Section 1 Short title
This Act may be cited as the “Pipeline Permitting for Energy Security Act of 2022”.
Pipeline Permitting for Energy Security Act of 2022
A BILL
To facilitate pipeline construction and limit regulatory and litigation delays under the Federal Water Pollution Control Act, the National Environmental Policy Act of 1969, and the Endangered Species Act of 1973, and for other purposes.
Sec. 2 Clean Water Act permitting
State certification programs— Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341) is amended—
by striking the heading and section designation and all that follows through “may be.” at the end of subsection (a)(1) and inserting the following:
“401. Certification
“(a) State certifications
“(1) Certification required
“(A) Definitions—In this paragraph:
“(i) Certification application—The term certification application means a request from an applicant for a certification described in subparagraph (B).
“(ii) Certifying authority—The term certifying authority, with respect to a certification described in subparagraph (B), means the applicable entity described in subclause (I), (II), or (III) of subparagraph (B)(i).
“(B) Compliance with limitations
“(i) In general—Any applicant for a Federal license or permit to conduct an activity, including the construction or operation of facilities, that may result in a discharge from a point source into the waters of the United States shall provide the Federal licensing or permitting agency a certification that the discharge will comply with applicable water quality requirements from—
“(I) the State in which the discharge originates or will originate;
“(II) if appropriate, the interstate water pollution control agency with jurisdiction over the waters of the United States at the point where the discharge originates or will originate; or
“(III) if no State or interstate water pollution control agency has the authority to give such a certification, the Administrator.
“(ii) Certification of no limitation and standard
“(I) In general—In the case of any activity described in clause (i) for which there is not an applicable effluent limitation or other limitation under sections 301(b) and 302 and for which there is not an applicable standard under sections 306 and 307, the certifying authority shall so certify.
“(II) Effect—A certification under subclause (I) does not satisfy section 511(c).
“(iii) Certification required
“(I) Construction prohibited until certification—Construction for which a certification is required under this subparagraph may not begin until the certification has been obtained, unless the requirement for the certification has been waived in accordance with this paragraph.
“(II) Effect of denial—If a certifying authority denies a certification application, the Federal license or permit for which the certification application was made may not be granted.
“(iv) Scope of certification—In determining whether to issue a certification under this subparagraph and in determining what conditions to impose on a certification under this subparagraph, a certifying authority may only consider whether the discharge for which the certification application was made complies with applicable water quality requirements.
“(C) Required procedures
“(i) Notice and hearings—Each certifying authority shall establish procedures for—
“(I) public notice in the case of all certification applications;
“(II) to the extent the certifying authority determines to be appropriate, public hearings in connection with specific certification applications; and
“(III) a prefiling meeting as described in clause (ii).
“(ii) Prefiling meeting
“(I) Request—Before submitting a certification application, the prospective applicant may request a prefiling meeting with the certifying authority—
“(aa) to ensure that the certifying authority receives early notification of projects for which a certification under subparagraph (B) is necessary; and
“(bb) to discuss informational needs with the certifying authority before submitting the application.
“(II) Response required—If a prospective applicant requests a prefiling meeting with a certifying authority pursuant to subclause (I), the certifying authority shall—
“(aa) respond to the request not later than 30 days after the date on which the request is received; and
“(bb) hold the prefiling meeting with the prospective applicant by not later than 60 days after the date on which the request is received.
“(iii) Denials of certification
“(I) Individual licenses and permits—If a certifying authority denies a certification application for an individual license or permit, the certifying authority shall provide to the applicable Federal licensing or permitting agency—
“(aa) the specific applicable water quality requirements with which the discharge will not comply;
“(bb) a statement explaining why the discharge will not comply with the identified applicable water quality requirements; and
“(cc) if the denial is due to insufficient information, a description of the specific water quality data or information, if any, that would be needed to ensure that the discharge from the proposed project will comply with applicable water quality requirements.
“(II) General licenses or permits—If a certifying authority denies a certification application for a general license or permit, the certifying authority shall provide to the applicable Federal licensing or permitting agency—
“(aa) the specific applicable water quality requirements with which discharges that could be authorized by the general license or permit will not comply;
“(bb) a statement explaining why discharges that could be authorized by the general license or permit will not comply with the identified applicable water quality requirements; and
“(cc) if the denial is due to insufficient information, a description of the specific water quality data or information, if any, that would be needed to assure that the range of discharges that could be authorized by the general license or permit from potential projects will comply with applicable water quality requirements.
“(iv) Review
“(I) In general—Not later than 60 days after the date on which a Federal licensing or permitting agency receives a notice described in clause (iii) or a certification under subparagraph (B) that includes conditions to that certification, the Federal licensing or permitting agency shall complete a review of the process undertaken by the certifying authority in reviewing the applicable certification application to determine whether the certifying authority established a reasonable period of time within which to review that certification application in accordance with subparagraph (D)(ii).
“(II) Denials—If, after carrying out a review under subclause (I) of the process undertaken by a certifying authority with respect to a denial of a certification application, a Federal licensing or permitting agency determines that the certifying authority did not, in determining the reasonable period of time within which to review the certification application, consider all of the factors described in subclause (I), (II), or (III) of subparagraph (D)(ii), the Federal licensing or permitting agency shall—
“(aa) deem the certifying authority to have failed to act on the certification application; and
“(bb) pursuant to subparagraph (D)(iii), consider the requirement for a certification under subparagraph (B) waived.
“(III) Conditions—If, after carrying out a review under subclause (I) of the process undertaken by a certifying authority with respect to including conditions to a certification under subparagraph (B), a Federal licensing or permitting agency determines that the certifying authority did not, in determining the reasonable period of time within which to review the applicable certification application, consider all of the factors described in subclause (I), (II), or (III) of subparagraph (D)(ii), the Federal licensing or permitting agency shall consider the certification conditions void.
“(D) Review period
“(i) In general—A certifying authority shall, subject to this subparagraph, issue to the applicable Federal licensing or permitting authority a final action on a certification application within a reasonable period of time, which—
“(I) shall be determined by the certifying authority by not later than 60 days after the date on which the certification application is received by the certifying authority; but
“(II)
“(aa) shall begin on the date on which the certification application is received by the certifying authority; and
“(bb) shall not exceed 1 year from the date on which the certifying authority receives the certification application.
“(ii) Determination of reasonable period—In determining the reasonable period of time under clause (i)(I), a certifying authority shall consider—
“(I) the complexity of the project described in the certification application;
“(II) the nature of any potential discharge from that project; and
“(III) the potential need for additional study or evaluation of water quality effects from the discharge.
“(iii) Failure to act within period—If a certifying authority fails or refuses to issue a final action on a certification application by the end of the reasonable period of time established under this subparagraph, the requirement for a certification under subparagraph (B) shall be waived.
“(iv) No pausing or tolling—The reasonable period of time established for a certification application under this subparagraph may not be paused or tolled for any reason.
“(E) Final action
“(i) In general—After completion of the reasonable period of time established under subparagraph (D) and any review that may be required under subparagraph (C)(iv) for a certification application, the certifying authority or Federal licensing or permitting authority, as applicable, shall apply only 1 of the following final actions to the certification application:
“(I) The certification application is granted.
“(II) The certification application is granted with conditions.
“(III) The certification application is denied.
“(IV) The certification requirements under subparagraph (B) have been waived in accordance with this paragraph with respect to the activity for which the certification application was submitted.
“(ii) No other final actions—No other final action may apply to a certification application except as described in clause (i).
“(F) Enforcement of conditions—The Federal licensing or permitting authority to which a certification under this subsection was issued shall be responsible for enforcing any conditions included with that certification.
“(G) Timeline for action—If a Federal court remands or vacates a certification under this paragraph, the Federal court shall set and enforce a reasonable schedule and deadline, not to exceed 180 days from the date on which the Federal court remands or vacates the certification, for the certifying agency to act on the remand or vacatur.”
in subsection (a) (as so amended)—
in paragraph (2), by striking “(2) Upon receipt” and inserting the following:
“(2) Notice to Administrator; effect on other States—On receipt”
in paragraph (3), by striking “(3) The certification” and inserting the following:
“(3) Fulfillment of requirements—The certification”
in paragraph (4), by striking “(4) Prior to” and inserting the following:
“(4) Review for compliance—Prior to”
in paragraph (5), by striking “(5) Any Federal” and inserting the following:
“(5) Suspension and revocation—Any Federal”
in paragraph (6), by striking “(6) Except with” and inserting the following:
“(6) Applicability to certain facilities—Except with”
in subsection (b), by striking “(b) Nothing” and inserting the following:
“(b) Compliance with other provisions of law setting applicable water quality requirements—Nothing”
in subsection (c), by striking “(c) In order” and inserting the following:
“(c) Authority of secretary of the army To permit use of spoil disposal areas by federal licensees or permittees—In order”
in subsection (d), by striking “(d) Any certification” and inserting the following:
“(d) Limitations and monitoring requirements of certification—Any certification”
by adding at the end the following:
“(e) Definition of applicable water quality requirements—In this section, the term applicable water quality requirements means—
“(1) the applicable provisions of sections 301, 302, 303, 306, and 307; and
“(2) applicable State or Tribal regulatory requirements for the discharge from point sources into the waters of the United States.”
Permits for dredged or fill material—
by striking the heading and section designation and all that follows through “(a) The Secretary” and inserting the following:
“404. Permits for dredged or fill material
“(a) Discharge into navigable waters at specified disposal sites
“(1) In general—The Secretary”
in subsection (a)(1) (as so designated), in the second sentence—
by striking “this subsection” each place it appears and inserting “paragraph (1)”; and
by striking “Not later than the fifteenth day” and inserting the following:
“(2) Notice—Not later than the 15th day”
in subsection (c)—
in the third sentence—
by striking “his finding and his reasons” and inserting “the findings and reasons of the Administrator”; and
by striking “The Administrator” and inserting the following:
“(4) Findings and reasoning—The Administrator”
in the second sentence, by striking “Before making such determination” and inserting the following:
“(3) Consultation—Before making a determination under paragraph (1)”
by striking “(c) The Administrator” and inserting the following:
“(c) Prohibition of specification of areas as disposal sites
“(1) In general—Subject to paragraph (2), the Administrator”
by inserting after paragraph (1) (as so designated) the following:
“(2) Limitation—The Administrator may not prohibit the specification of a defined area as a disposal site, or otherwise deny or restrict the use of a defined area as a disposal site after a permit under this section for the area has been issued by the Secretary.”
in subsection (e)—
in paragraph (1), in the second sentence—
by striking “subsection (b)(1) of this section, and (B) set forth” and inserting the following:
“(ii) set forth”
by striking “shall (A) be based” and inserting the following:
“(i) be based”
by striking “Any general” and inserting the following:
“(B) Requirements for issuance—Any general”
by striking “(e)(1) In carrying” and inserting the following:
“(e) General permits on State, regional, or nationwide basis
“(1) Permits authorized
“(A) In general—In carrying”
in paragraph (2), by striking “(2) No general” and inserting the following:
“(2) Term—No general”
by adding at the end the following:
“(3) Single and complete projects
“(A) Definition of single and complete project
“(i) In general—In this paragraph, the term single and complete project, with respect to a project for which the Secretary is determining whether a general permit issued under this subsection applies, means that portion of the total project proposed or accomplished by—
“(I) a single owner or developer;
“(II) a partnership of 1 or more owners or developers; or
“(III) an association of owners or developers.
“(ii) Linear projects
“(I) Definition—In this clause, the term linear project means a project constructed for the purpose of getting people, goods, or services from a point of origin to a terminal point, which may involve multiple crossings of 1 or more waters of the United States at separate and distant locations.
“(II) General rule—For purposes of this paragraph, with respect to projects described in clause (i) that are linear projects—
“(aa) the crossings of separate waters of the United States at a specific location shall be considered 1 single and complete project; but
“(bb) each crossing of a single water of the United States shall be considered a separate single and complete project if those crossings are at separate and distant locations.
“(III) Additional exclusions—For purposes of subclause (II), individual channels in a braided stream or river, individual arms of a large, irregularly-shaped wetland or lake, and other, similar bodies of water shall not be considered to be separate waters of the United States.
“(B) Requirement—In determining whether a general permit issued under this subsection applies to an activity, the Secretary shall consider the estimated total of all losses of waters of the United States expected to result from the single and complete project.
“(C) Use of multiple permits—The Secretary may combine 2 or more general permits issued under this subsection to authorize a single and complete project, but the same general permit issued under this subsection may not be used more than once for a single and complete project.
“(4) Reissuance of nationwide permits—In determining whether to reissue a general permit issued under this subsection on a nationwide basis—
“(A) no consultation with an applicable State pursuant to section 6(a) of the Endangered Species Act of 1973 (16 U.S.C. 1535(a)) is required;
“(B) no consultation with a Federal agency pursuant to section 7(a)(2) of that Act (16 U.S.C. 1536(a)(2)) is required; and
“(C) for purposes of carrying out the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to that reissuance, conducting an environmental assessment on a nationwide basis is sufficient for purposes of compliance with that Act.
“(5) Nationwide permit for oil and natural gas pipelines—Notwithstanding any other provision of this section, the Secretary shall maintain a nationwide permit for the activities required for the construction, maintenance, repair, operation, and removal of oil and natural gas pipelines and associated facilities that result in the loss of, with respect to waters of the United States, an area of more than 1/2 acre for each single and complete project (as defined in paragraph (3)(A)), which shall be known as “nationwide permit 12”.”
in subsection (h)—
in paragraph (1), by adding at the end the following:
“(I) To issue permits not later than the date that is 1 year after the date on which the State receives an application for the permit, which may not be paused or tolled for any reason.
“(J) To ensure that, if the State does not issue a final action with respect to an application for a permit within the 1-year period described in subparagraph (I), the application is considered to be approved.
“(K) To carry out a programmatic review of the program annually to ensure that the program does not exceed the authority granted to the State under this section.”
by adding at the end the following:
“(6) Action required
“(A) In general—A State with a permit program approved under this subsection shall issue a final action with respect to an application for a permit described in subsection (g)(1) not later than 1 year after the date of receipt of the application.
“(B) Failure to act—An application for a permit described in subsection (g)(1) submitted to a State with a permit program approved under this subsection shall be considered to be approved if the State fails to issue a final action with respect to the application by the end of the 1-year period described in subparagraph (A).
“(C) No pausing or tolling—The 1-year period described in subparagraph (A) may not be paused or tolled for any reason.”
in subsection (s)(3), in the third sentence, by striking “acton” and inserting “action”;
in subsection (t), by striking “(t) Nothing” and inserting the following:
“(u) Savings provision—Nothing”
by inserting after subsection (s) the following:
“(t) Judicial review
“(1) Statute of limitations
“(A) In general—Notwithstanding any other provision of law, an action seeking judicial review of an individual or general permit issued under this section shall be filed not later than the date that is 60 days after the date on which the permit was issued.
“(B) Savings provision—Nothing in subparagraph (A) authorizes an action seeking judicial review of the structure of or authorization for a State permit program approved pursuant to this section.
“(2) Timeline to act on remand and vacatur—If a Federal court remands or vacates a permit under this section, the Federal court shall set and enforce a reasonable schedule and deadline, which may not exceed 180 days from the date on which the Federal court remands or vacates the permit, for the issuer of the permit to act on that remand or vacatur.”
Ratification of current permits— Notwithstanding any other provision of law, each category of activities authorized by a general permit issued under section 404(e) of the Federal Water Pollution Control Act (33 U.S.C. 1344(e)) (including nationwide permit 12) or under section 10 of the Act of March 3, 1899 (33 U.S.C. 403), that is in effect on the date of enactment of this Act shall, consistent with subparagraph (A) of section 404(e)(1) of the Federal Water Pollution Control Act (33 U.S.C. 1344(e)(1)), be considered to cause—
not more than minimal adverse environmental effects when actions authorized under those permits are carried out separately; and
not more than minimal cumulative adverse effects on the environment.
Savings provision— Nothing in this subsection or the amendments made by this subsection requires a State (including an Indian tribe that is treated as a State pursuant to section 518(e) of the Federal Water Pollution Control Act (33 U.S.C. 1377(e))) for which the Administrator of the Environmental Protection Agency has approved a permit program pursuant to subsections (g) and (h) of section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) to seek reapproval of the permit program in accordance with those subsections.
Definition of navigable waters— Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362) is amended—
in each of paragraphs (1) through (20), by inserting a paragraph heading, the text of which comprises the term defined in that paragraph;
by indenting paragraphs (1) through (20) appropriately; and
by striking paragraph (7) and inserting the following:
“(7) Navigable waters; waters of the United States
“(A) In general—The terms navigable waters and waters of the United States mean—
“(i) the territorial seas and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters that are subject to the ebb and flow of the tide;
“(ii) a tributary;
“(iii) a lake, pond, or impoundment of water from a body of water otherwise described in this subparagraph that—
“(I) contributes to surface water flow to a body of water described in clause (i) in a typical year; or
“(II) is inundated by flooding from a body of water otherwise described in this subparagraph during a typical year; and
“(iv) adjacent wetlands.
“(B) Exclusions—The terms navigable waters and waters of the United States do not include—
“(i) an ephemeral feature, including an ephemeral stream, swale, gully, rill, pool, or tributary that is ephemeral during a typical year;
“(ii) groundwater, including groundwater drained through subsurface drainage systems;
“(iii) an artificially irrigated area that would revert to upland or dry land if that artificial irrigation ceased;
“(iv) an artificial lake or pond that—
“(I) is not an impoundment described in subparagraph (A)(iii); and
“(II) is constructed or excavated in upland or dry land;
“(v) a water-filled depression that is—
“(I) constructed or excavated in upland or dry land; and
“(II) incidental to mining or construction activity;
“(vi) a pit that is excavated in upland for the purpose of obtaining fill, sand, or gravel;
“(vii) a stormwater control feature that is constructed or excavated in upland or dry land to convey, treat, infiltrate, or store stormwater runoff;
“(viii) a groundwater recharge, water reuse, or wastewater treatment recycling structure that is constructed or excavated in upland or dryland;
“(ix) a waste treatment system;
“(x) prior converted cropland;
“(xi)
“(I) a ditch that is not a body of water described in clause (i) or (ii) of subparagraph (A); and
“(II) any portion of a ditch constructed in adjacent wetlands that does not meet the requirements described in subparagraph (C)(i);
“(xii) diffuse stormwater runoff and directional sheet flow over upland; and
“(xiii) a water or water feature that is not identified in subparagraph (A).
“(C) Associated definitions—For purposes of this paragraph:
“(i) Adjacent wetlands—The term adjacent wetlands means wetlands that—
“(I) touch at least one point or side of a body of water described in clause (i), (ii), or (iii) of subparagraph (A);
“(II) are inundated by flooding from a body of water described in clause (i), (ii), or (iii) of subparagraph (A) during a typical year; or
“(III) are physically separated from a body of water described in clause (i), (ii), or (iii) of subparagraph (A) only by—
“(aa) a natural berm, bank, dune, or similar natural feature; or
“(bb) an artificial dike, barrier, or similar artificial structure, if that structure allows for a direct hydrological surface connection to the body of water described in that clause (i), (ii), or (iii) in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature.
“(ii) Ditch—The term ditch means a constructed or excavated channel used to convey water.
“(iii) Ephemeral—The term ephemeral, with respect to a surface water, means flowing or pooling only in direct response to precipitation (such as rain or snowfall).
“(iv) High tide line
“(I) In general—The term high tide line means the line of intersection of the land with the surface of a body of water at the maximum height reached by a rising tide (including a spring high tide or another high tide that occurs with periodic frequency), which may, in the absence of actual data, be determined by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, vegetation lines, tidal gages, other physical markings or characteristics, or other suitable means that delineate the general height reached by a rising tide.
“(II) Exclusions—The term high tide line does not include the line of intersection described in subclause (I) at the maximum height reached by a storm surge in which there is a departure from the normal or predicted reach of a tide due to the piling up of water against a coast by strong winds, such as a surge accompanying a hurricane or another intense storm.
“(v) Intermittent—The term intermittent, with respect to a surface water, means flowing continuously during certain times of the year and more than in direct response to precipitation (such as seasonally, when the groundwater table is elevated, or when snowpack melts).
“(vi) Ordinary high water mark—The term ordinary high water mark means the line on a shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank, shelving, changes in the character of the soil, destruction of terrestrial vegetation, the presence of litter and debris, or another appropriate means that considers the characteristics of the surrounding areas.
“(vii) Perennial—The term perennial, with respect to a surface water, means surface water that flows continuously year round.
“(viii) Prior converted cropland
“(I) In general—The term prior converted cropland means any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose, or having the effect, of making production of an agricultural product possible.
“(II) Inclusion—The term prior converted cropland includes any designation of an area as prior converted cropland made by the Secretary of Agriculture.
“(III) Exclusion—The term prior converted cropland does not include any area described in subclause (I) that is abandoned or has reverted to wetlands.
“(IV) Associated definition—In this clause, the term abandoned, with respect to an area described in subclause (I), means the area has not been used for, or in support of, agricultural purposes at least once during the 5-year period ending on the date of determination, as determined by the Administrator.
“(ix) Snowpack—The term snowpack means layers of snow that accumulate over extended periods of time in certain geographic regions or at high elevation (such as in northern climes or in mountainous regions).
“(x) Tributary—The term tributary includes a river, stream, or similar naturally occurring surface water channel that—
“(I) contributes to surface water flow to a body of water described in subparagraph (A)(i); and
“(II) is perennial or intermittent in a typical year.
“(xi) Typical year—The term typical year means a year in which precipitation and other climatic variables are within the normal periodic range (such as seasonally or annually) for the geographic area of the applicable body of water, based on a rolling 30-year period.
“(xii) Upland—The term upland means any land area that, under normal conditions—
“(I) is not wetlands; and
“(II) does not lie below the ordinary high water mark or the high tide line of a body of water described in subparagraph (A).
“(xiii) Waste treatment system—The term waste treatment system includes all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge).
“(xiv) Wetlands—The term wetlands means areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs, and similar areas.”
Sec. 3 National Environmental Policy Act of 1969 modifications
Definitions— The National Environmental Policy Act of 1969 is amended by inserting after section 2 (42 U.S.C. 4321) the following:
“3. Definitions
“In this Act:
“(1) Categorical exclusion—The term categorical exclusion means a category of actions that a Federal agency determines, according to procedures established by the Federal agency, do not normally have a significant effect on the human environment.
“(2) Effects
“(A) In general—The term effects means changes to the human environment as a result of a proposed action or alternative action to be carried out by a Federal agency that—
“(i) are reasonably foreseeable and not remote in time, geographically remote, or the product of a lengthy causal chain;
“(ii) have a reasonably close causal relationship, as determined by the Federal agency, to the proposed action or alternative action, as applicable; and
“(iii) the Federal agency has the ability to prevent and that would not occur absent the proposed action or alternative action.
“(B) Requirement—For purposes of subparagraph (A)(ii), a “but for” causal relationship is insufficient to establish a reasonably close causal relationship.
“(3) Environmental assessment—The term environmental assessment means a concise public document prepared by a Federal agency to determine whether to prepare an environmental impact statement or a finding of no significant impact for a proposed action.
“(4) Environmental impact statement—The term environmental impact statement means a detailed statement required to be prepared for a proposed major action in accordance with title I.
“(5) Major Federal action
“(A) In general—The term major Federal action means an activity or decision subject to Federal control and responsibility, as determined by a Federal agency.
“(B) Exclusions—The term major Federal action does not include—
“(i) a nondiscretionary or extraterritorial activity or decision;
“(ii) an action that does not result in a final agency action under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the “Administrative Procedure Act”);
“(iii) a judicial or administrative enforcement action;
“(iv) an action involving funding, the control of which is not maintained by the Federal agency that was appropriated the funds;
“(v) a non-Federal project with minimal Federal funding or involvement;
“(vi) a loan, loan guarantee, or other financial assistance where the Federal agency does not exercise sufficient control or responsibility over the funds; and
“(vii) any action that was deemed to not be a major Federal action by a Federal court.
“(C) Other actions—A Federal agency may determine whether any other action is a major Federal action for purposes of the requirements of this Act.”
NEPA thresholds— Title I of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) is amended by adding at the end the following:
“106. Thresholds
“Prior to carrying out the requirements of this title for a major Federal action, the Federal agency seeking to carry out the action shall determine whether—
“(1) the action is exempt from the requirements of this title by another Federal law (including regulations);
“(2) compliance with this title would—
“(A) clearly and fundamentally conflict with another Federal law (including regulations); or
“(B) be inconsistent with the congressional intent of another Federal law;
“(3) the action is nondiscretionary, such that the Federal agency lacks authority to consider the environmental effects of the action; and
“(4) a review of the effects of the action under another Federal law (including regulations) would satisfy the requirements of this title.”
Determining appropriate level of NEPA review— Title I of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as amended by subsection (b)) is amended by adding at the end the following:
“107. Determining appropriate level of NEPA review
“In assessing the appropriate level of review to be conducted by a Federal agency under this title for a major Federal action, the Federal agency shall determine whether the proposed action—
“(1) normally does not have significant effects or qualifies as a categorical exclusion;
“(2) is likely to have insignificant effects or unknown effects; or
“(3) is likely to have significant effects.”
Environmental impact statements—
In general— Title I of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as amended by subsection (c)) is amended by adding at the end the following:
“108. Environmental impact statement requirements
“(a) Statement of purpose and need
“(1) In general—An environmental impact statement shall briefly specify the underlying purpose and need to which a Federal agency is responding.
“(2) Alternatives analysis—Any alternatives analyzed by the Federal agency shall—
“(A) meet the purpose and need for the proposed action; and
“(B) where applicable, meet the goals of the applicant.
“(b) Page limits for environmental impact statements—The text of a final environmental impact statement shall be proportional to the potential effects, and size, of the proposed action, but shall not be longer than—
“(1) 150 pages; or
“(2) in the case of a proposed action of unusual complexity, as determined by the applicable Federal agency, 300 pages.
“(c) Time limit for preparing an environmental impact statement
“(1) In general—Not later than 2 years after the date on which a Federal agency issues a notice of intent to carry out a proposed action, the Federal agency shall submit to the Environmental Protection Agency the environmental impact statement for that proposed action.
“(2) Failure to act—If a Federal agency does not submit an environmental impact statement in accordance with the timeline described in paragraph (1), the requirements of this title shall be deemed to have been fulfilled for the proposed action.
“(d) Specificity of comments and information
“(1) Comments on draft environmental impact statements—Comments and objections of any kind relating to an environmental impact statement for a proposed action shall be raised within the comment period on the draft environmental impact statement provided by the applicable Federal agency, consistent with the requirements of section 1506.11 of title 40, Code of Federal Regulations (as in effect on September 14, 2020).
“(2) Comments on final environmental impact statements—If the applicable Federal agency requests comments on a final environmental impact statement prepared for a major Federal action before the final decision of the Federal agency, comments and objections of any kind shall be raised within the comment period provided by the Federal agency.
“(3) Unexhausted and forfeited comments—Comments and objections of any kind not provided within the comment periods described in paragraphs (1) and (2) shall be considered unexhausted and forfeited, consistent with section 1500.3(b) of title 40, Code of Federal Regulations (as in effect on September 14, 2020).
“(e) Record of decision in cases requiring environmental impact statements—Each record of decision prepared by a Federal agency for a proposed action shall contain a statement certifying that the Federal agency considered all alternatives to, and information and analyses relating to, the proposed action submitted during the process of carrying out the requirements of this title.”
Conforming amendments— Section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)) is amended—
in subparagraph (C)—
in the matter preceding clause (i), by striking “a detailed statement” and inserting “an environmental impact statement”; and
in the undesignated matter following clause (v), in the first sentence, by striking “Prior to making any detailed statement” and inserting “Prior to preparing an environmental impact statement”; and
in subparagraph (D)—
in the matter preceding clause (i), by striking “detailed statement” and inserting “environmental impact statement”; and
in clause (iv), by striking “detailed statement” and inserting “environmental impact statement”.
Time limit for environmental assessment completion— Title I of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as amended by subsection (d)(1)) is amended by adding at the end the following:
“109. Environmental assessment requirement
“Not later than 1 year after the date on which a Federal agency decides to prepare an environmental assessment for a proposed action, the Federal agency shall submit to the Environmental Protection Agency that environmental assessment.”
Adoption of certain categorical exclusions— Title I of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as amended by subsection (e)) is amended by adding at the end the following:
“110. Adoption of certain categorical exclusions
“A Federal agency may adopt the determination of another Federal agency that a categorical exclusion applies to a proposed action if the action covered by the original categorical exclusion determination and the proposed action of the adopting Federal agency are substantially the same, in the determination of the adopting Federal agency.”
Sec. 4 Endangered Species Act of 1973 modifications
by redesignating paragraphs (6), (7), (8), (9), (10), (12), (13), (14), (15), (16), (17), (18), (19), (20), and (21) as paragraphs (7), (8), (9), (10), (12), (13), (14), (15), (16), (17), (18), (19), (20), (21), and (22), respectively;
by inserting after paragraph (5) the following:
“(6) The term destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.”
by inserting after paragraph (10) (as so redesignated) the following:
“(11) The term foreseeable future means an unspecific period of time in the future that is necessary for the Secretary to reasonably determine that future threats to a species, and the response of a species to those threats, are likely.”
Consideration of economic impacts in listing decisions— Section 4(a)(1) of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)(1)) is amended—
in subparagraph (A)—
by striking “the” and inserting “The”; and
by striking the semicolon at the end and inserting a period;
in subparagraph (B)—
by striking “overutilization” and inserting “Overutilization”; and
by striking the semicolon at the end and inserting a period;
in subparagraph (C)—
by striking “disease” and inserting “Disease”; and
by striking the semicolon at the end and inserting a period;
in subparagraph (D)—
by striking “the” and inserting “The”; and
by striking “; or” and inserting a period;
in subparagraph (E), by striking “other” and inserting “Other”; and
by adding at the end the following:
“(F) Whether listing the species as an endangered species or a threatened species would result in economic or other impacts on landowners.”
Criteria for delisting a species— Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) is amended by adding at the end the following:
“(j) Criteria for delisting a species—The Secretary shall remove a species included on the list published pursuant to subsection (c) if the Secretary determines, after conducting a review of the status of the applicable endangered species or threatened species using the best scientific and commercial data available, that—
“(1) the listed species is extinct;
“(2) the listed species is no longer an endangered species or a threatened species; or
“(3) the listed species is not a species.”
Restrictions on designating critical habitat— Section 4(a)(3) of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) is amended by adding at the end the following:
“(C) Restriction on designating critical habitat—The Secretary shall not designate habitat as critical habitat under this paragraph if—
“(i) a species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of that threat to the species;
“(ii) the present or threatened destruction, modification, or curtailment of the habitat or range of a species—
“(I) is not a threat to the species; or
“(II) is solely a result of causes that cannot be addressed through management actions;
“(iii) areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
“(iv) no areas of the habitat are critical habitat; or
“(v) the Secretary otherwise determines that designation of the habitat as critical habitat would not be prudent based on the best scientific data available.”
Unoccupied areas— Section 3(5)(A) of the Endangered Species Act of 1973 (16 U.S.C. 1532(5)(A)) is amended by striking clause (ii) and inserting the following:
“(ii) specific areas outside the geographical area occupied by the species at the time the species is listed in accordance with section 4, as described in clause (i), if the Secretary determines that—
“(I) the geographical area occupied by the species described in clause (i), at the time of the listing, is inadequate to ensure the conservation of the species; and
“(II) it is reasonably certain that the specific area outside the geographical area occupied by the species—
“(aa) will contribute to the conservation of the species; and
“(bb) contains at least 1 physical or biological feature essential to the conservation of the species.”
Protective regulations for threatened species—
in the first sentence, by striking “Whenever any species” and all that follows through the period at the end and inserting the following:
“(1) In general—Whenever any species is listed as a threatened species pursuant this section, the Secretary shall promulgate species-specific regulations that the Secretary determines are appropriate to provide for the conservation of the threatened species.”
in the second sentence, by striking “The Secretary may by regulation” and inserting the following:
“(2) Taking prohibitions—Subject to paragraph (3), the Secretary, by species-specific regulation, may”
in paragraph (2) (as so designated)—
by inserting a comma after “section 9(a)(2)”; and
by striking “endangered species;” and all that follows through the period at the end and inserting the following: “endangered species.
“(3) Taking of resident species—With respect to the taking of resident species of fish or wildlife, a regulation promulgated under paragraph (2) shall apply in any State which has entered into a cooperative agreement pursuant to section 6(c) only to the extent that the regulation has also been adopted by that State.”
Effective date— The amendments made by paragraph (1) shall apply to species listed or reclassified as threatened species under section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) on, prior to, or after the date of enactment of this Act.
Consultations—
Expedited consultations— Section 7(a) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)) is amended by adding at the end the following:
“(5) Expedited consultations
“(A) In general—On request of a Federal agency, and in cooperation with a prospective permit or license applicant, as applicable, the Secretary and the Federal agency shall initiate an expedited consultation with respect to an agency action that has minimal or predictable effects on a listed species or a critical habitat based on prior consultations the Federal agency has conducted with the Secretary under this subsection.
“(B) Timeline
“(i) In general—Subject to clause (ii), if a Federal agency requests an expedited consultation under subparagraph (A) after determining that the agency action to be carried out by the Federal agency has minimal or predictable effects on a listed species or a critical habitat, the Secretary shall, not later than 30 days after the date on which the Secretary receives the determination of the Federal agency, approve or deny the request for an expedited consultation.
“(ii) Extended timeline—On mutual agreement between the Secretary and the Federal agency, the Secretary may extend the timeline described in clause (i) to a period of not more 60 days after the date on which the Federal agency requests an expedited consultation under subparagraph (A).”
Consultations not required for permits for dredged or fill material— Section 7(a) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)) (as amended by paragraph (1)) is amended by adding at the end the following:
“(6) Nonapplicability to nationwide permits for dredged or fill material—The requirements of this subsection shall not apply to any agency action relating to the reissuance of a general permit on a nationwide basis under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1343).”
Timelines for agency actions— Section 7(b)(1) of the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) is amended—
in subparagraph (A), by striking “90-day” and inserting “60-day”; and
in subparagraph (B)—
in the matter preceding clause (i)—
by striking “90 days” and inserting “60 days”; and
by striking “90th day” and inserting “60th day”;
in clause (i), in the matter preceding subclause (I), by striking “150th day” and inserting “100th day”; and
in clause (ii), by striking “150” and inserting “100”.
Requirements for designating critical habitat— Section 4(a)(3) of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) (as amended by subsection (d)) is amended by adding at the end the following:
“(D) Requirements for designating critical habitat—In designating habitat as critical habitat under this paragraph, the Secretary shall designate only the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support 1 or more life processes of a species.”
Biological opinions— Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) is amended by adding at the end the following:
“(q) Biological opinions
“(1) Definition of biological opinion—In this subsection, the term biological opinion means the document that states the opinion of the Secretary as to whether or not an agency action is likely—
“(A) to jeopardize the continued existence of a listed species; or
“(B) result in the destruction or adverse modification of critical habitat of that species.
“(2) Requirements—A biological opinion shall include—
“(A) a summary of the information on which the biological opinion is based;
“(B) a detailed discussion of the environmental baseline of the listed species and critical habitat;
“(C) a detailed discussion of the effects of the agency action on the listed species or critical habitat; and
“(D) the opinion of the Secretary on whether the agency action is—
“(i) likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat, which shall be known as a “jeopardy” biological opinion; or
“(ii) not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat, which shall be known as a “no jeopardy” biological opinion.
“(3) Adoption of entire initiation package—In a biological opinion, the Secretary may adopt all or part of the initiation package of a Federal agency prepared in accordance with section 402.14(c) of title 50, Code of Federal Regulations (as in effect on October 28, 2019).
“(4) Reasonable and prudent alternative measures
“(A) Definition of reasonable and prudent alternative—In this paragraph, the term reasonable and prudent alternative means an alternative action identified during a formal consultation that—
“(i) can be implemented in a manner consistent with the intended purpose of the action;
“(ii) can be implemented consistent with the scope of the legal authority and jurisdiction of a Federal agency; and
“(iii) is economically and technologically feasible.
“(B) Inclusion of reasonable and prudent alternatives—In preparing a biological opinion, the Secretary shall include reasonable and prudent alternatives, as applicable.
“(C) No reasonable and prudent alternatives—If the Secretary is unable to develop reasonable and prudent alternatives to include in a biological opinion in accordance with subparagraph (B), the Secretary shall indicate that, to the knowledge of the Secretary, no reasonable or prudent alternatives exist.”
Sec. 5 Expediting completion of the mountain valley pipeline
Definition of mountain valley pipeline— In this section, the term Mountain Valley Pipeline means the Mountain Valley Pipeline project, as generally described and approved in Federal Energy Regulatory Commission Docket Nos. CP16–10 and CP19–477.
Expedited approval— Notwithstanding any other provision of law, not later than 21 days after the date of enactment of this Act and for the purpose of facilitating the completion of the Mountain Valley Pipeline—
the Secretary of the Army shall issue all permits or verifications necessary—
to complete the construction of the Mountain Valley Pipeline across the waters of the United States; and
to allow for the operation and maintenance of the Mountain Valley Pipeline;
the Secretary of Agriculture shall amend the Land and Resource Management Plan for the Jefferson National Forest in a manner that is substantively identical to the record of decision with respect to the Mountain Valley Pipeline issued on January 11, 2021; and
the Secretary of the Interior shall—
reissue the biological opinion and incidental take statement for the Mountain Valley Pipeline in a manner that is substantively identical to the biological opinion and incidental take statement previously issued on September 4, 2020; and
grant all necessary rights-of-way and temporary use permits in a manner that is substantively identical to those permits approved in the record of decision with respect to the Mountain Valley Pipeline issued on January 14, 2021.
Judicial review— No action taken by the Secretary of the Army, the Federal Energy Regulatory Commission, the Secretary of Agriculture, or the Secretary of the Interior that grants an authorization, permit, verification, biological opinion, incidental take statement, or any other approval related to the Mountain Valley Pipeline, including the issuance of any authorization, permit, verification, authorization, biological opinion, incidental take statement, or other approval described in subsection (b), shall be subject to judicial review.
Effect— This section preempts any statute (including any other section of this Act), regulation, judicial decision, or agency guidance that is inconsistent with the issuance of any authorization, permit, verification, authorization, biological opinion, incidental take statement, or other approval described in subsection (b).