II 

117TH CONGRESS 

1ST SESSION S. 3355 

To require the Secretary of the Army, acting through the Chief of Engineers, 

to propose a new nationwide permit under the Federal Water Pollution 

Control Act for dredging projects, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 9, 2021 

Mr. LEE introduced the following bill; which was read twice and referred to 

the Committee on Environment and Public Works 

A BILL 

To require the Secretary of the Army, acting through the 

Chief of Engineers, to propose a new nationwide permit 

under the Federal Water Pollution Control Act for 

dredging projects, and for other purposes. 

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 ‘‘Dredging to Ensure 

5 the Empowerment of Ports Act’’ or the ‘‘DEEP Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) CERTIFYING AUTHORITY.—The term ‘‘certi2 fying authority’’, with respect to an activity for 

3 which a certification is required under section 401 of 

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

5 1341) from a State or interstate water pollution con6 trol agency, means the State or interstate water pol7 lution control agency, as applicable, from which the 

8 certification is requested. 

9 (2) DREDGING PROJECT.— 

10 (A) IN GENERAL.—The term ‘‘dredging 

11 project’’ means a project permitted or solicited 

12 by the Secretary that involves the dredging of 

13 a port or a navigation channel of a port within 

14 the navigable waters of the United States. 

15 (B) DREDGING OF PORTS.—For purposes 

16 of subparagraph (A), a dredging project that 

17 involves the dredging of a port includes dredg18 ing for the purposes of— 

19 (i) maintaining the port; 

20 (ii) expanding the port; or 

21 (iii) deepening the port up to a depth 

22 of 60 feet. 

23 (3) NAVIGABLE WATERS OF THE UNITED

24 STATES.—The term ‘‘navigable waters of the United 


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1 States’’ has the meaning given the term in section 

2 2101 of title 46, United States Code. 

3 (4) NWP.—The term ‘‘NWP’’ means the new 

4 nationwide permit required to be proposed by the 

5 Secretary under section 3(a). 

6 (5) PERMITTEE.—The term ‘‘permittee’’ means 

7 an individual or entity that proposes an activity 

8 under section 3(c)(1) to be carried out under the 

9 NWP. 

10 (6) SECRETARY.—The term ‘‘Secretary’’ means 

11 the Secretary of the Army, acting through the Chief 

12 of Engineers. 

13 SEC. 3. DREDGING PROJECT NATIONWIDE PERMIT. 

14 (a) PROPOSAL.— 

15 (1) IN GENERAL.—Not later than 60 days after 

16 the date of enactment of this Act, the Secretary 

17 shall propose a new nationwide permit under section 

18 404(e) of the Federal Water Pollution Control Act 

19 (33 U.S.C. 1344(e)) relating to Federal and non20 Federal dredging projects within the navigable 

21 waters of the United States. 

22 (2) REQUIREMENT.—In proposing the NWP 

23 under paragraph (1), the Secretary shall require 

24 each Division Engineer to propose regional condi25 tions for inclusion in the NWP. 


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1 (b) DURATION.—Notwithstanding section 404(e)(2) 

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

3 1344(e)(2)), the NWP shall be valid for a term of not 

4 more than 10 years. 

5 (c) NEPA.— 

6 (1) IN GENERAL.—In carrying out the require7 ments of the National Environmental Policy Act of 

8 1969 (42 U.S.C. 4321 et seq.) with respect to the 

9 issuing of the NWP, the Secretary or a cooperating 

10 agency, as applicable— 

11 (A) shall— 

12 (i) complete the requirements under 

13 that Act for the NWP not later than 2 

14 years after the date on which the Secretary 

15 proposes the NWP under subsection (a); 

16 (ii) subject to paragraph (2), ensure 

17 that there is produced, with respect to the 

18 NWP, not more than 1— 

19 (I) environmental impact state20 ment; 

21 (II) record of decision; and 

22 (III) if necessary, environmental 

23 assessment; and 

24 (iii) consider mitigation standards and 

25 metrics, including standards and metrics 


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1 other than just compensation, to ensure 

2 that the impacts of the NWP on the envi3 ronment are minimal; and 

4 (B) shall not consider— 

5 (i) an alternative or condition of the 

6 NWP if it is not technically or economi7 cally feasible to permittees; and 

8 (ii) an alternative to the NWP that is 

9 not within the jurisdiction of the Secretary 

10 or the cooperating agency, as applicable. 

11 (2) DIVISION ENGINEERS.—Each Division En12 gineer that proposes regional conditions for inclusion 

13 in the NWP under subsection (a)(2) may prepare 

14 not more than 1 environmental document required 

15 under the National Environmental Policy Act of 

16 1969 (42 U.S.C. 4321 et seq.). 

17 (3) FINAL NWP.—The Secretary shall issue the 

18 final NWP not later than 60 days after the date on 

19 which the Secretary completes the requirements with 

20 respect to the National Environmental Policy Act of 

21 1969 (42 U.S.C. 4321 et seq.) under paragraph (1). 

22 (d) STATE OR INTERSTATE WATER POLLUTION CON23 TROL AGENCY CERTIFICATIONS.— 

24 (1) CERTIFICATION REQUIRED.— 


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1 (A) IN GENERAL.—If, in developing the 

2 NWP, the Secretary is required to seek a water 

3 quality certification from a certifying authority 

4 under section 401 of the Federal Water Pollu5 tion Control Act (33 U.S.C. 1341), the certi6 fying authority shall, within a reasonable period 

7 of time (which shall not exceed 14 days) after 

8 the date on which the Secretary submits the 

9 certification application pursuant to that sec10 tion, make a determination on whether or not 

11 the application submitted by the Secretary is 

12 complete. 

13 (B) NO RESPONSE.—If a certifying author14 ity fails or refuses to make a determination 

15 with respect to a certification application sub16 mitted pursuant to subparagraph (A) within the 

17 timeframe referred to in that subparagraph, the 

18 certification shall be considered to be complete. 

19 (2) INCOMPLETE APPLICATION.—If a certifying 

20 authority determines that an application referred to 

21 in paragraph (1) is incomplete, the certifying au22 thority shall, not later than 14 days after that deter23 mination, issue to the Secretary a detailed list of 

24 items required in order for an application to be con25 sidered complete. 


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1 (3) COMPLETE APPLICATION.— 

2 (A) IN GENERAL.—If a certifying authority 

3 determines that an application referred to in 

4 paragraph (1) is complete, the certifying au5 thority shall, notwithstanding section 401(a)(1) 

6 of the Federal Water Pollution Control Act (33 

7 U.S.C. 1341(a)(1)), act on the application with8 in a reasonable period of time, which may not 

9 exceed 1 year from the date on which the certi10 fying authority determines the application is 

11 complete. 

12 (B) NO RE-FILING.—If a certifying author13 ity determines that an application submitted by 

14 the Secretary is complete, the certifying author15 ity may not require the Secretary to re-file an 

16 application for the same proposed activity. 

17 (e) PERMITS FOR DREDGED OR FILLED MATE18 RIAL.— 

19 (1) IN GENERAL.—In carrying out the require20 ments under section 404 of the Federal Water Pol21 lution Control Act (33 U.S.C. 1344) with respect to 

22 activities carried out under the NWP, the Secretary 

23 shall only issue guidelines that are technologically 

24 and economically feasible for a permittee. 


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1 (2) CERTAIN DISPOSAL SITES.—Notwith2 standing section 404(c) of the Federal Water Pollu3 tion Control Act (33 U.S.C. 1344(c)), the Adminis4 trator of the Environmental Protection Agency may 

5 consult with the Secretary on a defined disposal site 

6 or the application of guidelines, but may not— 

7 (A) prohibit the disposal site determination 

8 made by the Secretary; or 

9 (B) exercise any enforcement authority for 

10 a determination made by the Secretary, or 

11 against a permittee, in compliance with the 

12 NWP. 

13 (f) GRANT OF PERMISSION.—For purposes of the 

14 NWP, full compliance with section 404 of the Federal 

15 Water Pollution Control Act (33 U.S.C. 1344) shall be 

16 deemed to be a grant of permission under section 14(a) 

17 of the Act of March 3, 1899 (commonly known as the 

18 ‘‘Rivers and Harbors Act of 1899’’) (30 Stat. 1152, chap19 ter 425; 33 U.S.C. 408(a)). 

20 (g) RULE OF CONSTRUCTION.—Nothing in this Act 

21 requires an additional permit under section 10 of the Act 

22 of March 3, 1899 (commonly known as the ‘‘Rivers and 

23 Harbors Act of 1899’’) (30 Stat. 1151, chapter 425; 33 

24 U.S.C. 403). 


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1 SEC. 4. PROPOSED ACTIVITIES UNDER THE NATIONWIDE 

2 PERMIT. 

3 (a) AUTHORIZED ACTIVITIES.— 

4 (1) IN GENERAL.—If a permittee seeks to carry 

5 out an activity authorized under the NWP, the per6 mittee shall— 

7 (A) notify the Secretary of that proposed 

8 activity; and 

9 (B) seek approval, in writing, from the 

10 Secretary that the proposed activity complies 

11 with the NWP. 

12 (2) DECISION.—Not later than 14 days after 

13 the date on which the Secretary receives a written 

14 notification from a permittee under paragraph (1), 

15 the Secretary shall notify the permittee whether or 

16 not the application of the permittee is complete. 

17 (3) INCOMPLETE APPLICATION.—If the Sec18 retary determines that an application submitted by 

19 a permittee under paragraph (1) is incomplete, the 

20 Secretary shall, not later than 14 days after that de21 termination, provide to the permittee a list of infor22 mation missing from that application in order for 

23 the application to be considered complete. 

24 (4) COMPLETE APPLICATION.— 

25 (A) IN GENERAL.—If the Secretary deter26 mines that an application submitted by a perVerDate Sep 11 2014 01:09 Dec 15, 2021 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3355.IS S3355

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1 mittee under paragraph (1) is complete, the 

2 Secretary shall, not later than 30 days after 

3 that determination, approve or deny the pro4 posed activity of the permittee. 

5 (B) DENIED PROPOSED ACTIVITIES.—If 

6 the Secretary denies the proposed activity of the 

7 permittee under subparagraph (A), the Sec8 retary shall, not later than 14 days after that 

9 denial, provide to the permittee, in writing— 

10 (i) a list of reasons for that deter11 mination; and 

12 (ii) recommendations on how to im13 prove the proposed activity to be in compli14 ance with the NWP. 

15 (5) NO RESPONSE.—If the Secretary does not 

16 comply with a deadline described in paragraph (2), 

17 (3), or (4), or fails to respond to an application sub18 mitted by a permittee, the proposed activity of the 

19 permittee, as described in that application, shall be 

20 deemed in compliance with the NWP. 

21 (6) MITIGATION FLEXIBILITY.—In considering 

22 mitigation-specific requirements for a proposed ac23 tivity for which approval is sought under subsection 

24 (a)(1), the Secretary, acting through the applicable 

25 Division Engineer, shall have the flexibility to deterVerDate Sep 11 2014 01:09 Dec 15, 2021 Jkt 029200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3355.IS S3355

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1 mine which mitigation is needed with respect to the 

2 proposed activity, on the condition that each mitiga3 tion requirement is— 

4 (A) technically and economically feasible; 

5 and 

6 (B) within the jurisdiction of the Sec7 retary, acting through the applicable Division 

8 Engineer, to require. 

9 (b) NEPA.—If a proposed activity for which approval 

10 is sought under subsection (a)(1) includes 1 or more ac11 tivities that may likely have a significant effect on the 

12 quality of the human environment, as determined by the 

13 Secretary, the Secretary shall— 

14 (1) consider whether mitigating the cir15 cumstances or conditions of the proposed activity is 

16 sufficient to avoid the significant effects on the qual17 ity of the human environment that may result from 

18 that circumstance or condition of that proposed ac19 tivity; and 

20 (2) if the Secretary determines under para21 graph (1) that the significant effects that may likely 

22 result from the circumstance or condition of the pro23 posed activity can be avoided, mitigate the cir24 cumstances or conditions of the proposed activity 

25 without— 


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1 (A) denying the proposed activity; or 

2 (B) requiring the permittee to carry out 

3 the requirements of the National Environmental 

4 Policy Act of 1969 (42 U.S.C. 4321 et seq.) for 

5 the proposed activity (or any portion of the pro6 posed activity). 

7 (c) STATE OR INTERSTATE WATER POLLUTION CON8 TROL AGENCY CERTIFICATIONS.— 

9 (1) CERTIFICATION REQUIRED.— 

10 (A) IN GENERAL.—If the NWP requires a 

11 permittee to request a water quality certifi12 cation from a certifying authority under section 

13 401 of the Federal Water Pollution Control Act 

14 (33 U.S.C. 1341), the certifying authority shall, 

15 within a reasonable period of time (which shall 

16 not exceed 14 days) after the date on which the 

17 permittee submits the certification application 

18 pursuant to that section, make a determination 

19 on whether or not the application submitted by 

20 the permittee is complete. 

21 (B) NO RESPONSE.—If a certifying author22 ity fails or refuses to make a determination 

23 with respect to a certification application sub24 mitted pursuant to subparagraph (A) within the 


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1 timeframe referred to in that subparagraph, the 

2 certification shall be considered to be complete. 

3 (2) INCOMPLETE APPLICATION.—If a certifying 

4 authority determines that an application referred to 

5 in paragraph (1) is incomplete, the certifying au6 thority shall, not later than 14 days after that deter7 mination, issue to the permittee a detailed list of 

8 items required in order for an application to be con9 sidered complete. 

10 (3) COMPLETE APPLICATION.— 

11 (A) IN GENERAL.—If a certifying authority 

12 determines that an application referred to in 

13 paragraph (1) is complete, the certifying au14 thority shall, notwithstanding section 401(a)(1) 

15 of the Federal Water Pollution Control Act (33 

16 U.S.C. 1341(a)(1)), act on the application with17 in a reasonable period of time, which may not 

18 exceed 1 year from the date on which the certi19 fying authority determines the application is 

20 complete. 

21 (B) NO RE-FILING.—If a certifying author22 ity determines that an application submitted by 

23 a permittee is complete, the certifying agency 

24 may not require the permittee to re-file an ap25 plication for the same proposed activity. 


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1 SEC. 5. DREDGING; DREDGED MATERIAL. 

2 (a) REPEAL.— 

3 (1) IN GENERAL.—Section 55109 of title 46, 

4 United States Code, is repealed. 

5 (2) CONFORMING AMENDMENT.—The analysis 

6 for chapter 551 of title 46, United States Code, is 

7 amended by striking the item relating to section 

8 55109. 

9 (b) EXCLUDING DREDGED MATERIAL FROM TRANS10 PORTATION REQUIREMENTS.— 

11 (1) IN GENERAL.—Section 55110 of title 46, 

12 United States Code, is amended— 

13 (A) in the section heading, by striking ‘‘OR

14 DREDGED MATERIAL’’ and inserting ‘‘(EX15 CLUDING DREDGED MATERIAL)’’; and 

16 (B) by striking ‘‘or dredged material’’ and 

17 inserting ‘‘(excluding dredged material)’’. 

18 (2) CONFORMING AMENDMENT.—The analysis 

19 for chapter 551 of title 46, United States Code, is 

20 amended by striking the item relating to section 

21 55110 and inserting the following: 

‘‘Sec. 55110. Transportation of valueless material (excluding dredged material).’’. 

Æ 


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