[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 3316 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
1st Session
S. 3316
To establish the Waterway Permit Section 404 Assignment program, and
for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 3, 2025
Mr. Husted (for himself and Mr. Ricketts) introduced the following
bill; which was read twice and referred to the Committee on Environment
and Public Works
_______________________________________________________________________
A BILL
To establish the Waterway Permit Section 404 Assignment program, 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 ``Water Authority and Timely
Environmental Review Act of 2025'' or the ``WATER Act of 2025''.
SEC. 2. WATERWAY PERMIT SECTION 404 ASSIGNMENT PROGRAM.
(a) Definitions.--In this section:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
(2) Covered project.--The term ``covered project'' means a
highway, railroad, or public transportation project.
(3) FWPCA terms.--The terms ``navigable waters'' and
``State'' have the meanings given those terms in section 502 of
the Federal Water Pollution Control Act (33 U.S.C. 1362).
(4) Program.--The term ``program'' means the Waterway
Permit Section 404 Assignment program established under
subsection (b)(1).
(5) Secretary.--The term ``Secretary'' means the Secretary
of the Army, acting through the Chief of Engineers.
(b) Establishment.--
(1) In general.--Not later than 60 days after the date of
enactment of this Act, the Secretary and the Administrator
shall jointly establish and carry out a program, to be known as
the ``Waterway Permit Section 404 Assignment program''.
(2) Assumption of responsibility.--
(A) In general.--Subject to the requirements of
this section and notwithstanding subsections (g)
through (m) of section 404 of the Federal Water
Pollution Control Act (33 U.S.C. 1344), with the
written agreement of the Secretary, the Administrator,
and a State, which may be in the form of a memorandum
of understanding, the Secretary may assign, and the
State may assume, the responsibilities of the Secretary
under that section with respect to the permitting of 1
or more covered projects in the State.
(B) Additional responsibility.--If a State assumes
responsibility under subparagraph (A)--
(i) the Secretary may assign to the State,
and the State may assume, all or part of the
responsibilities of the Secretary for the
permitting of discharge of dredged or fill
material into the navigable waters, including
environmental reviews under the National
Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), consultation requirements under
the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.), requirements under division A of
subtitle III of title 54, United States Code,
or any other action required under any Federal
environmental law relating to review under
section 404 of the Federal Water Pollution
Control Act (33 U.S.C. 1344) or approval of a
covered project; and
(ii) subject to subparagraph (C), the
Secretary may assign to the State, and the
State may assume, all or part of the
responsibilities of the Secretary 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), for
the permitting of the construction of any
structure in or over any navigable water of the
United States, the excavating from or
depositing of material in such waters, or the
accomplishment of any other work affecting the
course, location, condition, or capacity of
such waters.
(C) Limitations with respect to rivers and harbors
act of 1899.--The assignment of responsibilities under
subparagraph (B)(ii) shall be limited to the program
and is effective only as it is necessary to allow for
the permitting of a covered project.
(D) Procedural and substantive requirements.--
(i) In general.--Except as otherwise
provided in this section--
(I) a State shall assume
responsibility under this section
subject to the same procedural and
substantive requirements as would apply
if that responsibility were carried out
by the Secretary; and
(II) the State shall ensure
compliance with those requirements.
(ii) No regulations required.--Nothing in
this section requires a State participating in
the program to promulgate regulations to carry
out the program.
(E) Federal responsibility.--
(i) In general.--Any responsibility of the
Secretary under section 404 of the Federal
Water Pollution Control Act (33 U.S.C. 1344) or
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), not explicitly assumed by a State
by written agreement under this section shall
remain the responsibility of the Secretary.
(ii) Savings provision.--Nothing in this
section requires the Secretary to assign to a
State, or that State to accept, any of the
enforcement authority of the Secretary under
section 404(s) of the Federal Water Pollution
Control Act (33 U.S.C. 1344(s)).
(F) No effect on authority.--Nothing in this
section preempts or interferes with any power,
jurisdiction, responsibility, or authority of a Federal
agency, other than the Environmental Protection Agency
and the Corps of Engineers, under applicable law
(including regulations) with respect to a covered
project.
(G) Preservation of flexibility.--The Secretary may
not require a State, as a condition of participation in
the program, to forego project delivery methods that
are otherwise permissible for covered projects.
(H) Legal fees.--A State assuming the
responsibilities of the Secretary under the program for
a specific covered project may use funds apportioned to
the State under section 104(b)(2) of title 23, United
States Code, for attorneys' fees directly attributable
to eligible activities associated with the covered
project, including the payment of fees awarded under
section 2412 of title 28, United States Code.
(c) State Participation.--
(1) Participating states.--All States are eligible to
participate in the program.
(2) Application.--Not later than 270 days after the date of
enactment of this Act, the Secretary may promulgate or amend,
as appropriate, regulations or issue guidance that establishes
requirements relating to information required to be contained
in any application of a State to participate in the program,
including, at a minimum--
(A) the covered projects or classes of covered
projects for which the State anticipates exercising the
authority that may be granted under the program;
(B) a demonstration of the ability of the State to
assure consistency with guidelines established under
section 404(b)(1) of the Federal Water Pollution
Control Act (33 U.S.C. 1344(b)(1));
(C) verification of the financial resources
necessary to carry out the authority that may be
granted under the program; and
(D) evidence of the notice and solicitation of
public comment by the State relating to participation
of the State in the program, including copies of
comments received from that solicitation.
(3) Public notice.--
(A) In general.--Not later than 30 days before the
date on which a State submits an application under this
subsection, the State shall give notice of the intent
of the State to participate in the program, in
accordance with subparagraph (B).
(B) Method of notice and solicitation.--The State
shall provide notice and solicit public comment under
subparagraph (A) by publishing the complete application
of the State in accordance with the appropriate public
notice law of the State.
(4) Selection criteria.--The Secretary may approve the
application of a State under this subsection only if--
(A) the requirements under paragraph (2) have been
met;
(B) the Secretary determines that the State has the
capability, including financial and personnel, to
assume responsibility under the program; and
(C) the head of the State agency having primary
jurisdiction over highway matters enters into a written
agreement described in subsection (d) with the
Secretary.
(5) Other federal agency views.--If a State applies to
assume a responsibility of the Secretary that would have
required the Secretary to consult with another Federal agency,
the Secretary shall solicit the views of the Federal agency
before approving the application.
(d) Written Agreement.--
(1) In general.--A written agreement under this section
shall--
(A) be executed by the Governor or the top-ranking
transportation official in the State who is charged
with responsibility for transportation infrastructure
operation, maintenance, and construction;
(B) be in such form as the Secretary may prescribe;
(C) provide that the State--
(i) agrees to assume all or part of the
responsibilities of the Secretary described in
subsection (b)(2);
(ii) expressly consents, on behalf of the
State, to accept the jurisdiction of the
Federal courts for the compliance, discharge,
and enforcement of any responsibility of the
Secretary assumed by the State;
(iii) certifies that State laws are in
effect that--
(I) authorize the State to take the
actions necessary to carry out the
responsibilities being assumed; and
(II) are comparable to section 552
of title 5, United States Code,
including providing that any decision
relating to the public availability of
a document under those State laws is
reviewable by a court of competent
jurisdiction; and
(iv) agrees to maintain the financial
resources necessary to carry out the
responsibilities being assumed;
(D) require the State to provide to the Secretary
any information the Secretary reasonably considers
necessary to ensure that the State is adequately
carrying out the responsibilities assigned to the
State;
(E)(i) have a term of not more than 5 years; or
(ii) in the case of a State that has participated
in a program under section 326 or 327 of title 23,
United States Code, for a period of not less than 10
years, have a term of 10 years; and
(F) be renewable.
(2) No additional requirements.--The Secretary may not
include any additional requirements in a written agreement
under this section other than the requirements described in
paragraph (1).
(e) Jurisdiction.--
(1) In general.--The district courts of the United States
shall have exclusive jurisdiction over any civil action against
a State for failure to carry out any responsibility of the
State under the program.
(2) Legal standards and requirements.--A civil action
described in paragraph (1) shall be governed by the legal
standards and requirements that would apply in such a civil
action against the Secretary had the Secretary taken the
actions in question.
(3) Intervention.--The Secretary shall have the right to
intervene in any civil action described in paragraph (1).
(f) Effect of Assumption of Responsibility.--A State that assumes
responsibility under subsection (b)(2) shall be solely responsible and
solely liable for carrying out, in lieu of and without further approval
of the Secretary, the responsibilities assumed under that subsection,
until the program is terminated under subsection (k).
(g) Limitations on Agreements.--Nothing in this section permits a
State to assume any rulemaking authority of the Secretary under any
Federal law.
(h) Audits.--
(1) In general.--To ensure compliance by a State with any
agreement of the State under subsection (d) (including
compliance by the State with all Federal laws for which
responsibility is assumed under subsection (b)(2)), for each
State participating in the program under this section, the
Secretary shall--
(A) not later than 180 days after the date of
execution of the agreement, meet with the State to
review implementation of the agreement and discuss
plans for the first annual audit;
(B) conduct not more than 2 audits during the first
4 years that the State is participating in the program;
(C) in the case of an agreement period of greater
than 5 years pursuant to subsection (d)(1)(E)(ii),
conduct an audit covering the first 5 years of the
agreement period and a second audit covering the final
5 years of the agreement; and
(D) ensure that the time period for completing an
audit, from initiation to completion (including public
comment and responses to those comments), does not
exceed 180 days.
(2) Public availability and comment.--
(A) In general.--An audit conducted under paragraph
(1) shall be provided to the public for comment.
(B) Response.--Not later than 60 days after the
date on which the period for public comment described
in subparagraph (A) ends, the Secretary shall respond
to public comments received under that subparagraph.
(3) Audit team.--
(A) In general.--An audit conducted under paragraph
(1) shall be carried out by an audit team determined by
the Secretary, in consultation with the State, in
accordance with subparagraph (B).
(B) Consultation.--Consultation with the State
under subparagraph (A) shall include a reasonable
opportunity for the State to review and provide
comments on the proposed members of the audit team.
(i) Monitoring.--After the fourth year of the participation of a
State in the program, the Secretary shall monitor compliance by the
State with the written agreement, including the provision by the State
of financial resources to carry out the written agreement.
(j) Reports to Congress.--The Secretary shall submit to Congress an
annual report that describes the administration of the program.
(k) Termination.--
(1) Termination by secretary.--The Secretary may terminate
the participation of any State in the program if--
(A) the Secretary determines that the State is not
adequately carrying out the responsibilities assigned
to the State;
(B) the Secretary provides to the State--
(i) a notification of the determination of
noncompliance;
(ii) a period of not less than 120 days to
take such corrective action as the Secretary
determines to be necessary to comply with the
applicable agreement; and
(iii) on request of the Governor of the
State, a detailed description of each
responsibility in need of corrective action
regarding an inadequacy identified under
subparagraph (A); and
(C) the State, after the notificatio