Title: DEEP Act
Policy area: Environmental Protection

Summary:
Dredging to Ensure the Empowerment of Ports Act or the DEEP Act
This bill replaces the existing permitting process under the Clean Water Act for projects that involve the dredging of ports or their navigation channels within navigable waters with a new process under a nationwide permit. In addition, the bill repeals the Foreign Dredge Act of 1906.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3355 Introduced in Senate (IS)]

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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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Dredging to Ensure the Empowerment 
of Ports Act'' or the ``DEEP Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Certifying authority.--The term ``certifying 
        authority'', with respect to an activity for which a 
        certification is required under section 401 of the Federal 
        Water Pollution Control Act (33 U.S.C. 1341) from a State or 
        interstate water pollution control agency, means the State or 
        interstate water pollution control agency, as applicable, from 
        which the certification is requested.
            (2) Dredging project.--
                    (A) In general.--The term ``dredging project'' 
                means a project permitted or solicited by the Secretary 
                that involves the dredging of a port or a navigation 
                channel of a port within the navigable waters of the 
                United States.
                    (B) Dredging of ports.--For purposes of 
                subparagraph (A), a dredging project that involves the 
                dredging of a port includes dredging for the purposes 
                of--
                            (i) maintaining the port;
                            (ii) expanding the port; or
                            (iii) deepening the port up to a depth of 
                        60 feet.
            (3) Navigable waters of the united states.--The term 
        ``navigable waters of the United States'' has the meaning given 
        the term in section 2101 of title 46, United States Code.
            (4) NWP.--The term ``NWP'' means the new nationwide permit 
        required to be proposed by the Secretary under section 3(a).
            (5) Permittee.--The term ``permittee'' means an individual 
        or entity that proposes an activity under section 3(c)(1) to be 
        carried out under the NWP.
            (6) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army, acting through the Chief of Engineers.

SEC. 3. DREDGING PROJECT NATIONWIDE PERMIT.

    (a) Proposal.--
            (1) In general.--Not later than 60 days after the date of 
        enactment of this Act, the Secretary shall propose a new 
        nationwide permit under section 404(e) of the Federal Water 
        Pollution Control Act (33 U.S.C. 1344(e)) relating to Federal 
        and non-Federal dredging projects within the navigable waters 
        of the United States.
            (2) Requirement.--In proposing the NWP under paragraph (1), 
        the Secretary shall require each Division Engineer to propose 
        regional conditions for inclusion in the NWP.
    (b) Duration.--Notwithstanding section 404(e)(2) of the Federal 
Water Pollution Control Act (33 U.S.C. 1344(e)(2)), the NWP shall be 
valid for a term of not more than 10 years.
    (c) NEPA.--
            (1) In general.--In carrying out the requirements of the 
        National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
        seq.) with respect to the issuing of the NWP, the Secretary or 
        a cooperating agency, as applicable--
                    (A) shall--
                            (i) complete the requirements under that 
                        Act for the NWP not later than 2 years after 
                        the date on which the Secretary proposes the 
                        NWP under subsection (a);
                            (ii) subject to paragraph (2), ensure that 
                        there is produced, with respect to the NWP, not 
                        more than 1--
                                    (I) environmental impact statement;
                                    (II) record of decision; and
                                    (III) if necessary, environmental 
                                assessment; and
                            (iii) consider mitigation standards and 
                        metrics, including standards and metrics other 
                        than just compensation, to ensure that the 
                        impacts of the NWP on the environment are 
                        minimal; and
                    (B) shall not consider--
                            (i) an alternative or condition of the NWP 
                        if it is not technically or economically 
                        feasible to permittees; and
                            (ii) an alternative to the NWP that is not 
                        within the jurisdiction of the Secretary or the 
                        cooperating agency, as applicable.
            (2) Division engineers.--Each Division Engineer that 
        proposes regional conditions for inclusion in the NWP under 
        subsection (a)(2) may prepare not more than 1 environmental 
        document required under the National Environmental Policy Act 
        of 1969 (42 U.S.C. 4321 et seq.).
            (3) Final nwp.--The Secretary shall issue the final NWP not 
        later than 60 days after the date on which the Secretary 
        completes the requirements with respect to the National 
        Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) under 
        paragraph (1).
    (d) State or Interstate Water Pollution Control Agency 
Certifications.--
            (1) Certification required.--
                    (A) In general.--If, in developing the NWP, the 
                Secretary is required to seek a water quality 
                certification from a certifying authority under section 
                401 of the Federal Water Pollution Control Act (33 
                U.S.C. 1341), the certifying authority shall, within a 
                reasonable period of time (which shall not exceed 14 
                days) after the date on which the Secretary submits the 
                certification application pursuant to that section, 
                make a determination on whether or not the application 
                submitted by the Secretary is complete.
                    (B) No response.--If a certifying authority fails 
                or refuses to make a determination with respect to a 
                certification application submitted pursuant to 
                subparagraph (A) within the timeframe referred to in 
                that subparagraph, the certification shall be 
                considered to be complete.
            (2) Incomplete application.--If a certifying authority 
        determines that an application referred to in paragraph (1) is 
        incomplete, the certifying authority shall, not later than 14 
        days after that determination, issue to the Secretary a 
        detailed list of items required in order for an application to 
        be considered complete.
            (3) Complete application.--
                    (A) In general.--If a certifying authority 
                determines that an application referred to in paragraph 
                (1) is complete, the certifying authority shall, 
                notwithstanding section 401(a)(1) of the Federal Water 
                Pollution Control Act (33 U.S.C. 1341(a)(1)), act on 
                the application within a reasonable period of time, 
                which may not exceed 1 year from the date on which the 
                certifying authority determines the application is 
                complete.
                    (B) No re-filing.--If a certifying authority 
                determines that an application submitted by the 
                Secretary is complete, the certifying authority may not 
                require the Secretary to re-file an application for the 
                same proposed activity.
    (e) Permits for Dredged or Filled Material.--
            (1) In general.--In carrying out the requirements under 
        section 404 of the Federal Water Pollution Control Act (33 
        U.S.C. 1344) with respect to activities carried out under the 
        NWP, the Secretary shall only issue guidelines that are 
        technologically and economically feasible for a permittee.
            (2) Certain disposal sites.--Notwithstanding section 404(c) 
        of the Federal Water Pollution Control Act (33 U.S.C. 1344(c)), 
        the Administrator of the Environmental Protection Agency may 
        consult with the Secretary on a defined disposal site or the 
        application of guidelines, but may not--
                    (A) prohibit the disposal site determination made 
                by the Secretary; or
                    (B) exercise any enforcement authority for a 
                determination made by the Secretary, or against a 
                permittee, in compliance with the NWP.
    (f) Grant of Permission.--For purposes of the NWP, full compliance 
with section 404 of the Federal Water Pollution Control Act (33 U.S.C. 
1344) shall be deemed to be a grant of permission under section 14(a) 
of the Act of March 3, 1899 (commonly known as the ``Rivers and Harbors 
Act of 1899'') (30 Stat. 1152, chapter 425; 33 U.S.C. 408(a)).
    (g) Rule of Construction.--Nothing in this Act requires an 
additional permit under section 10 of the Act of March 3, 1899 
(commonly known as the ``Rivers and Harbors Act of 1899'') (30 Stat. 
1151, chapter 425; 33 U.S.C. 403).

SEC. 4. PROPOSED ACTIVITIES UNDER THE NATIONWIDE PERMIT.

    (a) Authorized Activities.--
            (1) In general.--If a permittee seeks to carry out an 
        activity authorized under the NWP, the permittee shall--
                    (A) notify the Secretary of that proposed activity; 
                and
                    (B) seek approval, in writing, from the Secretary 
                that the proposed activity complies with the NWP.
            (2) Decision.--Not later than 14 days after the date on 
        which the Secretary receives a written notification from a 
        permittee under paragraph (1), the Secretary shall notify the 
        permittee whether or not the application of the permittee is 
        complete.
            (3) Incomplete application.--If the Secretary determines 
        that an application submitted by a permittee under paragraph 
        (1) is incomplete, the Secretary shall, not later than 14 days 
        after that determination, provide to the permittee a list of 
        information missing from that application in order for the 
        application to be considered complete.
            (4) Complete application.--
                    (A) In general.--If the Secretary determines that 
                an application submitted by a permittee under paragraph 
                (1) is complete, the Secretary shall, not later than 30 
                days after that determination, approve or deny the 
                proposed activity of the permittee.
                    (B) Denied proposed activities.--If the Secretary 
                denies the proposed activity of the permittee under 
                subparagraph (A), the Secretary shall, not later than 
                14 days after that denial, provide to the permittee, in 
                writing--
                            (i) a list of reasons for that 
                        determination; and
                            (ii) recommendations on how to improve the 
                        proposed activity to be in compliance with the 
                        NWP.
            (5) No response.--If the Secretary does not comply with a 
        deadline described in paragraph (2), (3), or (4), or fails to 
        respond to an application submitted by a permittee, the 
        proposed activity of the permittee, as described in that 
        application, shall be deemed in compliance with the NWP.
            (6) Mitigation flexibility.--In considering mitigation-
        specific requirements for a proposed activity for which 
        approval is sought under subsection (a)(1), the Secretary, 
        acting through the applicable Division Engineer, shall have the 
        flexibility to determine which mitigation is needed with 
        respect to the proposed activity, on the condition that each 
        mitigation requirement is--
                    (A) technically and economically feasible; and
                    (B) within the jurisdiction of the Secretary, 
                acting through the applicable Division Engineer, to 
                require.
    (b) NEPA.--If a proposed activity for which approval is sought 
under subsection (a)(1) includes 1 or more activities that may likely 
have a significant effect on the quality of the human environment, as 
determined by the Secretary, the Secretary shall--
            (1) consider whether mitigating the circumstances or 
        conditions of the proposed activity is sufficient to avoid the 
        significant effects on the quality of the human environment 
        that may result from that circumstance or condition of that 
        proposed activity; and
            (2) if the Secretary determines under paragraph (1) that 
        the significant effects that may likely result from the 
        circumstance or condition of the proposed activity can be 
        avoided, mitigate the circumstances or conditions of the 
        proposed activity without--
                    (A) denying the proposed activity; or
                    (B) requiring the permittee to carry out the 
                requirements of the National Environmental Policy Act 
                of 1969 (42 U.S.C. 4321 et seq.) for the proposed 
                activity (or any portion of the proposed activity).
    (c) State or Interstate Water Pollution Control Agency 
Certifications.--
            (1) Certification required.--
                    (A) In general.--If the NWP requires a permittee to 
                request a water quality certification from a certifying 
                authority under section 401 of the Federal Water 
                Pollution Control Act (33 U.S.C. 1341), the certifying 
                authority shall, within a reasonable period of time 
                (which shall not exceed 14 days) after the date on 
                which the permittee submits the certification 
                application pursuant to that section, make a 
                determination on whether or not the application 
                submitted by the permittee is complete.
                    (B) No response.--If a certifying authority fails 
                or refuses to make a determination with respect to a 
                certification application submitted pursuant to 
                subparagraph (A) within the timeframe referred to in 
                that subparagraph, the certification shall be 
                considered to be complete.
            (2) Incomplete application.--If a certifying authority 
        determines that an application referred to in paragraph (1) is 
        incomplete, the certifying authority shall, not later than 14 
        days after that determination, issue to the permittee a 
        detailed list of items required in order for an application to 
        be considered complete.
            (3) Complete application.--
                    (A) In general.--If a certifying authority 
                determines that an application referred to in paragraph 
                (1) is complete, the certifying authority shall, 
                notwithstanding section 401(a)(1) of the Federal Water 
                Pollution Control Act (33 U.S.C. 1341(a)(1)), act on 
                the application within a reasonable period of time, 
                which may not exceed 1 year from the date on which the 
                certifying authority determines the application is 
                complete.
                    (B) No re-filing.--If a certifying authority 
                determines that an application submitted by a permittee 
                is complete, the certifying agency may not require the 
                permittee to re-file an application for the same 
                proposed activity.

SEC. 5. DREDGING; DREDGED MATERIAL.

    (a) Repeal.--
            (1) In general.--Section 55109 of title 46, United States 
        Code, is repealed.
            (2) Conforming amendment.--The analysis for chapter 551 of 
        title 46, United States Code, is amended by striking the item 
        relating to section 55109.
    (b) Excluding Dredged Material From Transportation Requirements.--
            (1) In general.--Section 55110 of title 46, United States 
        Code, is amended--
                    (A) in the section heading, by striking ``or 
                dredged material'' and inserting ``(excluding dredged 
                material)''; and
                    (B) by striking ``or dredged material'' and 
                inserting ``(excluding dredged material)''.
            (2) Conforming amendment.--The analysis for chapter 551 of 
        title 46, United States Code, is amended by striking the item 
        relating to section 55110 and inserting the following:

``Sec. 55110. Transportation of valueless material (excluding dredged 
                            material).''.
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