II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Pipeline Permitting 

5 for Energy Security Act of 2022’’. 


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1 SEC. 2. CLEAN WATER ACT PERMITTING. 

2 (a) STATE CERTIFICATION PROGRAMS.—Section 401 

3 of the Federal Water Pollution Control Act (33 U.S.C. 

4 1341) is amended— 

5 (1) by striking the heading and section designa6 tion and all that follows through ‘‘may be.’’ at the 

7 end of subsection (a)(1) and inserting the following: 

8 ‘‘SEC. 401. CERTIFICATION. 

9 ‘‘(a) STATE CERTIFICATIONS.— 

10 ‘‘(1) CERTIFICATION REQUIRED.— 

11 ‘‘(A) DEFINITIONS.—In this paragraph: 

12 ‘‘(i) CERTIFICATION APPLICATION.— 

13 The term ‘certification application’ means 

14 a request from an applicant for a certifi15 cation described in subparagraph (B). 

16 ‘‘(ii) CERTIFYING AUTHORITY.—The 

17 term ‘certifying authority’, with respect to 

18 a certification described in subparagraph 

19 (B), means the applicable entity described 

20 in subclause (I), (II), or (III) of subpara21 graph (B)(i). 

22 ‘‘(B) COMPLIANCE WITH LIMITATIONS.— 

23 ‘‘(i) IN GENERAL.—Any applicant for 

24 a Federal license or permit to conduct an 

25 activity, including the construction or oper26 ation of facilities, that may result in a disVerDate Sep 11 2014 05:12 Dec 08, 2022 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S5165.IS S5165

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1 charge from a point source into the waters 

2 of the United States shall provide the Fed3 eral licensing or permitting agency a cer4 tification that the discharge will comply 

5 with applicable water quality requirements 

6 from— 

7 ‘‘(I) the State in which the dis8 charge originates or will originate; 

9 ‘‘(II) if appropriate, the inter10 state water pollution control agency 

11 with jurisdiction over the waters of 

12 the United States at the point where 

13 the discharge originates or will origi14 nate; or 

15 ‘‘(III) if no State or interstate 

16 water pollution control agency has the 

17 authority to give such a certification, 

18 the Administrator. 

19 ‘‘(ii) CERTIFICATION OF NO LIMITA20 TION AND STANDARD.— 

21 ‘‘(I) IN GENERAL.—In the case 

22 of any activity described in clause (i) 

23 for which there is not an applicable 

24 effluent limitation or other limitation 

25 under sections 301(b) and 302 and 


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1 for which there is not an applicable 

2 standard under sections 306 and 307, 

3 the certifying authority shall so cer4 tify. 

5 ‘‘(II) EFFECT.—A certification 

6 under subclause (I) does not satisfy 

7 section 511(c). 

8 ‘‘(iii) CERTIFICATION REQUIRED.— 

9 ‘‘(I) CONSTRUCTION PROHIBITED

10 UNTIL CERTIFICATION.—Construction 

11 for which a certification is required 

12 under this subparagraph may not 

13 begin until the certification has been 

14 obtained, unless the requirement for 

15 the certification has been waived in 

16 accordance with this paragraph. 

17 ‘‘(II) EFFECT OF DENIAL.—If a 

18 certifying authority denies a certifi19 cation application, the Federal license 

20 or permit for which the certification 

21 application was made may not be 

22 granted. 

23 ‘‘(iv) SCOPE OF CERTIFICATION.—In 

24 determining whether to issue a certification 

25 under this subparagraph and in deterVerDate Sep 11 2014 05:12 Dec 08, 2022 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S5165.IS S5165

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1 mining what conditions to impose on a cer2 tification under this subparagraph, a certi3 fying authority may only consider whether 

4 the discharge for which the certification 

5 application was made complies with appli6 cable water quality requirements. 

7 ‘‘(C) REQUIRED PROCEDURES.— 

8 ‘‘(i) NOTICE AND HEARINGS.—Each 

9 certifying authority shall establish proce10 dures for— 

11 ‘‘(I) public notice in the case of 

12 all certification applications; 

13 ‘‘(II) to the extent the certifying 

14 authority determines to be appro15 priate, public hearings in connection 

16 with specific certification applications; 

17 and 

18 ‘‘(III) a prefiling meeting as de19 scribed in clause (ii). 

20 ‘‘(ii) PREFILING MEETING.— 

21 ‘‘(I) REQUEST.—Before submit22 ting a certification application, the 

23 prospective applicant may request a 

24 prefiling meeting with the certifying 

25 authority— 


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1 ‘‘(aa) to ensure that the cer2 tifying authority receives early 

3 notification of projects for which 

4 a certification under subpara5 graph (B) is necessary; and 

6 ‘‘(bb) to discuss informa7 tional needs with the certifying 

8 authority before submitting the 

9 application. 

10 ‘‘(II) RESPONSE REQUIRED.—If 

11 a prospective applicant requests a pre12 filing meeting with a certifying au13 thority pursuant to subclause (I), the 

14 certifying authority shall— 

15 ‘‘(aa) respond to the request 

16 not later than 30 days after the 

17 date on which the request is re18 ceived; and 

19 ‘‘(bb) hold the prefiling 

20 meeting with the prospective ap21 plicant by not later than 60 days 

22 after the date on which the re23 quest is received. 

24 ‘‘(iii) DENIALS OF CERTIFICATION.— 


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1 ‘‘(I) INDIVIDUAL LICENSES AND

2 PERMITS.—If a certifying authority 

3 denies a certification application for 

4 an individual license or permit, the 

5 certifying authority shall provide to 

6 the applicable Federal licensing or 

7 permitting agency— 

8 ‘‘(aa) the specific applicable 

9 water quality requirements with 

10 which the discharge will not com11 ply; 

12 ‘‘(bb) a statement explaining 

13 why the discharge will not comply 

14 with the identified applicable 

15 water quality requirements; and 

16 ‘‘(cc) if the denial is due to 

17 insufficient information, a de18 scription of the specific water 

19 quality data or information, if 

20 any, that would be needed to en21 sure that the discharge from the 

22 proposed project will comply with 

23 applicable water quality require24 ments. 


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1 ‘‘(II) GENERAL LICENSES OR

2 PERMITS.—If a certifying authority 

3 denies a certification application for a 

4 general license or permit, the certi5 fying authority shall provide to the 

6 applicable Federal licensing or permit7 ting agency— 

8 ‘‘(aa) the specific applicable 

9 water quality requirements with 

10 which discharges that could be 

11 authorized by the general license 

12 or permit will not comply; 

13 ‘‘(bb) a statement explaining 

14 why discharges that could be au15 thorized by the general license or 

16 permit will not comply with the 

17 identified applicable water quality 

18 requirements; and 

19 ‘‘(cc) if the denial is due to 

20 insufficient information, a de21 scription of the specific water 

22 quality data or information, if 

23 any, that would be needed to as24 sure that the range of discharges 

25 that could be authorized by the 


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1 general license or permit from 

2 potential projects will comply 

3 with applicable water quality re4 quirements. 

5 ‘‘(iv) REVIEW.— 

6 ‘‘(I) IN GENERAL.—Not later 

7 than 60 days after the date on which 

8 a Federal licensing or permitting 

9 agency receives a notice described in 

10 clause (iii) or a certification under 

11 subparagraph (B) that includes condi12 tions to that certification, the Federal 

13 licensing or permitting agency shall 

14 complete a review of the process un15 dertaken by the certifying authority in 

16 reviewing the applicable certification 

17 application to determine whether the 

18 certifying authority established a rea19 sonable period of time within which to 

20 review that certification application in 

21 accordance with subparagraph (D)(ii). 

22 ‘‘(II) DENIALS.—If, after car23 rying out a review under subclause (I) 

24 of the process undertaken by a certi25 fying authority with respect to a deVerDate Sep 11 2014 05:12 Dec 08, 2022 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S5165.IS S5165

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1 nial of a certification application, a 

2 Federal licensing or permitting agency 

3 determines that the certifying author4 ity did not, in determining the reason5 able period of time within which to re6 view the certification application, con7 sider all of the factors described in 

8 subclause (I), (II), or (III) of sub9 paragraph (D)(ii), the Federal licens10 ing or permitting agency shall— 

11 ‘‘(aa) deem the certifying 

12 authority to have failed to act on 

13 the certification application; and 

14 ‘‘(bb) pursuant to subpara15 graph (D)(iii), consider the re16 quirement for a certification 

17 under subparagraph (B) waived. 

18 ‘‘(III) CONDITIONS.—If, after 

19 carrying out a review under subclause 

20 (I) of the process undertaken by a 

21 certifying authority with respect to in22 cluding conditions to a certification 

23 under subparagraph (B), a Federal li24 censing or permitting agency deter25 mines that the certifying authority did 


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1 not, in determining the reasonable pe2 riod of time within which to review 

3 the applicable certification application, 

4 consider all of the factors described in 

5 subclause (I), (II), or (III) of sub6 paragraph (D)(ii), the Federal licens7 ing or permitting agency shall con8 sider the certification conditions void. 

9 ‘‘(D) REVIEW PERIOD.— 

10 ‘‘(i) IN GENERAL.—A certifying au11 thority shall, subject to this subparagraph, 

12 issue to the applicable Federal licensing or 

13 permitting authority a final action on a 

14 certification application within a reason15 able period of time, which— 

16 ‘‘(I) shall be determined by the 

17 certifying authority by not later than 

18 60 days after the date on which the 

19 certification application is received by 

20 the certifying authority; but 

21 ‘‘(II)(aa) shall begin on the date 

22 on which the certification application 

23 is received by the certifying authority; 

24 and 


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1 ‘‘(bb) shall not exceed 1 year 

2 from the date on which the certifying 

3 authority receives the certification ap4 plication. 

5 ‘‘(ii) DETERMINATION OF REASON6 ABLE PERIOD.—In determining the reason7 able period of time under clause (i)(I), a 

8 certifying authority shall consider— 

9 ‘‘(I) the complexity of the project 

10 described in the certification applica11 tion; 

12 ‘‘(II) the nature of any potential 

13 discharge from that project; and 

14 ‘‘(III) the potential need for ad15 ditional study or evaluation of water 

16 quality effects from the discharge. 

17 ‘‘(iii) FAILURE TO ACT WITHIN PE18 RIOD.—If a certifying authority fails or re19 fuses to issue a final action on a certifi20 cation application by the end of the reason21 able period of time established under this 

22 subparagraph, the requirement for a cer23 tification under subparagraph (B) shall be 

24 waived. 


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1 ‘‘(iv) NO PAUSING OR TOLLING.—The 

2 reasonable period of time established for a 

3 certification application under this sub4 paragraph may not be paused or tolled for 

5 any reason. 

6 ‘‘(E) FINAL ACTION.— 

7 ‘‘(i) IN GENERAL.—After completion 

8 of the reasonable period of time established 

9 under subparagraph (D) and any review 

10 that may be required under subparagraph 

11 (C)(iv) for a certification application, the 

12 certifying authority or Federal licensing or 

13 permitting authority, as applicable, shall 

14 apply only 1 of the following final actions 

15 to the certification application: 

16 ‘‘(I) The certification application 

17 is granted. 

18 ‘‘(II) The certification application 

19 is granted with conditions. 

20 ‘‘(III) The certification applica21 tion is denied. 

22 ‘‘(IV) The certification require23 ments under subparagraph (B) have 

24 been waived in accordance with this 

25 paragraph with respect to the activity 


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1 for which the certification application 

2 was submitted. 

3 ‘‘(ii) NO OTHER FINAL ACTIONS.—No 

4 other final action may apply to a certifi5 cation application except as described in 

6 clause (i). 

7 ‘‘(F) ENFORCEMENT OF CONDITIONS.— 

8 The Federal licensing or permitting authority 

9 to which a certification under this subsection 

10 was issued shall be responsible for enforcing 

11 any conditions included with that certification. 

12 ‘‘(G) TIMELINE FOR ACTION.—If a Fed13 eral court remands or vacates a certification 

14 under this paragraph, the Federal court shall 

15 set and enforce a reasonable schedule and dead16 line, not to exceed 180 days from the date on 

17 which the Federal court remands or vacates the 

18 certification, for the certifying agency to act on 

19 the remand or vacatur.’’; 

20 (2) in subsection (a) (as so amended)— 

21 (A) in paragraph (2), by striking ‘‘(2) 

22 Upon receipt’’ and inserting the following: 

23 ‘‘(2) NOTICE TO ADMINISTRATOR; EFFECT ON

24 OTHER STATES.—On receipt’’; 


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1 (B) in paragraph (3), by striking ‘‘(3) The 

2 certification’’ and inserting the following: 

3 ‘‘(3) FULFILLMENT OF REQUIREMENTS.—The 

4 certification’’; 

5 (C) in paragraph (4), by striking ‘‘(4) 

6 Prior to’’ and inserting the following: 

7 ‘‘(4) REVIEW FOR COMPLIANCE.—Prior to’’; 

8 (D) in paragraph (5), by striking ‘‘(5) Any 

9 Federal’’ and inserting the following: 

10 ‘‘(5) SUSPENSION AND REVOCATION.—Any 

11 Federal’’; and 

12 (E) in paragraph (6), by striking ‘‘(6) Ex13 cept with’’ and inserting the following: 

14 ‘‘(6) APPLICABILITY TO CERTAIN FACILITIES.— 

15 Except with’’; 

16 (3) in subsection (b), by striking ‘‘(b) Nothing’’ 

17 and inserting the following: 

18 ‘‘(b) COMPLIANCE WITH OTHER PROVISIONS OF

19 LAW SETTING APPLICABLE WATER QUALITY REQUIRE20 MENTS.—Nothing’’; 

21 (4) in subsection (c), by striking ‘‘(c) In order’’ 

22 and inserting the following: 

23 ‘‘(c) AUTHORITY OF SECRETARY OF THE ARMY TO

24 PERMIT USE OF SPOIL DISPOSAL AREAS BY FEDERAL

25 LICENSEES OR PERMITTEES.—In order’’; 


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1 (5) in subsection (d), by striking ‘‘(d) Any cer2 tification’’ and inserting the following: 

3 ‘‘(d) LIMITATIONS AND MONITORING REQUIRE4 MENTS OF CERTIFICATION.—Any certification’’; and 

5 (6) by adding at the end the following: 

6 ‘‘(e) DEFINITION OF APPLICABLE WATER QUALITY

7 REQUIREMENTS.—In this section, the term ‘applicable 

8 water quality requirements’ means— 

9 ‘‘(1) the applicable provisions of sections 301, 

10 302, 303, 306, and 307; and 

11 ‘‘(2) applicable State or Tribal regulatory re12 quirements for the discharge from point sources into 

13 the waters of the United States.’’. 

14 (b) PERMITS FOR DREDGED OR FILL MATERIAL.— 

15 (1) IN GENERAL.—Section 404 of the Federal 

16 Water Pollution Control Act (33 U.S.C. 1344) is 

17 amended— 

18 (A) by striking the heading and section 

19 designation and all that follows through ‘‘(a) 

20 The Secretary’’ and inserting the following: 

21 ‘‘SEC. 404. PERMITS FOR DREDGED OR FILL MATERIAL. 

22 ‘‘(a) DISCHARGE INTO NAVIGABLE WATERS AT

23 SPECIFIED DISPOSAL SITES.— 

24 ‘‘(1) IN GENERAL.—The Secretary’’; 


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1 (B) in subsection (a)(1) (as so designated), 

2 in the second sentence— 

3 (i) by striking ‘‘this subsection’’ each 

4 place it appears and inserting ‘‘paragraph 

5 (1)’’; and 

6 (ii) by striking ‘‘Not later than the fif7 teenth day’’ and inserting the following: 

8 ‘‘(2) NOTICE.—Not later than the 15th day’’; 

9 (C) in subsection (c)— 

10 (i) in the third sentence— 

11 (I) by striking ‘‘his finding and 

12 his reasons’’ and inserting ‘‘the find13 ings and reasons of the Adminis14 trator’’; and 

15 (II) by striking ‘‘The Adminis16 trator’’ and inserting the following: 

17 ‘‘(4) FINDINGS AND REASONING.—The Admin18 istrator’’; 

19 (ii) in the second sentence, by striking 

20 ‘‘Before making such determination’’ and 

21 inserting the following: 

22 ‘‘(3) CONSULTATION.—Before making a deter23 mination under paragraph (1)’’; 

24 (iii) by striking ‘‘(c) The Adminis25 trator’’ and inserting the following: 


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1 ‘‘(c) PROHIBITION OF SPECIFICATION OF AREAS AS

2 DISPOSAL SITES.— 

3 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

4 the Administrator’’; and 

5 (iv) by inserting after paragraph (1) 

6 (as so designated) the following: 

7 ‘‘(2) LIMITATION.—The Administrator may not 

8 prohibit the specification of a defined area as a dis9 posal site, or otherwise deny or restrict the use of 

10 a defined area as a disposal site after a permit 

11 under this section for the area has been issued by 

12 the Secretary.’’; 

13 (D) in subsection (e)— 

14 (i) in paragraph (1), in the second 

15 sentence— 

16 (I) by striking ‘‘subsection (b)(1) 

17 of this section, and (B) set forth’’ and 

18 inserting the following: ‘‘subsection 

19 (b)(1); and 

20 ‘‘(ii) set forth’’; 

21 (II) by striking ‘‘shall (A) be 

22 based’’ and inserting the following: 

23 ‘‘shall— 

24 ‘‘(i) be based’’; and 


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1 (III) by striking ‘‘Any general’’ 

2 and inserting the following: 

3 ‘‘(B) REQUIREMENTS FOR ISSUANCE.— 

4 Any general’’; 

5 (ii) by striking ‘‘(e)(1) In carrying’’ 

6 and inserting the following: 

7 ‘‘(e) GENERAL PERMITS ON STATE, REGIONAL, OR

8 NATIONWIDE BASIS.— 

9 ‘‘(1) PERMITS AUTHORIZED.— 

10 ‘‘(A) IN GENERAL.—In carrying’’; 

11 (iii) in paragraph (2), by striking ‘‘(2) 

12 No general’’ and inserting the following: 

13 ‘‘(2) TERM.—No general’’; and 

14 (iv) by adding at the end the fol15 lowing: 

16 ‘‘(3) SINGLE AND COMPLETE PROJECTS.— 

17 ‘‘(A) DEFINITION OF SINGLE AND COM18 PLETE PROJECT.— 

19 ‘‘(i) IN GENERAL.—In this paragraph, 

20 the term ‘single and complete project’, with 

21 respect to a project for which the Secretary 

22 is determining whether a general permit 

23 issued under this subsection applies, means 

24 that portion of the total project proposed 

25 or accomplished by— 


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1 ‘‘(I) a single owner or developer; 

2 ‘‘(II) a partnership of 1 or more 

3 owners or developers; or 

4 ‘‘(III) an association of owners or 

5 developers. 

6 ‘‘(ii) LINEAR PROJECTS.— 

7 ‘‘(I) DEFINITION.—In this 

8 clause, the term ‘linear project’ means 

9 a project constructed for the purpose 

10 of getting people, goods, or services 

11 from a point of origin to a terminal 

12 point, which may involve multiple 

13 crossings of 1 or more waters of the 

14 United States at separate and distant 

15 locations. 

16 ‘‘(II) GENERAL RULE.—For pur17 poses of this paragraph, with respect 

18 to projects described in clause (i) that 

19 are linear projects— 

20 ‘‘(aa) the crossings of sepa21 rate waters of the United States 

22 at a specific location shall be con23 sidered 1 single and complete 

24 project; but 


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1 ‘‘(bb) each crossing of a sin2 gle water of the United States 

3 shall be considered a separate 

4 single and complete project if 

5 those crossings are at separate 

6 and distant locations. 

7 ‘‘(III) ADDITIONAL EXCLU8 SIONS.—For purposes of subclause 

9 (II), individual channels in a braided 

10 stream or river, individual arms of a 

11 large, irregularly-shaped wetland or 

12 lake, and other, similar bodies of 

13 water shall not be considered to be 

14 separate waters of the United States. 

15 ‘‘(B) REQUIREMENT.—In determining 

16 whether a general permit issued under this sub17 section applies to an activity, the Secretary 

18 shall consider the estimated total of all losses of 

19 waters of the United States expected to result 

20 from the single and complete project. 

21 ‘‘(C) USE OF MULTIPLE PERMITS.—The 

22 Secretary may combine 2 or more general per23 mits issued under this subsection to authorize a 

24 single and complete project, but the same gen25 eral permit issued under this subsection may 


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1 not be used more than once for a single and 

2 complete project. 

3 ‘‘(4) REISSUANCE OF NATIONWIDE PERMITS.— 

4 In determining whether to reissue a general permit 

5 issued under this subsection on a nationwide basis— 

6 ‘‘(A) no consultation with an applicable 

7 State pursuant to section 6(a) of the Endan8 gered Species Act of 1973 (16 U.S.C. 1535(a)) 

9 is required; 

10 ‘‘(B) no consultation with a Federal agen11 cy pursuant to section 7(a)(2) of that Act (16 

12 U.S.C. 1536(a)(2)) is required; and 

13 ‘‘(C) for purposes of carrying out the Na14 tional Environmental Policy Act of 1969 (42 

15 U.S.C. 4321 et seq.) with respect to that 

16 reissuance, conducting an environmental assess17 ment on a nationwide basis is sufficient for pur18 poses of compliance with that Act. 

19 ‘‘(5) NATIONWIDE PERMIT FOR OIL AND NAT20 URAL GAS PIPELINES.—Notwithstanding any other 

21 provision of this section, the Secretary shall main22 tain a nationwide permit for the activities required 

23 for the construction, maintenance, repair, operation, 

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1 spect to waters of the United States, an area of 

more than 1 2 ⁄2 acre for each single and complete 

3 project (as defined in paragraph (3)(A)), which shall 

4 be known as ‘nationwide permit 12’.’’; 

5 (E) in subsection (h)— 

6 (i) in paragraph (1), by adding at the 

7 end the following: 

8 ‘‘(I) To issue permits not later than the 

9 date that is 1 year after the date on which the 

10 State receives an application for the permit, 

11 which may not be paused or tolled for any rea12 son. 

13 ‘‘(J) To ensure that, if the State does not 

14 issue a final action with respect to an applica15 tion for a permit within the 1-year period de16 scribed in subparagraph (I), the application is 

17 considered to be approved. 

18 ‘‘(K) To carry out a programmatic review 

19 of the program annually to ensure that the pro20 gram does not exceed the authority granted to 

21 the State under this section.’’; and 

22 (ii) by adding at the end the fol23 lowing: 

24 ‘‘(6) ACTION REQUIRED.— 


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1 ‘‘(A) IN GENERAL.—A State with a permit 

2 program approved under this subsection shall 

3 issue a final action with respect to an applica4 tion for a permit described in subsection (g)(1) 

5 not later than 1 year after the date of receipt 

6 of the application. 

7 ‘‘(B) FAILURE TO ACT.—An application 

8 for a permit described in subsection (g)(1) sub9 mitted to a State with a permit program ap10 proved under this subsection shall be considered 

11 to be approved if the State fails to issue a final 

12 action with respect to the application by the 

13 end of the 1-year period described in subpara14 graph (A). 

15 ‘‘(C) NO PAUSING OR TOLLING.—The 1- 

16 year period described in subparagraph (A) may 

17 not be paused or tolled for any reason.’’; 

18 (F) in subsection (s)(3), in the third sen19 tence, by striking ‘‘acton’’ and inserting ‘‘ac20 tion’’; 

21 (G) in subsection (t), by striking ‘‘(t) 

22 Nothing’’ and inserting the following: 

23 ‘‘(u) SAVINGS PROVISION.—Nothing’’; and 

24 (H) by inserting after subsection (s) the 

25 following: 


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1 ‘‘(t) JUDICIAL REVIEW.— 

2 ‘‘(1) STATUTE OF LIMITATIONS.— 

3 ‘‘(A) IN GENERAL.—Notwithstanding any 

4 other provision of law, an action seeking judi5 cial review of an individual or general permit 

6 issued under this section shall be filed not later 

7 than the date that is 60 days after the date on 

8 which the permit was issued. 

9 ‘‘(B) SAVINGS PROVISION.—Nothing in 

10 subparagraph (A) authorizes an action seeking 

11 judicial review of the structure of or authoriza12 tion for a State permit program approved pur13 suant to this section. 

14 ‘‘(2) TIMELINE TO ACT ON REMAND AND

15 VACATUR.—If a Federal court remands or vacates a 

16 permit under this section, the Federal court shall set 

17 and enforce a reasonable schedule and deadline, 

18 which may not exceed 180 days from the date on 

19 which the Federal court remands or vacates the per20 mit, for the issuer of the permit to act on that re21 mand or vacatur.’’. 

22 (2) RATIFICATION OF CURRENT PERMITS.— 

23 Notwithstanding any other provision of law, each 

24 category of activities authorized by a general permit 

25 issued under section 404(e) of the Federal Water 


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•S 5165 IS

1 Pollution Control Act (33 U.S.C. 1344(e)) (including 

2 nationwide permit 12) or under section 10 of the 

3 Act of March 3, 1899 (33 U.S.C. 403), that is in 

4 effect on the date of enactment of this Act shall, 

5 consistent with subparagraph (A) of section 

6 404(e)(1) of the Federal Water Pollution Control 

7 Act (33 U.S.C. 1344(e)(1)), be considered to 

8 cause— 

9 (A) not more than minimal adverse envi10 ronmental effects when actions authorized 

11 under those permits are carried out separately; 

12 and 

13 (B) not more than minimal cumulative ad14 verse effects on the environment. 

15 (3) SAVINGS PROVISION.—Nothing in this sub16 section or the amendments made by this subsection 

17 requires a State (including an Indian tribe that is 

18 treated as a State pursuant to section 518(e) of the 

19 Federal Water Pollution Control Act (33 U.S.C. 

20 1377(e))) for which the Administrator of the Envi21 ronmental Protection Agency has approved a permit 

22 program pursuant to subsections (g) and (h) of sec23 tion 404 of the Federal Water Pollution Control Act 

24 (33 U.S.C. 1344) to seek reapproval of the permit 

25 program in accordance with those subsections. 


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1 (c) DEFINITION OF NAVIGABLE WATERS.—Section 

2 502 of the Federal Water Pollution Control Act (33 

3 U.S.C. 1362) is amended— 

4 (1) in each of paragraphs (1) through (20), by 

5 inserting a paragraph heading, the text of which 

6 comprises the term defined in that paragraph; 

7 (2) by indenting paragraphs (1) through (20) 

8 appropriately; and 

9 (3) by striking paragraph (7) and inserting the 

10 following: 

11 ‘‘(7) NAVIGABLE WATERS; WATERS OF THE

12 UNITED STATES.— 

13 ‘‘(A) IN GENERAL.—The terms ‘navigable 

14 waters’ and ‘waters of the United States’ 

15 mean— 

16 ‘‘(i) the territorial seas and waters 

17 which are currently used, or were used in 

18 the past, or may be susceptible to use in 

19 interstate or foreign commerce, including 

20 waters that are subject to the ebb and flow 

21 of the tide; 

22 ‘‘(ii) a tributary; 

23 ‘‘(iii) a lake, pond, or impoundment of 

24 water from a body of water otherwise de25 scribed in this subparagraph that— 


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•S 5165 IS

1 ‘‘(I) contributes to surface water 

2 flow to a body of water described in 

3 clause (i) in a typical year; or 

4 ‘‘(II) is inundated by flooding 

5 from a body of water otherwise de6 scribed in this subparagraph during a 

7 typical year; and 

8 ‘‘(iv) adjacent wetlands. 

9 ‘‘(B) EXCLUSIONS.—The terms ‘navigable 

10 waters’ and ‘waters of the United States’ do not 

11 include— 

12 ‘‘(i) an ephemeral feature, including 

13 an ephemeral stream, swale, gully, rill, 

14 pool, or tributary that is ephemeral during 

15 a typical year; 

16 ‘‘(ii) groundwater, including ground17 water drained through subsurface drainage 

18 systems; 

19 ‘‘(iii) an artificially irrigated area that 

20 would revert to upland or dry land if that 

21 artificial irrigation ceased; 

22 ‘‘(iv) an artificial lake or pond that— 

23 ‘‘(I) is not an impoundment de24 scribed in subparagraph (A)(iii); and 


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•S 5165 IS

1 ‘‘(II) is constructed or excavated 

2 in upland or dry land; 

3 ‘‘(v) a water-filled depression that 

4 is— 

5 ‘‘(I) constructed or excavated in 

6 upland or dry land; and 

7 ‘‘(II) incidental to mining or con8 struction activity; 

9 ‘‘(vi) a pit that is excavated in upland 

10 for the purpose of obtaining fill, sand, or 

11 gravel; 

12 ‘‘(vii) a stormwater control feature 

13 that is constructed or excavated in upland 

14 or dry land to convey, treat, infiltrate, or 

15 store stormwater runoff; 

16 ‘‘(viii) a groundwater recharge, water 

17 reuse, or wastewater treatment recycling 

18 structure that is constructed or excavated 

19 in upland or dryland; 

20 ‘‘(ix) a waste treatment system; 

21 ‘‘(x) prior converted cropland; 

22 ‘‘(xi)(I) a ditch that is not a body of 

23 water described in clause (i) or (ii) of sub24 paragraph (A); and 


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•S 5165 IS

1 ‘‘(II) any portion of a ditch con2 structed in adjacent wetlands that does not 

3 meet the requirements described in sub4 paragraph (C)(i); 

5 ‘‘(xii) diffuse stormwater runoff and 

6 directional sheet flow over upland; and 

7 ‘‘(xiii) a water or water feature that is 

8 not identified in subparagraph (A). 

9 ‘‘(C) ASSOCIATED DEFINITIONS.—For pur10 poses of this paragraph: 

11 ‘‘(i) ADJACENT WETLANDS.—The 

12 term ‘adjacent wetlands’ means wetlands 

13 that— 

14 ‘‘(I) touch at least one point or 

15 side of a body of water described in 

16 clause (i), (ii), or (iii) of subparagraph 

17 (A); 

18 ‘‘(II) are inundated by flooding 

19 from a body of water described in 

20 clause (i), (ii), or (iii) of subparagraph 

21 (A) during a typical year; or 

22 ‘‘(III) are physically separated 

23 from a body of water described in 

24 clause (i), (ii), or (iii) of subparagraph 

25 (A) only by— 


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1 ‘‘(aa) a natural berm, bank, 

2 dune, or similar natural feature; 

3 or 

4 ‘‘(bb) an artificial dike, bar5 rier, or similar artificial struc6 ture, if that structure allows for 

7 a direct hydrological surface con8 nection to the body of water de9 scribed in that clause (i), (ii), or 

10 (iii) in a typical year, such as 

11 through a culvert, flood or tide 

12 gate, pump, or similar artificial 

13 feature. 

14 ‘‘(ii) DITCH.—The term ‘ditch’ means 

15 a constructed or excavated channel used to 

16 convey water. 

17 ‘‘(iii) EPHEMERAL.—The term 

18 ‘ephemeral’, with respect to a surface 

19 water, means flowing or pooling only in di20 rect response to precipitation (such as rain 

21 or snowfall). 

22 ‘‘(iv) HIGH TIDE LINE.— 

23 ‘‘(I) IN GENERAL.—The term 

24 ‘high tide line’ means the line of inter25 section of the land with the surface of 


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•S 5165 IS

1 a body of water at the maximum 

2 height reached by a rising tide (in3 cluding a spring high tide or another 

4 high tide that occurs with periodic fre5 quency), which may, in the absence of 

6 actual data, be determined by a line 

7 of oil or scum along shore objects, a 

8 more or less continuous deposit of fine 

9 shell or debris on the foreshore or 

10 berm, vegetation lines, tidal gages, 

11 other physical markings or character12 istics, or other suitable means that de13 lineate the general height reached by 

14 a rising tide. 

15 ‘‘(II) EXCLUSIONS.—The term 

16 ‘high tide line’ does not include the 

17 line of intersection described in sub18 clause (I) at the maximum height 

19 reached by a storm surge in which 

20 there is a departure from the normal 

21 or predicted reach of a tide due to the 

22 piling up of water against a coast by 

23 strong winds, such as a surge accom24 panying a hurricane or another in25 tense storm. 


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1 ‘‘(v) INTERMITTENT.—The term 

2 ‘intermittent’, with respect to a surface 

3 water, means flowing continuously during 

4 certain times of the year and more than in 

5 direct response to precipitation (such as 

6 seasonally, when the groundwater table is 

7 elevated, or when snowpack melts). 

8 ‘‘(vi) ORDINARY HIGH WATER

9 MARK.—The term ‘ordinary high water 

10 mark’ means the line on a shore estab11 lished by the fluctuations of water and in12 dicated by physical characteristics, such as 

13 a clear, natural line impressed on the 

14 bank, shelving, changes in the character of 

15 the soil, destruction of terrestrial vegeta16 tion, the presence of litter and debris, or 

17 another appropriate means that considers 

18 the characteristics of the surrounding 

19 areas. 

20 ‘‘(vii) PERENNIAL.—The term ‘peren21 nial’, with respect to a surface water, 

22 means surface water that flows continu23 ously year round. 

24 ‘‘(viii) PRIOR CONVERTED CROP25 LAND.— 


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•S 5165 IS

1 ‘‘(I) IN GENERAL.—The term 

2 ‘prior converted cropland’ means any 

3 area that, prior to December 23, 

4 1985, was drained or otherwise ma5 nipulated for the purpose, or having 

6 the effect, of making production of an 

7 agricultural product possible. 

8 ‘‘(II) INCLUSION.—The term 

9 ‘prior converted cropland’ includes 

10 any designation of an area as prior 

11 converted cropland made by the Sec12 retary of Agriculture. 

13 ‘‘(III) EXCLUSION.—The term 

14 ‘prior converted cropland’ does not in15 clude any area described in subclause 

16 (I) that is abandoned or has reverted 

17 to wetlands. 

18 ‘‘(IV) ASSOCIATED DEFINI19 TION.—In this clause, the term ‘aban20 doned’, with respect to an area de21 scribed in subclause (I), means the 

22 area has not been used for, or in sup23 port of, agricultural purposes at least 

24 once during the 5-year period ending 


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1 on the date of determination, as de2 termined by the Administrator. 

3 ‘‘(ix) SNOWPACK.—The term 

4 ‘snowpack’ means layers of snow that ac5 cumulate over extended periods of time in 

6 certain geographic regions or at high ele7 vation (such as in northern climes or in 

8 mountainous regions). 

9 ‘‘(x) TRIBUTARY.—The term ‘tribu10 tary’ includes a river, stream, or similar 

11 naturally occurring surface water channel 

12 that— 

13 ‘‘(I) contributes to surface water 

14 flow to a body of water described in 

15 subparagraph (A)(i); and 

16 ‘‘(II) is perennial or intermittent 

17 in a typical year. 

18 ‘‘(xi) TYPICAL YEAR.—The term ‘typ19 ical year’ means a year in which precipita20 tion and other climatic variables are within 

21 the normal periodic range (such as season22 ally or annually) for the geographic area of 

23 the applicable body of water, based on a 

24 rolling 30-year period. 


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1 ‘‘(xii) UPLAND.—The term ‘upland’ 

2 means any land area that, under normal 

3 conditions— 

4 ‘‘(I) is not wetlands; and 

5 ‘‘(II) does not lie below the ordi6 nary high water mark or the high tide 

7 line of a body of water described in 

8 subparagraph (A). 

9 ‘‘(xiii) WASTE TREATMENT SYSTEM.— 

10 The term ‘waste treatment system’ in11 cludes all components, including lagoons 

12 and treatment ponds (such as settling or 

13 cooling ponds), designed to either convey 

14 or retain, concentrate, settle, reduce, or re15 move pollutants, either actively or pas16 sively, from wastewater prior to discharge 

17 (or eliminating any such discharge). 

18 ‘‘(xiv) WETLANDS.—The term ‘wet19 lands’ means areas that are inundated or 

20 saturated by surface or ground water at a 

21 frequency and duration sufficient to sup22 port, and that under normal circumstances 

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1 ditions, including swamps, marshes, bogs, 

2 and similar areas.’’. 

3 SEC. 3. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 

4 MODIFICATIONS. 

5 (a) DEFINITIONS.—The National Environmental Pol6 icy Act of 1969 is amended by inserting after section 2 

7 (42 U.S.C. 4321) the following: 

8 ‘‘SEC. 3. DEFINITIONS. 

9 ‘‘In this Act: 

10 ‘‘(1) CATEGORICAL EXCLUSION.—The term 

11 ‘categorical exclusion’ means a category of actions 

12 that a Federal agency determines, according to pro13 cedures established by the Federal agency, do not 

14 normally have a significant effect on the human en15 vironment. 

16 ‘‘(2) EFFECTS.— 

17 ‘‘(A) IN GENERAL.—The term ‘effects’ 

18 means changes to the human environment as a 

19 result of a proposed action or alternative action 

20 to be carried out by a Federal agency that— 

21 ‘‘(i) are reasonably foreseeable and 

22 not remote in time, geographically remote, 

23 or the product of a lengthy causal chain; 

24 ‘‘(ii) have a reasonably close causal 

25 relationship, as determined by the Federal 


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•S 5165 IS

1 agency, to the proposed action or alter2 native action, as applicable; and 

3 ‘‘(iii) the Federal agency has the abil4 ity to prevent and that would not occur ab5 sent the proposed action or alternative ac6 tion. 

7 ‘‘(B) REQUIREMENT.—For purposes of 

8 subparagraph (A)(ii), a ‘but for’ causal rela9 tionship is insufficient to establish a reasonably 

10 close causal relationship. 

11 ‘‘(3) ENVIRONMENTAL ASSESSMENT.—The 

12 term ‘environmental assessment’ means a concise 

13 public document prepared by a Federal agency to 

14 determine whether to prepare an environmental im15 pact statement or a finding of no significant impact 

16 for a proposed action. 

17 ‘‘(4) ENVIRONMENTAL IMPACT STATEMENT.— 

18 The term ‘environmental impact statement’ means a 

19 detailed statement required to be prepared for a pro20 posed major action in accordance with title I. 

21 ‘‘(5) MAJOR FEDERAL ACTION.— 

22 ‘‘(A) IN GENERAL.—The term ‘major Fed23 eral action’ means an activity or decision sub24 ject to Federal control and responsibility, as de25 termined by a Federal agency. 


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1 ‘‘(B) EXCLUSIONS.—The term ‘major Fed2 eral action’ does not include— 

3 ‘‘(i) a nondiscretionary or 

4 extraterritorial activity or decision; 

5 ‘‘(ii) an action that does not result in 

6 a final agency action under subchapter II 

7 of chapter 5, and chapter 7, of title 5, 

8 United States Code (commonly known as 

9 the ‘Administrative Procedure Act’); 

10 ‘‘(iii) a judicial or administrative en11 forcement action; 

12 ‘‘(iv) an action involving funding, the 

13 control of which is not maintained by the 

14 Federal agency that was appropriated the 

15 funds; 

16 ‘‘(v) a non-Federal project with mini17 mal Federal funding or involvement; 

18 ‘‘(vi) a loan, loan guarantee, or other 

19 financial assistance where the Federal 

20 agency does not exercise sufficient control 

21 or responsibility over the funds; and 

22 ‘‘(vii) any action that was deemed to 

23 not be a major Federal action by a Federal 

24 court. 


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1 ‘‘(C) OTHER ACTIONS.—A Federal agency 

2 may determine whether any other action is a 

3 major Federal action for purposes of the re4 quirements of this Act.’’. 

5 (b) NEPA THRESHOLDS.—Title I of the National 

6 Environmental Policy Act of 1969 (42 U.S.C. 4331 et 

7 seq.) is amended by adding at the end the following: 

8 ‘‘SEC. 106. THRESHOLDS. 

9 ‘‘Prior to carrying out the requirements of this title 

10 for a major Federal action, the Federal agency seeking 

11 to carry out the action shall determine whether— 

12 ‘‘(1) the action is exempt from the requirements 

13 of this title by another Federal law (including regu14 lations); 

15 ‘‘(2) compliance with this title would— 

16 ‘‘(A) clearly and fundamentally conflict 

17 with another Federal law (including regula18 tions); or 

19 ‘‘(B) be inconsistent with the congressional 

20 intent of another Federal law; 

21 ‘‘(3) the action is nondiscretionary, such that 

22 the Federal agency lacks authority to consider the 

23 environmental effects of the action; and 


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1 ‘‘(4) a review of the effects of the action under 

2 another Federal law (including regulations) would 

3 satisfy the requirements of this title.’’. 

4 (c) DETERMINING APPROPRIATE LEVEL OF NEPA 

5 REVIEW.—Title I of the National Environmental Policy 

6 Act of 1969 (42 U.S.C. 4331 et seq.) (as amended by sub7 section (b)) is amended by adding at the end the following: 

8 ‘‘SEC. 107. DETERMINING APPROPRIATE LEVEL OF NEPA 

9 REVIEW. 

10 ‘‘In assessing the appropriate level of review to be 

11 conducted by a Federal agency under this title for a major 

12 Federal action, the Federal agency shall determine wheth13 er the proposed action— 

14 ‘‘(1) normally does not have significant effects 

15 or qualifies as a categorical exclusion; 

16 ‘‘(2) is likely to have insignificant effects or un17 known effects; or 

18 ‘‘(3) is likely to have significant effects.’’. 

19 (d) ENVIRONMENTAL IMPACT STATEMENTS.— 

20 (1) IN GENERAL.—Title I of the National Envi21 ronmental Policy Act of 1969 (42 U.S.C. 4331 et 

22 seq.) (as amended by subsection (c)) is amended by 

23 adding at the end the following: 


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1 ‘‘SEC. 108. ENVIRONMENTAL IMPACT STATEMENT RE2 QUIREMENTS. 

3 ‘‘(a) STATEMENT OF PURPOSE AND NEED.— 

4 ‘‘(1) IN GENERAL.—An environmental impact 

5 statement shall briefly specify the underlying pur6 pose and need to which a Federal agency is respond7 ing. 

8 ‘‘(2) ALTERNATIVES ANALYSIS.—Any alter9 natives analyzed by the Federal agency shall— 

10 ‘‘(A) meet the purpose and need for the 

11 proposed action; and 

12 ‘‘(B) where applicable, meet the goals of 

13 the applicant. 

14 ‘‘(b) PAGE LIMITS FOR ENVIRONMENTAL IMPACT

15 STATEMENTS.—The text of a final environmental impact 

16 statement shall be proportional to the potential effects, 

17 and size, of the proposed action, but shall not be longer 

18 than— 

19 ‘‘(1) 150 pages; or 

20 ‘‘(2) in the case of a proposed action of unusual 

21 complexity, as determined by the applicable Federal 

22 agency, 300 pages. 

23 ‘‘(c) TIME LIMIT FOR PREPARING AN ENVIRON24 MENTAL IMPACT STATEMENT.— 

25 ‘‘(1) IN GENERAL.—Not later than 2 years 

26 after the date on which a Federal agency issues a 


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1 notice of intent to carry out a proposed action, the 

2 Federal agency shall submit to the Environmental 

3 Protection Agency the environmental impact state4 ment for that proposed action. 

5 ‘‘(2) FAILURE TO ACT.—If a Federal agency 

6 does not submit an environmental impact statement 

7 in accordance with the timeline described in para8 graph (1), the requirements of this title shall be 

9 deemed to have been fulfilled for the proposed ac10 tion. 

11 ‘‘(d) SPECIFICITY OF COMMENTS AND INFORMA12 TION.— 

13 ‘‘(1) COMMENTS ON DRAFT ENVIRONMENTAL

14 IMPACT STATEMENTS.—Comments and objections of 

15 any kind relating to an environmental impact state16 ment for a proposed action shall be raised within the 

17 comment period on the draft environmental impact 

18 statement provided by the applicable Federal agency, 

19 consistent with the requirements of section 1506.11 

20 of title 40, Code of Federal Regulations (as in effect 

21 on September 14, 2020). 

22 ‘‘(2) COMMENTS ON FINAL ENVIRONMENTAL

23 IMPACT STATEMENTS.—If the applicable Federal 

24 agency requests comments on a final environmental 

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1 tion before the final decision of the Federal agency, 

2 comments and objections of any kind shall be raised 

3 within the comment period provided by the Federal 

4 agency. 

5 ‘‘(3) UNEXHAUSTED AND FORFEITED COM6 MENTS.—Comments and objections of any kind not 

7 provided within the comment periods described in 

8 paragraphs (1) and (2) shall be considered 

9 unexhausted and forfeited, consistent with section 

10 1500.3(b) of title 40, Code of Federal Regulations 

11 (as in effect on September 14, 2020). 

12 ‘‘(e) RECORD OF DECISION IN CASES REQUIRING

13 ENVIRONMENTAL IMPACT STATEMENTS.—Each record of 

14 decision prepared by a Federal agency for a proposed ac15 tion shall contain a statement certifying that the Federal 

16 agency considered all alternatives to, and information and 

17 analyses relating to, the proposed action submitted during 

18 the process of carrying out the requirements of this title.’’. 

19 (2) CONFORMING AMENDMENTS.—Section 

20 102(2) of the National Environmental Policy Act of 

21 1969 (42 U.S.C. 4332(2)) is amended— 

22 (A) in subparagraph (C)— 

23 (i) in the matter preceding clause (i), 

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1 serting ‘‘an environmental impact state2 ment’’; and 

3 (ii) in the undesignated matter fol4 lowing clause (v), in the first sentence, by 

5 striking ‘‘Prior to making any detailed 

6 statement’’ and inserting ‘‘Prior to pre7 paring an environmental impact state8 ment’’; and 

9 (B) in subparagraph (D)— 

10 (i) in the matter preceding clause (i), 

11 by striking ‘‘detailed statement’’ and in12 serting ‘‘environmental impact statement’’; 

13 and 

14 (ii) in clause (iv), by striking ‘‘detailed 

15 statement’’ and inserting ‘‘environmental 

16 impact statement’’. 

17 (e) TIME LIMIT FOR ENVIRONMENTAL ASSESSMENT

18 COMPLETION.—Title I of the National Environmental 

19 Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as amended 

20 by subsection (d)(1)) is amended by adding at the end 

21 the following: 

22 ‘‘SEC. 109. ENVIRONMENTAL ASSESSMENT REQUIREMENT. 

23 ‘‘Not later than 1 year after the date on which a Fed24 eral agency decides to prepare an environmental assess25 ment for a proposed action, the Federal agency shall subVerDate Sep 11 2014 05:12 Dec 08, 2022 Jkt 039200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\S5165.IS S5165

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1 mit to the Environmental Protection Agency that environ2 mental assessment.’’. 

3 (f) ADOPTION OF CERTAIN CATEGORICAL EXCLU4 SIONS.—Title I of the National Environmental Policy Act 

5 of 1969 (42 U.S.C. 4331 et seq.) (as amended by sub6 section (e)) is amended by adding at the end the following: 

7 ‘‘SEC. 110. ADOPTION OF CERTAIN CATEGORICAL EXCLU8 SIONS. 

9 ‘‘A Federal agency may adopt the determination of 

10 another Federal agency that a categorical exclusion ap11 plies to a proposed action if the action covered by the 

12 original categorical exclusion determination and the pro13 posed action of the adopting Federal agency are substan14 tially the same, in the determination of the adopting Fed15 eral agency.’’. 

16 SEC. 4. ENDANGERED SPECIES ACT OF 1973 MODIFICA17 TIONS. 

18 (a) DEFINITIONS.—Section 3 of the Endangered Spe19 cies Act of 1973 (16 U.S.C. 1532) is amended— 

20 (1) by redesignating paragraphs (6), (7), (8), 

21 (9), (10), (12), (13), (14), (15), (16), (17), (18), 

22 (19), (20), and (21) as paragraphs (7), (8), (9), 

23 (10), (12), (13), (14), (15), (16), (17), (18), (19), 

24 (20), (21), and (22), respectively; 


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•S 5165 IS

1 (2) by inserting after paragraph (5) the fol2 lowing: 

3 ‘‘(6) The term ‘destruction or adverse modifica4 tion’ means a direct or indirect alteration that ap5 preciably diminishes the value of critical habitat as 

6 a whole for the conservation of a listed species.’’; 

7 and 

8 (3) by inserting after paragraph (10) (as so re9 designated) the following: 

10 ‘‘(11) The term ‘foreseeable future’ means an 

11 unspecific period of time in the future that is nec12 essary for the Secretary to reasonably determine 

13 that future threats to a species, and the response of 

14 a species to those threats, are likely.’’. 

15 (b) CONSIDERATION OF ECONOMIC IMPACTS IN LIST16 ING DECISIONS.—Section 4(a)(1) of the Endangered Spe17 cies Act of 1973 (16 U.S.C. 1533(a)(1)) is amended— 

18 (1) in subparagraph (A)— 

19 (A) by striking ‘‘the’’ and inserting ‘‘The’’; 

20 and 

21 (B) by striking the semicolon at the end 

22 and inserting a period; 

23 (2) in subparagraph (B)— 

24 (A) by striking ‘‘overutilization’’ and in25 serting ‘‘Overutilization’’; and 


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•S 5165 IS

1 (B) by striking the semicolon at the end 

2 and inserting a period; 

3 (3) in subparagraph (C)— 

4 (A) by striking ‘‘disease’’ and inserting 

5 ‘‘Disease’’; and 

6 (B) by striking the semicolon at the end 

7 and inserting a period; 

8 (4) in subparagraph (D)— 

9 (A) by striking ‘‘the’’ and inserting ‘‘The’’; 

10 and 

11 (B) by striking ‘‘; or’’ and inserting a pe12 riod; 

13 (5) in subparagraph (E), by striking ‘‘other’’ 

14 and inserting ‘‘Other’’; and 

15 (6) by adding at the end the following: 

16 ‘‘(F) Whether listing the species as an en17 dangered species or a threatened species would 

18 result in economic or other impacts on land19 owners.’’. 

20 (c) CRITERIA FOR DELISTING A SPECIES.—Section 

21 4 of the Endangered Species Act of 1973 (16 U.S.C. 

22 1533) is amended by adding at the end the following: 

23 ‘‘(j) CRITERIA FOR DELISTING A SPECIES.—The Sec24 retary shall remove a species included on the list published 

25 pursuant to subsection (c) if the Secretary determines, 


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•S 5165 IS

1 after conducting a review of the status of the applicable 

2 endangered species or threatened species using the best 

3 scientific and commercial data available, that— 

4 ‘‘(1) the listed species is extinct; 

5 ‘‘(2) the listed species is no longer an endan6 gered species or a threatened species; or 

7 ‘‘(3) the listed species is not a species.’’. 

8 (d) RESTRICTIONS ON DESIGNATING CRITICAL HABI9 TAT.—Section 4(a)(3) of the Endangered Species Act of 

10 1973 (16 U.S.C. 1533(a)(3)) is amended by adding at the 

11 end the following: 

12 ‘‘(C) RESTRICTION ON DESIGNATING CRITICAL

13 HABITAT.—The Secretary shall not designate habitat as 

14 critical habitat under this paragraph if— 

15 ‘‘(i) a species is threatened by taking or other 

16 human activity and identification of critical habitat 

17 can be expected to increase the degree of that threat 

18 to the species; 

19 ‘‘(ii) the present or threatened destruction, 

20 modification, or curtailment of the habitat or range 

21 of a species— 

22 ‘‘(I) is not a threat to the species; or 

23 ‘‘(II) is solely a result of causes that can24 not be addressed through management actions; 


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1 ‘‘(iii) areas within the jurisdiction of the United 

2 States provide no more than negligible conservation 

3 value, if any, for a species occurring primarily out4 side the jurisdiction of the United States; 

5 ‘‘(iv) no areas of the habitat are critical habitat; 

6 or 

7 ‘‘(v) the Secretary otherwise determines that 

8 designation of the habitat as critical habitat would 

9 not be prudent based on the best scientific data 

10 available.’’. 

11 (e) UNOCCUPIED AREAS.—Section 3(5)(A) of the 

12 Endangered Species Act of 1973 (16 U.S.C. 1532(5)(A)) 

13 is amended by striking clause (ii) and inserting the fol14 lowing: 

15 ‘‘(ii) specific areas outside the geographical 

16 area occupied by the species at the time the species 

17 is listed in accordance with section 4, as described 

18 in clause (i), if the Secretary determines that— 

19 ‘‘(I) the geographical area occupied by the 

20 species described in clause (i), at the time of 

21 the listing, is inadequate to ensure the con22 servation of the species; and 

23 ‘‘(II) it is reasonably certain that the spe24 cific area outside the geographical area occu25 pied by the species— 


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1 ‘‘(aa) will contribute to the conserva2 tion of the species; and 

3 ‘‘(bb) contains at least 1 physical or 

4 biological feature essential to the conserva5 tion of the species.’’. 

6 (f) PROTECTIVE REGULATIONS FOR THREATENED

7 SPECIES.— 

8 (1) IN GENERAL.—Section 4(d) of the Endan9 gered Species Act of 1973 (16 U.S.C. 1533(d)) is 

10 amended— 

11 (A) in the first sentence, by striking 

12 ‘‘Whenever any species’’ and all that follows 

13 through the period at the end and inserting the 

14 following: 

15 ‘‘(1) IN GENERAL.—Whenever any species is 

16 listed as a threatened species pursuant this section, 

17 the Secretary shall promulgate species-specific regu18 lations that the Secretary determines are appro19 priate to provide for the conservation of the threat20 ened species.’’; 

21 (B) in the second sentence, by striking 

22 ‘‘The Secretary may by regulation’’ and insert23 ing the following: 


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1 ‘‘(2) TAKING PROHIBITIONS.—Subject to para2 graph (3), the Secretary, by species-specific regula3 tion, may’’; and 

4 (C) in paragraph (2) (as so designated)— 

5 (i) by inserting a comma after ‘‘sec6 tion 9(a)(2)’’; and 

7 (ii) by striking ‘‘endangered species;’’ 

8 and all that follows through the period at 

9 the end and inserting the following: ‘‘en10 dangered species. 

11 ‘‘(3) TAKING OF RESIDENT SPECIES.—With re12 spect to the taking of resident species of fish or 

13 wildlife, a regulation promulgated under paragraph 

14 (2) shall apply in any State which has entered into 

15 a cooperative agreement pursuant to section 6(c) 

16 only to the extent that the regulation has also been 

17 adopted by that State.’’. 

18 (2) EFFECTIVE DATE.—The amendments made 

19 by paragraph (1) shall apply to species listed or re20 classified as threatened species under section 4 of 

21 the Endangered Species Act of 1973 (16 U.S.C. 

22 1533) on, prior to, or after the date of enactment 

23 of this Act. 

24 (g) CONSULTATIONS.— 


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1 (1) EXPEDITED CONSULTATIONS.—Section 7(a) 

2 of the Endangered Species Act of 1973 (16 U.S.C. 

3 1536(a)) is amended by adding at the end the fol4 lowing: 

5 ‘‘(5) EXPEDITED CONSULTATIONS.— 

6 ‘‘(A) IN GENERAL.—On request of a Federal 

7 agency, and in cooperation with a prospective permit 

8 or license applicant, as applicable, the Secretary and 

9 the Federal agency shall initiate an expedited con10 sultation with respect to an agency action that has 

11 minimal or predictable effects on a listed species or 

12 a critical habitat based on prior consultations the 

13 Federal agency has conducted with the Secretary 

14 under this subsection. 

15 ‘‘(B) TIMELINE.— 

16 ‘‘(i) IN GENERAL.—Subject to clause (ii), 

17 if a Federal agency requests an expedited con18 sultation under subparagraph (A) after deter19 mining that the agency action to be carried out 

20 by the Federal agency has minimal or predict21 able effects on a listed species or a critical habi22 tat, the Secretary shall, not later than 30 days 

23 after the date on which the Secretary receives 

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1 prove or deny the request for an expedited con2 sultation. 

3 ‘‘(ii) EXTENDED TIMELINE.—On mutual 

4 agreement between the Secretary and the Fed5 eral agency, the Secretary may extend the 

6 timeline described in clause (i) to a period of 

7 not more 60 days after the date on which the 

8 Federal agency requests an expedited consulta9 tion under subparagraph (A).’’. 

10 (2) CONSULTATIONS NOT REQUIRED FOR PER11 MITS FOR DREDGED OR FILL MATERIAL.—Section 

12 7(a) of the Endangered Species Act of 1973 (16 

13 U.S.C. 1536(a)) (as amended by paragraph (1)) is 

14 amended by adding at the end the following: 

15 ‘‘(6) NONAPPLICABILITY TO NATIONWIDE PERMITS

16 FOR DREDGED OR FILL MATERIAL.—The requirements of 

17 this subsection shall not apply to any agency action relat18 ing to the reissuance of a general permit on a nationwide 

19 basis under section 404 of the Federal Water Pollution 

20 Control Act (33 U.S.C. 1343).’’. 

21 (h) TIMELINES FOR AGENCY ACTIONS.—Section 

22 7(b)(1) of the Endangered Species Act of 1973 (16 U.S.C. 

23 1536(b)(1)) is amended— 

24 (1) in subparagraph (A), by striking ‘‘90-day’’ 

25 and inserting ‘‘60-day’’; and 


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1 (2) in subparagraph (B)— 

2 (A) in the matter preceding clause (i)— 

3 (i) by striking ‘‘90 days’’ and insert4 ing ‘‘60 days’’; and 

5 (ii) by striking ‘‘90th day’’ and insert6 ing ‘‘60th day’’; 

7 (B) in clause (i), in the matter preceding 

8 subclause (I), by striking ‘‘150th day’’ and in9 serting ‘‘100th day’’; and 

10 (C) in clause (ii), by striking ‘‘150’’ and 

11 inserting ‘‘100’’. 

12 (i) REQUIREMENTS FOR DESIGNATING CRITICAL

13 HABITAT.—Section 4(a)(3) of the Endangered Species 

14 Act of 1973 (16 U.S.C. 1533(a)(3)) (as amended by sub15 section (d)) is amended by adding at the end the following: 

16 ‘‘(D) REQUIREMENTS FOR DESIGNATING CRITICAL

17 HABITAT.—In designating habitat as critical habitat 

18 under this paragraph, the Secretary shall designate only 

19 the abiotic and biotic setting that currently or periodically 

20 contains the resources and conditions necessary to support 

21 1 or more life processes of a species.’’. 

22 (j) BIOLOGICAL OPINIONS.—Section 7 of the Endan23 gered Species Act of 1973 (16 U.S.C. 1536) is amended 

24 by adding at the end the following: 

25 ‘‘(q) BIOLOGICAL OPINIONS.— 


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1 ‘‘(1) DEFINITION OF BIOLOGICAL OPINION.—In 

2 this subsection, the term ‘biological opinion’ means 

3 the document that states the opinion of the Sec4 retary as to whether or not an agency action is like5 ly— 

6 ‘‘(A) to jeopardize the continued existence 

7 of a listed species; or 

8 ‘‘(B) result in the destruction or adverse 

9 modification of critical habitat of that species. 

10 ‘‘(2) REQUIREMENTS.—A biological opinion 

11 shall include— 

12 ‘‘(A) a summary of the information on 

13 which the biological opinion is based; 

14 ‘‘(B) a detailed discussion of the environ15 mental baseline of the listed species and critical 

16 habitat; 

17 ‘‘(C) a detailed discussion of the effects of 

18 the agency action on the listed species or crit19 ical habitat; and 

20 ‘‘(D) the opinion of the Secretary on 

21 whether the agency action is— 

22 ‘‘(i) likely to jeopardize the continued 

23 existence of a listed species or result in the 

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1 ical habitat, which shall be known as a 

2 ‘jeopardy’ biological opinion; or 

3 ‘‘(ii) not likely to jeopardize the con4 tinued existence of a listed species or result 

5 in the destruction or adverse modification 

6 of critical habitat, which shall be known as 

7 a ‘no jeopardy’ biological opinion. 

8 ‘‘(3) ADOPTION OF ENTIRE INITIATION PACK9 AGE.—In a biological opinion, the Secretary may 

10 adopt all or part of the initiation package of a Fed11 eral agency prepared in accordance with section 

12 402.14(c) of title 50, Code of Federal Regulations 

13 (as in effect on October 28, 2019). 

14 ‘‘(4) REASONABLE AND PRUDENT ALTER15 NATIVE MEASURES.— 

16 ‘‘(A) DEFINITION OF REASONABLE AND

17 PRUDENT ALTERNATIVE.—In this paragraph, 

18 the term ‘reasonable and prudent alternative’ 

19 means an alternative action identified during a 

20 formal consultation that— 

21 ‘‘(i) can be implemented in a manner 

22 consistent with the intended purpose of the 

23 action; 


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1 ‘‘(ii) can be implemented consistent 

2 with the scope of the legal authority and 

3 jurisdiction of a Federal agency; and 

4 ‘‘(iii) is economically and techno5 logically feasible. 

6 ‘‘(B) INCLUSION OF REASONABLE AND

7 PRUDENT ALTERNATIVES.—In preparing a bio8 logical opinion, the Secretary shall include rea9 sonable and prudent alternatives, as applicable. 

10 ‘‘(C) NO REASONABLE AND PRUDENT AL11 TERNATIVES.—If the Secretary is unable to de12 velop reasonable and prudent alternatives to in13 clude in a biological opinion in accordance with 

14 subparagraph (B), the Secretary shall indicate 

15 that, to the knowledge of the Secretary, no rea16 sonable or prudent alternatives exist.’’. 

17 SEC. 5. EXPEDITING COMPLETION OF THE MOUNTAIN VAL18 LEY PIPELINE. 

19 (a) DEFINITION OF MOUNTAIN VALLEY PIPELINE.— 

20 In this section, the term ‘‘Mountain Valley Pipeline’’ 

21 means the Mountain Valley Pipeline project, as generally 

22 described and approved in Federal Energy Regulatory 

23 Commission Docket Nos. CP16–10 and CP19–477. 

24 (b) EXPEDITED APPROVAL.—Notwithstanding any 

25 other provision of law, not later than 21 days after the 


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1 date of enactment of this Act and for the purpose of facili2 tating the completion of the Mountain Valley Pipeline— 

3 (1) the Secretary of the Army shall issue all 

4 permits or verifications necessary— 

5 (A) to complete the construction of the 

6 Mountain Valley Pipeline across the waters of 

7 the United States; and 

8 (B) to allow for the operation and mainte9 nance of the Mountain Valley Pipeline; 

10 (2) the Secretary of Agriculture shall amend 

11 the Land and Resource Management Plan for the 

12 Jefferson National Forest in a manner that is sub13 stantively identical to the record of decision with re14 spect to the Mountain Valley Pipeline issued on Jan15 uary 11, 2021; and 

16 (3) the Secretary of the Interior shall— 

17 (A) reissue the biological opinion and inci18 dental take statement for the Mountain Valley 

19 Pipeline in a manner that is substantively iden20 tical to the biological opinion and incidental 

21 take statement previously issued on September 

22 4, 2020; and 

23 (B) grant all necessary rights-of-way and 

24 temporary use permits in a manner that is sub25 stantively identical to those permits approved in 


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1 the record of decision with respect to the Moun2 tain Valley Pipeline issued on January 14, 

3 2021. 

4 (c) JUDICIAL REVIEW.—No action taken by the Sec5 retary of the Army, the Federal Energy Regulatory Com6 mission, the Secretary of Agriculture, or the Secretary of 

7 the Interior that grants an authorization, permit, 

8 verification, biological opinion, incidental take statement, 

9 or any other approval related to the Mountain Valley Pipe10 line, including the issuance of any authorization, permit, 

11 verification, authorization, biological opinion, incidental 

12 take statement, or other approval described in subsection 

13 (b), shall be subject to judicial review. 

14 (d) EFFECT.—This section preempts any statute (in15 cluding any other section of this Act), regulation, judicial 

16 decision, or agency guidance that is inconsistent with the 

17 issuance of any authorization, permit, verification, author18 ization, biological opinion, incidental take statement, or 

19 other approval described in subsection (b). 

Æ 


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