WATER Act of 2025
- Sponsor
- Sen. Husted, Jon [R-OH]
- Committees
- Environment and Public Works Committee (primary)
- Last action
- Dec 3, 2025
Bottom line
The bill aims to accelerate highway, railroad, and public transportation projects by shifting federal environmental permitting and review authority to participating states, potentially streamlining infrastructure development.
What it actually does
This bill establishes the Waterway Permit Section 404 Assignment program, enabling states to assume federal responsibilities for permitting certain transportation projects under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. It allows states to also take over associated environmental reviews required by other federal laws like NEPA and ESA for these projects.
Proponents argue
Proponents argue that the bill will significantly reduce bureaucratic delays and red tape associated with federal permitting processes, allowing states to manage environmental reviews more efficiently and accelerate critical infrastructure projects. They contend this approach empowers states, fosters local control, and ultimately leads to faster project completion and economic benefits.
Opponents contend
Opponents might contend that decentralizing federal environmental oversight to states could lead to a weakening of environmental protections, as states may have varying capacities or political pressures that result in less rigorous reviews. They may also raise concerns about creating a patchwork of enforcement standards and the potential for increased harm to navigable waters and protected species.
The bill is relatively short and clearly structured, making it accessible for an informed reader to understand its core provisions and implications within a reasonable timeframe.
Section 2(b)(1)
Establishment of Waterway Permit Section 404 Assignment Program
This provision mandates the Secretary of the Army (acting through the Chief of Engineers) and the Administrator of the Environmental Protection Agency to jointly establish the 'Waterway Permit Section 404 Assignment program' within 60 days of the bill's enactment. This program is the central mechanism for states to assume federal permitting responsibilities.
Supporters argue
Supporters argue that establishing this program is a crucial first step toward streamlining environmental reviews and empowering states, which are often better positioned to understand local needs and expedite projects.
Critics contend
Critics may argue that the rapid establishment timeline (60 days) could lead to an inadequately designed program, potentially compromising environmental standards or creating implementation challenges for both federal and state agencies.
Tradeoffs
The tension lies between the desire for rapid program establishment to address infrastructure delays and the need for thorough planning to ensure effective and environmentally sound implementation.
Section 2(b)(2)(A)-(C)
State Assumption of Federal Permitting and Review Responsibilities
This allows states, with written agreement from the Secretary of the Army and the EPA Administrator, to assume federal responsibilities for permitting 'covered projects' (highway, railroad, public transportation) under Section 404 of the Clean Water Act. Crucially, states can also assume responsibilities for environmental reviews under other federal laws like NEPA and the Endangered Species Act, and permitting under Section 10 of the Rivers and Harbors Act, specifically for these covered projects.
Section 2(b)(2)(D)
State Adherence to Federal Requirements
This provision mandates that states assuming responsibilities under the program must adhere to the same procedural and substantive requirements that would apply if the Secretary of the Army carried out those responsibilities. However, it explicitly states that states are not required to promulgate new regulations to carry out the program.
Section 2(b)(2)(H)
Use of Federal Highway Funds for Legal Fees
This provision allows states participating in the program to use funds apportioned to them under section 104(b)(2) of title 23, United States Code (federal-aid highway funds), to cover attorneys' fees directly related to eligible activities under the program. This includes fees awarded under the Equal Access to Justice Act (28 U.S.C. 2412).
Section 2(d)
Requirements for Written Agreement with States
This section outlines the mandatory elements of the written agreement between a state and the Secretary of the Army for program participation. Key requirements include the state's express consent to federal court jurisdiction, certification that state laws authorize the assumed actions and provide for public document availability comparable to federal law, and an agreement to maintain necessary financial resources. Agreements have terms of 5 years, or 10 years for states with 10+ years of experience in similar programs, and are renewable.
Section 2(e)
Federal Court Jurisdiction over State Actions
This provision grants exclusive jurisdiction to U.S. district courts for any civil action brought against a state for failing to carry out its responsibilities under the program. It specifies that such actions will be governed by the same legal standards and requirements that would apply if the Secretary of the Army had taken the actions in question, and the Secretary has the right to intervene in these cases.
Section 2(h)
Federal Audits of State Compliance
This section requires the Secretary of the Army to conduct audits of participating states to ensure compliance with their agreements and all federal laws for which responsibility is assumed. Audits are limited to two in the first four years, and for longer agreements, one audit covers the first five years and another the final five years. Audits must be completed within 180 days, are subject to public comment, and involve an audit team determined in consultation with the state.
This provision allows states to use federal highway funds (specifically, funds apportioned under 23 U.S.C. 104(b)(2)) to pay for attorneys' fees directly attributable to eligible activities under the Waterway Permit Section 404 Assignment program, including fees awarded under the Equal Access to Justice Act (28 U.S.C. 2412).
Section 2(b)(2)(H)
Why it matters:This could be standard legislative practice for detailing specific permissible uses of existing funds. However, it is also a significant financial detail that might be overlooked by a casual reader focusing on the primary delegation of authority.
Case for: Supporters would argue this provision is crucial for encouraging state participation by mitigating the financial risk of potential litigation, ensuring states have the resources to defend their permitting decisions and comply with federal legal requirements.
Case against: Critics might argue that diverting federal highway funds, which are typically intended for infrastructure construction and maintenance, to cover legal fees represents a misallocation of resources and could reduce the overall investment in physical infrastructure.
Estimated impact: The impact would depend on the volume and complexity of litigation faced by participating states, potentially shifting millions of dollars from direct infrastructure spending to legal defense over time.
This provision states that a state agency assigned responsibility under an agreement in this section shall be deemed a federal agency for the purposes of section 2412 of title 28, United States Code (the Equal Access to Justice Act).
Section 2(n)
Why it matters:This is a technical legal detail that has significant implications but is often placed at the end of a bill. It's not evasive but easily missed due to its placement and technical nature.
Case for: Proponents would argue this ensures consistency in legal accountability. If a state assumes federal responsibilities, it should also be subject to the same provisions that allow individuals or small entities to recover legal fees if they prevail against the government in certain cases, promoting fairness.
Case against: Opponents might argue that this provision increases the financial risk for states, as they could be liable for attorneys' fees if they lose a lawsuit related to their assumed federal responsibilities, potentially deterring state participation due to increased legal exposure.
Estimated impact: This provision could lead to state agencies being ordered to pay attorneys' fees in successful lawsuits challenging their permitting decisions, potentially costing states millions of dollars depending on the volume and outcome of litigation.