[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6708 Introduced in House (IH)]
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118th CONGRESS
1st Session
H. R. 6708
To require the Secretary of the Army, acting through the Chief of
Engineers, to propose a new nationwide permit under the Federal Water
Pollution Control Act for dredging projects, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 11, 2023
Mr. Moylan introduced the following bill; which was referred to the
Committee on Transportation and Infrastructure
_______________________________________________________________________
A BILL
To require the Secretary of the Army, acting through the Chief of
Engineers, to propose a new nationwide permit under the Federal Water
Pollution Control Act for dredging projects, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Dredging to Ensure the Empowerment
of Ports Act'' or the ``DEEP Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Certifying authority.--The term ``certifying
authority'', with respect to an activity for which a
certification is required under section 401 of the Federal
Water Pollution Control Act (33 U.S.C. 1341) from a State or
interstate water pollution control agency, means the State or
interstate water pollution control agency, as applicable, from
which the certification is requested.
(2) Dredging project.--
(A) In general.--The term ``dredging project''
means a project permitted or solicited by the Secretary
that involves the dredging of a port or a navigation
channel of a port within the navigable waters of the
United States.
(B) Dredging of ports.--For purposes of
subparagraph (A), a dredging project that involves the
dredging of a port includes dredging for the purposes
of--
(i) maintaining the port;
(ii) expanding the port; or
(iii) deepening the port up to a depth of
60 feet.
(3) Navigable waters of the united states.--The term
``navigable waters of the United States'' has the meaning given
the term in section 2101 of title 46, United States Code.
(4) NWP.--The term ``NWP'' means the new nationwide permit
required to be proposed by the Secretary under section 3(a).
(5) Permittee.--The term ``permittee'' means an individual
or entity that proposes an activity under section 4(a)(1) to be
carried out under the NWP.
(6) Secretary.--The term ``Secretary'' means the Secretary
of the Army, acting through the Chief of Engineers.
SEC. 3. DREDGING PROJECT NATIONWIDE PERMIT.
(a) Proposal.--
(1) In general.--Not later than 60 days after the date of
enactment of this Act, the Secretary shall propose a new
nationwide permit under section 404(e) of the Federal Water
Pollution Control Act (33 U.S.C. 1344(e)) relating to Federal
and non-Federal dredging projects within the navigable waters
of the United States.
(2) Requirement.--In proposing the NWP under paragraph (1),
the Secretary shall require each Division Engineer to propose
regional conditions for inclusion in the NWP.
(b) Duration.--Notwithstanding section 404(e)(2) of the Federal
Water Pollution Control Act (33 U.S.C. 1344(e)(2)), the NWP shall be
valid for a term of not more than 10 years.
(c) NEPA.--
(1) In general.--In carrying out the requirements of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) with respect to the issuing of the NWP, the Secretary or
a cooperating agency, as applicable--
(A) shall--
(i) complete the requirements under that
Act for the NWP not later than 2 years after
the date on which the Secretary proposes the
NWP under subsection (a);
(ii) subject to paragraph (2), ensure that
there is produced, with respect to the NWP, not
more than 1--
(I) environmental impact statement;
(II) record of decision; and
(III) if necessary, environmental
assessment; and
(iii) consider mitigation standards and
metrics, including standards and metrics other
than just compensation, to ensure that the
impacts of the NWP on the environment are
minimal; and
(B) shall not consider--
(i) an alternative or condition of the NWP
if it is not technically or economically
feasible to permittees; and
(ii) an alternative to the NWP that is not
within the jurisdiction of the Secretary or the
cooperating agency, as applicable.
(2) Division engineers.--Each Division Engineer that
proposes regional conditions for inclusion in the NWP under
subsection (a)(2) may prepare not more than 1 environmental
document required under the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.).
(3) Final nwp.--The Secretary shall issue the final NWP not
later than 60 days after the date on which the Secretary
completes the requirements with respect to the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) under
paragraph (1).
(d) State or Interstate Water Pollution Control Agency
Certifications.--
(1) Certification required.--
(A) In general.--If, in developing the NWP, the
Secretary is required to seek a water quality
certification from a certifying authority under section
401 of the Federal Water Pollution Control Act (33
U.S.C. 1341), the certifying authority shall, within a
reasonable period of time (which shall not exceed 14
days) after the date on which the Secretary submits the
certification application pursuant to that section,
make a determination on whether or not the application
submitted by the Secretary is complete.
(B) No response.--If a certifying authority fails
or refuses to make a determination with respect to a
certification application submitted pursuant to
subparagraph (A) within the timeframe referred to in
that subparagraph, the certification shall be
considered to be complete.
(2) Incomplete application.--If a certifying authority
determines that an application referred to in paragraph (1) is
incomplete, the certifying authority shall, not later than 14
days after that determination, issue to the Secretary a
detailed list of items required in order for an application to
be considered complete.
(3) Complete application.--
(A) In general.--If a certifying authority
determines that an application referred to in paragraph
(1) is complete, the certifying authority shall,
notwithstanding section 401(a)(1) of the Federal Water
Pollution Control Act (33 U.S.C. 1341(a)(1)), act on
the application within a reasonable period of time,
which may not exceed 1 year from the date on which the
certifying authority determines the application is
complete.
(B) No re-filing.--If a certifying authority
determines that an application submitted by the
Secretary is complete, the certifying authority may not
require the Secretary to re-file an application for the
same proposed activity.
(e) Permits for Dredged or Filled Material.--
(1) In general.--In carrying out the requirements under
section 404 of the Federal Water Pollution Control Act (33
U.S.C. 1344) with respect to activities carried out under the
NWP, the Secretary shall only issue guidelines that are
technologically and economically feasible for a permittee.
(2) Certain disposal sites.--Notwithstanding section 404(c)
of the Federal Water Pollution Control Act (33 U.S.C. 1344(c)),
the Administrator of the Environmental Protection Agency may
consult with the Secretary on a defined disposal site or the
application of guidelines, but may not--
(A) prohibit the disposal site determination made
by the Secretary; or
(B) exercise any enforcement authority for a
determination made by the Secretary, or against a
permittee, in compliance with the NWP.
(f) Grant of Permission.--For purposes of the NWP, full compliance
with section 404 of the Federal Water Pollution Control Act (33 U.S.C.
1344) shall be deemed to be a grant of permission under section 14(a)
of the Act of March 3, 1899 (commonly known as the ``Rivers and Harbors
Act of 1899'') (30 Stat. 1152, chapter 425; 33 U.S.C. 408(a)).
(g) Rule of Construction.--Nothing in this Act requires an
additional permit under section 10 of the Act of March 3, 1899
(commonly known as the ``Rivers and Harbors Act of 1899'') (30 Stat.
1151, chapter 425; 33 U.S.C. 403).
SEC. 4. PROPOSED ACTIVITIES UNDER THE NATIONWIDE PERMIT.
(a) Authorized Activities.--
(1) In general.--If a permittee seeks to carry out an
activity authorized under the NWP, the permittee shall--
(A) notify the Secretary of that proposed activity;
and
(B) seek approval, in writing, from the Secretary
that the proposed activity complies with the NWP.
(2) Decision.--Not later than 14 days after the date on
which the Secretary receives a written notification from a
permittee under paragraph (1), the Secretary shall notify the
permittee whether or not the application of the permittee is
complete.
(3) Incomplete application.--If the Secretary determines
that an application submitted by a permittee under paragraph
(1) is incomplete, the Secretary shall, not later than 14 days
after that determination, provide to the permittee a list of
information missing from that application in order for the
application to be considered complete.
(4) Complete application.--
(A) In general.--If the Secretary determines that
an application submitted by a permittee under paragraph
(1) is complete, the Secretary shall, not later than 30
days after that determination, approve or deny the
proposed activity of the permittee.
(B) Denied proposed activities.--If the Secretary
denies the proposed activity of the permittee under
subparagraph (A), the Secretary shall, not later than
14 days after that denial, provide to the permittee, in
writing--
(i) a list of reasons for that
determination; and
(ii) recommendations on how to improve the
proposed activity to be in compliance with the
NWP.
(5) No response.--If the Secretary does not comply with a
deadline described in paragraph (2), (3), or (4), or fails to
respond to an application submitted by a permittee, the
proposed activity of the permittee, as described in that
application, shall be deemed in compliance with the NWP.
(6) Mitigation flexibility.--In considering mitigation-
specific requirements for a proposed activity for which
approval is sought under subsection (a)(1), the Secretary,
acting through the applicable Division Engineer, shall have the
flexibility to determine which mitigation is needed with
respect to the proposed activity, on the condition that each
mitigation requirement is--
(A) technically and economically feasible; and
(B) within the jurisdiction of the Secretary,
acting through the applicable Division Engineer, to
require.
(b) NEPA.--If a proposed activity for which approval is sought
under subsection (a)(1) includes 1 or more activities that may likely
have a significant effect on the quality of the human environment, as
determined by the Secretary, the Secretary shall--
(1) consider whether mitigating the circumstances or
conditions of the proposed activity is sufficient to avoid the
significant effects on the quality of the human environment
that may result from that circumstance or condition of that
proposed activity; and
(2) if the Secretary determines under paragraph (1) that
the significant effects that may likely result from the
circumstance or condition of the proposed activity can be
avoided, mitigate the circumstances or conditions of the
proposed activity without--
(A) denying the proposed activity; or
(B) requiring the permittee to carry out the
requirements of the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.) for the proposed
activity (or any portion of the proposed activity).
(c) State or Interstate Water Pollution Control Agency
Certifications.--
(1) Certification required.--
(A) In general.--If the NWP requires a permittee to
request a water quality certification from a certifying
authority under section 401 of the Federal Water
Pollution Control Act (33 U.S.C. 1341), the certifying
authority shall, within a reasonable period of time
(which shall not exceed 14 days) after the date on
which the permittee submits the certification
application pursuant to that section, make a
determination on whether or not the application
submitted by the permittee is complete.
(B) No response.--If a certifying authority fails
or refuses to make a determination with respect to a
certification application submitted pursuant to
subparagraph (A) within the timeframe referred to in
that subparagraph, the certification shall be
considered to be complete.
(2) Incomplete application.--If a certifying authority
determines that an application referred to in paragraph (1) is
incomplete, the certifying authority shall, not later than 14
days after that determination, issue to the permittee a
detailed list of items required in order for an application to
be considered complete.
(3) Complete application.--
(A) In general.--If a certifying authority
determines that an application referred to in paragraph
(1) is complete, the certifying authority shall,
notwithstanding section 401(a)(1) of the Federal Water
Pollution Control Act (33 U.S.C. 1341(a)(1)), act on
the application within a reasonable period of time,
which may not exceed 1 year from the date on which the
certifying authority determines the application is
complete.
(B) No re-filing.--If a certifying authority
determines that an application submitted by a permittee
is complete, the certifying agency may not require the
permittee to re-file an application for the same
proposed activity.
SEC. 5. DREDGING; DREDGED MATERIAL.
(a) Repeal.--
(1) In general.--Section 55109 of title 46, United States
Code, is repealed.
(2) Conforming amendment.--The analysis for chapter 551 of
title 46, United States Code, is amended by striking the item
relating to section 55109.
(b) Excluding Dredged Material From Transportation Requirements.--
(1) In general.--Section 55110 of title 46, United States
Code, is amended--
(A) in the section heading, by striking ``or
dredged material'' and inserting ``(excluding dredged
material)''; and
(B) by striking ``or dredged material'' and
inserting ``(excluding dredged material)''.
(2) Conforming amendment.--The analysis for chapter 551 of
title 46, United States Code, is amended by striking the item
relating to section 55110 and inserting the following:
``Sec. 55110. Transportation of valueless material (excluding dredged
material).''.
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