Section 1 Short title
This Act may be cited as the “Revitalizing the Economy by Simplifying Timelines and Assuring Regulatory Transparency Act” or the “RESTART Act”.
Revitalizing the Economy by Simplifying Timelines and Assuring Regulatory Transparency Act
A BILL
To improve the environmental review process, and for other purposes.
Sec. 2 Modernizing the National Environmental Policy Act of 1969
Existing NEPA requirements— Section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)) is amended—
in subparagraph (A), by striking “insure” and inserting “ensure”;
in subparagraph (B), by striking “insure” and inserting “ensure”;
in subparagraph (C)—
by inserting “consistent with the requirements of this Act and except as provided by any other provision of law,” before “include in every”;
by striking clauses (i) through (v) and inserting the following:
“(i) a reasonable number of alternatives to the major Federal action and effects of those alternatives, including an analysis of any negative effects of not implementing the major Federal action in the case of a no action alternative;
“(ii) the relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity; and
“(iii) any irreversible and irretrievable commitments of Federal resources that would be involved in the major Federal action if the action is implemented.”
in the undesignated matter following clause (iii) (as so amended), in the second sentence, by striking “the responsible Federal official” and inserting “the head of the Federal lead agency”;
in subparagraph (D)—
in the matter preceding clause (i), by striking “official, if:” and inserting “official if—”;
in each of clauses (i) and (ii), by striking the comma at the end and inserting a semicolon;
in clause (iii), by striking “, and” and inserting “; and”; and
in clause (iv), by striking the period at the end and inserting a semicolon;
by redesignating subparagraphs (D) through (I) as subparagraphs (F) through (K), respectively;
by inserting after the undesignated matter following subparagraph (C) the following:
“(D) ensure the professional integrity, including scientific integrity, of the discussion and analysis in an environmental document;
“(E) make use of reliable existing data and resources in carrying out this Act;”
by striking subparagraph (G) (as so redesignated) and inserting the following:
“(G) consistent with the requirements of this Act, study, develop, and describe technically feasible alternatives in the jurisdiction and authority of the Federal agency;”
in subparagraph (H) (as so redesignated), by inserting “consistent with the requirements of this Act,” before “recognize”.
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) Alternative—The term alternative means an agency action, other than a proposed agency action, that—
“(A) is technically and economically feasible;
“(B) is within the jurisdiction of the Federal agency;
“(C) meets the purpose and need of the proposed agency action; and
“(D) meets the goals of the project sponsor.
“(2) Authorization
“(A) In general—Except as provided in subparagraph (B), the term authorization means any license, permit, approval, finding, determination, or other administrative decision issued by a Federal agency that is required or authorized under Federal law to implement a proposed agency action.
“(B) Programmatic or planning actions—The term authorization, with respect to a proposed agency action that is a programmatic or planning action, does not include a site-specific decision that is intended to implement that action at a later date.
“(3) Categorical exclusion—The term categorical exclusion means a category of actions that a Federal agency has determined, according to procedures established by the Federal agency, do not normally have a significant effect on the human environment.
“(4) Cooperating agency—The term cooperating agency means any Federal agency or State, Tribal, or local agency that has been designated as a cooperating agency under section 111(a)(4).
“(5) Council—The term Council means the Council on Environmental Quality.
“(6) Effects
“(A) In general—The term effects means changes to the human environment as a result of a proposed agency action or an alternative, as applicable, to be carried out by a Federal agency that—
“(i) are reasonably foreseeable, including changes that may occur not later than 10 years after the date on which the lead agency begins preparing an environmental document in an area directly affected by the proposed agency action or alternative, as applicable, such that an individual of ordinary prudence would take such occurrence into account in reaching a decision; and
“(ii) have a proximate causal relationship to the proposed agency action or an alternative, as applicable.
“(B) Requirement—For purposes of subparagraph (A)(ii), a but for causal relationship is insufficient to establish a proximate causal relationship.
“(7) 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 agency action.
“(8) Environmental document—The term environmental document includes an environmental assessment, a finding of no significant impact, a notice of intent, and an environmental impact statement.
“(9) Environmental impact statement—The term environmental impact statement means a detailed statement required to be prepared for a major Federal action significantly affecting the quality of the human environment in accordance with title I.
“(10) Environmental review—The term environmental review means the process of preparing, for a proposed agency action in accordance with this Act, an environmental impact statement, an environmental assessment, a categorical exclusion, a finding of no significant impact, or a record of decision.
“(11) Federal agency—The term Federal agency has the meaning given the term agency in section 551 of title 5, United States Code.
“(12) Finding of no significant impact—The term finding of no significant impact means a document prepared by a Federal agency briefly presenting the reasons why a proposed agency action, not subject to a categorical exclusion—
“(A) will not have a significant effect on the human environment; and
“(B) will not have an environmental impact statement prepared for the action.
“(13) Involved Federal agency—The term involved Federal agency means a Federal agency that, with respect to a proposed agency action—
“(A) proposed the action; or
“(B) is involved in the action because the action is directly related, through functional interdependence or geographic proximity, to an action the Federal agency has taken or has proposed to take.
“(14) Lead agency—The term lead agency means the agency or agencies, in the case of joint lead agencies, preparing or having taken primary responsibility for carrying out any requirements relating to an environmental review for a proposed agency action pursuant to this Act.
“(15) Major Federal action
“(A) In general—The term major Federal action means an action that the Federal agency carrying out the action determines is subject to substantial Federal control and responsibility.
“(B) Exclusions—The term major Federal action does not include—
“(i) a non-Federal action—
“(I) with no or minimal Federal funding;
“(II) with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project; or
“(III) that does not include Federal land;
“(ii) funding assistance solely in the form of general revenue sharing funds that do not provide Federal agency compliance or enforcement responsibility over the subsequent use of those funds;
“(iii) loans, loan guarantees, or other forms of financial assistance where a Federal agency does not exercise sufficient control and responsibility over the effect of the action;
“(iv) farm ownership and operating loan guarantees by the Farm Service Agency pursuant to sections 305 and 311 through 319 of the Consolidated Farm and Rural Development Act (7 U.S.C. 1925, 1941–1949);
“(v) business loan guarantees provided by the Small Business Administration pursuant to subsection (a) or (b) of section 7 of the Small Business Act (15 U.S.C. 636), or title V of the Small Business Investment Act of 1958 (15 U.S.C. 695 et seq.);
“(vi) bringing judicial or administrative civil or criminal enforcement actions; or
“(vii) extraterritorial activities or decisions, including agency activities or decisions with effects located entirely outside of the jurisdiction of the United States.
“(C) Determination—An agency action may not be determined to be a major Federal action solely on the basis of—
“(i) an interstate effect of the action or related project; or
“(ii) the provision of Federal funds for the action or related project.
“(16) Notice of intent—The term notice of intent means a public notice that a Federal agency intends to prepare and consider an environmental impact statement for a proposed agency action.
“(17) Page—The term page means a page that contains not more than 500 words, not including any explanatory maps, diagrams, graphs, tables, or other means of graphically displaying quantitative or geospatial information.
“(18) Project sponsor—The term project sponsor means the agency or other entity, including any private or public-private entity, that seeks an authorization for a proposed agency action.
“(19) Proposed agency action—The term proposed agency action means an action at a stage when a Federal agency—
“(A) has a goal;
“(B) is actively preparing to make a decision on 1 or more alternatives to accomplish that goal; and
“(C) can meaningfully evaluate the effects of the action.
“(20) Special expertise—The term special expertise, with respect to a proposed agency action, means—
“(A) having statutory responsibility;
“(B) that the proposed agency action aligns with the mission of a Federal agency; or
“(C) having related program experience relating to that proposed agency action.”
Procedure for determination of level of review— 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. Procedure for determination of level of review
“(a) Threshold determinations—A Federal agency shall not be required to prepare an environmental document with respect to a proposed agency action if—
“(1) the proposed agency action is not a final agency action (within the meaning of chapter 5 of title 5, United States Code);
“(2) the proposed agency action is covered by a categorical exclusion established by the agency, a Federal agency, or any other provision of law;
“(3) the preparation of an environmental document would clearly and fundamentally conflict with the requirements of another provision of law;
“(4) the proposed agency action is, in whole or in part, a nondiscretionary action with respect to which the agency does not have authority to take environmental factors into consideration in determining whether to carry out the proposed action;
“(5) the proposed agency action is a rulemaking that is subject to section 553 of title 5, United States Code; or
“(6) the proposed agency action is an action for which the compliance of the agency with the requirements of another law serves the same or similar function as the requirements of this Act with respect to the action.
“(b) Levels of review
“(1) Environmental impact statement—Pursuant to section 102(2)(C), a Federal agency shall issue an environmental impact statement with respect to a major Federal action that has a significant effect on the quality of the human environment.
“(2) Environmental assessment
“(A) In general—A Federal agency shall prepare an environmental assessment with respect to a proposed agency action—
“(i) that is not likely to have a significant effect on the quality of the human environment; or
“(ii) for which the significance of the effect on the quality of the human environment is unknown.
“(B) Requirement—An environmental assessment prepared under subparagraph (A) shall be a concise public document prepared by a Federal agency that briefly provides evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.
“(3) Sources of information—In making a determination under this subsection, an agency—
“(A) may make use of any reliable data source; and
“(B) shall not be required to carry out new scientific or technical research.”
Environmental impact statement requirements—
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:
“107. Environmental impact statement requirements
“(a) Statement of purpose and need
“(1) In general—Subject to paragraph (2), an environmental impact statement shall briefly specify—
“(A) the underlying purpose and need to which a Federal agency is responding; and
“(B) the major Federal action, at least 1 alternative, and the effects of the major Federal action and any alternative.
“(2) Statutory authority—When the statutory duty of a Federal agency is to review an application for a proposed agency action, the Federal agency shall base the purpose and need to which the Federal agency is responding on the goals of the project sponsor and the authority of the Federal agency.
“(b) Cover sheet—The cover sheet for an environmental impact statement shall include a statement of the estimated total cost of preparing the environmental impact statement, including the costs of Federal agency full-time equivalent personnel hours, contractor costs, and other direct costs.
“(c) Page limits
“(1) In general—Except as provided in paragraph (2), an environmental impact statement for a major Federal action shall not exceed 150 pages.
“(2) Unusual complexity—An environmental impact statement for a major Federal action of unusual complexity, as determined by the applicable Federal agency, shall not exceed 300 pages.
“(d) Timeline 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 for a major Federal action, the Federal agency shall publish in the Federal Register the final environmental impact statement or notice of availability of the final environmental impact statement for the major Federal action.
“(2) Failure to act
“(A) In general—If a Federal agency fails to publish a final environmental impact statement or notice of availability of the final environmental impact statement in accordance with the timeline described in paragraph (1), and the timeline has not been extended in accordance with paragraph (3), the requirements of this title shall be deemed to have been fulfilled for the major Federal action.
“(B) No judicial review—A major Federal action deemed to fulfill the requirements of this title under subparagraph (A) shall not be subject to judicial review under this title or subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the “Administrative Procedure Act”).
“(3) Extension—The timeline established under paragraph (1) may only be extended if—
“(A) the extension is requested, in writing, by the project sponsor; and
“(B) the applicable Federal agency concurs, in writing, with the extension.
“(e) Specificity of comments and information
“(1) Request for public comment—A notice of availability of a draft environmental impact statement or draft environmental impact statement published in the Federal Register shall include a request for public comment, within a comment period provided by the applicable Federal agency, on—
“(A) the applicable major Federal action, at least 1 alternative to the major Federal action, and the effects of each; and
“(B) relevant information, studies, or analyses with respect to the applicable major Federal action.
“(2) Comments on draft environmental impact statements—Comments and objections relating to a draft environmental impact statement for a major Federal action shall be raised within a comment period provided by the applicable Federal agency, as described in paragraph (1).
“(3) Unexhausted and forfeited comments—Comments and objections not provided within a comment period described in paragraph (1)—
“(A) shall be considered unexhausted and forfeited; and
“(B) shall not be grounds for judicial review.
“(f) Record of decision—Each record of decision prepared for a final environmental impact statement by a Federal agency for a major Federal action shall—
“(1) contain a statement certifying that the Federal agency considered at least 1 alternative and information and analyses relating to the major Federal action submitted during the process of carrying out the requirements of this title; and
“(2) be issued not later than 90 days after the date on which the Federal agency publishes the final environmental impact statement or notice of availability of the final environmental impact statement in the Federal Register.
“(g) Deadline for issuance of authorizations
“(1) Environmental impact statements—For a major Federal action for which a record of decision described in subsection (f) is prepared, all authorizations required under any other Federal law associated with the record of decision shall be issued not later than 90 days after the date on which the Federal agency publishes the final record of decision or notice of availability of the record of decision for the major Federal action in the Federal Register.
“(2) Deemed fulfilled—For a major Federal action deemed to have fulfilled the requirements of this title under subsection (d)(2)(A), all authorizations required under any other Federal law shall be issued not later than 90 days after the date on which the requirements were deemed to have been fulfilled under that subsection.”
Conforming amendments— Section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)) (as amended by subsection (a)) 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 (iii), in the first sentence, by striking “Prior to making any detailed statement” and inserting “Prior to preparing an environmental impact statement”; and
in subparagraph (F)—
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”.
Environmental assessment requirements— 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:
“108. Environmental assessment requirements
“(a) Statement of purpose and need
“(1) In general—Subject to paragraph (2), an environmental assessment shall briefly specify—
“(A) the underlying purpose and need to which a Federal agency is responding; and
“(B) the proposed agency action and the effects of the proposed agency action.
“(2) Statutory authority—When the statutory duty of a Federal agency is to review an application for a proposed agency action, the Federal agency shall base the purpose and need to which the Federal agency is responding on the goals of the project sponsor and the authority of the Federal agency.
“(b) Time limit for preparing and environmental assessment
“(1) In general—Not later than 1 year after the date on which a Federal agency decides to prepare an environmental assessment for a proposed agency action, the Federal agency shall publish in the Federal Register—
“(A) a notice of availability of the environmental assessment; and
“(B) the associated finding of no significant impact or notice of availability of the associated finding of no significant impact or notice of intent, as applicable.
“(2) Failure to act
“(A) In general—If a Federal agency fails to publish a notice of availability of the environmental assessment and associated finding of no significant impact or notice of intent, as applicable, in accordance with the timeline described in paragraph (1), and the timeline has not been extended in accordance with paragraph (3), the proposed agency action shall be deemed to have no significant impacts and the requirements of this title shall be deemed to have been fulfilled for that proposed agency action.
“(B) No judicial review—A proposed agency action deemed to have no significant impacts and to fulfill the requirements of this title under subparagraph (A) shall not be subject to judicial review under this title or subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the “Administrative Procedure Act”).
“(3) Extension—The timeline established under paragraph (1) may only be extended if—
“(A) the extension is requested, in writing, by the project sponsor; and
“(B) the Federal agency concurs, in writing, with the extension.
“(4) Deadline for issuance of authorizations
“(A) Materials published—For a proposed agency action for which the materials described in subparagraphs (A) and (B) of paragraph (1) were published in the Federal Register, all authorizations required under any other Federal law shall be issued not later than 90 days after the date on which those materials were published.
“(B) Deemed to have no significant impacts—For a proposed agency action that is deemed to have no significant impacts and for which the requirements of this title are deemed to have been fulfilled under paragraph (2)(A), all authorizations required under any other Federal law shall be issued not later than 90 days after the date on which the proposed agency action was so deemed under that paragraph.
“(c) Page limits—An environmental assessment shall not exceed 75 pages, unless otherwise approved and established, in writing, by the head of the lead agency.”
Adoption of 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 categorical exclusions
“A categorical exclusion established by a Federal agency for a category of proposed agency actions shall be adopted by all other Federal agencies and applied to any proposed agency action that is within the category of proposed agency actions for which the categorical exclusion was established.”
Efficient reviews— Title I of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as amended by subsection (f)) is amended by adding at the end the following:
“111. Efficient reviews
“(a) Designation of lead agency
“(1) In general—If there are 2 or more involved Federal agencies that have authority with respect to a proposed agency action, the involved Federal agencies shall determine, by letter or memorandum, which Federal agency shall be the Federal lead agency based on consideration of the following factors:
“(A) Magnitude of the involvement of each Federal agency.
“(B) Special expertise concerning the effects of the proposed agency action.
“(C) Duration of the involvement of each Federal agency.
“(2) Joint lead agencies
“(A) In general—In making a determination under paragraph (1), the involved Federal agencies may appoint State, Tribal, or local agencies as joint lead agencies, as determined appropriate by the involved Federal agencies.
“(B) Roles—Joint lead agencies shall jointly fulfill the role described in paragraph (3).
“(3) Role—A lead agency shall, with respect to a proposed agency action—
“(A) supervise the preparation of an environmental document if, with respect to the proposed agency action, there is more than 1 involved Federal agency;
“(B) request the participation of each cooperating agency at the earliest practicable time;
“(C) in preparing an environmental document, give consideration to any analysis or proposal created by a cooperating agency with jurisdiction by law or with special expertise;
“(D) develop a schedule with concurrent reviews, in consultation with each involved Federal agency, the project sponsor, and such other entities as the lead agency determines appropriate, for completion of any environmental review or authorization relating to the proposed agency action;
“(E) if the lead agency determines that an authorization will not be completed in accordance with the schedule developed under subparagraph (D), notify the Federal agency responsible for issuing the authorization and request that the agency take such measures as the agency determines appropriate to comply with the schedule; and
“(F) meet with a cooperating agency that requests a meeting.
“(4) Cooperating agency
“(A) Designation—The lead agency may, with respect to a proposed agency action, designate any involved Federal agency or a State, Tribal, or local agency as a cooperating agency.
“(B) Submission of comments—A cooperating agency may, not later than a date specified by the lead agency, submit comments to the lead agency, which shall be limited to matters relating to the proposed agency action with respect to which the cooperating agency has special expertise or jurisdiction by law with respect to an environmental issue.
“(5) Request for designation of a Federal lead agency
“(A) In general—A project sponsor or any Federal agency or State, Tribal, or local agency that is substantially affected by the lack of a designation of a lead agency with respect to a proposed agency action under paragraph (1) may submit a written request for such a designation to each involved Federal agency.
“(B) Submission—An agency that receives a request under subparagraph (A) shall submit the request to each involved Federal agency and the Council.
“(6) Council designation of a Federal lead agency
“(A) Request
“(i) In general—Not earlier than 45 days after the date on which a request is submitted under paragraph (5), if no designation has been made under paragraph (1), the project sponsor or a Federal agency or State, Tribal, or local agency that is substantially affected by the lack of a designation of a lead agency may request that the Council designate a Federal lead agency.
“(ii) Requirements—A request made under clause (i) shall include—
“(I) a precise description of the nature and extent of the proposed agency action; and
“(II) a detailed statement with respect to each involved Federal agency and each factor described in subparagraphs (A) through (D) of paragraph (1) with respect to which Federal agency should serve as the Federal lead agency.
“(B) Submission—The Council shall submit a request received under subparagraph (A) to each involved Federal agency.
“(C) Response—An involved Federal agency may, not later than 20 days after the date of the submission of a request under subparagraph (A), submit to the Council a response to the request.
“(D) Designation—Not later than 40 days after the date on which an agency or a project sponsor submits a request under subparagraph (A)(i), the Council shall designate the Federal lead agency with respect to the applicable proposed agency action.
“(b) Single environmental document and joint record of decision
“(1) In general—Except as provided in paragraph (4), all authorizations relating to a proposed agency action shall rely on a single environmental document and joint record of decision for each kind of environmental document and joint record of decision prepared under this title under the leadership of a lead agency.
“(2) Use of environmental document and record of decision
“(A) In general—The lead agency shall develop environmental documents and records of decision sufficient to satisfy the requirements for any authorization or other action required for or related to a proposed agency action, including authorizations by other Federal agencies.
“(B) Cooperation of involved Federal agencies—Involved Federal agencies shall—
“(i) cooperate with the lead agency; and
“(ii) provide timely information to assist the lead agency in carrying out the requirements of this subsection.
“(3) Treatment as involved Federal agencies—A Federal agency with responsibility to issue an authorization or take an action for or related to a proposed agency action shall work with the lead agency to ensure that the agency issuing the authorization or taking the action is treated as an involved Federal agency for the action.
“(4) Exceptions—The lead agency may waive the requirements of paragraph (1) with respect to a proposed agency action if—
“(A) the project sponsor requests that agencies issue separate environmental documents; or
“(B) the obligations of a cooperating agency or other involved Federal agency under this title have already been satisfied with respect to the proposed agency action.
“(c) Scope of review—In developing an environmental document for a proposed agency action, the lead agency and any other involved Federal agencies shall only consider the effects of the proposed agency action that—
“(1) occur on Federal land; or
“(2) are subject to Federal control and responsibility.
“(d) Project sponsor preparation
“(1) In general—A lead agency shall allow a project sponsor to prepare an environmental document for a proposed agency action on request of the project sponsor.
“(2) Guidance—A lead agency may provide a project sponsor that elects to prepare an environmental document under paragraph (1) with appropriate guidance and assistance in the preparation of that environmental document.
“(3) Independent verification—A lead agency shall—
“(A) independently evaluate the environmental document prepared by a project sponsor under paragraph (1); and
“(B) take responsibility for the contents of the environmental document on adoption.”
Judicial review— Title I of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as amended by subsection (g)) is amended by adding at the end the following:
“112. Judicial review
“(a) Definition of covered cause of action—In this section, the term covered cause of action means a cause of action that—
“(1) is filed on or after the date of enactment of this section; and
“(2) seeks judicial review—
“(A) of a record of decision or finding of no significant impact based on a claim that an environmental review was improperly conducted or an environmental document is invalid under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the “Administrative Procedure Act”); or
“(B) under Federal law of an authorization issued under section 107(g) or 108(b)(4).
“(b) Termination of cause of action
“(1) Definitions—In this subsection:
“(A) Fully constructed—The term fully constructed, with respect to a project or activity, means that construction of the project or activity was completed—
“(i) on the date of enactment of this section; or
“(ii) at some point during the 180-day period preceding that date of enactment.
“(B) Operational—The term operational, with respect to a project or activity, means that the project or activity is in operation in some form, including test mode—
“(i) on the date of enactment of this section; or
“(ii) at some point during the 180-day period preceding that date of enactment.
“(2) Termination—Any claim (including any claim pending in a court on the date of enactment of this section) that seeks judicial review of a record of decision or finding of no significant impact based on an objection that an environmental review was improperly conducted, and any claim that seeks judicial review of an environmental document as invalid under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the “Administrative Procedure Act”), shall be moot and barred on the date of enactment of this section if—
“(A) a record of decision or finding of no significant impact has been issued by a Federal agency at the time at which the project or activity began; and
“(B) the project or activity for which the record of decision or finding of no significant impact was issued is fully constructed or operational.
“(c) Deadline for filing
“(1) In general—Notwithstanding any other provision of Federal law, a covered cause of action shall be filed by the date that is 60 days after—
“(A) the date on which the lead agency publishes in the Federal Register the record of decision or notice of availability of the record of decision, in the case of an environmental review resulting in a final environmental impact statement;
“(B) the date on which the Federal lead agency publishes in the Federal Register a finding of no significant impact or notice of availability of the finding of no significant impact, in the case of an environmental review resulting in a finding of no significant impact; or
“(C) the date on which a Federal agency issues an authorization, in the case of an authorization issued under section 107(g) or 108(b)(4).
“(2) Prohibition—A covered cause of action that is not filed by the deadline described in paragraph (1) shall be barred.
“(d) Deadline for resolution—A district court of the United States shall render a final judgment on a covered cause of action—
“(1) as expeditiously as practicable; and
“(2) not later than the date that is 180 days after the date on which the covered cause of action is filed.
“(e) Appellate review—A court of appeals of the United States shall render final judgment on a covered cause of action subject to its original jurisdiction or an interlocutory order or final judgment, decree, or order of a district court of the United States in a covered cause of action—
“(1) as expeditiously as practicable; and
“(2) not later than the date that is 180 days after the date on which the applicable interlocutory order or final judgment, decree, or order of the district court was issued.
“(f) Remanded actions
“(1) In general—If a court of competent jurisdiction remands a record of decision, a finding of no significant impact, or an authorization under this title to a Federal agency, the court shall set a reasonable schedule and deadline for the Federal agency to act on remand, which shall not exceed 180 days from the date on which the order of the court was issued.
“(2) Expedited treatment of remanded actions—The head of the Federal agency to which a court remands a record of decision, a finding of no significant impact, or an authorization under paragraph (1) shall take such actions as may be necessary to provide for the expeditious disposition of the action on remand in accordance with the schedule and deadline set by the court under that paragraph.
“(g) Random assignment of cases—To the maximum extent practicable, district courts of the United States and courts of appeals of the United States shall randomly assign cases seeking judicial review in a covered cause of action to judges appointed, designated, or assigned to sit as judges of the court in a manner to avoid the appearance of favoritism or bias.
“(h) Effect—Nothing in this section—
“(1) establishes a right to judicial review; or
“(2) places any limit on filing a claim that a person has violated the terms of an authorization.
“(i) Application of categorical exclusions not subject to judicial review—Notwithstanding any other provision of law, the application of a categorical exclusion to a final agency action by a Federal agency shall not be subject to judicial review under this title or subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the “Administrative Procedure Act”).
“(j) Treatment of supplemental or revised environmental documents and records of decision—For purposes of a covered cause of action—
“(1) a supplemental or revised environmental document or record of decision for a proposed agency action, when required, shall be considered to be a separate environmental document or record of decision; and
“(2) the deadline for filing a claim for judicial review of an environmental document or record of decision described in paragraph (1) shall be the date that is 60 days after the date of publication in the Federal Register of a notice of availability of the environmental document or record of decision, unless a shorter time is specified in the Federal law pursuant to which judicial review is authorized.”
Sec. 3 Clean Water Act Permitting and State certification
in subsection (d), by striking “(d) Any certification” and inserting the following:
“(e) Limitations and monitoring requirements of certification—Any certification”
in subsection (c), by striking “(c) In order” and inserting the following:
“(d) Authority of secretary of the army To permit use of spoil disposal areas by federal licensees or permittees—In order”
in subsection (b), by striking “(b) Nothing” and inserting the following:
“(c) Compliance with other provisions of law setting applicable water quality requirements—Nothing”
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) Definition of water quality requirements—In this section, the term water quality requirements means—
“(1) the applicable provisions of sections 301, 302, 303, 306, and 307; and
“(2) any applicable State or Tribal regulatory requirements for point source discharges into waters of the United States.
“(b) 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 application, means, as applicable—
“(I) the State or interstate agency to which the certification application was submitted; or
“(II) if no State or interstate agency has the authority to provide the certification described in subparagraph (B), the Administrator.
“(B) Compliance with limitations
“(i) Certification source
“(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 to the Federal licensing or permitting agency a certification from the State in which the discharge originates or will originate or, 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 that the discharge will comply with water quality requirements.
“(II) Certification by Administrator—If no State or interstate water pollution control agency has the authority to give a certification described in subclause (I), the Administrator is authorized to provide the certification to the Federal licensing or permitting agency.
“(ii) Certification of no limitation and standard
“(I) In general—In the case of any discharge 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) Activity prohibited until certification—Activity 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—The scope of a certification provided under this section shall be limited to ensuring that a discharge from a federally licensed or permitted activity complies with 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 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 is authorized to provide to the applicable Federal licensing or permitting agency—
“(aa) the specific water quality requirements with which the discharge will not comply;
“(bb) a statement explaining why the discharge will not comply with the identified 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 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 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 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 water quality requirements.
“(D) Review period
“(i) In general—Subject to clause (iii), a licensing or permitting agency shall, categorically or on a case-by-case basis for each certification application, establish a reasonable period of time (not to exceed 1 year from the date of receipt of the certification application) within which a certifying authority shall issue a final action on the certification application.
“(ii) Failure to act—If a certifying authority fails or refuses to issue a final action as described in subparagraph (F) on a certification application by the end of the reasonable period of time established under clause (i) and the reasonable period of time has not been extended in accordance with clause (iii), the requirement for a certification under subparagraph (B) shall be waived.
“(iii) Requirement for extension—With respect to a certification application, the reasonable period of time established under clause (i) may only be extended if—
“(I) the extension is requested, in writing, by the applicant; and
“(II) the certifying authority concurs, in writing, with the extension.
“(E) Waiver of certification requirement
“(i) In general—A certifying authority may, at any time during the reasonable period of time described in subparagraph (D), affirmatively waive the requirement for a certification under subparagraph (B).
“(ii) No judicial review—Notwithstanding any other provision of Federal law, including any provision of this section, a waiver pursuant to clause (i) shall not be subject to judicial review.
“(F) Final action
“(i) In general—Not later than the date on which the reasonable period of time established under subparagraph (D) for a certification application ends or on the date of a waiver pursuant to subparagraph (E)(i), as applicable, 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 subparagraph (D) or (E) 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).
“(G) Enforcement of conditions—The licensing or permitting authority to which a certification under this subsection was issued may enforce any conditions included with that certification.
“(H) 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 (b) (as so redesignated)—
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”
Conforming amendment— Section 217(b)(2) of the Water Resources Development Act of 1996 (33 U.S.C. 2326a(b)(2)) is amended by striking “section 401(c) of the Federal Water Pollution Control Act (33 U.S.C. 1341(c))” and inserting “subsection (d) of section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341)”.
Sec. 4 Definition of navigable waters
by striking the heading and section designation and all that follows through “Act:” in the matter preceding paragraph (1) and inserting the following:
“502. General definitions
“In this Act:”
by indenting the margins of each of paragraphs (1) through (20) appropriately;
in each of paragraphs (1), (2), (3), (4), (5), (6), (8), (9), (10), (11), (13), (14), (15), (16), (17), (18), (19), and (20), by inserting a paragraph heading, the text of which comprises the term defined in the paragraph;
in paragraph (12), by striking “(12) The term” and inserting the following:
“(12) Discharge of a pollutant; discharge of pollutants—The term”
by redesignating paragraphs (1) through (27) as paragraphs (24), (10), (23), (12), (17), (19), (13), (25), (3), (14), (6), (5), (26), (18), (1), (4), (22), (9), (20), (11), (2), (7), (16), (15), (21), (27), and (8), respectively, and moving the paragraphs so as to appear in numerical order; and
by striking paragraph (13) (as so redesignated) and inserting the following:
“(13) 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;
“(ii) a body of water, including a body of water subject to the ebb and flow of the tide, that—
“(I) is used in interstate or foreign commerce;
“(II) has previously been used in interstate or foreign commerce; or
“(III) may be susceptible for use in interstate or foreign commerce;
“(iii) a tributary;
“(iv) a lake, pond, or covered impoundment; and
“(v) adjacent wetland.
“(B) Exclusions—The terms navigable waters and waters of the United States do not include—
“(i) a body of water or a water feature that is not described in subparagraph (A);
“(ii) groundwater, including groundwater drained through a subsurface drainage system;
“(iii) an ephemeral feature, including an ephemeral stream, swale, gully, rill, or pool;
“(iv) diffuse stormwater run-off and directional sheet flow over upland;
“(v) a ditch that is not described in clause (i), (ii), or (iii) of subparagraph (A);
“(vi) the portion of a ditch constructed in an adjacent wetland that does not meet the requirements described in subparagraph (C)(i);
“(vii) prior converted cropland;
“(viii) an artificially irrigated area, including a field flooded for agricultural production, that would revert to upland if the application of irrigation waters to that areas cease;
“(ix) an artificial lake or pond, including a water storage reservoir and a farm, irrigation, stock watering, or log cleaning pond, that is constructed or excavated in upland or in a body of water that is not otherwise described in subparagraph (A), if the artificial lake or pond is not otherwise a lake, pond, or covered impoundment;
“(x) a water-filled depression constructed or excavated in upland or in a body of water that is not otherwise described in subparagraph (A) that is incidental to mining or construction activity;
“(xi) a pit excavated in upland or in a body of water that is not otherwise described in subparagraph (A) to obtain fill, sand, or gravel;
“(xii) a stormwater control feature constructed or excavated in upland or in a body of water that is not otherwise described in subparagraph (A) to convey, treat, infiltrate, or store stormwater runoff;
“(xiii) a groundwater recharge, water reuse, or wastewater recycling structure, including a detention, retention, or infiltration basin or pond, that is constructed or excavated in upland or in a body of water that is not otherwise described in subparagraph (A); or
“(xiv) a waste treatment system.
“(C) Associated definitions—In this paragraph:
“(i) Adjacent wetland
“(I) In general—The term adjacent wetland means a wetland that—
“(aa) touches at least 1 point or side of a body of water described in clause (i), (ii), (iii), or (iv) of subparagraph (A);
“(bb) is inundated by flooding from a body of water described in clause (i), (ii), (iii), or (iv) of subparagraph (A) in a typical year; or
“(cc) is physically separated from a body of water described in clause (i), (ii), (iii), or (iv) of subparagraph (A) only by—
“(AA) a natural berm, bank, dune, or similar natural feature; or
“(BB) an artificial dike, an artificial barrier, or a similar artificial structure, if that structure allows for a direct hydrologic surface connection between the wetland and the body of water described in clause (i), (ii), (iii), or (iv) of subparagraph (A) during a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature.
“(II) Effect of roads and other structures—For the purposes of subparagraph (A)(v), the division of an adjacent wetland by a road or similar artificial structure does not prevent the adjacent wetland in its entirety from being a navigable water or water of the United States if the road or similar artificial structure allows for a direct hydrologic surface connection through or over that structure in a typical year.
“(ii) Body of water subject to the ebb and flow of the tide
“(I) In general—The term body of water subject to the ebb and flow of the tide means a body of water that rises and falls in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun.
“(II) End of influence—For purposes of this clause, a body of water described in subclause (I) ends when the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.
“(iii) Ditch—The term ditch means a constructed or excavated channel used to convey water.
“(iv) Ephemeral—The term ephemeral means surface water flowing or pooling only in direct response to precipitation, such as rain or snow fall.
“(v) 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.
“(II) Inclusion—The term high tide line includes the maximum height reached by a spring high tide or other high tide that occurs with periodic frequency.
“(III) Exclusion—The term high tide line does not include the maximum height reached as a result of a storm surge in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds, such as those accompanying a hurricane or other intense storm.
“(IV) Methods of determination in the absence of data—For purposes of this clause, in the absence of data on the high tide line, the high tide line may be determined by—
“(aa) a line of oil or scum along shore objects;
“(bb) a more or less continuous deposit of fine shell or debris on the foreshore or berm;
“(cc) other physical markings or characteristics;
“(dd) vegetation lines;
“(ee) tidal gages; or
“(ff) other suitable means that delineate the general height reached by a rising tide.
“(vi) Intermittent—The term intermittent means surface water that flows continuously during certain times of the year and more than in direct response to precipitation, such as water that flows seasonally when the groundwater table is elevated or when snowpack melts.
“(vii) Lake, pond, or covered impoundment
“(I) In general—The term lake, pond, or covered impoundment means a standing body of open water that contributes surface water flow to a body of water described in clause (i) or (ii) of subparagraph (A) during a typical year through—
“(aa) direct means; or
“(bb) 1 or more bodies of water described in clause (iii), (iv), or (v) of that subparagraph.
“(II) Inclusion—The term lake, pond, or covered impoundment includes a body of water described in subclause (I) that—
“(aa) contributes surface water flow to a downstream body of water described in subparagraph (A) in a typical year through—
“(AA) a channelized surface water feature that is not otherwise described in that subparagraph;
“(BB) a culvert, dike, spillway, or other similar artificial feature; or
“(CC) a debris pile boulder field, or similar natural feature; or
“(bb) is inundated by flooding from a body of water described in clause (i), (ii), (iii), or (iv) of subparagraph (A) during a typical year.
“(viii) Ordinary high water mark—The term ordinary high water mark means a line on the shore of a body of water—
“(I) established by the fluctuations of the water; and
“(II) indicated by physical characteristics such as—
“(aa) a clear, natural line impressed on the bank;
“(bb) shelving;
“(cc) changes in the character of the soil;
“(dd) destruction of terrestrial vegetation;
“(ee) the presence of litter and debris; and
“(ff) other appropriate means that consider the characteristics of the surrounding areas.
“(ix) Perennial—The term perennial means surface water that flows continuously throughout the year.
“(x) Prior converted cropland
“(I) In general—The term prior converted cropland means an 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) Designation by Secretary of Agriculture—For purposes of this clause—
“(aa) the Secretary of Agriculture may designate an area as prior converted cropland; and
“(bb) except as provided in subclause (III), the Administrator and the Secretary shall recognize a designation by the Secretary of Agriculture under item (aa) for purposes of this Act.
“(III) Exclusion
“(aa) In general—The term prior converted cropland does not include an area described in subclause (I) that has, as determined by the Secretary, in coordination with the heads of other relevant Federal agencies, as appropriate—
“(AA) subject to items (bb) and (cc), been abandoned; and
“(BB) reverted to a wetland.
“(bb) Abandonment—For purposes of subitem (AA) of item (aa), an area described in that item is considered abandoned when the area is not used for, or in support of, agricultural purposes at least once in the 5-year period immediately preceding a determination described in that item.
“(cc) Final authority—Notwithstanding a determination by the Secretary of whether an area described in subclause (I) has been abandoned, the Administrator shall have final authority to make that determination.
“(xi) Secretary—The term Secretary means the Secretary of the Army, acting through the Chief of Engineers.
“(xii) Snowpack—The term snowpack means 1 or more layers of snow that have accumulated over an extended period of time in certain geographic regions or at high elevations, such as in northern climes or in mountainous regions.
“(xiii) Tributary
“(I) In general—The term tributary means a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent surface water flow to a body of water described in clause (i) or (ii) of subparagraph (A) in a typical year through—
“(aa) direct means; or
“(bb) 1 or more bodies of water described in clause (iii), (iv), or (v) of that subparagraph.
“(II) Inclusion
“(aa) Alteration or relocation—The alteration or relocation of a channel described in subclause (I) does not otherwise modify the status of the channel under this paragraph if the channel continues to meet the requirements of subclause (I) after that alteration or relocation.
“(bb) Effect of flow through certain features—A channel described in subclause (I) shall be considered a tributary for purposes of this clause if the channel contributes surface water flow in a typical year through—
“(AA) a channelized surface water feature that is not otherwise described in subparagraph (A);
“(BB) a subterranean river;
“(CC) a culvert, dam, tunnel, or similar artificial feature; or
“(DD) a debris pile, boulder field, or similar natural feature.
“(cc) Relocation—A ditch that relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland is a tributary if the ditch meets the requirements of subclause (I).
“(xiv) Typical year—The term typical year means a year within which precipitation and other climactic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable body of water based on the most recent 30-year period.
“(xv) Upland—The term upland means a land area that, under normal circumstances—
“(I) is not a wetland because it does not meet the requirements described in each of items (aa), (bb), and (cc) of clause (xvii)(I); 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).
“(xvi) Waste treatment system—The term waste treatment system includes all components, including lagoons and treatment ponds (such as settling or cooling ponds), that are 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).
“(xvii) Wetland
“(I) In general—The term wetland means an area—
“(aa) that is inundated or saturated by surface water or groundwater;
“(bb) for which the inundation or saturation described in item (aa) is at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation; and
“(cc) in which the vegetation described in item (bb) is typically adapted for life in saturated soil conditions.
“(II) Inclusions—The term wetland includes swamps, marshes, bogs, and similar areas.”
Conforming amendments—
Section 109(e) of the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1419(e)) is amended—
by striking “section 502(12)(B) of the Clean Water Act” and inserting “paragraph (5)(B) of section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362)”; and
by striking “to the Clean Water Act” and inserting “to the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.)”.
Section 501(b) of the Water Resources Development Act of 1992 (33 U.S.C. 1271 note; Public Law 102–580) is amended—
in paragraph (2), by striking “section 502(7) of the Federal Water Pollution Control Act (33 U.S.C. 1362(7))” and inserting “section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362)”; and
in paragraph (3), by striking “section 502(6) of the Federal Water Pollution Control Act (33 U.S.C. 1362(6))” and inserting “section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362)”.
Section 309(c)(6) of the Federal Water Pollution Control Act (33 U.S.C. 1319(c)(6)) is amended by striking “section 502(5) of this Act” and inserting “section 502”.
Section 107(f) of the Ocean Thermal Energy Conversion Act of 1980 (42 U.S.C. 9117(f)) is amended by striking “section 502(12)(B) of the Federal Water Pollution Control Act of 1972 (33 U.S.C. 1362(12)(B))” and inserting “paragraph (5)(B) of section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362)”.
Sec. 5 Providing regulatory certainty under the Federal Water Pollution Control Act
Codification of nationwide permits—
In general— The Nationwide Permits issued, reissued, or modified, as applicable, in the following final rules of the Corps of Engineers are enacted into law:
The final rule of the Corps of Engineers entitled “Reissuance and Modification of Nationwide Permits” (86 Fed. Reg. 2744 (January 13, 2021)).
The final rule of the Corps of Engineers entitled “Reissuance and Modification of Nationwide Permits” (86 Fed. Reg. 73522 (December 27, 2021)).
Period of applicability—
In general— Paragraph (1) ceases to be effective March 14, 2026.
Effect— Notwithstanding subparagraph (A), the Nationwide Permits described in paragraph (1) shall remain in effect on and after the date described in that subparagraph until the date on which the Nationwide Permits are reissued or modified.
National pollutant discharge elimination system— 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 “10 years”.
Certainty on availability of National Pollutant Discharge Elimination System general permits— Section 402(a)(3) of the Federal Water Pollution Control Act (33 U.S.C. 1342(a)(3)) is amended—
by striking “(3) The permit” and inserting the following:
“(3) Terms, conditions, and requirements
“(A) In general—Except as provided in subparagraph (B), the permit”
by adding at the end the following:
“(B) Exception—Notwithstanding subsection (b)(1)(B), a general permit issued or reissued by the Administrator on or after September 19, 2017, under the permit program under paragraph (1) shall remain in effect until the date on which the Administrator reissues or modifies that general permit.”
Permitting requirements for certain discharges of fire retardant—
Definition of federal land management agency— In this subsection, the term Federal land management agency means—
the Forest Service;
the National Park Service;
the Bureau of Land Management;
the United States Fish and Wildlife Service;
the Bureau of Indian Affairs; and
the Federal Emergency Management Agency.
No permitting required— Notwithstanding any provision of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), a permit under section 402 of that Act (33 U.S.C. 1342) shall not be required for the discharge of fire retardant in connection with fire suppression, control, or prevention activities carried out by a Federal land management agency, a State government, a political subdivision of a State, or a Tribal government.
Sec. 6 Prohibition on retroactive permit vetoes
Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) is amended by striking subsection (c) and inserting the following:
“(c) Authority of EPA Administrator
“(1) Possible prohibition of specification—Until such time as the Secretary has issued a permit under this section, the Administrator may prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and the Administrator may deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever the Administrator determines, after notice and opportunity for public hearings, that the discharge of those materials into that 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.
“(2) Consultation required—Before making a determination under paragraph (1), the Administrator shall consult with the Secretary.
“(3) Written findings required—The Administrator shall set forth in writing and make public the findings and reasons of the Administrator for making any determination under this subsection.”
Sec. 7 Efficient consultations under the Endangered Species Act of 1973
Timelines for section 7 consultations— 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 or more” and inserting “100 or more”.
State assumption of consultation responsibilities—
Definitions— In this subsection:
Program— The term program means the program carried out by the Secretary pursuant to this subsection.
Secretary— The term Secretary means the Secretary of the Interior.
State— The term State means—
each of the several States of the United States;
the District of Columbia;
the Commonwealth of Puerto Rico;
Guam;
American Samoa;
the Commonwealth of the Northern Mariana Islands; and
the United States Virgin Islands.
State agency— The term State agency means any agency, department, board, commission, or other governmental entity in a State with primary jurisdiction over environmental or wildlife management matters in the State, as determined by the Governor of the State.
Program—
In general— The Secretary shall carry out a program under which the Secretary may assign consultation responsibilities described in subparagraph (B)(i) to States.
Assumption of responsibility—
In general— Subject to the requirements of this subsection, with the written agreement of the Secretary and a State, which may be in the form of a memorandum of understanding, the Secretary may assign, and the State may assume, the consultation responsibilities of the Secretary within the boundary of the State under subsections (a), (b), and (c) of section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536).
Procedural and substantive requirements— A State shall assume responsibility under the program subject to the same procedural and substantive requirements as would apply if that responsibility were carried out by the Secretary.
Federal responsibility— Any responsibility of the Secretary not explicitly assumed by the State by written agreement under the program shall remain the responsibility of the Secretary.
State participation—
Participating States— All States are eligible to participate in the program.
Application—
In general— A State seeking to participate in the program shall submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require, which shall include—
verification of the financial and legal resources necessary to carry out the authority that may be granted to the State under the program;
verification of the personnel resources or a plan to hire the personnel, not later than 1 year after the date on which the application is approved, necessary to carry out the authority that may be granted to the State under the program; and
evidence of the notice and solicitation of public comment by the State relating to participation of the State in the program, including copies of comments received from that solicitation.
Denial—
In general— The Secretary shall only deny an application submitted by a State under clause (i) if the Secretary determines that the State does not demonstrate the legal, financial, or personnel capability to assume responsibility under the program.
Denial requirements— On denial of an application submitted by a State under clause (i)—
the Secretary shall—
respond to the State in writing, identifying the reasons for the denial; and
at the request of the State, provide technical assistance to the State to address the reasons identified under subitem (AA); and
the State may reapply in accordance with the requirements of clause (i).
Public notice—
In general— Not less than 30 days before the date of submission of an application of a State under subparagraph (B)(i), the State shall, in accordance with the applicable public notice law of the State—
publish the complete application of the State; and
provide an opportunity for public comment on the application, which shall not exceed 30 days.
Response to comments— Notwithstanding any other provision of law, a State shall not be required to respond to public comments received under clause (i)(II).
Selection criteria— The Secretary shall approve the application of a State submitted under subparagraph (B)(i) if—
the Secretary determines that the State has demonstrated the legal, financial, and current or future personnel capability to assume the responsibility; and
the head of the State agency enters into a written agreement with the Secretary described in paragraph (4)(A).
Failure to approve or deny application— If the Secretary fails to make a determination with respect to any application submitted under subparagraph (B)(i) within 180 days after the date on which the Secretary receives that application—
the application shall be deemed approved; and
the Secretary shall—
notify the State that submitted the application of the approval; and
execute a written agreement described in paragraph (4)(A).
Written agreement—
In general— A written agreement referred to in paragraph (3)(D)(ii) shall—
be executed by the Governor or the top-ranking environmental official in the State who is charged with responsibility for environmental matters;
be in such form as the Secretary may prescribe;
provide that the State—
agrees to assume all or part of the responsibilities of the Secretary described in paragraph (2)(B);
expressly consents, on behalf of the State, to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary assumed by the State;
certifies that State laws (including regulations) are in effect that—
authorize the State to take the actions necessary to carry out the responsibilities being assumed; and
are comparable to section 552 of title 5, United States Code, including providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and
agrees to maintain the financial resources necessary to carry out the responsibilities being assumed;
require the State to provide to the Secretary any information the Secretary reasonably considers necessary to ensure that the State is adequately carrying out the responsibilities assigned to the State;
be renewable; and
have a term of—
not more than 5 years; or
10 years, in the case of a State that has participated in a program under this subsection (or under a predecessor program) for not less than 10 years.
Role of Secretary— The Secretary shall not delegate the responsibilities of the Secretary with respect to entering into a written agreement with a State under subparagraph (A).
Jurisdiction—
In general— The district courts of the United States shall have exclusive jurisdiction over any civil action against a State for failure to carry out any responsibility of the State under the program.
Legal standards and requirements— A civil action under subparagraph (A) shall be governed by the legal standards and requirements that would apply in such a civil action against the Secretary had the Secretary taken the actions in question.
Intervention— The Secretary shall have the right to intervene in any action described in subparagraph (A).
Effect of assumption of responsibility— A State that assumes responsibility under paragraph (2)(B) shall be solely responsible and solely liable for carrying out, in lieu of and without further approval of the Secretary, the responsibilities assumed under that paragraph, until the Secretary or the State, as applicable, terminates the participation of the State in the program in accordance with subparagraph (A) or (B) of paragraph (11), as applicable.
Limitations on agreements— Nothing in this subsection permits a State to assume any rulemaking authority of the Secretary under any Federal law.
Audits—
In general— To ensure compliance by a State with any agreement of the State under paragraph (3)(D)(ii) (including compliance by the State with all Federal laws for which responsibility is assumed under paragraph (2)(B)), for each State participating in the program, the Secretary shall—
not later than 180 days after the date of execution of the agreement, meet with the State to review implementation of the agreement and discuss plans for the first annual audit;
conduct annual audits during each of the first 4 years of State participation;
in the case of an agreement period of greater than 5 years pursuant to paragraph (4)(A)(vi)(II), conduct an audit covering the first 5 years of the agreement period; and
ensure that the time period for completing an audit, from initiation to completion (including public comment and responses to those comments), does not exceed 180 days.
Public availability and comment—
In general— An audit conducted under subparagraph (A) shall be provided to the public for comment.
Response— Not later than 60 days after the date on which the period for public comment ends—
the Secretary shall respond to public comments received under clause (i); and
to the extent necessary, the applicable State agency may respond to those comments.
Audit team—
In general— An audit conducted under subparagraph (A) shall be carried out by an audit team determined by the Secretary, in consultation with the State, in accordance with clause (ii).
Consultation— Consultation with the State under clause (i) shall include a reasonable opportunity for the State to review and provide comments on the proposed members of the audit team.
Limitation— An audit team shall only include—
qualified staff of regional and headquarters offices of the United States Fish and Wildlife Service;
staff of the Department of the Interior Office of Inspector General; and
staff of the applicable State agency.
Monitoring— After the fourth year of the participation of a State in the program, the Secretary shall monitor compliance by the State with the written agreement entered into under paragraph (3)(D)(ii), including the provision by the State of financial resources to carry out the written agreement.
Report to Congress— The Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Natural Resources of the House of Representatives an annual report that describes the administration of the program, which shall include an identification of—
the number of active written agreements entered into under paragraph (3)(D)(ii) being carried out;
the number of pending written agreements entered into under that paragraph;
the number of applications denied under paragraph (3)(B)(ii) and the reasons for those denials, if any; and
the results of any audits completed pursuant to paragraph (8) in the year covered by the report.
Termination—
Termination by the Secretary— The Secretary may terminate the participation of a State in the program if—
the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State;
the Secretary provides to the State—
a notification of the determination of noncompliance;
a period of not less than 120 days to take corrective action as the Secretary determines to be necessary to comply with the applicable agreement; and
on request of the Governor of the State, a detailed description of each responsibility in need of corrective action relating to an inadequacy identified under clause (i); and
the State, after the notification and period provided under clause (ii), fails to take satisfactory corrective action, as determined by the Secretary.
Termination by the State— The State may terminate the participation of the State in the program at any time by providing to the Secretary a notice not later than the date that is 90 days before the date of termination, subject to such terms and conditions as the Secretary may provide.
Capacity building— The Secretary, in cooperation with relevant State officials, shall provide funding for education, training, peer-exchange, and other initiatives as appropriate—
to assist States in developing the capacity to participate in the program; and
to promote information sharing and collaboration among States that are participating in the program.
Agency deemed to be federal agency— A State agency that is assigned a responsibility under an agreement under the program shall be deemed to be an agency for the purposes of section 2412 of title 28, United States Code.
Sec. 8 New source review permitting
Clarification of definition of a modification for emission rate increases, pollution control, efficiency, safety, and reliability projects— Paragraph (4) of section 111(a) of the Clean Air Act (42 U.S.C. 7411(a)) is amended—
by inserting “(A)” before “The term”;
by inserting before the period at the end the following: “. For purposes of the preceding sentence, a change increases the amount of any air pollutant emitted by such source only if the maximum hourly emission rate of an air pollutant that is achievable by such source after the change is higher than the maximum hourly emission rate of such air pollutant that was achievable by such source during any hour in the 10-year period immediately preceding the change”; and
by adding at the end the following:
“(B) Notwithstanding subparagraph (A), the term modification does not include a change at a stationary source that is designed—
“(i) to reduce the amount of any air pollutant emitted by the source per unit of production; or
“(ii) to restore, maintain, or improve the reliability of operations at, or the safety of, the source,”
Clarification of definition of construction for prevention of significant deterioration— Section 169(2) of the Clean Air Act (42 U.S.C. 7479(2)) is amended by striking subparagraph (C) and inserting the following:
“(C) The term construction, when used in connection with a major emitting facility, includes a modification (as defined in section 111(a)) at such facility, except that for purposes of this subparagraph a modification does not include a change at a major emitting facility that does not result in a significant emissions increase, or a significant net emissions increase, in annual actual emissions at such facility.”
Clarification of definition of modifications and modified for nonattainment areas— Section 171 of the Clean Air Act (42 U.S.C. 7501) is amended by striking paragraph (4) and inserting the following:
“(4) The terms “modifications” and “modified” mean a modification as defined in section 111(a)(4), except that such terms do not include a change at a major emitting facility that does not result in a significant emissions increase, or a significant net emissions increase, in annual actual emissions at such facility.”
Rule of construction— Nothing in this section or the amendments made by this section shall be construed to treat any change as a modification for purposes of any provision of the Clean Air Act (42 U.S.C. 7401 et seq.) if such change would not have been so treated as of the day before the date of enactment of this Act.
Sec. 9 Prohibitions on use of social cost of greenhouse gas estimates
In general— In promulgating regulations, issuing guidance, or taking any agency action (as defined in section 551 of title 5, United States Code) relating to the social cost of greenhouse gases, no Federal agency shall adopt or otherwise use any estimates for the social cost of carbon, methane, or nitrous oxide that—
may increase the cost of energy, including the levelized cost of electricity and gasoline prices, as determined through a review by the Energy Information Administration; or
could prolong the timeline necessary to promulgate that regulation, guidance, or agency action.
Inclusion— The estimates referred to in subsection (a) include the interim estimates in the document of the Interagency Working Group on the Social Cost of Greenhouse Gases entitled “Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive Order 13990” and dated February 2021.
Sec. 10 Policy review under the Clean Air Act
Section 309 of the Clean Air Act (42 U.S.C. 7609) is amended to read as follows:
“309. Policy review
“(a) Environmental impact of proposed legislation
“(1) In general—The Administrator shall review, and comment in writing, on the environmental impact of any matter relating to the duties and responsibilities granted to the authority of the Administrator pursuant to this Act or any other law contained in any legislation proposed by a Federal department.
“(2) Publish—A written comment referred to in paragraph (1) shall be made public at the conclusion of any review conducted under that paragraph.
“(b) Unsatisfactory legislation—If the Administrator determines that any legislation reviewed under subsection (a)(1) is unsatisfactory from the standpoint of public health, welfare, or environmental quality, the Administrator shall publish the determination of the Administrator and the matter shall be referred to the Council on Environmental Quality.”
Sec. 11 Domestic energy independence report
Not later than 120 days after the date of enactment of this Act, the Administrator of the Environmental Protection Agency, in consultation with the Secretary of Energy, shall submit to Congress a report that identifies and assesses regulations promulgated by the Administrator of the Environmental Protection Agency during the 15-year period ending on the date of enactment of this Act that have—
reduced the energy independence of the United States;
increased the regulatory burden for energy producers in the United States;
decreased the energy output by those energy producers;
reduced the energy security of the United States; or
increased energy costs for consumers in the United States.
Sec. 12 State primary enforcement responsibility
in paragraph (2)—
by striking “(2) Within ninety days” and inserting the following:
“(2) Required timeline
“(A) In general—Within 90 days”
in subparagraph (A) (as so designated), by striking “and after reasonable opportunity for presentation of views”; and
by adding at the end the following:
“(B) Failure to act
“(i) Definition of Class VI Well—In this subparagraph, the term Class VI well means a well described in section 144.6(f) of title 40, Code of Federal Regulations (as in effect on the date of enactment of this subparagraph).
“(ii) Notice to State—If, 180 calendar days after the date on which a State’s application is submitted under paragraph (1)(A) or notice is submitted under (1)(B), the Administrator has not, pursuant to subparagraph (A), by rule approved, disapproved, or approved in part and disapproved in part the underground injection control program of the State for Class VI wells, the Administrator shall submit to the State, in writing, a detailed explanation as to the status of the application or notice.
“(iii) Deemed approval—The underground injection control program of a State for Class VI wells shall be deemed to be approved if—
“(I) by the date that is 30 days after the end of the 180-day period described in clause (ii), the Administrator has not by rule approved, disapproved, or approved in part and disapproved in part the underground injection control program of the State for Class VI wells; and
“(II) the State has established and implemented a primary enforcement authority program for 1 or more classes of underground injection control wells (including adequate recordkeeping and reporting) to prevent underground injection that endangers drinking water sources.
“(iv) Limitation—The Administrator shall not condition the processing or approval of a State's application under paragraph (1)(A) or notice under paragraph (1)(B) for a primary enforcement authority program for Class VI wells on the addition or revision of any other program, including any primary enforcement authority program for 1 or more classes of underground injection control wells that are not Class VI wells.”
by striking paragraph (4) and inserting the following:
“(4) Opportunity for presentation of views—Before promulgating any rule under paragraph (2) or (3) of this subsection, the Administrator shall—
“(A) provide a reasonable opportunity for presentation of views with respect to that rule, including a public hearing and a public comment period; and
“(B) publish in the Federal Register notice of the reasonable opportunity for presentation of views provided under subparagraph (A).”
by adding at the end the following:
“(5) Preapplication activities—The Administrator shall work as expeditiously as possible with States to complete any necessary activities relevant to the submission of an application under paragraph (1)(A) or notice under paragraph (1)(B).
“(6) Report
“(A) In general—Not later than 90 days after the date of enactment of this paragraph, the Administrator shall submit to the appropriate congressional committees a report, including recommendations, regarding the availability of staff and resources to promptly carry out the Class VI wells (as defined in paragraph (2)(B)(i)) program.
“(B) Appropriate congressional committees defined—In this paragraph, the term appropriate congressional committees means—
“(i) in the Senate—
“(I) the Committee on Environment and Public Works; and
“(II) the Committee on Appropriations; and
“(ii) in the House of Representatives—
“(I) the Committee on Energy and Commerce; and
“(II) the Committee on Appropriations.”
Rules of construction—
Applicability to new applications— The amendments made by this section apply to all applications submitted to the Environmental Protection Agency after the date of enactment of this Act to establish an underground injection control program under section 1422(b) of the Safe Drinking Water Act (42 U.S.C. 300h–1(b)).
Applicability to pending applications— With respect to any applications described in paragraph (1) submitted prior to the date of enactment of this Act, the 180-day and 210-day deadlines established under clauses (ii) and (iii), respectively, of section 1422(b)(2)(B) of the Safe Drinking Water Act (42 U.S.C. 300h–1(b)(1)(B)) (as added by subsection (a)(1)(C)) shall begin on the date of enactment of this Act.
Sec. 13 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, as may be modified by a subsequently issued record of decision following the supplemental environmental impact statement issued on April 13, 2023; and
the Secretary of the Interior shall—
continue to maintain 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 issued on February 28, 2023; and
grant and maintain all necessary rights-of-way and temporary use permits in a manner that is substantively identical to those rights-of-way and temporary use permits approved in the record of decision with respect to the Mountain Valley Pipeline issued on January 14, 2021, or as may be modified by any subsequently issued rights-of-way and temporary use permits.
Judicial review—
In general— 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, biological opinion, incidental take statement, or other approval for the Mountain Valley Pipeline, whether issued prior to, on, or after the date of enactment of this section, shall be subject to judicial review.
Effect— Any lawsuit (including any lawsuit pending in a court on the date of enactment of this Act) seeking judicial review of an agency order or action described in paragraph (1)—
shall not be maintained in any court; and
shall be promptly dismissed.
Effect— This section supersedes any other provision of law (including any other section of this Act or another Act of Congress), any regulation, any judicial decision, or any agency guidance that is inconsistent with the issuance of any authorization, permit, verification, biological opinion, incidental take statement, or other approval for the Mountain Valley Pipeline.