[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7023 Referred in Senate (RFS)]
<DOC>
118th CONGRESS
2d Session
H. R. 7023
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 22, 2024
Received; read twice and referred to the Committee on Environment and
Public Works
_______________________________________________________________________
AN ACT
To amend the Federal Water Pollution Control Act to provide regulatory
and judicial certainty for regulated entities and communities, increase
transparency, and promote water quality, 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 ``Creating Confidence in Clean Water
Permitting Act''.
SEC. 2. WATER QUALITY CRITERIA DEVELOPMENT AND TRANSPARENCY.
(a) Information and Guidelines.--Section 304(a) of the Federal
Water Pollution Control Act (33 U.S.C. 1314(a)) is amended by adding at
the end the following:
``(10) Administrative procedure.--After the date of
enactment of this paragraph, the Administrator shall issue any
new or revised water quality criteria under paragraph (1) or
(9) by rule.''.
(b) Administrative Procedure and Judicial Review.--Section
509(b)(1) of the Federal Water Pollution Control Act (33 U.S.C.
1369(b)(1)) is amended--
(1) by striking ``section 402, and'' and inserting
``section 402,''; and
(2) by inserting ``and (H) in issuing any criteria for
water quality pursuant to section 304(a)(10),'' after
``strategy under section 304(l),''.
SEC. 3. FEDERAL GENERAL PERMITS.
Section 402(a) of the Federal Water Pollution Control Act (33
U.S.C. 1342(a)) is amended by adding at the end the following:
``(6)(A) The Administrator is authorized to issue general permits
under this section for discharges of similar types from similar
sources.
``(B) The Administrator may require submission of a notice of
intent to be covered under a general permit issued under this section,
including additional information that the Administrator determines
necessary.
``(C) If a general permit issued under this section will expire and
the Administrator decides not to issue a new general permit for
discharges similar to those covered by the expiring general permit, the
Administrator shall publish in the Federal Register a notice of such
decision at least two years prior to the expiration of the general
permit.
``(D) If a general permit issued under this section expires and the
Administrator has not published a notice in accordance with
subparagraph (C), until such time as the Administrator issues a new
general permit for discharges similar to those covered by the expired
general permit, the Administrator shall--
``(i) continue to apply the terms, conditions, and
requirements of the expired general permit to any discharge
that was covered by the expired general permit; and
``(ii) apply such terms, conditions, and requirements to
any discharge that would have been covered by the expired
general permit (in accordance with any relevant requirements
for such coverage) if the discharge had occurred before such
expiration.''.
SEC. 4. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) TERMS.
Section 402(b)(1)(B) of the Federal Water Pollution Control Act (33
U.S.C. 1342(b)(1)(B)) is amended to read as follows:
``(B) are for fixed terms--
``(i) not exceeding 10 years, for a permit issued
to a State or municipality; and
``(ii) not exceeding 5 years, for a permit issued
to any person not described in clause (i); and''.
SEC. 5. CONFIDENCE IN CLEAN WATER PERMITS.
(a) Compliance With Permits.--Section 402(k) of the Federal Water
Pollution Control Act (33 U.S.C. 1342(k)) is amended--
(1) by striking ``(k) Compliance with'' and inserting the
following:
``(k) Compliance With Permits.--
``(1) In general.--Subject to paragraph (2), compliance
with''; and
(2) by adding at the end the following:
``(2) Scope.--For purposes of paragraph (1), compliance
with the conditions of a permit issued under this section shall
be considered compliance with respect to a discharge of--
``(A) any pollutant for which an effluent
limitation is included in the permit; and
``(B) any pollutant for which an effluent
limitation is not included in the permit that is--
``(i) specifically identified as controlled
or monitored through indicator parameters in
the permit, the fact sheet for the permit, or
the administrative record relating to the
permit;
``(ii) specifically identified during the
permit application process as present in
discharges to which the permit will apply; or
``(iii) whether or not specifically
identified in the permit or during the permit
application process--
``(I) present in any waste streams
or processes of the point source to
which the permit applies, which waste
streams or processes are specifically
identified during the permit
application process; or
``(II) otherwise within the scope
of any operations of the point source
to which the permit applies, which
scope of operations is specifically
identified during the permit
application process.''.
(b) Technical Corrections.--Section 402(l)(3) of the Federal Water
Pollution Control Act (33 U.S.C. 1342(l)(3)) is amended--
(1) in subparagraph (B)--
(A) by striking ``section 402'' and inserting
``this section''; and
(B) by striking ``federal'' and inserting
``Federal''; and
(2) in subparagraph (C)--
(A) by striking ``Section'' and inserting
``section'';
(B) by striking ``402(p)(6)'' and inserting
``subsection (p)(6)'';
(C) by striking ``402(l)(3)(A),'' and inserting
``subparagraph (A),''; and
(D) by striking ``402(l)(3)(A).'' and inserting
``such subparagraph.''.
(c) Expression of Water Quality-based Effluent Limitations.--
Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342)
is amended by adding at the end the following:
``(t) Expression of Water Quality-based Effluent Limitations.--If
the Administrator (or a State, in the case of a permit program approved
by the Administrator) determines that a water quality-based limitation
on a discharge of a pollutant is necessary to include in a permit under
this section in addition to any appropriate technology-based effluent
limitations included in such permit, the Administrator (or the State)
may include such water quality-based limitation in such permit only in
the form of an effluent limitation that specifies--
``(1) the pollutant to which it applies; and
``(2) the numerical limit on the discharge of such
pollutant, or the precise waterbody conditions to be attained
with respect to such pollutant, required to comply with the
permit.''.
SEC. 6. REDUCING PERMITTING UNCERTAINTY.
(a) In General.--Section 404(c) of the Federal Water Pollution
Control Act (33 U.S.C. 1344(c)) is amended--
(1) by striking ``(c) The Administrator'' and inserting the
following:
``(c) Specification or Use of Defined Area.--
``(1) In general.--The Administrator'';
(2) in paragraph (1), as so designated, by inserting
``during the period described in paragraph (2) and'' before
``after notice and opportunity for public hearings''; and
(3) by adding at the end the following:
``(2) Period of prohibition.--The period during which the
Administrator may prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal
site, or deny or restrict the use of any defined area for
specification (including the withdrawal of specification) as a
disposal site, under paragraph (1) shall--
``(A) begin on the date on which an applicant
submits all the information required to complete an
application for a permit under this section; and
``(B) end on the date on which the Secretary issues
the permit.''.
(b) Applicability.--The amendments made by subsection (a) shall
apply to a permit application submitted under section 404 of the
Federal Water Pollution Control Act (33 U.S.C. 1344) after the date of
enactment of this Act.
SEC. 7. NATIONWIDE PERMITTING IMPROVEMENT.
(a) In General.--Section 404(e) of the Federal Water Pollution
Control Act (33 U.S.C. 1344) is amended--
(1) by striking ``(e)(1) In carrying'' and inserting the
following:
``(e) General Permits on State, Regional, or Nationwide Basis.--
``(1) Permits authorized.--In carrying'';
(2) in paragraph (2)--
(A) by striking ``(2) No general'' and inserting
the following:
``(2) Term.--No general''; and
(B) by striking ``five years'' and inserting ``ten
years''; and
(3) by adding at the end the following:
``(3) Considerations.--In determining the environmental
effects of an activity under paragraph (1) or (2), the
Secretary shall consider only the effects of any discharge of
dredged or fill material resulting from such activity.
``(4) Nationwide permits for linear infrastructure
projects.--
``(A) In general.--Notwithstanding any other
provision of this section, the Secretary shall maintain
general permits on a nationwide basis for linear
infrastructure projects that do not result in the loss
of greater than \1/2\-acre of waters of the United
States for each single and complete project (as defined
in section 330.2 of title 33, Code of Federal
Regulations (as in effect on the date of enactment of
this paragraph)).
``(B) Definition of linear infrastructure
project.--In this paragraph, the term `linear
infrastructure project' means a project to carry out
any activity required for the construction, expansion,
maintenance, modification, or removal of infrastructure
and associated facility for the transmission from a
point of origin to a terminal point of communications
or electricity or the transportation from a point of
origin to a terminal point of people, water,
wastewater, carbon dioxide, or fuel or hydrocarbons (in
the form of a liquid, liquescent, gaseous, or slurry
substance or supercritical fluid), including oil and
gas pipeline facilities.
``(5) Reissuance of nationwide permits.--In determining
whether to reissue a general permit issued under this
subsection on a nationwide basis--
``(A) no consultation with an applicable State
pursuant to section 6(a) of the Endangered Species Act
of 1973 (16 U.S.C. 1535(a)) is required;
``(B) no consultation with a Federal agency
pursuant to section 7(a)(2) of such Act (16 U.S.C.
1536(a)(2)) is required; and
``(C) the requirements of section 102(2)(C) of the
National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)) shall be satisfied by preparing an
environmental assessment with respect to such general
permit.''.
(b) Administration of Nationwide Permit Program.--In carrying out
section 404(e) of the Federal Water Pollution Control Act (33 U.S.C.
1344), the Secretary of the Army, acting through the Chief of
Engineers, may not finalize or implement any modification to--
(1) general condition 15 (relating to single and complete
projects), as included in the final rule titled ``Reissuance
and Modification of Nationwide Permits'' and published on
January 13, 2021, by the Department of the Army, Corps of
Engineers (86 Fed. Reg. 2868);
(2) the definition of single and complete linear project,
as included in such final rule (86 Fed. Reg. 2877); or
(3) the definition of single and complete project, as
included in section 330.2 of title 33, Code of Federal
Regulations (as in effect on the date of enactment of this
Act).
SEC. 8. JUDICIAL REVIEW TIMELINE CLARITY.
Section 404 of the Federal Water Pollution Control Act (33 U.S.C.
1344) is amended--
(1) by redesignating subsection (t) as subsection (u);
(2) in subsection (u), as so redesignated, by striking
``Nothing in the section'' and inserting ``Savings Provision.--
Nothing in this section''; and
(3) by inserting after subsection (s) the following:
``(t) Judicial Review.--
``(1) Statute of limitations.--
``(A) In general.--Notwithstanding any applicable
provision of law relating to statutes of limitations,
an action seeking judicial review of--
``(i) an individual or general permit
issued under this section shall be filed not
later than the date that is 60 days after the
date on which the permit was issued; and
``(ii) verification that an activity is
authorized by a general permit issued under
this section shall be filed not later than the
date that is 60 days after the date on which
such verification was issued.
``(B) Savings provision.--Nothing in subparagraph
(A) may be construed to authorize an action seeking
judicial review of the structure of, or authorization
for, a State permit program approved pursuant to this
section.
``(2) Limitation on commencement of certain actions.--
Notwithstanding any other provision of law, no action described
in paragraph (1)(A) may be commenced unless the action--
``(A) is filed by a party that submitted a comment,
during the public comment period for the administrative
proceedings related to the applicable action described
in such paragraph, which comment was sufficiently
detailed to put the Secretary or the State, as
applicable, on notice of the issue upon which the party
seeks judicial review; and
``(B) is related to such comment.
``(3) Remedy.--If a court determines that the Secretary or
the State, as applicable, did not comply with the requirements
of this section in issuing an individual or general permit
under this section, or in verifying that an activity is
authorized by a general permit issued under this section, as
applicable--
``(A) the court shall remand the matter to the
Secretary or the State, as applicable, for further
proceedings consistent with the court's determination;
``(B) with respect to a determination regarding the
issuance of an individual or general permit under this
section, the court may not vacate, revoke, enjoin, or
otherwise limit the permit, unless the court finds that
activities authorized under the permit would present an
imminent and substantial danger to human health or the
environment for which there is no other equitable
remedy available under the law; and
``(C) with respect to a determination regarding a
verification that an activity is authorized by a
general permit issued under this section, the court may
not enjoin the activity, unless the court finds that
the activity would present an imminent and substantial
danger to human health or the environment for which
there is no other equitable remedy available under the
law.
``(4) Timeline to act on court order.--If a court remands a
matter under paragraph (2), the court shall set and enforce a
reasonable schedule and deadline, which may not exceed 180 days
from the date on which the court remands such matter, except as
otherwise required by law, for the Secretary or the State, as
applicable, to take such actions as the court may order.''.
SEC. 9. LIMITATION ON PERMIT ISSUANCE.
Title IV of the Federal Water Pollution Control Act (33 U.S.C. 1341
et seq.) is amended by adding at the end the following:
``SEC. 407. LIMITATION ON PERMIT ISSUANCE.
``(a) Prohibition.--No permit may be issued under this title for
any discharge from a point source that is owned or operated by an
entity that--
``(1) is subject to the jurisdiction of a foreign country
of concern (as defined in section 9901(7) of the William M.
(Mac) Thornberry National Defense Authorization Act for Fiscal
Year 2021 (15 U.S.C. 4651(7)); or
``(2) is a subsidiary of an entity that is subject to the
jurisdiction of a foreign country of concern (as so defined).
``(b) Application.--This section shall be applied in a manner
consistent with the obligations of the United States under applicable
international agreements.''.
SEC. 10. IMPLEMENTATION GUIDANCE.
(a) In General.--Not later than 30 days after the date of enactment
of this Act, the Administrator of the Environmental Protection Agency
and the Secretary of the Army, acting through the Chief of Engineers,
shall begin a process to issue guidance on the implementation of the
final rule published on September 8, 2023, by the Department of the
Army, Corps of Engineers, Department of Defense and the Environmental
Protection Agency and titled ``Revised Definition of `Waters of the
United States'; Conforming'' (88 Fed. Reg. 61964).
(b) Public Comment.--In issuing the guidance required under
subsection (a), the Administrator and the Secretary shall--
(1) prior to such issuance, solicit comments from the
public on such guidance; and
(2) ensure that such comments and any responses to such
comments are made publicly available.
(c) Compliance.--Any guidance issued pursuant to this section shall
comply with the decision of the Supreme Court in Sackett v. EPA, 598
U.S. 651 (2023).
SEC. 11. RULE OF CONSTRUCTION.
Nothing in this Act, including the amendments made by this Act, may
be construed as affecting the ban on oil and gas development in the
Great Lakes described in section 386 of the Energy Policy Act of 2005
(42 U.S.C. 15941).
SEC. 12. REPORT ON CORPS STAFFING NEEDS.
Not later than 60 days after the date of enactment of this Act, the
Administrator of the Environmental Protection Agency and the Secretary
of the Army, acting through the Chief of Engineers, shall submit to
Congress a report on--
(1) the staffing needs of the Environmental Protection
Agency and the Corps of Engineers to process applications for,
and issue, permits under the Federal Water Pollution Control
Act, based on the number of such applications submitted during
the 5-year period preceding such date of enactment; and
(2) the impact that funding for additional full-time
employees would have on processing timelines for such permits.
SEC. 13. SAVINGS CLAUSE RELATING TO PFAS.
Nothing in this Act, including the amendments made by this Act,
shall affect the authority of the Administrator of the Environmental
Protection Agency to conduct research on perfluoroalkyl and
polyfluoroalkyl substances.
SEC. 14. APPROVAL OF FLORIDA PERMIT PROGRAM.
The notice of the Environmental Protection Agency approving the
State of Florida's request to carry out a permit program for the
discharge of dredged or fill material pursuant to section 404 of the
Federal Water Pollution Control Act (33 U.S.C. 1344), published on
December 22, 2020, and titled ``EPA's Approval of Florida's Clean Water
Act Section 404 Assumption Request'' (85 Fed. Reg. 83553) shall have
the force and effect of law.
Passed the House of Representatives March 21, 2024.
Attest:
KEVIN F. MCCUMBER,
Clerk.