with minimal review while also
limiting opportunities for public comment or challenges to
ecologically damaging permits or projects. The bill also
prevents judicial review by vastly shortening the statute of
limitations; limiting standing to file suit; and limiting the
Court's options for recourse.
If H.R. 3898 is enacted, the potential adverse impacts to
waterbodies (such as reduced water quality or availability); to
the environment (such as increased greenhouse gas emissions or
other contamination); and to residents (such as perpetuating
environmental justice concerns) will be borne by the local and
surrounding communities without a voice or venue to have their
concerns heard. This legislation puts polluters over people.
Ironically, H.R. 3898 also contradicts itself by slowing
down permitting processes, sowing uncertainty, and decreasing
flexibility. For example, H.R. 3898 will add a formal
rulemaking process in place of an existing and more efficient
guidance process. This will slow down the issuance of water
quality criteria without increasing transparency or public
participation and remove flexibility for updates. It will also
open the criteria to judicial review, allowing aggrieved
polluters another opportunity to challenge state and local
efforts to protect local waterbodies and human health.
Proponents of H.R. 3898 contend that it will speed up
jurisdictional determinations and wetland permits following the
U.S. Supreme Court's decision in Sackett v. EPA. That decision
severely restricted what waters remain subject to CWA
protection and is estimated to have removed such protection on
at least 50% of wetlands and at least 60% of streams
nationwide. Yet, section 17 seeks to, again, redefine what
waters and wetlands remain subject to federal protection. When
combined with the Trump Administration's efforts to redefine by
rulemaking the scope of federally protected waters and
eliminate federal employees responsible for permitting
requirements, the net result will be more confusion and
uncertainty and longer wait times for necessary permits.
Congressional Republicans can claim, over and over, that
they support clean water and healthy communities; however,
their support for this bill tells the real story. If
Republicans were serious about protecting our water resources,
our families, and our water-related economy, they would look
comprehensively at the remaining sources of impairment to our
rivers, streams, lakes, wetlands, and coastal areas, and take
the necessary steps and make the necessary investment to
address these challenges. When Democrats last controlled the
U.S. House of Representatives, we not only enacted the single
largest investment in wastewater infrastructure ever through
the Bipartisan Infrastructure Law, but we initiated efforts to
repair the damage to the Clean Water Act caused by a
conservative Supreme Court and worked towards finally achieving
the elusive goal of ``fishable and swimmable'' waters for all
Americans.
The litany of loopholes, legal shields, and limited
oversight contained in H.R. 3898 are the opposite of what
Congress needs to be doing to protect our water resources.
Exposing the waters and wetlands that remain under Clean Water
Act protections to unrestricted and unchallengeable pollution
or destruction will do nothing to restore and maintain clean
water.
During consideration of H.R. 3898, several Committee
Democrats sought to lessen the negative impacts of this
legislation and require EPA to verify that the changes in the
bill would not adversely impact the health, safety, and
availability of clean water in communities nationwide.
Ranking Member Rick Larsen (WA-02) offered an amendment to
remove several provisions from the bill which undermine the
``cooperative federalism'' partnership the federal government
has with states and Tribes to protect against the pollution of
local waterbodies. The amendment would have restored the
ability of states and Tribes to make locally important
decisions related to the protection of locally important
waterbodies. In many instances, states are better suited to
understand the unique needs, demands, and importance on local
waterbodies; this amendment would allow states to continue to
lead local efforts to protect clean water.
Representative Dina Titus (NV-01) offered an amendment to
highlight how the bill's attempt to codify the draconian losses
of Clean Water Act protections from the Sackett decision will
disproportionately and adversely affect certain states. For
example, in the state of Nevada, the loss of Clean Water Act
protections for ephemeral streams will mean that close to 88
percent of the stream miles covered before the Sackett decision
will no longer be federally protected.\2\ Similarly, under the
most damaging scenario, 92 percent of wetland area in the State
of Washington has likely lost federal protection under the
rationale of the Supreme Court and this legislation.
---------------------------------------------------------------------------
\2\See Mapping Destruction: Using GIS Modeling to Show the
Disastrous Impacts of Sackett v. EPA on America's Wetlands, accessed at
https://www.nrdc.org/sites/default/files/2025-03/
Wetlands_Report_R_25-03-B_05_locked.pdf.
---------------------------------------------------------------------------
Representatives Emilia Sykes (OH-13) and Shomari Figures
(AL-02) each offered an amendment to ensure that the loopholes,
legal shields, and limited oversight of polluters contained in
H.R. 3898 do not disproportionately impact rural, economically-
disadvantaged, and Tribal communities. Nine out of 10 Americans
receive their drinking water from public water systems that
rely on a network of surface and subsurface waters to provide
the water entering our homes and businesses. The Sykes and
Figures amendments sought to prevent any increase in the
volume, toxicity, or concentration of pollution entering our
waters and to prevent any corresponding increase in local
utility rates that would be required to remove increased
pollution levels caused by this bill. We cannot continue to
allow the economic and human health burdens of increased
pollution to be placed on those communities that are least able
to bear these burdens.
Representatives Hillary Scholten (MI-03), Laura Gillen (NY-
04), and Pat Ryan (NY-18) each offered an amendment to protect
communities, families, and individuals from increased exposure
to pollution that would result from the changes in H.R. 3898.
The Scholten amendment sought to retain existing Clean Water
Act protections for the use of pesticides that could adversely
affect the health of pregnant women, fetal development,
infants, or children. The Gillen amendment sought to protect
communities and individuals from the increased likelihood of
exposure to chemicals and materials linked to cancer, such as
PFAS, arsenic, nitrates, nitrites, pesticides, chromium,
radium, and uranium that would result from the changes in this
bill. The Ryan amendment delays the effective date of the bill
until the EPA Administrator determines that the changes will
not result in increased discharges of forever chemicals (such
as PFAS) or nutrients that cause harmful algal blooms. The
amendment would have ensured that communities are not left with
the environmental and economic burden of cleaning up and
removing such pollutants.
Representative Kristen McDonald Rivet (MI-08) offered an
amendment that would protect the Great Lakes and other Clean
Water Act geographic programs from the potential for increased
discharges of pollution because of this bill. The Great Lakes
are the largest source of freshwater in the United States,
containing 21 percent of the world's surface freshwater by
volume. This amendment would prevent the changes contained in
H.R. 3898 from resulting in increased discharges of pollution
to the Great Lakes, and other critical regional waterbodies,
which could degrade the human, ecological, and economic health
of the region that depends on clean water.
Representative Laura Friedman (CA-30) offered an amendment
that sought to minimize the discharge of pollutants into
waterbodies that states, especially western states, are using
to augment local water supplies through water recapture, water
reuse and recycling, and groundwater recharge. The availability
of safe, reliable, and affordable water is critical, not only
to the survival of life, but also to the economic health of
communities and regions, contributing to the success of
industry, manufacturing, agriculture, transportation, and
recreation. This amendment would have ensured that forward-
looking states and Tribes, which are rightly preparing for the
future through maximizing efforts to conserve, reuse, and
replenish every drop of water, are not hindered by increased
levels of pollution resulting from the changes in H.R. 3898.
Representative Nellie Pou (NJ-09) offered an amendment that
sought to prevent this bill from increasing the discharge of
raw or partially treated sewage into our waters. The Clean
Water Act currently requires dischargers of wastewater to take
every step possible to treat sewage before it is released into
the environment. H.R. 3898 would weaken those requirements,
calling into question whether polluters will still be required
to implement treatment technologies sufficient to prevent the
discharge of raw or partially treated sewage into our nation's
waters, especially if a polluter suggests that such
technologies are ``too expensive'' or ``not commercially
available in the United States . . . at comparable scale.'' The
Pou amendment would have prevented these new loopholes from
resulting in an increase in combined and sanitary sewer
overflows or an increase in the risk (and economic
consequences) of flooding associated with the discharge of
increased volumes of industrial or municipal stormwater.
The Clean Water Act has been an effective tool for
improving the health of our rivers, streams, lakes, and
wetlands. Unfortunately, progress restoring impaired
waterbodies has slowed and, in some areas, reversed.
Communities face new challenges from emerging contaminants and
impacts of climate change, and an increased need for affordable
federal assistance--especially rural, minority, and
economically-disadvantaged communities; yet the Trump
Administration proposes to decimate funding for federal and
state clean water agencies, as well as critical infrastructure
funding for communities of all sizes. An activist conservative
court has reinterpreted the CWA to protect significantly fewer
waterbodies and prevent fewer discharges of pollutants. Rather
than address these growing challenges to fishable and swimmable
water for all Americans, H.R. 3898 provides additional
loopholes, legal shields, and limited oversight for special
interests and polluters.
In our view, this legislation is unnecessary, unwarranted,
and a dangerous attack on clean water nationwide. For these
reasons, we oppose H.R. 3898.
Rick Larsen,
Ranking Member.
Frederica Wilson,
Emilia Sykes,
Hillary Scholten,
Eleanor Holmes Norton,
Jerrold Nadler,
Steve Cohen,
John Garamendi,
Henry ``Hank'' Johnson,
Andre Carson,
Dina Titus,
Jared Huffman,
Julia Brownley,
Mark DeSaulnier,
Salud Carbajal,
Greg Stanton,
Sharice Davids,
Jesus ``Chuy'' Garcia,
Chris Pappas,
Seth Moulton,
Marilyn Strickland,
Pat Ryan,
Val Hoyle,
Valerie Foushee,
Chris Deluzio,
Robert Garcia,
Nellie Pou,
Kristen McDonald Rivet,
Laura Friedman,
Laura Gillen,
Shomari Figures,
Members of Congress.
[all]