BAAJA Section and Provision^a

Current CWA Requirement

Current Regulatory Requirement and/or Current Practice

BAAJA (S. 5653)

Section 1201. Water Quality Criteria

Section 1201(a) Administrative Procedure

CWA Section 304(a) requires the U.S. Environmental Protection Agency (EPA) to develop and publish water quality criteria but does not require that they go through notice and comment procedures. (33 U.S.C. §1314(a))

On its own initiative, EPA adopted a process for when it derives new water quality criteria or initiates a major reassessment of existing criteria that includes publishing three separate notices in the Federal Register to (1) announce the assessment to solicit additional information; (2) solicit public comment on the draft water quality criteria; and (3) announce the final water quality criteria.^b

Would formally require EPA to go through notice and comment rulemaking pursuant to the Administrative Procedure Act (APA; 5 U.S.C. §553) when the agency develops water quality criteria.

Section 1201(b) Judicial Review

CWA Section 509(b)(1), the statute's judicial review provision, applies to enumerated actions taken by EPA under specific sections of the CWA. For covered actions, Section 509(b)(1) provides for direct review in the federal circuit courts of appeals and a 120-day statute of limitations. Challenges to EPA actions falling outside the scope of Section 509(b)(1) are governed by the APA, which provides for judicial review in federal district courts, and are generally subject to a six-year statute of limitations. (33 U.S.C. §1369(b)(1); 5 U.S.C. §704; 28 U.S.C. §2401(a))

CWA regulations do not restate or further specify which actions are subject to Section 509(b)(1).

Would provide that judicial review of water quality criteria and regulations to define the scope of the term waters of the United States are subject to the CWA's judicial review provision.

Section 1202 Clean Water Act Permitting and State Certification

33 U.S.C. §1341

(e)(1) Effect of Certain Certification Actions

No existing related provision.

No existing related regulation or practice.

Would newly deem water quality requirements (as defined in the bill) satisfied for the purpose of considering the application for the federal license or permit when a certifying authority grants a certification application or waives the certification requirement. When a certifying authority grants a certification application with conditions, water quality requirements would be deemed satisfied for the purpose of considering the federal license or permit application subject to the conditions included in the certification.

33 U.S.C. §1341

(e)(2)(A) Scope of Certification – In General

CWA Section 401(a)(1) requires any applicant for a federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into waters of the United States (WOTUS), to provide a certification from the state in which the discharge originates that any such discharge will comply with specific enumerated sections of the CWA, including Sections 301, 302, 303, 306, and 307. (33 U.S.C. §1341(a)(1))

• 40 C.F.R. §121.3 specifies that the scope of certification reviews is to evaluate whether the activity will comply with applicable water quality requirements.
• 40 C.F.R. §121.1(j) defines water quality requirements to mean any limitation, standard, or other requirement under Sections 301, 302, 303, 306, and 307 of the CWA, any federal and state or tribal laws or regulations implementing those sections, and any other water-quality-related requirement of state or tribal law.

• Would specify that the scope of a certification is limited to ensuring compliance with water quality requirements.
• The bill would add a new subsection (h) to Section 401 to define water quality requirements to mean (A) the applicable provisions of Sections 301, 302, 303, 306, and 307; and (B) any federal and state or tribal laws (including regulations) implementing Sections 301, 302, 303, 306, and 307 that are applicable to discharges into WOTUS.

33 U.S.C. §1341

(e)(2)(B) Scope of Certification –Prohibition

CWA Section 401(a)(1) authorizes certifying authorities to grant, waive, or deny a certification. Section 401(d) authorizes a certifying authority to grant a certification with any conditions necessary to assure that any applicant for a federal license or permit will comply with any applicable effluent limitations, other limitations, and standards under Sections 301, 302, 306, 307, and with any other appropriate requirement of state law set forth in such certification. (33 U.S.C. §1341(a)(1), (d))

• 40 C.F.R. §121.7 establishes requirements for information certifying authorities are required to provide in writing when they grant a certification, grant it with conditions, deny it, or expressly waive it.
• All decisions require identification of the decision; identification of the applicable license or permit; and an indication that the certifying authority complied with its public notice procedures under Section 401(a)(1).
• A grant of certification with conditions also requires a statement explaining why each of the included conditions is necessary to ensure that the activity will comply with water quality requirements.
• A denial also requires a statement explaining why the certifying authority cannot certify that the activity will comply with water quality requirements, including but not limited to a description of any missing water-quality-related information if the denial is based on insufficient information.
• State-specific procedures and requirements may also govern the practices of individual states when acting as certifying authorities.

• Would prohibit a certifying authority from denying a certification unless it determines by clear and convincing evidence that no modification to or reasonable condition on the certification would make it possible to grant the certification without violating water quality requirements.
• Would prohibit a certifying authority from granting a certification with conditions unless it determines by clear and convincing evidence that the conditions are (1) necessary to ensure compliance with water quality requirements, (2) the least burdensome conditions to ensure compliance with water quality requirements, and (3) consistent with the requirements of the federal license or permit for which the certification application was made.

33 U.S.C. §1341

(e)(2)(C) Scope of Certification –Savings Provision

CWA Section 401(d) authorizes states to establish conditions necessary to ensure that any applicant for a federal license or permit will comply with Sections 301, 302, 306, and 307, and with any other appropriate requirement of state law, and shall become a condition on the federal license or permit. (33 U.S.C. §1341(d))

CWA regulations do not restate or further specify the statutory requirement.

Would specify that nothing proposed in this paragraph in BAAJA would allow the federal licensing or permitting agency to refuse to include conditions from a certifying authority in a license or permit if the conditions are necessary to ensure compliance with water quality requirements.

33 U.S.C. §1341

(e)(3)(A) Required Procedures – Notice and Hearings

CWA Section 401(a)(1) requires states or interstate agencies to establish procedures for public notice for all certification applications and, to the extent the state or interstate agency deems appropriate, procedures for public hearings in connection with specific applications. (33 U.S.C. §1341(a)(1))

40 C.F.R. §121.6(d) specifies that when the federal licensing or permitting agency and the certifying authority jointly decide the reasonable period of time in which the certifying authority must act (which is a default of six months if they do not agree), the reasonable period of time may be extended if a longer period of time is necessary to accommodate the certifying authority's public notice procedures or force majeure events. The reasonable period of time in that case shall be extended by the period of time necessitated by public notice procedures or the force majeure event, but shall not cause the reasonable period of time to exceed one year.

Would specify that taking into account state or tribal law, as appropriate, and the review period specified in the bill, each certifying authority shall establish procedures for public notice for all certification applications; to the extent the state or interstate agency deems appropriate, procedures for public hearings in connection with specific applications; and for prefiling meetings.

33 U.S.C. §1341

(e)(3)(B) Required Procedures – Prefiling Meeting

The CWA does not include requirements for a prefiling meeting.

40 C.F.R. §121.4 requires the project proponent to request a prefiling meeting with the certifying authority at least 30 days prior to submitting a request for certification in accordance with the certifying authority's applicable submission procedures, unless the certifying authority waives or shortens the requirement for a prefiling meeting request.

• Would specify that a project proponent may request a prefiling meeting with the certifying authority before submitting a certification application.
• In instances where the project proponent requests a prefiling meeting, would require the certifying authority to respond to the request within 30 days and hold the prefiling meeting within 60 days after receiving the request.

33 U.S.C. §1341

(e)(3)(C)(ii) Required Procedures –Certification Applications –Requirements for a Complete Application

CWA Section 401(a)(1) requires the certifying authority to act on a request for certification within a reasonable period of time (not to exceed one year) after receipt of such request, or the certification is waived. (33 U.S.C. §1341(a)(1))

The statute does not establish any requirements for the contents of a certification request.

• 40 C.F.R §121.5 establishes the minimum contents required in a request for certification. For any certifying authority, these include

• a copy of the federal license or permit application submitted to the federal agency (for individual permits) or a copy of the draft federal license or permit (for general permits); and

• any readily available water-quality-related materials that informed the development of the application.

• If EPA is the certifying authority, the regulations establish additional required components. Other certifying authorities (e.g., states, tribes) may identify additional contents of a request that are relevant to the water-quality-related impacts from the activity prior to when the certification request is made. If they do not, those identified for EPA apply:

1. a description of the proposed activity, including the purpose of the proposed activity and the type(s) of discharge(s) that may result from the proposed activity;

2. the specific location of any discharge(s) that may result from the proposed activity;

3. a map or diagram of the proposed activity site, including the proposed activity boundaries in relation to local streets, roads, and highways;

4. a description of current activity site conditions, including but not limited to relevant site data, photographs that represent current site conditions, or other relevant documentation;

5. the date(s) on which the proposed activity is planned to begin and end and, if known, the approximate date(s) when any discharge(s) may commence;

6. a list of all other federal, interstate, tribal, state, territorial, or local agency authorizations required for the proposed activity and the current status of each authorization; and

7. documentation that a prefiling meeting request was submitted to the certifying authority in accordance with applicable submission procedures, unless the prefiling meeting request requirement was waived.

• Would establish statutory requirements for a complete application to include the following:

• Identification of each applicant for the federal license or permit.

• A statement that information included is truthful, accurate, and complete to the applicant's best knowledge.

• For certification applications for individual permits or licenses, a complete request would also need to include

• identification of the federal license or permit subject to the certification request;

• identification of any activity subject to the license or permit;

• identification of the location and nature of any discharge that may result from the activity, and the location of the receiving waters;

• a description of means that may be used to monitor, control, or manage any such discharge; and

• a list of all federal, interstate, tribal, state, or local agency authorizations related to the requirement for a certification and any approval or denial of such an authorization already received.

• Any additional materials required by the certifying authority under 33 U.S.C. §1341(e)(3)(C)(iii), subject to the condition that the additional materials are only required for certification applications submitted after the date on which the certifying authority promulgated regulations as authorized under 33 U.S.C. §1341(e)(3)(C)(iii).

33 U.S.C. §1341

(e)(3)(C)(iii) Required Procedures – Certification Applications – Additional Materials

No comparable requirement.

40 C.F.R. §121.5(c) specifies that where a project proponent is seeking certification from a certifying authority other than EPA, and that certifying authority has identified contents of a request for certification in addition to those identified in 40 C.F.R. §121.5(a) that are relevant to the water-quality-related impacts from the activity, the project proponent shall include in the request for certification those additional contents identified prior to when the request for certification is made.

• Would authorize certifying authorities to promulgate regulations establishing additional materials to be required in completed certification applications that the certifying authority determines are necessary to demonstrate compliance with water quality requirements.
• Would specify that a certifying authority shall base the determination of what additional materials are needed only on what can reasonably be expected of an applicant at the time a certification application is submitted.
• Would specify that where a certifying authority has not promulgated regulations identifying additional materials to be included in completed certification applications, a certification application to that certifying authority shall be considered complete if it includes all of the items included in 33 U.S.C. §1341(e)(3)(C)(ii)(I) through (III).

33 U.S.C. §1341

(e)(3)(C)(iv)-(v) Required Procedures – Certification Applications – Acknowledgement of Receipt; Notification of Complete Application or Identification of Missing Materials

CWA Section 401(a)(2) requires the certifying authority to act on a request for certification within a reasonable period of time (not to exceed one year) after receipt of such request, or the certification is waived. (33 U.S.C. §1341(a)(2)).

The CWA does not establish any more granular timelines related to application-related notifications.

• 40 C.F.R. §121.6 requires the certifying authority to send written confirmation to the project proponent and federal agency of the date the certification request was received.
• There are no established federal timelines by which a certifying authority must acknowledge receipt of an application, notify an applicant that its application is complete, or identify additional information that is needed for the application to be considered complete.

• Would require the certifying authority to acknowledge receipt of the certification application in writing within 3 days.
• Would require the certifying authority to notify the applicant within 90 days of the written acknowledgement of receipt, either that the application is complete or to identify in writing all specific additional materials or information needed to be considered complete.

33 U.S.C. §1341

(e)(3)(C)(vi) Required Procedures – Certification Applications – Petition to Court

No comparable requirement.

• When a state acts as a certifying authority, state law may govern both the certification process and the availability of judicial review in challenges to the state's adherence to procedural requirements. Questions regarding the state's adherence to requirements imposed by Section 401 itself are generally reviewable in federal court.
• When EPA acts as a certifying authority, judicial review of challenges to EPA's adherence to procedural requirements relating to certification is governed by the APA. Review is based on the agency's administrative record. (5 U.S.C. §§704, 706)

• Would authorize the certification applicant to petition for judicial review "in a court of competent jurisdiction" of a certifying authority's alleged failure to act in accordance with Sections 401(e)(3)(C)(ii) through (v) as added by the bill. Would direct courts reviewing such petitions to consider the administrative record, which shall consist of the materials required to be submitted under Section 401(e)(3)(C)(ii); materials identified by the certifying authority as missing; the information submitted by the applicant to the certifying authority; and any evidence submitted by the applicant that suggests that the certifying authority's defense to the petition is pretextual. Would direct courts to "provide injunctive relief, as appropriate," upon a finding that a certifying authority has failed to act in accordance with Sections 401(e)(3)(C)(ii), (iv), or (v).

33 U.S.C. §1341

(e)(3)(D) Denials of Certification for Individual License or Permit

CWA Section 401(a)(1) authorizes certifying authorities to deny certifications but does not specify what information must be included with the denial. (33 U.S.C. §1341(a)(1))

• 40 C.F.R. §121.7(e) establishes requirements for information certifying authorities are required to provide in writing when they deny a certification, including

1. identification of the decision as a denial of certification;

2. identification of the applicable federal license or permit;

3. a statement explaining why the certifying authority cannot certify that the activity will comply with water quality requirements, including but not limited to a description of any missing water-quality-related information if the denial is based on insufficient information; and

4. an indication that the certifying authority complied with its public notice procedures established pursuant to CWA Section 401(a)(1).

Would require the certifying authority, when denying a certification, to provide to the federal licensing or permitting agency and the applicant

• the specific water quality requirements that the certifying authority determined will be violated and a statement explaining why they will be violated; and
• if the denial is due to insufficient information, a description of the specific water quality data or information, if any, that would be needed to evaluate whether granting certification will comply with water quality requirements.

33 U.S.C. §1341

(e)(4)(A) Review Period – In General

CWA Section 401(a)(1) requires the certifying authority to act within a reasonable period of time, which shall not exceed one year, after the receipt of a certification request; otherwise the certification is waived. (33 U.S.C. §1341(a)(1))

The statute does not specify who should determine the reasonable period of time, nor does it specify how the reasonable period of time should be determined.

• 40 C.F.R. §121.6(a) specifies that the reasonable period of time begins on the date that the certifying authority receives a request for certification, as defined in §121.5.
• 40 C.F.R. §121.6(b) specifies that the federal agency and certifying authority may jointly agree in writing to the reasonable period of time, provided the reasonable period of time does not exceed one year from the date that the certification request was received. It also specifies these agreements may establish categorical reasonable periods of time.
• 40 C.F.R. §121.6(c) establishes a default reasonable period of time of six months if the federal agency and certifying authority do not agree on the reasonable period of time.

• Would specify that the federal licensing or permitting agency, in consultation with the certifying authority, establishes the reasonable period of time, either categorically or on a case-by-case basis.
• Would specify that the reasonable period of time (not to exceed one year from the date of receipt of the certification application) shall account for time required under applicable state or tribal law for public notice and comment periods.

33 U.S.C. §1341

(e)(4)(B) Review Period – Failure to Act

CWA Section 401(a)(1) specifies that if a certifying authority fails or refuses to act on a request for certification within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements shall be waived. (33 U.S.C. §1341(a)(1))

The statute does not include requirements specific to extensions or withdrawal and resubmission of certification applications.

• 40 C.F.R. §121.9(a) specifies that the certification requirement shall be waived if a certifying authority fails or refuses to act on a request for certification within the reasonable period of time.
• 40 C.F.R. §121.7(a) specifies that a certifying authority may act on a request for certification in one of four ways: grant certification, grant certification with conditions, deny certification, or expressly waive certification.
• Current regulations do not include requirements specific to withdrawal and resubmission of certification applications.

• Would specify that if a certifying authority fails or refuses to issue a final decision as described under paragraph (e)(6) of the bill by the end of the reasonable period of time and the reasonable period of time has not been extended in accordance with requirements under subparagraph (e)(4)(C) of the bill, the certification shall be waived.
• Paragraph (e)(6) of the bill would specify that a certifying authority's final action shall be one of the following: grant of certification, grant of certification with conditions, denial of certification; or waiver of certification (either expressly or if the certifying authority does not act within the reasonable period of time).
• Would provide that the reasonable period of time shall restart when the certification application is voluntarily withdrawn by the applicant and the applicant submits a new certification application.

33 U.S.C. §1341

(e)(4)(C) Review Period – Requirement for Extension

CWA Section 401(a)(1) specifies that the reasonable period of time shall not exceed one year. (33 U.S.C. §1341(a)(1))

The statute does not include requirements specific to extensions.

40 C.F.R. §121.6(e) specifies that the federal agency and certifying authority may agree in writing to extend the reasonable period of time for any reason, provided that the extension shall not cause the reasonable period of time to exceed one year from the date that the certification request was received.

Would specify that the reasonable period of time may be extended only if the applicant requests the extension in writing and the certifying authority concurs in writing.

33 U.S.C. §1341

(e)(5) Waiver of Certification Requirement

CWA Section 401(a)(1) specifies that if a certifying authority fails or refuses to act on a request for certification within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements shall be waived. (33 U.S.C. §1341(a)(1))

40 C.F.R. §121.7(a) specifies that a certifying authority may act on a request for certification in one of four ways: grant certification, grant certification with conditions, deny certification, or expressly waive certification.

• Would specify that a certifying authority may, at any time during the reasonable period of time, affirmatively (i.e., expressly) waive the requirement for certification.
• Would provide that a waiver of the certification requirement shall not be subject to judicial review notwithstanding any other provision of federal law.

33 U.S.C. §1341

(e)(6) Final Action

CWA Section 401(a)(1) specifies that if a certifying authority fails or refuses to act on a request for certification within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements shall be waived. (33 U.S.C. §1341(a)(1))

The statute does not define what it means to act.

• 40 C.F.R. §121.9(a) specifies that the certification requirement shall be waived if a certifying authority fails or refuses to act on a request for certification within the reasonable period of time.
• 40 C.F.R. §121.7(a) specifies that a certifying authority may act on a request for certification in one of four ways: grant certification, grant certification with conditions, deny certification, or expressly waive certification.

Would specify that a certifying authority's final action shall be one of the following: grant of certification, grant of certification with conditions, denial of certification; or waiver of certification requirements (either affirmatively or if the certifying authority does not act within the reasonable period of time).

33 U.S.C. §1341

(f) Judicial Review

No comparable requirement.

• When a state acts as a certifying authority, state law may govern the burden of proof or standard of review in judicial challenges to actions on certification applications. A state's decision on a certification application is generally reviewable in state court.
• When EPA acts as a certifying authority, judicial review of challenges to EPA's actions on certification applications is governed by the APA. (5 U.S.C. §§ 704, 706)

Would provide that in judicial review of denial of certification or certification with conditions, the certifying authority bears the burden to demonstrate by clear and convincing evidence either that, (1) in the case of denial, no reasonable modifications or conditions would make it possible to grant certification without violating water quality requirements; or (2) in the case of certification with conditions, the conditions are necessary to ensure compliance with water quality requirements, the least burdensome conditions to ensure compliance with water quality requirements, and consistent with the requirements of the federal license or permit for which the certification application was made.

33 U.S.C. §1341

(g)(1) Special Rule for Certain Certifications – Definition of Interstate Transmission Line Project

The CWA does not define interstate transmission line project.

CWA regulations do not define interstate transmission line project.

Would newly define, for purposes of CWA Section 401, interstate transmission line project to mean a project for the construction, modification, or upgrade of a transmission facility that is part of the bulk-power system (as defined in Section 215(a) of the Federal Power Act (16 U.S.C. §824o(a))).

33 U.S.C. §1341

(g)(2) Special Rule for Certain Certifications – Limitation of Certification Requirements for Certain Interstate Linear Infrastructure

CWA Section 401(a)(1) requires that any applicant for a federal license or permit to conduct any activity that may result in any discharge into WOTUS, provide the licensing or permitting agency a certification from the state in which the discharge originates that any such discharge will comply with the applicable provisions of Sections 301, 302, 303, 306, and 307. (33 U.S.C. §1341(a)(1))

The statute's requirements are the same for any activity that may result in a discharge to WOTUS and do not treat certain project types differently.

• 40 C.F.R. §121.3 specifies that the scope of certification reviews is to evaluate whether the activity will comply with applicable water quality requirements.
• 40 C.F.R. §121.1(j) defines water quality requirements to mean any limitation, standard, or other requirement under Sections 301, 302, 303, 306, and 307 of the CWA, any federal and state or tribal laws or regulations implementing those sections, and any other water-quality-related requirement of state or tribal law.
• Current regulations do not include special rules for certain project types.

Would specify that notwithstanding the first sentence of CWA Section 401(a)(1), any applicant for a certificate of public convenience and necessity for a project under Section 7 of the Natural Gas Act (15 U.S.C. §717f) or a federal authorization or permit required to construct, modify, or operate an interstate transmission line project that may result in a direct point source discharge into WOTUS would need to provide to the federal licensing or permitting agency a 401 certification attesting that the direct point source discharge complies with water quality requirements. The bill would add a definition of water quality requirements to be codified at CWA Section 401(h)(3).

33 U.S.C. §1341

(g)(3) Special Rule for Certain Certifications –Certification of No Limitation and Standard

CWA Section 401(a)(1) specifies that in the case of any activity for which there is not an applicable effluent limitation or other limitation under Sections 301(b) and 302, and there is not an applicable standard under Sections 306 and 307, the state shall so certify, except that any such certification shall not be deemed to satisfy CWA Section 511(c). (33 U.S.C. §1341(a)(1))

The statute's requirements are the same for any activity that may result in a discharge to WOTUS and does not treat certain project types differently.

CWA regulations do not restate or further specify the statutory requirement.

Would specify that in the case of any direct point source discharge described in this subsection for which there is not an applicable effluent limitation or other limitation under Sections 301(b) and 302 and for which there is not an applicable standard under Sections 306 and 307, the certifying authority shall so certify, except that such a certification shall not satisfy CWA Section 511(c).

33 U.S.C. §1341

(g)(4) Special Rule for Certain Certifications –Review for Compliance

For facilities or activities that may result in any discharge into WOTUS and receive a certification but are not subject to a federal operating license or permit, CWA Section 401(a)(4) requires that the certifying authority have an opportunity to review the planned operations of the facility to assure that applicable effluent limitations, other limitations, or other applicable water quality requirements will not be violated. If the certifying authority provides notice that the operation will violate those applicable limitations or requirements, the federal licensing or permitting agency may suspend the license or permit until it receives reasonable assurance that the facility or activity will not violate applicable provisions of CWA Sections 301, 302, 303, 306, or 307.

(33 U.S.C. §1341(a)(4))

The statute's requirements are the same for any activity that may result in a discharge to WOTUS and do not treat certain project types differently.

CWA regulations do not restate or further specify the statutory requirement.

• Would limit the review under CWA Section 401(a)(4) to federally licensed or permitted facilities or activities that may result in a direct point source discharge into WOTUS.
• Would limit the consideration of water quality requirements to the bill's new definition at CWA Section 401(h)(3).

33 U.S.C. §1341

(g)(5) Special Rule for Certain Certifications – Limitation and Monitoring Requirements of Certain Linear Infrastructure Certifications

CWA Section 401(d) specifies that any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a federal license or permit will comply with any applicable effluent limitations and other limitations, under CWA Sections 301 or 302, standard of performance under CWA Section 306, or prohibition, effluent standard, or pretreatment standard under CWA Section 307, and with any other appropriate requirement of state law set forth in such certification, and shall become a condition on any federal license or permit subject to the provisions of this section. (33 U.S.C. §1341(d))

The statute's requirements are the same for any activity that may result in a discharge to WOTUS and do not treat certain project types differently.

• 40 C.F.R. §121.3(b) specifies that a certifying authority shall include any conditions in a grant of certification necessary to assure that the activity will comply with applicable water quality requirements.
• 40 C.F.R. §121.1(j) defines water quality requirements to mean any limitation, standard, or other requirement under Sections 301, 302, 303, 306, and 307 of the CWA, any federal and state or tribal laws or regulations implementing those sections, and any other water-quality-related requirement of state or tribal law.
• Current regulations do not include special rules for certain project types.

Would specify that notwithstanding CWA Section 404(d),

(A) any certification provided under this subsection shall set forth any effluent limitations and other limitations and monitoring requirements necessary to assure that any direct point source discharge subject to this subsection will comply with the applicable provisions of Sections 301, 302, 303, 306, and 307; and

(B) any limitations and requirements set forth pursuant to subparagraph (A) shall be imposed by the licensing or permitting agency as a condition on any federal license or permit subject to the provisions of this section.

33 U.S.C. §1341

(g)(6) Special Rule for Certain Certifications – Reasonable Period of Time.

CWA Section 401(a)(1) requires the certifying authority to act within a reasonable period of time, which shall not exceed one year, after the receipt of a certification request; otherwise the certification is waived. (33 U.S.C. §1341(a)(1))

The statute does not specify who should determine the reasonable period of time, nor does it specify how the reasonable period of time should be determined.

The statute's requirements are the same for any activity that may result in a discharge to WOTUS and do not treat certain project types differently.

• 40 C.F.R. §121.6(a) specifies that the reasonable period of time begins on the date that the certifying authority receives a request for certification, as defined in §121.5.
• 40 C.F.R. §121.6(b) specifies that the federal agency and certifying authority may jointly agree in writing to the reasonable period of time, provided the reasonable period of time does not exceed one year from the date that the certification request was received. It also specifies these agreements may establish categorical reasonable periods of time.
• 40 C.F.R. §121.6(c) establishes a default reasonable period of time of six months if the federal agency and certifying authority do not agree on the reasonable period of time.
• Current regulations do not include special rules for certain project types.

Would specify that notwithstanding the periods of time in subsections (a)(1) and (e)(4) of the bill, the federal licensing or permitting agency shall establish the reasonable period of time on a categorical or case-by-case basis, and that the reasonable period of time shall not exceed nine months from the date of receipt of the certification application.

33 U.S.C. §1341

(h) Definitions

The CWA does not define certification application, certifying authority, or water quality requirements.

• Current regulations do not define certification application.
• 40 C.F.R. §121.1(b) defines certifying authority as the entity responsible for certifying compliance with applicable water quality requirements in accordance with CWA Section 401.
• 40 C.F.R. §121.1(j) defines water quality requirements to mean any limitation, standard, or other requirement under Sections 301, 302, 303, 306, and 307 of the CWA, any federal and state or tribal laws or regulations implementing those sections, and any other water-quality-related requirement of state or tribal law.

Would define

(1) certification application to mean a request from an applicant for a certification described in subsection (a) of the bill;

(2) certifying authority to mean (A) the state or interstate agency to which the certification application was submitted, including an Indian Tribe that is treated as a State for purposes of this section pursuant to 40 C.F.R. §131.8; or (B) if no state or interstate agency has the authority to provide the certification described in subsection (a), the Administrator;

(3) water quality requirements to mean (A) the applicable provisions of Sections 301, 302, 303, 306, and 307; and (B) any federal and state or tribal laws (including regulations) implementing Sections 301, 302, 303, 306, and 307 that are applicable to discharges into WOTUS.

Section 1203. Permit Term for NPDES Permits

Section 1203

CWA Section 402(b)(1)(B) specifies that National Pollutant Discharge Elimination System (NPDES) permits are issued for fixed terms not exceeding five years. (33 U.S.C. §1342(b)(1)(B))

40 C.F.R. §122.46(a) specifies that NPDES permits shall be effective for a fixed term not to exceed five years.

Would extend the permit term limit for NPDES permits from 5 years to 10 years.

Section 1204. Permits for Dredged or Fill Material

Section 1204(a) Reducing Permit Uncertainty

CWA Section 404(c) specifies that the EPA Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. (33 U.S.C. §1344(c))

40 C.F.R. §231.1 specifies that the EPA Administrator is authorized to prohibit or otherwise restrict a site whenever he determines that the discharge of dredged or fill material is having or will have an "unacceptable adverse effect" on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

• Would limit the time period in which the EPA Administrator may prohibit specification (including the withdrawal of specification) of any defined area as a disposal site, or deny or restrict the use of any defined area for specification (including the withdrawal of specification) to the time period that begins on the date on which an applicant submits a complete application and ends on the date on which the Secretary of the Army, acting through the Chief of Engineers (U.S. Army Corps of Engineers [USACE]), issues the permit.
• Would apply to permit applications submitted under CWA Section 404 after the date of enactment.

Section 1204(b) Nationwide Permitting Improvement – Term

CWA Section 404(e)(2) specifies that general permits issued under Section 404 shall be for a period of no more than five years. It also specifies that the Secretary (USACE) may modify or revoke a general permit if, after opportunity for public hearing, the Secretary determines that the activities authorized by the general permit have an adverse impact on the environment or such activities are more appropriately authorized by individual permits. (33 U.S.C. §1344(e)(2))

• USACE regulations restate the five-year permit term limit for certain general permit types at 33 C.F.R. §325.2(e)(2) and 33 C.F.R. §330.6(b).
• 33 C.F.R. §325.7 specifies the procedures USACE must follow in modifying, suspending, or revoking permits.

• Would extend the permit term limit for general permits issued under Section 404 from 5 years to 10 years.
• Would specify that the Secretary of the Army, acting through the Chief of Engineers (USACE), may modify a general permit during the term of the general permit or during renewal of the general permit.

Section 1204(b) Nationwide Permitting Improvement – Considerations

CWA Section 404(e)(1) authorizes the Secretary (USACE) to issue general permits on a state, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. Any general permit issued under this subsection shall (A) be based on the guidelines described in subsection (b)(1) of this section, and (B) set forth the requirements and standards which shall apply to any activity authorized by such general permit. (33 U.S.C. §1344(e)(1))

CWA Section 404(e)(2) authorizes the Secretary to revoke or modify a general permit if the Secretary determines that the activities authorized by such general permit have an adverse impact on the environment or such activities are more appropriately authorized by individual permits. (33 U.S.C. §1344(e)(2))

The CWA does not establish a single acreage threshold for what is considered a minimal adverse environmental effect.

• In issuing Section 404 general permits, USACE must evaluate the potential individual and cumulative impacts of the category of activities to be regulated under the general permit based upon Section 404(b)(1) guidelines codified at 40 C.F.R. §230.
• 40 C.F.R. §230.7 specifies evaluation requirements specific to general permits.

Would specify that the Secretary of the Army, acting through the Chief of Engineers (USACE), in determining the environmental effects of an activity under paragraph (1) or (2):

(A) shall only consider the effects on compliance with water quality requirements (as defined above in the bill's amendment to Section 401(h)) of any discharge of dredged or fill material resulting from the activity; and

(B) shall consider any effects of a discharge of dredge or fill material into less than 2 acres of WOTUS to be a minimal adverse environmental effect.

Section 1204(b) Nationwide Permitting Improvement – Nationwide Permits for Activities

CWA Section 404(e)(1) authorizes the Secretary (USACE) to issue general permits on a state, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. (33 U.S.C. §1344(e)(1))

• USACE issues nationwide permits (NWPs) through notice and comment rulemaking. USACE most recently reissued and modified 56 existing NWPs and issued one new NWP in January 2026.^c
• Currently, activities authorized under NWPs 12, 43, 57, and 58 may not cause the loss of greater than ½ acre of WOTUS for each single and complete project. Activities authorized under NWP 14 may not cause greater than ½ acre of nontidal WOTUS or ⅓ acre of tidal WOTUS. Acreage thresholds for other NWPs vary.^c
• 33 C.F.R. §330.2 defines single and complete project to mean "the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers. For example, if construction of a residential development affects several different areas of a headwater or isolated water, or several different headwaters or isolated waters, the cumulative total of all filled areas should be the basis for deciding whether or not the project will be covered by an NWP. For linear projects, the 'single and complete project' (i.e., single and complete crossing) will apply to each crossing of a separate water of the United States (i.e., single waterbody) at that location; except that for linear projects crossing a single waterbody several times at separate and distant locations, each crossing is considered a single and complete project. However, individual channels in a braided stream or river, or individual arms of a large, irregularly-shaped wetland or lake, etc., are not separate waterbodies."

• Would require the Secretary of the Army, acting through the Chief of Engineers (USACE), to maintain five nationwide permits, as they are described in the final rule establishing the 2026 Nationwide Permits (published in the Federal Register in January 2026):^c NWP 12 (Oil or Natural Gas Pipeline Activities), NWP 14 (Linear Transportation Projects), NWP 43 (Stormwater Management Facilities), NWP 57 (Electric Utility Line and Telecommunications Activities), and NWP 58 (Utility Line Activities for Water and Other Substances); and that results in a discharge of dredged or fill material into less than 2 acres of WOTUS for each single and complete project (as defined in 33 C.F.R. §330.2, as in effect on the date of enactment), including a single and complete linear project and a single and complete nonlinear project, as defined in the final rule establishing the 2026 NWPs.
• Would specify that nothing in this paragraph prohibits the Secretary of the Army, acting through the Chief of Engineers (USACE), from issuing general permits on a regional or state basis, or individual permits for linear infrastructure projects.

Section 1204(b) Nationwide Permitting Improvement – Reissuance of Nationwide Permits

CWA Section 404(e)(1) authorizes the Secretary (USACE) to issue general permits on a state, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. (33 U.S.C. §1344(e)(1))

The statute does not prescribe requirements for reissuance. The statute's requirements are the same for any category of activities that may result in a discharge of dredged or fill material into WOTUS and do not treat certain project types differently.

• USACE regulations for the Nationwide Permit Program specify processes for consultation and environmental review under the National Environmental Policy Act (33 C.F.R. §330.5(b)(3)), Endangered Species Act (33 C.F.R. §330.4(f)), and National Historic Preservation Act (33 C.F.R. §330.4(g)) for activities authorized under NWPs.
• The final rule for the 2026 NWPs discusses USACE's actions to comply with NEPA in issuing the 2026 NWPs.^c USACE prepared a decision document for each NWP, and these documents each include an environmental assessment.
• The 2026 NWPs include general conditions for endangered species (General Condition 18) and historic properties (General Condition 20).

• Would specify that in determining whether to reissue an NWP under this subsection
  (i) no consultation with an applicable state pursuant to Section 6(a) of the Endangered Species Act of 1973 (16 U.S.C. §1535(a)) is required;
  
  (ii) no consultation with a federal agency pursuant to Section 7(a)(2) of that act (16 U.S.C. §1536(a)(2)) is required;
  
  (iii) the requirements of Section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. §332(2)(C)) shall be satisfied by preparing a programmatic environmental assessment with respect to the general permit; and
  
  (iv) no Section 106 National Historic Preservation Act consultation under 54 U.S.C. §306108 is required.
• Would specify that clauses (i)-(iv) would apply only to a general permit being reissued pursuant to that subparagraph if the general permit does not narrow or eliminate preconstruction requirements or raise the threshold for such preconstruction requirements.

Section 1205. Judicial Review Timeline Clarity

(t) Judicial Review

No comparable provision.

Challenges to federal actions taken pursuant to Section 404 of the CWA are governed by the APA, which provides for judicial review in federal district courts, and are generally subject to a six-year statute of limitations. Currently, the APA as well as the general remedial jurisdiction of the federal courts permit a court to choose from a range of final remedies where a court finds an agency has violated the law. These remedies include court orders that vacate, remand (with or without vacatur), or enjoin agency actions. Currently, courts have the discretion to choose one or multiple of these remedies that best addresses the specific case before it. (5 U.S.C. §704; 28 U.S.C. §2401(a))

• Would impose a 150-day statute of limitations for actions challenging EPA approval of a state 404 permit program, individual or general 404 permits, or verification that an activity is authorized by a general permit, unless a shorter time period is otherwise provided for by law.
• Would limit the availability of judicial review to parties that submitted a related comment (where a draft of the challenged action was published in the Federal Register and subject to a public comment period of at least 30 days) that was sufficiently detailed to put EPA, USACE, or the state on notice of the issue on which the party seeks judicial review.
• Where a court finds that USACE or a state did not comply with Section 404 or otherwise was arbitrary and capricious in issuing an individual or general permit or verifying that an activity is authorized by a general permit, would require the court to remand the matter for further proceedings. Would prohibit the court from vacating, enjoining, or otherwise limiting the challenged action or discharge unless the court finds that it would present an imminent and substantial danger to human health or the environment for which there is no other equitable remedy available under the law.
• Would require that where a court remands a matter, it must set and enforce a reasonable schedule and deadline for further agency action, not to exceed 180 days from remand.