Pipeline Permitting for Energy Security Act of 2022
This bill modifies requirements under the Clean Water Act, the National Environmental Policy Act of 1969, and the Endangered Species Act of 1973 to expedite water quality certifications, environmental reviews, endangered species consultations, and make related changes. The bill also establishes requirements to expedite the approval of the Mountain Valley Pipeline, which is a natural gas pipeline located in Virginia and West Virginia.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5165 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 5165
To facilitate pipeline construction and limit regulatory and litigation
delays under the Federal Water Pollution Control Act, the National
Environmental Policy Act of 1969, and the Endangered Species Act of
1973, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 1, 2022
Mr. Toomey introduced the following bill; which was read twice and
referred to the Committee on Environment and Public Works
_______________________________________________________________________
A BILL
To facilitate pipeline construction and limit regulatory and litigation
delays under the Federal Water Pollution Control Act, the National
Environmental Policy Act of 1969, and the Endangered Species Act of
1973, and for other purposes.
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 ``Pipeline Permitting for Energy
Security Act of 2022''.
SEC. 2. CLEAN WATER ACT PERMITTING.
(a) State Certification Programs.--Section 401 of the Federal Water
Pollution Control Act (33 U.S.C. 1341) is amended--
(1) 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:
``SEC. 401. CERTIFICATION.
``(a) State Certifications.--
``(1) Certification required.--
``(A) Definitions.--In this paragraph:
``(i) Certification application.--The term
`certification application' means a request
from an applicant for a certification described
in subparagraph (B).
``(ii) Certifying authority.--The term
`certifying authority', with respect to a
certification described in subparagraph (B),
means the applicable entity described in
subclause (I), (II), or (III) of subparagraph
(B)(i).
``(B) Compliance with limitations.--
``(i) In general.--Any applicant for a
Federal license or permit to conduct an
activity, including the construction or
operation of facilities, that may result in a
discharge from a point source into the waters
of the United States shall provide the Federal
licensing or permitting agency a certification
that the discharge will comply with applicable
water quality requirements from--
``(I) the State in which the
discharge originates or will originate;
``(II) if appropriate, the
interstate water pollution control
agency with jurisdiction over the
waters of the United States at the
point where the discharge originates or
will originate; or
``(III) if no State or interstate
water pollution control agency has the
authority to give such a certification,
the Administrator.
``(ii) Certification of no limitation and
standard.--
``(I) In general.--In the case of
any activity described in clause (i)
for which there is not an applicable
effluent limitation or other limitation
under sections 301(b) and 302 and for
which there is not an applicable
standard under sections 306 and 307,
the certifying authority shall so
certify.
``(II) Effect.--A certification
under subclause (I) does not satisfy
section 511(c).
``(iii) Certification required.--
``(I) Construction prohibited until
certification.--Construction for which
a certification is required under this
subparagraph may not begin until the
certification has been obtained, unless
the requirement for the certification
has been waived in accordance with this
paragraph.
``(II) Effect of denial.--If a
certifying authority denies a
certification application, the Federal
license or permit for which the
certification application was made may
not be granted.
``(iv) Scope of certification.--In
determining whether to issue a certification
under this subparagraph and in determining what
conditions to impose on a certification under
this subparagraph, a certifying authority may
only consider whether the discharge for which
the certification application was made complies
with applicable water quality requirements.
``(C) Required procedures.--
``(i) Notice and hearings.--Each certifying
authority shall establish procedures for--
``(I) public notice in the case of
all certification applications;
``(II) to the extent the certifying
authority determines to be appropriate,
public hearings in connection with
specific certification applications;
and
``(III) a prefiling meeting as
described in clause (ii).
``(ii) Prefiling meeting.--
``(I) Request.--Before submitting a
certification application, the
prospective applicant may request a
prefiling meeting with the certifying
authority--
``(aa) to ensure that the
certifying authority receives
early notification of projects
for which a certification under
subparagraph (B) is necessary;
and
``(bb) to discuss
informational needs with the
certifying authority before
submitting the application.
``(II) Response required.--If a
prospective applicant requests a
prefiling meeting with a certifying
authority pursuant to subclause (I),
the certifying authority shall--
``(aa) respond to the
request not later than 30 days
after the date on which the
request is received; and
``(bb) hold the prefiling
meeting with the prospective
applicant by not later than 60
days after the date on which
the request is received.
``(iii) Denials of certification.--
``(I) Individual licenses and
permits.--If a certifying authority
denies a certification application for
an individual license or permit, the
certifying authority shall provide to
the applicable Federal licensing or
permitting agency--
``(aa) the specific
applicable water quality
requirements with which the
discharge will not comply;
``(bb) a statement
explaining why the discharge
will not comply with the
identified applicable water
quality requirements; and
``(cc) if the denial is due
to insufficient information, a
description of the specific
water quality data or
information, if any, that would
be needed to ensure that the
discharge from the proposed
project will comply with
applicable water quality
requirements.
``(II) General licenses or
permits.--If a certifying authority
denies a certification application for
a general license or permit, the
certifying authority shall provide to
the applicable Federal licensing or
permitting agency--
``(aa) the specific
applicable water quality
requirements with which
discharges that could be
authorized by the general
license or permit will not
comply;
``(bb) a statement
explaining why discharges that
could be authorized by the
general license or permit will
not comply with the identified
applicable water quality
requirements; and
``(cc) if the denial is due
to insufficient information, a
description of the specific
water quality data or
information, if any, that would
be needed to assure that the
range of discharges that could
be authorized by the general
license or permit from
potential projects will comply
with applicable water quality
requirements.
``(iv) Review.--
``(I) In general.--Not later than
60 days after the date on which a
Federal licensing or permitting agency
receives a notice described in clause
(iii) or a certification under
subparagraph (B) that includes
conditions to that certification, the
Federal licensing or permitting agency
shall complete a review of the process
undertaken by the certifying authority
in reviewing the applicable
certification application to determine
whether the certifying authority
established a reasonable period of time
within which to review that
certification application in accordance
with subparagraph (D)(ii).
``(II) Denials.--If, after carrying
out a review under subclause (I) of the
process undertaken by a certifying
authority with respect to a denial of a
certification application, a Federal
licensing or permitting agency
determines that the certifying
authority did not, in determining the
reasonable period of time within which
to review the certification
application, consider all of the
factors described in subclause (I),
(II), or (III) of subparagraph (D)(ii),
the Federal licensing or permitting
agency shall--
``(aa) deem the certifying
authority to have failed to act
on the certification
application; and
``(bb) pursuant to
subparagraph (D)(iii), consider
the requirement for a
certification under
subparagraph (B) waived.
``(III) Conditions.--If, after
carrying out a review under subclause
(I) of the process undertaken by a
certifying authority with respect to
including conditions to a certification
under subparagraph (B), a Federal
licensing or permitting agency
determines that the certifying
authority did not, in determining the
reasonable period of time within which
to review the applicable certification
application, consider all of the
factors described in subclause (I),
(II), or (III) of subparagraph (D)(ii),
the Federal licensing or permitting
agency shall consider the certification
conditions void.
``(D) Review period.--
``(i) In general.--A certifying authority
shall, subject to this subparagraph, issue to
the applicable Federal licensing or permitting
authority a final action on a certification
application within a reasonable period of time,
which--
``(I) shall be determined by the
certifying authority by not later than
60 days after the date on which the
certification application is received
by the certifying authority; but
``(II)(aa) shall begin on the date
on which the certification application
is received by the certifying
authority; and
``(bb) shall not exceed 1 year from
the date on which the certifying
authority receives the certification
application.
``(ii) Determination of reasonable
period.--In determining the reasonable period
of time under clause (i)(I), a certifying
authority shall consider--
``(I) the complexity of the project
described in the certification
application;
``(II) the nature of any potential
discharge from that project; and
``(III) the potential need for
additional study or evaluation of water
quality effects from the discharge.
``(iii) Failure to act within period.--If a
certifying authority fails or refuses to issue
a final action on a certification application
by the end of the reasonable period of time
established under this subparagraph, the
requirement for a certification under
subparagraph (B) shall be waived.
``(iv) No pausing or tolling.--The
reasonable period of time established for a
certification application under this
subparagraph may not be paused or tolled for
any reason.
``(E) Final action.--
``(i) In general.--After completion of the
reasonable period of time established under
subparagraph (D) and any review that may be
required under subparagraph (C)(iv) for a
certification application, the certifying
authority or Federal licensing or permitting
authority, as applicable, shall apply only 1 of
the following final actions to the
certification application:
``(I) The certification application
is granted.
``(II) The certification
application is granted with conditions.
``(III) The certification
application is denied.
``(IV) The certification
requirements under subparagraph (B)
have been waived in accordance with
this paragraph with respect to the
activity for which the certification
application was submitted.
``(ii) No other final actions.--No other
final action may apply to a certification
application except as described in clause (i).
``(F) Enforcement of conditions.--The Federal
licensing or permitting authority to which a
certification under this subsection was issued shall be
responsible for enforcing any conditions included with
that certification.
``(G) Timeline for action.--If a Federal court
remands or vacates a certification under this
paragraph, the Federal court shall set and enforce a
reasonable schedule and deadline, not to exceed 180
days from the date on which the Federal court remands
or vacates the certification, for the certifying agency
to act on the remand or vacatur.'';
(2) in subsection (a) (as so amended)--
(A) in paragraph (2), by striking ``(2) Upon
receipt'' and inserting the following:
``(2) Notice to administrator; effect on other states.--On
receipt'';
(B) in paragraph (3), by striking ``(3) The
certification'' and inserting the following:
``(3) Fulfillment of requirements.--The certification'';
(C) in paragraph (4), by striking ``(4) Prior to''
and inserting the following:
``(4) Review for compliance.--Prior to'';
(D) in paragraph (5), by striking ``(5) Any
Federal'' and inserting the following:
``(5) Suspension and revocation.--Any Federal''; and
(E) in paragraph (6), by striking ``(6) Except
with'' and inserting the following:
``(6) Applicability to certain facilities.--Except with'';
(3) in subsection (b), by striking ``(b) Nothing'' and
inserting the following:
``(b) Compliance With Other Provisions of Law Setting Applicable
Water Quality Requirements.--Nothing'';
(4) in subsection (c), by striking ``(c) In order'' and
inserting the following:
``(c) Authority of Secretary of the Army To Permit Use of Spoil
Disposal Areas by Federal Licensees or Permittees.--In order'';
(5) in subsection (d), by striking ``(d) Any
certification'' and inserting the following:
``(d) Limitations and Monitoring Requirements of Certification.--
Any certification''; and
(6) by adding at the end the following:
``(e) Definition of Applicable Water Quality Requirements.--In this
section, the term `applicable water quality requirements' means--
``(1) the applicable provisions of sections 301, 302, 303,
306, and 307; and
``(2) applicable State or Tribal regulatory requirements
for the discharge from point sources into the waters of the
United States.''.
(b) Permits for Dredged or Fill Material.--
(1) In general.--Section 404 of the Federal Water Pollution
Control Act (33 U.S.C. 1344) is amended--
(A) by striking the heading and section designation
and all that follows through ``(a) The Secretary'' and
inserting the following:
``SEC. 404. PERMITS FOR DREDGED OR FILL MATERIAL.
``(a) Discharge Into Navigable Waters at Specified Disposal
Sites.--
``(1) In general.--The Secretary'';
(B) in subsection (a)(1) (as so designated), in the
second sentence--
(i) by striking ``this subsection'' each
place it appears and inserting ``paragraph
(1)''; and
(ii) by striking ``Not later than the
fifteenth day'' and inserting the following:
``(2) Notice.--Not later than the 15th day'';
(C) in subsection (c)--
(i) in the third sentence--
(I) by striking ``his finding and
his reasons'' and inserting ``the
findings and reasons of the
Administrator''; and
(II) by striking ``The
Administrator'' and inserting the
following:
``(4) Findings and reasoning.--The Administrator'';
(ii) in the second sentence, by striking
``Before making such determination'' and
inserting the following:
``(3) Consultation.--Before making a determination under
paragraph (1)'';
(iii) by striking ``(c) The Administrator''
and inserting the following:
``(c) Prohibition of Specification of Areas as Disposal Sites.--
``(1) In general.--Subject to paragraph (2), the
Administrator''; and
(iv) by inserting after paragraph (1) (as
so designated) the following:
``(2) Limitation.--The Administrator may not prohibit the
specification of a defined area as a disposal site, or
otherwise deny or restrict the use of a defined area as a
disposal site after a permit under this section for the area
has been issued by the Secretary.'';
(D) in subsection (e)--
(i) in paragraph (1), in the second
sentence--
(I) by striking ``subsection (b)(1)
of this section, and (B) set forth''
and inserting the following:
``subsection (b)(1); and
``(ii) set forth'';
(II) by striking ``shall (A) be
based'' and inserting the following:
``shall--
``(i) be based''; and
(III) by striking ``Any general''
and inserting the following:
``(B) Requirements for issuance.--Any general'';
(ii) by striking ``(e)(1) In carrying'' and
inserting the following:
``(e) General Permits on State, Regional, or Nationwide Basis.--
``(1) Permits authorized.--
``(A) In general.--In carrying'';
(iii) in paragraph (2), by striking ``(2)
No general'' and inserting the following:
``(2) Term.--No general''; and
(iv) by adding at the end the following:
``(3) Single and complete projects.--
``(A) Definition of single and complete project.--
``(i) In general.--In this paragraph, the
term `single and complete project', with
respect to a project for which the Secretary is
determining whether a general permit issued
under this subsection applies, means that
portion of the total project proposed or
accomplished by--
``(I) a single owner or developer;
``(II) a partnership of 1 or more
owners or developers; or
``(III) an association of owners or
developers.
``(ii) Linear projects.--
``(I) Definition.--In this clause,
the term `linear project' means a
project constructed for the purpose of
getting people, goods, or services from
a point of origin to a terminal point,
which may involve multiple crossings of
1 or more waters of the United States
at separate and distant locations.
``(II) General rule.--For purposes
of this paragraph, with respect to
projects described in clause (i) that
are linear projects--
``(aa) the crossings of
separate waters of the United
States at a specific location
shall be considered 1 single
and complete project; but
``(bb) each crossing of a
single water of the United
States shall be considered a
separate single and complete
project if those crossings are
at separate and distant
locations.
``(III) Additional exclusions.--For
purposes of subclause (II), individual
channels in a braided stream or river,
individual arms of a large,
irregularly-shaped wetland or lake, and
other, similar bodies of water shall
not be considered to be separate waters
of the United States.
``(B) Requirement.--In determining whether a
general permit issued under this subsection applies to
an activity, the Secretary shall consider the estimated
total of all losses of waters of the United States
expected to result from the single and complete
project.
``(C) Use of multiple permits.--The Secretary may
combine 2 or more general permits issued under this
subsection to authorize a single and complete project,
but the same general permit issued under this
subsection may not be used more than once for a single
and complete project.
``(4) Reissuance of nationwide permits.--In determining
whether to reissue a general permit issued under this
subsection on a nationwide basis--
``(A) no consultation with an applicable State
pursuant to section 6(a) of the Endangered Species Act
of 1973 (16 U.S.C. 1535(a)) is required;
``(B) no consultation with a Federal agency
pursuant to section 7(a)(2) of that Act (16 U.S.C.
1536(a)(2)) is required; and
``(C) for purposes of carrying out the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) with respect to that reissuance, conducting an
environmental assessment on a nationwide basis is
sufficient for purposes of compliance with that Act.
``(5) Nationwide permit for oil and natural gas
pipelines.--Notwithstanding any other provision of this
section, the Secretary shall maintain a nationwide permit for
the activities required for the construction, maintenance,
repair, operation, and removal of oil and natural gas pipelines
and associated facilities that result in the loss of, with
respect to waters of the United States, an area of more than
\1/2\ acre for each single and complete project (as defined in
paragraph (3)(A)), which shall be known as `nationwide permit
12'.'';
(E) in subsection (h)--
(i) in paragraph (1), by adding at the end
the following:
``(I) To issue permits not later than the date that
is 1 year after the date on which the State receives an
application for the permit, which may not be paused or
tolled for any reason.
``(J) To ensure that, if the State does not issue a
final action with respect to an application for a
permit within the 1-year period described in
subparagraph (I), the application is considered to be
approved.
``(K) To carry out a programmatic review of the
program annually to ensure that the program does not
exceed the authority granted to the State under this
section.''; and
(ii) by adding at the end the following:
``(6) Action required.--
``(A) In general.--A State with a permit program
approved under this subsection shall issue a final
action with respect to an application for a permit
described in subsection (g)(1) not later than 1 year
after the date of receipt of the application.
``(B) Failure to act.--An application for a permit
described in subsection (g)(1) submitted to a State
with a permit program approved under this subsection
shall be considered to be approved if the State fails
to issue a final action with respect to the application
by the end of the 1-year period described in
subparagraph (A).
``(C) No pausing or tolling.--The 1-year period
described in subparagraph (A) may not be paused or
tolled for any reason.'';
(F) in subsection (s)(3), in the third sentence, by
striking ``acton'' and inserting ``action'';
(G) in subsection (t), by striking ``(t) Nothing''
and inserting the following:
``(u) Savings Provision.--Nothing''; and
(H) by inserting after subsection (s) the
following:
``(t) Judicial Review.--
``(1) Statute of limitations.--
``(A) In general.--Notwithstanding any other
provision of law, an action seeking judicial review of
an individual or general permit issued under this
section shall be filed not later than the date that is
60 days after the date on which the permit was issued.
``(B) Savings provision.--Nothing in subparagraph
(A) authorizes an action seeking judicial review of the
structure of or authorization for a State permit
program approved pursuant to this section.
``(2) Timeline to act on remand and vacatur.--If a Federal
court remands or vacates a permit under this section, the
Federal court shall set and enforce a reasonable schedule and
deadline, which may not exceed 180 days from the date on which
the Federal court remands or vacates the permit, for the issuer
of the permit to act on that remand or vacatur.''.
(2) Ratification of current permits.--Notwithstanding any
other provision of law, each category of activities authorized
by a general permit issued under section 404(e) of the Federal
Water Pollution Control Act (33 U.S.C. 1344(e)) (including
nationwide permit 12) or under section 10 of the Act of March
3, 1899 (33 U.S.C. 403), that is in effect on the date of
enactment of this Act shall, consistent with subparagraph (A)
of section 404(e)(1) of the Federal Water Pollution Control Act
(33 U.S.C. 1344(e)(1)), be considered to cause--
(A) not more than minimal adverse environmental
effects when actions authorized under those permits are
carried out separately; and
(B) not more than minimal cumulative adverse
effects on the environment.
(3) Savings provision.--Nothing in this subsection or the
amendments made by this subsection requires a State (including
an Indian tribe that is treated as a State pursuant to section
518(e) of the Federal Water Pollution Control Act (33 U.S.C.
1377(e))) for which the Administrator of the Environmental
Protection Agency has approved a permit program pursuant to
subsections (g) and (h) of section 404 of the Federal Water
Pollution Control Act (33 U.S.C. 1344) to seek reapproval of
the permit program in accordance with those subsections.
(c) Definition of Navigable Waters.--Section 502 of the Federal
Water Pollution Control Act (33 U.S.C. 1362) is amended--
(1) in each of paragraphs (1) through (20), by inserting a
paragraph heading, the text of which comprises the term defined
in that paragraph;
(2) by indenting paragraphs (1) through (20) appropriately;
and
(3) by striking paragraph (7) and inserting the following:
``(7) Navigable waters; waters of the united states.--
``(A) In general.--The terms `navigable waters' and
`waters of the United States' mean--
``(i) the territorial seas and waters which
are currently used, or were used in the past,
or may be susceptible to use in interstate or
foreign commerce, including waters that are
subject to the ebb and flow of the tide;
``(ii) a tributary;
``(iii) a lake, pond, or impoundment of
water from a body of water otherwise described
in this subparagraph that--
``(I) contributes to surface water
flow to a body of water described in
clause (i) in a typical year; or
``(II) is inundated by flooding
from a body of water otherwise
described in this subparagraph during a
typical year; and
``(iv) adjacent wetlands.
``(B) Exclusions.--The terms `navigable waters' and
`waters of the United States' do not include--
``(i) an ephemeral feature, including an
ephemeral stream, swale, gully, rill, pool, or
tributary that is ephemeral during a typical
year;
``(ii) groundwater, including groundwater
drained through subsurface drainage systems;
``(iii) an artificially irrigated area that
would revert to upland or dry land if that
artificial irrigation ceased;
``(iv) an artificial lake or pond that--
``(I) is not an impoundment
described in subparagraph (A)(iii); and
``(II) is constructed or excavated
in upland or dry land;
``(v) a water-filled depression that is--
``(I) constructed or excavated in
upland or dry land; and
``(II) incidental to mining or
construction activity;
``(vi) a pit that is excavated in upland
for the purpose of obtaining fill, sand, or
gravel;
``(vii) a stormwater control feature that
is constructed or excavated in upland or dry
land to convey, treat, infiltrate, or store
stormwater runoff;
``(viii) a groundwater recharge, water
reuse, or wastewater treatment recycling
structure that is constructed or excavated in
upland or dryland;
``(ix) a waste treatment system;
``(x) prior converted cropland;
``(xi)(I) a ditch that is not a body of
water described in clause (i) or (ii) of
subparagraph (A); and
``(II) any portion of a ditch constructed
in adjacent wetlands that does not meet the
requirements described in subparagraph (C)(i);
``(xii) diffuse stormwater runoff and
directional sheet flow over upland; and
``(xiii) a water or water feature that is
not identified in subparagraph (A).
``(C) Associated definitions.--For purposes of this
paragraph:
``(i) Adjacent wetlands.--The term
`adjacent wetlands' means wetlands that--
``(I) touch at least one point or
side of a body of water described in
clause (i), (ii), or (iii) of
subparagraph (A);
``(II) are inundated by flooding
from a body of water described in
clause (i), (ii), or (iii) of
subparagraph (A) during a typical year;
or
``(III) are physically separated
from a body of water described in
clause (i), (ii), or (iii) of
subparagraph (A) only by--
``(aa) a natural berm,
bank, dune, or similar natural
feature; or
``(bb) an artificial dike,
barrier, or similar artificial
structure, if that structure
allows for a direct
hydrological surface connection
to the body of water described
in that clause (i), (ii), or
(iii) in a typical year, such
as through a culvert, flood or
tide gate, pump, or similar
artificial feature.
``(ii) Ditch.--The term `ditch' means a
constructed or excavated channel used to convey
water.
``(iii) Ephemeral.--The term `ephemeral',
with respect to a surface water, means flowing
or pooling only in direct response to
precipitation (such as rain or snowfall).
``(iv) High tide line.--
``(I) In general.--The term `high
tide line' means the line of
intersection of the land with the
surface of a body of water at the
maximum height reached by a rising tide
(including a spring high tide or
another high tide that occurs with
periodic frequency), which may, in the
absence of actual data, be determined
by a line of oil or scum along shore
objects, a more or less continuous
deposit of fine shell or debris on the
foreshore or berm, vegetation lines,
tidal gages, other physical markings or
characteristics, or other suitable
means that delineate the general height
reached by a rising tide.
``(II) Exclusions.--The term `high
tide line' does not include the line of
intersection described in subclause (I)
at the maximum height reached by a
storm surge in which there is a
departure from the normal or predicted
reach of a tide due to the piling up of
water against a coast by strong winds,
such as a surge accompanying a
hurricane or another intense storm.
``(v) Intermittent.--The term
`intermittent', with respect to a surface
water, means flowing continuously during
certain times of the year and more than in
direct response to precipitation (such as
seasonally, when the groundwater table is
elevated, or when snowpack melts).
``(vi) Ordinary high water mark.--The term
`ordinary high water mark' means the line on a
shore established by the fluctuations of water
and indicated by physical characteristics, such
as a clear, natural line impressed on the bank,
shelving, changes in the character of the soil,
destruction of terrestrial vegetation, the
presence of litter and debris, or another
appropriate means that considers the
characteristics of the surrounding areas.
``(vii) Perennial.--The term `perennial',
with respect to a surface water, means surface
water that flows continuously year round.
``(viii) Prior converted cropland.--
``(I) In general.--The term `prior
converted cropland' means any area
that, prior to December 23, 1985, was
drained or otherwise manipulated for
the purpose, or having the effect, of
making production of an agricultural
product possible.
``(II) Inclusion.--The term `prior
converted cropland' includes any
designation of an area as prior
converted cropland made by the
Secretary of Agriculture.
``(III) Exclusion.--The term `prior
converted cropland' does not include
any area described in subclause (I)
that is abandoned or has reverted to
wetlands.
``(IV) Associated definition.--In
this clause, the term `abandoned', with
respect to an area described in
subclause (I), means the area has not
been used for, or in support of,
agricultural purposes at least once
during the 5-year period ending on the
date of determination, as determined by
the Administrator.
``(ix) Snowpack.--The term `snowpack' means
layers of snow that accumulate over extended
periods of time in certain geographic regions
or at high elevation (such as in northern
climes or in mountainous regions).
``(x) Tributary.--The term `tributary'
includes a river, stream, or similar naturally
occurring surface water channel that--
``(I) contributes to surface water
flow to a body of water described in
subparagraph (A)(i); and
``(II) is perennial or intermittent
in a typical year.
``(xi) Typical year.--The term `typical
year' means a year in which precipitation and
other climatic variables are within the normal
periodic range (such as seasonally or annually)
for the geographic area of the applicable body
of water, based on a rolling 30-year period.
``(xii) Upland.--The term `upland' means
any land area that, under normal conditions--
``(I) is not wetlands; and
``(II) does not lie below the
ordinary high water mark or the high
tide line of a body of water described
in subparagraph (A).
``(xiii) Waste treatment system.--The term
`waste treatment system' includes all
components, including lagoons and treatment
ponds (such as settling or cooling ponds),
designed to either convey or retain,
concentrate, settle, reduce, or remove
pollutants, either actively or passively, from
wastewater prior to discharge (or eliminating
any such discharge).
``(xiv) Wetlands.--The term `wetlands'
means areas that are inundated or saturated by
surface or ground water at a frequency and
duration sufficient to support, and that under
normal circumstances do support, a prevalence
of vegetation typically adapted for life in
saturated soil conditions, including swamps,
marshes, bogs, and similar areas.''.
SEC. 3. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 MODIFICATIONS.
(a) Definitions.--The National Environmental Policy Act of 1969 is
amended by inserting after section 2 (42 U.S.C. 4321) the following:
``SEC. 3. DEFINITIONS.
``In this Act:
``(1) Categorical exclusion.--The term `categorical
exclusion' means a category of actions that a Federal agency
determines, according to procedures established by the Federal
agency, do not normally have a significant effect on the human
environment.
``(2) Effects.--
``(A) In general.--The term `effects' means
changes to the human environment as a result of a
proposed action or alternative action to be carried out
by a Federal agency that--
``(i) are reasonably foreseeable and not
remote in time, geographically remote, or the
product of a lengthy causal chain;
``(ii) have a reasonably close causal
relationship, as determined by the Federal
agency, to the proposed action or alternative
action, as applicable; and
``(iii) the Federal agency has the ability
to prevent and that would not occur absent the
proposed action or alternative action.
``(B) Requirement.--For purposes of subparagraph
(A)(ii), a `but for' causal relationship is
insufficient to establish a reasonably close causal
relationship.
``(3) Environmental assessment.--The term `environmental
assessment' means a concise public document prepared by a
Federal agency to determine whether to prepare an environmental
impact statement or a finding of no significant impact for a
proposed action.
``(4) Environmental impact statement.--The term
`environmental impact statement' means a detailed statement
required to be prepared for a proposed major action in
accordance with title I.
``(5) Major federal action.--
``(A) In general.--The term `major Federal action'
means an activity or decision subject to Federal
control and responsibility, as determined by a Federal
agency.
``(B) Exclusions.--The term `major Federal action'
does not include--
``(i) a nondiscretionary or
extraterritorial activity or decision;
``(ii) an action that does not result in a
final agency action under subchapter II of
chapter 5, and chapter 7, of title 5, United
States Code (commonly known as the
`Administrative Procedure Act');
``(iii) a judicial or administrative
enforcement action;
``(iv) an action involving funding, the
control of which is not maintained by the
Federal agency that was appropriated the funds;
``(v) a non-Federal project with minimal
Federal funding or involvement;
``(vi) a loan, loan guarantee, or other
financial assistance where the Federal agency
does not exercise sufficient control or
responsibility over the funds; and
``(vii) any action that was deemed to not
be a major Federal action by a Federal court.
``(C) Other actions.--A Federal agency may
determine whether any other action is a major Federal
action for purposes of the requirements of this Act.''.
(b) NEPA Thresholds.--Title I of the National Environmental Policy
Act of 1969 (42 U.S.C. 4331 et seq.) is amended by adding at the end
the following:
``SEC. 106. THRESHOLDS.
``Prior to carrying out the requirements of this title for a major
Federal action, the Federal agency seeking to carry out the action
shall determine whether--
``(1) the action is exempt from the requirements of this
title by another Federal law (including regulations);
``(2) compliance with this title would--
``(A) clearly and fundamentally conflict with
another Federal law (including regulations); or
``(B) be inconsistent with the congressional intent
of another Federal law;
``(3) the action is nondiscretionary, such that the Federal
agency lacks authority to consider the environmental effects of
the action; and
``(4) a review of the effects of the action under another
Federal law (including regulations) would satisfy the
requirements of this title.''.
(c) Determining Appropriate Level of NEPA Review.--Title I of the
National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as
amended by subsection (b)) is amended by adding at the end the
following:
``SEC. 107. DETERMINING APPROPRIATE LEVEL OF NEPA REVIEW.
``In assessing the appropriate level of review to be conducted by a
Federal agency under this title for a major Federal action, the Federal
agency shall determine whether the proposed action--
``(1) normally does not have significant effects or
qualifies as a categorical exclusion;
``(2) is likely to have insignificant effects or unknown
effects; or
``(3) is likely to have significant effects.''.
(d) Environmental Impact Statements.--
(1) 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:
``SEC. 108. ENVIRONMENTAL IMPACT STATEMENT REQUIREMENTS.
``(a) Statement of Purpose and Need.--
``(1) In general.--An environmental impact statement shall
briefly specify the underlying purpose and need to which a
Federal agency is responding.
``(2) Alternatives analysis.--Any alternatives analyzed by
the Federal agency shall--
``(A) meet the purpose and need for the proposed
action; and
``(B) where applicable, meet the goals of the
applicant.
``(b) Page Limits for Environmental Impact Statements.--The text of
a final environmental impact statement shall be proportional to the
potential effects, and size, of the proposed action, but shall not be
longer than--
``(1) 150 pages; or
``(2) in the case of a proposed action of unusual
complexity, as determined by the applicable Federal agency, 300
pages.
``(c) Time Limit for Preparing an Environmental Impact Statement.--
``(1) In general.--Not later than 2 years after the date on
which a Federal agency issues a notice of intent to carry out a
proposed action, the Federal agency shall submit to the
Environmental Protection Agency the environmental impact
statement for that proposed action.
``(2) Failure to act.--If a Federal agency does not submit
an environmental impact statement in accordance with the
timeline described in paragraph (1), the requirements of this
title shall be deemed to have been fulfilled for the proposed
action.
``(d) Specificity of Comments and Information.--
``(1) Comments on draft environmental impact statements.--
Comments and objections of any kind relating to an
environmental impact statement for a proposed action shall be
raised within the comment period on the draft environmental
impact statement provided by the applicable Federal agency,
consistent with the requirements of section 1506.11 of title
40, Code of Federal Regulations (as in effect on September 14,
2020).
``(2) Comments on final environmental impact statements.--
If the applicable Federal agency requests comments on a final
environmental impact statement prepared for a major Federal
action before the final decision of the Federal agency,
comments and objections of any kind shall be raised within the
comment period provided by the Federal agency.
``(3) Unexhausted and forfeited comments.--Comments and
objections of any kind not provided within the comment periods
described in paragraphs (1) and (2) shall be considered
unexhausted and forfeited, consistent with section 1500.3(b) of
title 40, Code of Federal Regulations (as in effect on
September 14, 2020).
``(e) Record of Decision in Cases Requiring Environmental Impact
Statements.--Each record of decision prepared by a Federal agency for a
proposed action shall contain a statement certifying that the Federal
agency considered all alternatives to, and information and analyses
relating to, the proposed action submitted during the process of
carrying out the requirements of this title.''.
(2) Conforming amendments.--Section 102(2) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)) is
amended--
(A) in subparagraph (C)--
(i) in the matter preceding clause (i), by
striking ``a detailed statement'' and inserting
``an environmental impact statement''; and
(ii) in the undesignated matter following
clause (v), in the first sentence, by striking
``Prior to making any detailed statement'' and
inserting ``Prior to preparing an environmental
impact statement''; and
(B) in subparagraph (D)--
(i) in the matter preceding clause (i), by
striking ``detailed statement'' and inserting
``environmental impact statement''; and
(ii) in clause (iv), by striking ``detailed
statement'' and inserting ``environmental
impact statement''.
(e) Time Limit for Environmental Assessment Completion.--Title I of
the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.)
(as amended by subsection (d)(1)) is amended by adding at the end the
following:
``SEC. 109. ENVIRONMENTAL ASSESSMENT REQUIREMENT.
``Not later than 1 year after the date on which a Federal agency
decides to prepare an environmental assessment for a proposed action,
the Federal agency shall submit to the Environmental Protection Agency
that environmental assessment.''.
(f) Adoption of Certain Categorical Exclusions.--Title I of the
National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as
amended by subsection (e)) is amended by adding at the end the
following:
``SEC. 110. ADOPTION OF CERTAIN CATEGORICAL EXCLUSIONS.
``A Federal agency may adopt the determination of another Federal
agency that a categorical exclusion applies to a proposed action if the
action covered by the original categorical exclusion determination and
the proposed action of the adopting Federal agency are substantially
the same, in the determination of the adopting Federal agency.''.
SEC. 4. ENDANGERED SPECIES ACT OF 1973 MODIFICATIONS.
(a) Definitions.--Section 3 of the Endangered Species Act of 1973
(16 U.S.C. 1532) is amended--
(1) by redesignating paragraphs (6), (7), (8), (9), (10),
(12), (13), (14), (15), (16), (17), (18), (19), (20), and (21)
as paragraphs (7), (8), (9), (10), (12), (13), (14), (15),
(16), (17), (18), (19), (20), (21), and (22), respectively;
(2) by inserting after paragraph (5) the following:
``(6) The term `destruction or adverse modification' means
a direct or indirect alteration that appreciably diminishes the
value of critical habitat as a whole for the conservation of a
listed species.''; and
(3) by inserting after paragraph (10) (as so redesignated)
the following:
``(11) The term `foreseeable future' means an unspecific
period of time in the future that is necessary for the
Secretary to reasonably determine that future threats to a
species, and the response of a species to those threats, are
likely.''.
(b) Consideration of Economic Impacts in Listing Decisions.--
Section 4(a)(1) of the Endangered Species Act of 1973 (16 U.S.C.
1533(a)(1)) is amended--
(1) in subparagraph (A)--
(A) by striking ``the'' and inserting ``The''; and
(B) by striking the semicolon at the end and
inserting a period;
(2) in subparagraph (B)--
(A) by striking ``overutilization'' and inserting
``Overutilization''; and
(B) by striking the semicolon at the end and
inserting a period;
(3) in subparagraph (C)--
(A) by striking ``disease'' and inserting
``Disease''; and
(B) by striking the semicolon at the end and
inserting a period;
(4) in subparagraph (D)--
(A) by striking ``the'' and inserting ``The''; and
(B) by striking ``; or'' and inserting a period;
(5) in subparagraph (E), by striking ``other'' and
inserting ``Other''; and
(6) by adding at the end the following:
``(F) Whether listing the species as an endangered
species or a threatened species would result in
economic or other impacts on landowners.''.
(c) Criteria for Delisting a Species.--Section 4 of the Endangered
Species Act of 1973 (16 U.S.C. 1533) is amended by adding at the end
the following:
``(j) Criteria for Delisting a Species.--The Secretary shall remove
a species included on the list published pursuant to subsection (c) if
the Secretary determines, after conducting a review of the status of
the applicable endangered species or threatened species using the best
scientific and commercial data available, that--
``(1) the listed species is extinct;
``(2) the listed species is no longer an endangered species
or a threatened species; or
``(3) the listed species is not a species.''.
(d) Restrictions on Designating Critical Habitat.--Section 4(a)(3)
of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) is amended
by adding at the end the following:
``(C) Restriction on Designating Critical Habitat.--The Secretary
shall not designate habitat as critical habitat under this paragraph
if--
``(i) a species is threatened by taking or other human
activity and identification of critical habitat can be expected
to increase the degree of that threat to the species;
``(ii) the present or threatened destruction, modification,
or curtailment of the habitat or range of a species--
``(I) is not a threat to the species; or
``(II) is solely a result of causes that cannot be
addressed through management actions;
``(iii) areas within the jurisdiction of the United States
provide no more than negligible conservation value, if any, for
a species occurring primarily outside the jurisdiction of the
United States;
``(iv) no areas of the habitat are critical habitat; or
``(v) the Secretary otherwise determines that designation
of the habitat as critical habitat would not be prudent based
on the best scientific data available.''.
(e) Unoccupied Areas.--Section 3(5)(A) of the Endangered Species
Act of 1973 (16 U.S.C. 1532(5)(A)) is amended by striking clause (ii)
and inserting the following:
``(ii) specific areas outside the geographical area
occupied by the species at the time the species is listed in
accordance with section 4, as described in clause (i), if the
Secretary determines that--
``(I) the geographical area occupied by the species
described in clause (i), at the time of the listing, is
inadequate to ensure the conservation of the species;
and
``(II) it is reasonably certain that the specific
area outside the geographical area occupied by the
species--
``(aa) will contribute to the conservation
of the species; and
``(bb) contains at least 1 physical or
biological feature essential to the
conservation of the species.''.
(f) Protective Regulations for Threatened Species.--
(1) In general.--Section 4(d) of the Endangered Species Act
of 1973 (16 U.S.C. 1533(d)) is amended--
(A) in the first sentence, by striking ``Whenever
any species'' and all that follows through the period
at the end and inserting the following:
``(1) In general.--Whenever any species is listed as a
threatened species pursuant this section, the Secretary shall
promulgate species-specific regulations that the Secretary
determines are appropriate to provide for the conservation of
the threatened species.'';
(B) in the second sentence, by striking ``The
Secretary may by regulation'' and inserting the
following:
``(2) Taking prohibitions.--Subject to paragraph (3), the
Secretary, by species-specific regulation, may''; and
(C) in paragraph (2) (as so designated)--
(i) by inserting a comma after ``section
9(a)(2)''; and
(ii) by striking ``endangered species;''
and all that follows through the period at the
end and inserting the following: ``endangered
species.
``(3) Taking of resident species.--With respect to the
taking of resident species of fish or wildlife, a regulation
promulgated under paragraph (2) shall apply in any State which
has entered into a cooperative agreement pursuant to section
6(c) only to the extent that the regulation has also been
adopted by that State.''.
(2) Effective date.--The amendments made by paragraph (1)
shall apply to species listed or reclassified as threatened
species under section 4 of the Endangered Species Act of 1973
(16 U.S.C. 1533) on, prior to, or after the date of enactment
of this Act.
(g) Consultations.--
(1) Expedited consultations.--Section 7(a) of the
Endangered Species Act of 1973 (16 U.S.C. 1536(a)) is amended
by adding at the end the following:
``(5) Expedited Consultations.--
``(A) In general.--On request of a Federal agency, and in
cooperation with a prospective permit or license applicant, as
applicable, the Secretary and the Federal agency shall initiate
an expedited consultation with respect to an agency action that
has minimal or predictable effects on a listed species or a
critical habitat based on prior consultations the Federal
agency has conducted with the Secretary under this subsection.
``(B) Timeline.--
``(i) In general.--Subject to clause (ii), if a
Federal agency requests an expedited consultation under
subparagraph (A) after determining that the agency
action to be carried out by the Federal agency has
minimal or predictable effects on a listed species or a
critical habitat, the Secretary shall, not later than
30 days after the date on which the Secretary receives
the determination of the Federal agency, approve or
deny the request for an expedited consultation.
``(ii) Extended timeline.--On mutual agreement
between the Secretary and the Federal agency, the
Secretary may extend the timeline described in clause
(i) to a period of not more 60 days after the date on
which the Federal agency requests an expedited
consultation under subparagraph (A).''.
(2) Consultations not required for permits for dredged or
fill material.--Section 7(a) of the Endangered Species Act of
1973 (16 U.S.C. 1536(a)) (as amended by paragraph (1)) is
amended by adding at the end the following:
``(6) Nonapplicability to Nationwide Permits for Dredged or Fill
Material.--The requirements of this subsection shall not apply to any
agency action relating to the reissuance of a general permit on a
nationwide basis under section 404 of the Federal Water Pollution
Control Act (33 U.S.C. 1343).''.
(h) Timelines for Agency Actions.--Section 7(b)(1) of the
Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) is amended--
(1) in subparagraph (A), by striking ``90-day'' and
inserting ``60-day''; and
(2) in subparagraph (B)--
(A) in the matter preceding clause (i)--
(i) by striking ``90 days'' and inserting
``60 days''; and
(ii) by striking ``90th day'' and inserting
``60th day'';
(B) in clause (i), in the matter preceding
subclause (I), by striking ``150th day'' and inserting
``100th day''; and
(C) in clause (ii), by striking ``150'' and
inserting ``100''.
(i) Requirements for Designating Critical Habitat.--Section 4(a)(3)
of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) (as
amended by subsection (d)) is amended by adding at the end the
following:
``(D) Requirements for Designating Critical Habitat.--In
designating habitat as critical habitat under this paragraph, the
Secretary shall designate only the abiotic and biotic setting that
currently or periodically contains the resources and conditions
necessary to support 1 or more life processes of a species.''.
(j) Biological Opinions.--Section 7 of the Endangered Species Act
of 1973 (16 U.S.C. 1536) is amended by adding at the end the following:
``(q) Biological Opinions.--
``(1) Definition of biological opinion.--In this
subsection, the term `biological opinion' means the document
that states the opinion of the Secretary as to whether or not
an agency action is likely--
``(A) to jeopardize the continued existence of a
listed species; or
``(B) result in the destruction or adverse
modification of critical habitat of that species.
``(2) Requirements.--A biological opinion shall include--
``(A) a summary of the information on which the
biological opinion is based;
``(B) a detailed discussion of the environmental
baseline of the listed species and critical habitat;
``(C) a detailed discussion of the effects of the
agency action on the listed species or critical
habitat; and
``(D) the opinion of the Secretary on whether the
agency action is--
``(i) likely to jeopardize the continued
existence of a listed species or result in the
destruction or adverse modification of critical
habitat, which shall be known as a `jeopardy'
biological opinion; or
``(ii) not likely to jeopardize the
continued existence of a listed species or
result in the destruction or adverse
modification of critical habitat, which shall
be known as a `no jeopardy' biological opinion.
``(3) Adoption of entire initiation package.--In a
biological opinion, the Secretary may adopt all or part of the
initiation package of a Federal agency prepared in accordance
with section 402.14(c) of title 50, Code of Federal Regulations
(as in effect on October 28, 2019).
``(4) Reasonable and prudent alternative measures.--
``(A) Definition of reasonable and prudent
alternative.--In this paragraph, the term `reasonable
and prudent alternative' means an alternative action
identified during a formal consultation that--
``(i) can be implemented in a manner
consistent with the intended purpose of the
action;
``(ii) can be implemented consistent with
the scope of the legal authority and
jurisdiction of a Federal agency; and
``(iii) is economically and technologically
feasible.
``(B) Inclusion of reasonable and prudent
alternatives.--In preparing a biological opinion, the
Secretary shall include reasonable and prudent
alternatives, as applicable.
``(C) No reasonable and prudent alternatives.--If
the Secretary is unable to develop reasonable and
prudent alternatives to include in a biological opinion
in accordance with subparagraph (B), the Secretary
shall indicate that, to the knowledge of the Secretary,
no reasonable or prudent alternatives exist.''.
SEC. 5. EXPEDITING COMPLETION OF THE MOUNTAIN VALLEY PIPELINE.
(a) 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.
(b) 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--
(1) the Secretary of the Army shall issue all permits or
verifications necessary--
(A) to complete the construction of the Mountain
Valley Pipeline across the waters of the United States;
and
(B) to allow for the operation and maintenance of
the Mountain Valley Pipeline;
(2) the Secretary of Agriculture shall amend the Land and
Resource Management Plan for the Jefferson National Forest in a
manner that is substantively identical to the record of
decision with respect to the Mountain Valley Pipeline issued on
January 11, 2021; and
(3) the Secretary of the Interior shall--
(A) reissue the biological opinion and incidental
take statement for the Mountain Valley Pipeline in a
manner that is substantively identical to the
biological opinion and incidental take statement
previously issued on September 4, 2020; and
(B) grant all necessary rights-of-way and temporary
use permits in a manner that is substantively identical
to those permits approved in the record of decision
with respect to the Mountain Valley Pipeline issued on
January 14, 2021.
(c) Judicial Review.--No action taken by the Secretary of the Army,
the Federal Energy Regulatory Commission, the Secretary of Agriculture,
or the Secretary of the Interior that grants an authorization, permit,
verification, biological opinion, incidental take statement, or any
other approval related to the Mountain Valley Pipeline, including the
issuance of any authorization, permit, verification, authorization,
biological opinion, incidental take statement, or other approval
described in subsection (b), shall be subject to judicial review.
(d) Effect.--This section preempts any statute (including any other
section of this Act), regulation, judicial decision, or agency guidance
that is inconsistent with the issuance of any authorization, permit,
verification, authorization, biological opinion, incidental take
statement, or other approval described in subsection (b).
<all>
Introduced in Senate
Read twice and referred to the Committee on Environment and Public Works.
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