Clean Water Act permitting and State certification

Section 401 of the Federal Water Pollution Control Act (33 U.S.C. 1341) is amended by adding at the end the following: (e) Certification procedures, requirements, and limitations (1) Effect of certain certification actions (A) Certification or waiver If a certifying authority grants a certification application or if a certifying authority waives the certification requirement for a certification application, the agency with jurisdiction over the Federal license or permit for which the certification application was made shall consider water quality requirements satisfied for the purpose of considering the application for the Federal license or permit. (B) Certification with conditions (i) In general If a certifying authority grants a certification application with conditions, the agency with jurisdiction over the Federal license or permit for which the certification application was made shall consider water quality requirements satisfied for the purpose of considering the application for the Federal license or permit, subject to the conditions included in the certification. (ii) Savings clause Nothing in this subparagraph affects paragraph (2)(B). (2) Scope of certification (A) In general The scope of a certification provided under this section shall be limited to ensuring compliance with water quality requirements. (B) Prohibition In reviewing a certification application, no certifying authority may— (i) deny certification for any reason other than making a determination 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; or (ii) grant certification with conditions, except for conditions that the certifying authority determines by clear and convincing evidence are— (I) necessary to ensure compliance with water quality requirements; (II) the least burdensome conditions to ensure compliance with water quality requirements; and (III) consistent with the requirements of the Federal license or permit for which the certification application was made. (C) Savings provision Nothing in this paragraph allows a Federal licensing or permitting agency to refuse to include conditions from a certifying authority in a Federal license or permit if the conditions are necessary to ensure compliance with water quality requirements. (3) Required procedures (A) Notice and hearings Taking into account State or Tribal law, as appropriate, and the review period described in paragraph (4), each certifying authority shall establish procedures for— (i) public notice in the case of all certification applications; (ii) to the extent the certifying authority determines to be appropriate, public hearings in connection with specific certification applications; and (iii) a prefiling meeting as described in subparagraph (B). (B) Prefiling meeting (i) Request Before submitting a certification application, the prospective applicant may request a prefiling meeting with the certifying authority— (I) to ensure that the certifying authority receives early notification of projects for which a certification under subsection (a) is necessary; and (II) to discuss informational needs with the certifying authority before submitting the application. (ii) Response required If a prospective applicant requests a prefiling meeting with a certifying authority pursuant to clause (i), the certifying authority shall— (I) respond to the request not later than 30 days after the date on which the request is received; and (II) hold the prefiling meeting with the prospective applicant not later than 60 days after the date on which the request is received. (C) Certification applications (i) Application in writing A certification application shall be made in writing to the applicable certifying authority. (ii) Requirements for complete application A complete certification application shall consist of the following: (I) Identification of each applicant for the Federal license or permit with respect to which the certification application is made. (II) A statement that information included in the certification application is truthful, accurate, and complete, to the best knowledge of each such applicant. (III) In the case of a certification application with respect to an individual permit or license— (aa) identification of the Federal license or permit that is the subject of the certification application with respect to which the certification is requested; (bb) identification of any activity the conduct of which is subject to the Federal license or permit; (cc) identification of the location and nature of any discharge that may result from the activity, and the location of the receiving waters; (dd) a description of means that may be used to monitor, control, or manage any such discharge; and (ee) a list of all other Federal, interstate, Tribal, State, or local agency authorizations related to the requirement for a certification under subsection (a), and any approval or denial of such an authorization already received. (IV) Any additional materials required by the applicable certifying authority pursuant to clause (iii), subject to the condition that the additional materials shall only be required with respect to certification applications submitted after the date on which the regulation described in that clause has been promulgated. (iii) Additional materials (I) In general A certifying authority may promulgate regulations establishing materials to be required in completed certification applications in addition to the materials described in subclauses (I) through (III) of clause (ii) that the certifying authority determines are necessary to demonstrate to the certifying authority compliance with water quality requirements. (II) Requirement In promulgating regulations under subclause (I), a certifying authority shall only base the determination regarding what additional materials are needed on what can reasonably be expected of an applicant at the time at which a certification application is submitted. (III) Effect of failure to promulgate If a certifying authority fails to promulgate regulations under subclause (I), a certification application to that certifying authority shall be considered complete if the certification application includes all of the items described in subclauses (I) through (III) of clause (ii). (iv) Acknowledgment of receipt Not later than 3 days after the date on which an applicant submits to a certifying authority a certification application for an individual Federal license or permit, the certifying authority shall acknowledge receipt of the certification application in writing. (v) Notification of complete application or identification of missing materials Not later than 90 days after the date on which a certifying authority acknowledges receipt of a certification application under clause (iv), the certifying authority shall— (I) provide the applicant a written notification that the certification application is complete; or (II) identify to the applicant in writing all specific additional materials or information described in clause (ii) necessary for the certification application to be considered complete, including, for each such additional piece of material or information, a description of the water quality requirement for which the additional material or information is needed in order to evaluate compliance with that water quality requirement. (vi) Petition to court (I) Right to petition An applicant may petition for judicial review of an alleged failure by a certifying authority to act in accordance with clauses (ii) through (v) by filing a written petition in a court of competent jurisdiction. (II) Considerations In reviewing a petition under this subclause, a reviewing court shall consider— (aa) the administrative record, which shall consist of the materials required to be submitted under clause (ii); (bb) any materials or information identified by certifying authority as missing pursuant to a notification under clause (v)(II); (cc) the information submitted by the applicant to the certifying authority; and (dd) any evidence presented to the court by the applicant that suggests that the defense of the certifying authority to the petition is pretextual. (III) Court order If a court, in reviewing a petition under this clause, finds that a certifying authority has failed to act in accordance with any of clauses (ii), (iv), and (v), the court shall provide injunctive relief, as appropriate, to give effect to this section. (D) Denials of certification for individual license or permit If a certifying authority denies a certification application for an individual license or permit, the certifying authority shall provide to the applicant and the applicable Federal licensing or permitting agency— (i) the specific water quality requirements that the certifying authority determined will be violated if certification were granted; (ii) a statement explaining why the certifying authority determined the identified water quality requirements will be violated; and (iii) 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. (4) Review period (A) In general Subject to subparagraph (C) and in consultation with each certifying authority, a licensing or permitting agency shall, categorically or on a case-by-case basis for each certification application, establish a reasonable period of time (not to exceed 1 year from the date of receipt of the certification application) within which a certifying authority shall issue a final action on the certification application, which shall account for time required under applicable State or Tribal law for public notice and comment periods, if any. (B) Failure to act If a certifying authority fails or refuses to issue a final action as described in paragraph (6) on a certification application by the end of the reasonable period of time established under subparagraph (A) and the reasonable period of time has not been extended in accordance with subparagraph (C), the requirement for a certification under subsection (a) shall be waived, except that the reasonable period of time shall restart in the event that the certification application is voluntarily withdrawn by the applicant and the applicant submits a new certification application. (C) Requirement for extension With respect to a certification application, the reasonable period of time established under subparagraph (A) may only be extended if— (i) the extension is requested, in writing, by the applicant; and (ii) the certifying authority concurs, in writing, with the extension. (5) Waiver of certification requirement (A) In general A certifying authority may, at any time during the reasonable period of time described in paragraph (4), affirmatively waive the requirement for a certification under subsection (a). (B) No judicial review Notwithstanding any other provision of Federal law, including any provision of this section, a waiver of the requirement for a certification under this section shall not be subject to judicial review. (6) Final action Not later than the date on which the reasonable period of time established under paragraph (4) for a certification application ends or on the date of a waiver pursuant to paragraph (5)(A), as applicable, the certifying authority shall apply only 1 of the following final actions to the certification application: (A) The certification application is granted. (B) The certification application is granted with conditions. (C) The certification application is denied. (D) The certification requirements under subsection (a) have been waived in accordance with paragraph (4) or (5) with respect to the certification application. (f) Judicial review (1) Burdens of proof When reviewing a denial of a certification under this section, a court shall place the burden of proof on the certifying authority to demonstrate, by clear and convincing evidence, that no reasonable modifications to or reasonable conditions on the certification would make it possible to grant the certification without violating water quality requirements. (2) Conditions When reviewing a challenge to 1 or more conditions required by a certifying authority under this section, a court shall place the burden of proof on the certifying authority to demonstrate, by clear and convincing evidence, that the 1 or more challenged conditions are— (A) necessary to allow the certification to be made without violating water quality requirements; (B) the least burdensome condition or set of conditions for avoiding violation of water quality requirements; and (C) consistent with the requirements of the Federal license or permit that is the subject of the certification. (g) Special rule for certain certifications (1) Definition of interstate transmission line project In this subsection, the term interstate transmission line project means 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))). (2) Limitation on certification requirements for certain interstate linear infrastructure Notwithstanding the first sentence of subsection (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 the waters of the United States shall provide to the Federal licensing or permitting agency a certification from a certifying authority that such direct point source discharge complies with water quality requirements. (3) Certification of no limitation and standard 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 section 511(c). (4) Review for compliance Notwithstanding subsection (a)(4)— (A) prior to the initial operation of any federally licensed or permitted facility or activity that may result in a direct point source discharge into the waters of the United States and with respect to which a certification has been obtained pursuant to this subsection, which facility or activity is not subject to a Federal operating license or permit, the licensee or permittee shall provide an opportunity for the certifying authority to review the manner in which the facility or activity shall be operated or conducted for the purposes of assuring that applicable effluent limitations or other limitations or other applicable water quality requirements will not be violated; (B) on notification by the certifying authority that the operation of any federally licensed or permitted facility or activity described in subparagraph (A) will violate applicable effluent limitations or other limitations or other water quality requirements, the applicable Federal agency may, after public hearing, suspend the Federal license or permit; and (C) if a Federal license or permit is suspended pursuant to subparagraph (B), the Federal license or permit shall remain suspended until notification is received from the certifying authority that there is reasonable assurance that the facility or activity will not violate the applicable provisions of sections 301, 302, 303, 306, and 307. (5) Limitation and monitoring requirements of certain linear infrastructure certifications Notwithstanding subsection (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. (6) Reasonable period of time Notwithstanding the periods of time in subsections (a)(1) and (e)(4), a licensing or permitting agency shall, categorically or on a case-by-case basis for each certification application, establish a reasonable period of time (not to exceed 9 months from the date of receipt of the certification application) within which a certifying authority shall issue a final action on the certification application under this subsection, which shall account for the time required under applicable State or Tribal law for public notice and comment periods. (h) Definitions In this section: (1) Certification application The term certification application means a request from an applicant for a certification described in subsection (a). (2) Certifying authority The term certifying authority, with respect to a certification application, means, as applicable— (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 section 131.8 of title 40, Code of Federal Regulations; 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 The term water quality requirements means— (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 waters of the United States..