This bill removes Section 106 historic-preservation review for federal undertakings whose primary purpose is to structurally rehabilitate or upgrade public water systems or treatment works, but only when the entity carrying out the project asks the responsible federal agency to exclude the undertaking from Section 106. The text defines key terms by cross-reference to the Safe Drinking Water Act and the Clean Water Act and treats the Section 106 process (including 36 C.F.R. part 800) and 54 U.S.C. 306108 as the requirements being waived.
Why it matters: the bill creates a streamlined path to proceed with federally involved water infrastructure work without going through the conventional Section 106 consultation process. That can speed federally funded, permitted, or licensed upgrades, but it also eliminates established consultation and mitigation steps designed to identify and protect historic properties and tribal interests.
At a Glance
What It Does
The bill states that Section 106 requirements do not apply to an undertaking when (1) the undertaking’s primary purpose is structurally rehabilitating or upgrading a public water system or treatment works, and (2) the project sponsor requests exclusion from the responsible federal agency. It explicitly treats the Section 106 statute and the implementing regulations (36 C.F.R. part 800) as waived for such undertakings.
Who It Affects
Municipalities, water utilities, and private contractors who carry out federally funded, licensed, or permitted upgrades to public water systems or treatment works; federal agencies that fund, permit, or license such projects (the ‘‘responsible agency’’); State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), and federally recognized tribes that normally participate in Section 106 reviews.
Why It Matters
The bill replaces a discretionary, consultative process with a narrowly defined procedural waiver that activates upon request, altering how historic-preservation concerns are surfaced and addressed for water infrastructure upgrades. For professionals managing project schedules, compliance risk, and community outreach, this changes the checklist for federal involvement in water projects.
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What This Bill Actually Does
The bill is short and surgical. It starts with a broad override: ‘‘notwithstanding’’ the Section 106 statute, the Section 106 process does not apply to an ‘‘undertaking’’ when two conditions are met: the project’s primary purpose is structural rehabilitation or an upgrade of a public water system or treatment works, and the project sponsor asks the responsible federal agency to exclude the undertaking from Section 106.
Because the text links the waiver to the sponsor’s request rather than to a required agency finding, the statutory language reads as creating an exclusion that takes effect once the request is made.
The measure then defines the terms it relies on by pointing to existing statutory definitions: ‘‘public water system’’ uses the definition in the Safe Drinking Water Act, ‘‘treatment works’’ uses the Clean Water Act definition, ‘‘responsible agency’’ is the federal agency with jurisdiction or licensing authority, and ‘‘undertaking’’ references the standard NHPA definition. The bill also specifies what it means by ‘‘Section 106 requirements’’—namely 54 U.S.C. 306108 and the Section 106 process in 36 C.F.R. part 800 (or successors).Because the waiver is limited by subject matter (water-system rehabilitation/upgrades) and by the activation mechanism (a request to the responsible agency), it is not a blanket repeal of Section 106.
It does, however, remove the statutory duty for federal agencies—and the routine role for SHPOs, THPOs, and the Advisory Council on Historic Preservation—to identify historic properties, assess effects, and negotiate mitigation under Section 106 for qualifying projects. The bill does not address other federal obligations: it does not amend NEPA, consulting requirements in laws that explicitly reference Section 106 (except by removing Section 106’s applicability), or state historic-preservation laws that may still apply.Practically, the most important operational feature is that the bill does not include monetary thresholds, timelines, or a requirement for public notice or tribal consultation as part of the exclusion request.
That leaves implementation questions for agencies and project sponsors about documentation, recordkeeping, and how to demonstrate that a project’s ‘‘primary purpose’’ fits the bill’s language.
The Five Things You Need to Know
The bill waives Section 106 (54 U.S.C. 306108) and the implementing Section 106 regulations (36 C.F.R. part 800) for undertakings whose primary purpose is structurally rehabilitating or upgrading a public water system or treatment works.
The waiver becomes available when the entity carrying out the undertaking formally requests to the responsible federal agency that the undertaking be excluded; the statutory language conditions the waiver on that request rather than an agency approval process.
The terms ‘‘public water system’’ and ‘‘treatment works’’ are incorporated by reference to the Safe Drinking Water Act (42 U.S.C. 300f) and the Federal Water Pollution Control Act (33 U.S.C. 1292), respectively, tying the scope to existing statutory definitions.
The bill defines ‘‘responsible agency’’ broadly to mean either the federal agency with jurisdiction over the undertaking or the federal/independent agency with licensing authority, which can include permitting agencies and funding agencies.
The statute does not include a monetary threshold, sunset date, required consultation, or procedural checklist for invoking the exclusion—those operational details are left to agencies or future rulemaking.
Section-by-Section Breakdown
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Creates the Section 106 waiver for qualifying water infrastructure undertakings
This subsection is the operative text: it states that Section 106 requirements ‘‘shall not apply’’ to an undertaking if the undertaking’s primary purpose is structural rehabilitation or upgrading of a public water system or treatment works, and if the project sponsor requests exclusion from the responsible agency. The phrasing ‘‘shall not apply’’ coupled with the conditional ‘‘if the entity ... requests’’ reads as a self-executing exclusion triggered by the sponsor’s request rather than a discretionary agency exemption process, which matters for how agencies will treat such requests and for potential judicial review.
Incorporates existing statutory definitions for covered infrastructure and actors
These clauses import definitions by reference: ‘‘public water system’’ references the Safe Drinking Water Act; ‘‘treatment works’’ references the Clean Water Act; and ‘‘undertaking’’ uses the NHPA definition in 54 U.S.C. 300320. That means the waiver applies only to projects that fit those long-standing statutory definitions, not to any water-related activity by implication. Practitioners should map project descriptions to those definitions when deciding whether the exclusion is available.
Defines ‘‘responsible agency’’ to include both jurisdictional and licensing agencies
The bill defines responsible agency as either (A) the federal agency with jurisdiction over an undertaking or (B) the federal or independent agency with authority to license it. This broad formulation can capture funding agencies, permitting agencies, and independent regulators. For implementation, agencies will need to decide which office or official within an agency receives and records exclusion requests.
Specifies what ‘‘Section 106 requirements’’ means
This clause makes clear that the waiver targets 54 U.S.C. 306108 and the Section 106 process as described in 36 C.F.R. part 800 (or successor regulations). By naming both the statutory provision and the implementing regulations, the bill removes the core procedural obligations—identifying historic properties, assessing effects, and seeking ways to avoid or mitigate adverse effects—for qualifying projects.
Retains the NHPA definition of ‘‘undertaking’’
By relying on the NHPA’s definition of ‘‘undertaking,’’ the bill ties the waiver to federal actions, projects, or programs that may cause changes in the character or use of historic properties. That keeps the focus on federally involved projects; purely local work with no federal permit, license, or funding would remain outside the NHPA (and outside this waiver).
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Who Benefits
- Municipal water utilities and wastewater authorities — can accelerate federally involved upgrade projects by bypassing Section 106 reviews, reducing project delays and compliance costs associated with historic-preservation consultation.
- Contractors and engineering firms working on water infrastructure — gain faster procurement-to-construction timelines where federal involvement would otherwise trigger Section 106, improving scheduling certainty and lowering carrying costs.
- Federal funding and permitting agencies (e.g., EPA, Army Corps, USDA, independent licensing agencies) — experience a narrower set of procedural obligations for qualifying projects, which may simplify internal review pipelines and speed disbursal or permitting decisions.
- Ratepayers and public-health officials — stand to benefit indirectly if the waiver shortens timelines for critical rehabilitation that improves water quality, reduces service disruptions, or addresses infrastructure failure risks.
Who Bears the Cost
- State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), and federally recognized tribes — lose a statutory role in identifying and addressing adverse effects and may be excluded from project-level consultation that could affect cultural resources.
- Historic-preservation organizations and local preservation advocates — face reduced ability to influence mitigation measures, review alternatives, or secure protections for historic properties affected by qualifying projects.
- Federal agencies that must implement the exclusion — may bear administrative costs and legal risk as they craft internal procedures, respond to public concern, and defend agency actions if plaintiffs challenge a project’s qualification for the waiver.
- Communities with historic resources — particularly those with limited resources to document or mitigate historic sites — may face irreversible losses if upgrades proceed without preservation review or mitigation planning.
Key Issues
The Core Tension
The central dilemma is speed versus stewardship: the bill aims to speed delivery of necessary upgrades to water infrastructure by removing a time-consuming federal preservation process, but it does so by sacrificing statutory consultation and mitigation mechanisms designed to protect historic properties and tribal cultural resources — a trade-off between immediate public-health and infrastructure benefits and long-term preservation of heritage.
The bill substitutes a procedural shortcut for the multi-party Section 106 consultation process; that shortcut creates trade-offs that the statutory text does not resolve. Most importantly, it conditions the waiver on a sponsor’s request to the responsible agency but does not require any documentation, factual showing, or agency determination that the project’s ‘‘primary purpose’’ is rehabilitation or upgrade.
That raises questions about who bears the burden of proof if the project’s scope or purpose is disputed and whether courts will treat the exclusion as self-executing or as a matter subject to agency discretion and review.
The text is silent about tribal consultation, mitigation obligations, public notice, or recordkeeping. Because Section 106 has been a key vehicle for federal-tribal and federal-state consultation about cultural resources, removing that process for qualifying projects may shift those obligations to other legal authorities (if any apply) or leave them unaddressed.
The bill also does not directly amend NEPA or other statutes; however, in practice agencies will need to reconcile the waiver with overlapping environmental or permit reviews. Finally, the lack of thresholds, implementation detail, or a sunset leaves room for broad or narrow administrative interpretations and invites litigation to resolve normative and factual disputes.
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