The Senate permitting reform bill unveiled yesterday would make the biggest changes to the Section 106 process since its enactment in 1966, limiting the number of undertakings subject to review and sharply curtailing consultation with SHPOs, THPOs and others, according to a preliminary ACRA analysis of the bill’s text.
The bill, the “Bipartisan American Affordability and Jobs Act of 2026” (S. 5653), was introduced by Sens. Shelly Moore Capito (R-WV), Mike Lee (R-UT), Sheldon Whitehouse (D-RI) and Martin Heinrich (D-NM), the chairs and ranking members of the Senate Environment and Public Works Committee and Senate Energy and Natural Resources Committee. The bill’s goal is to accelerate the permitting process for major infrastructure projects, a longtime goal of policymakers on both sides of the aisle.
The bill would amend several federal laws, including the National Historic Preservation Act, as well as the National Environmental Policy Act (NEPA), the Endangered Species Act, Clean Water Act and others.
Here are some of the provisions that would affect Section 106 and federal preservation policy.
Rewriting Section 106
Although the core text of Section 106 would remain largely intact under the bill, it would add definitions of key phrases and spell out the consultation process. In doing so, the bill would transform Section 106 from one paragraph to multiple pages. It also would effectively wrest authority over the details of the Section 106 consultation process from the Advisory Council on Historic Preservation (ACHP), enshrining the consultation process into law.
Limiting What Constitutes an Undertaking
The bill would sharply narrow what constitutes an undertaking, explicitly excluding any portion of a project over which a Federal agency “does not exercise substantial control or responsibility over the outcome.”
It also would exclude undertakings where the only federal involvement is a loan, grant or other form of financial assistance that is not for the primary purpose of historic preservation, as well as undertakings that are:
- minor restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation, structure hardening, provision of handicapped access, or other minor projects that do not diminish the integrity of a historic property
- surveys or work completed to conduct consultations
- alterations to a historic property necessary for public safety and do not diminish the integrity of the historic property
Narrowing Adverse Effects
Under the bill, adverse effects would be defined as “a consequence of an undertaking that is reasonably foreseeable and directly alters the characteristics of a historic property in a manner that would diminish the integrity of the location, design, setting, materials, workmanship, or association of the historic property.”
The definition explicitly would exclude any visual, atmospheric, or audible element, unless the element would have a direct impact on a historic property that would significantly diminish its eligible characteristics. It also excludes temporary alterations to a historic property and “any effect on a portion of the historic property other than an adverse effect to the character-defining features, such as contributing elements, cultural-use locations, or access points, that significantly contribute to the qualification of the property for inclusion on the National Register.”
The bill would limit adverse effects to those that are “reasonably foreseeable,” defined as effect that share “a reasonably close causal relationship to, and is proximately caused by, the undertaking.” It would explicitly exclude any adverse effect of the undertaking that is speculative or attenuated from the undertaking or any adverse effect of the undertaking relating to an unrelated prior, separate existing or potential future undertaking.
The bill also would exclude from an APE any geographic area that is affected solely by portion of an undertaking not subject to Federal control or responsibility.
Shortening the Consultation Process
The bill would add to Section 106 a detailed consultation process that relies heavily on strict timelines for action and limits, though does not eliminate, engagement with consulting parties.
Under the bill, federal agencies would not be required to consult with consulting parties on determining APEs and whether any historic properties are in the APE; agencies would be required to consider information presented to the agency if the agency requests it, but only if the parties respond within 30 days.
Consulting parties would be under strict deadlines to provide feedback to agency determinations and reports, in some cases as short as 30 days, after which agencies would not be obligated to consider any responses.
In addition, the bill specifies that the identification, nomination or listing of a property on the National Register after the start of a Section 106 review does not require the agency to “delay, reopen, supplement, or otherwise modify the review or consultation process.”
Reducing Mitigation
The bill would sharply curtail the ability to mitigate the adverse effects of an undertaking. Under the proposal, agencies would be required to report to consulting parties on any “prudent and feasible measures” within the APE to avoid, minimize, or mitigate adverse effects. However, the agencies could decline to require mitigation if – in their sole discretion – they believe that “other considerations outweigh the consideration of historic preservation as to any or all adverse effects of the undertaking.”
The bill also would block agencies from reporting on mitigation measures that would occur outside the APE, unless the project applicant submits a written request for alternative mitigation measures.
Designating Lead Agencies
The bill would require agencies to designate a lead agency if more than one agency has jurisdiction over a project. If the agencies do not designate a lead within 15 days of receiving notice of a proposed undertaking, a project applicant may submit to the Interior Department a written request for the Department to designate a lead agency.
Aligning Process Timelines to NEPA
The bill would require agencies to commence the Section 106 consultation process at the same time it begins the NEPA process – and end the process by the time any NEPA environmental document is completed, unless Interior approves an extension “due to extraordinary circumstances beyond the control, and not due to any actions, of the consulting parties.”
The bill further states that if consultation is not done by the time the NEPA process is finished or an extension, each SHPO, THPO and federal Senior Executive Service official overseeing the agency’s role would be required to spend at least 50 percent of their workweek to finish it.
More Judicial Review for Applicants, Less for Project Opponents
The bill would allow project applicants to go to court if an agency fails to meet the deadline for completing the consultation, and it requires the courts to provide injunctive relief if they find for the applicant.
On the other hand, the bill would sharply curtail the ability of project opponents to pursue litigation. It would bar any claims under NHPA unless the claim is filed within 150 days of the final agency determination or when the S/THPOs were notified of the agency action. Claims could be filed only by parties that suffered or imminently will suffer direct harm from the agency action. And parties that did not submit a “substantive and unique comment” during the public comment period could not file a suit.
Definition Of Property of Traditional Religious and Cultural Importance
The bill would create a new definition of property of traditional religious and cultural importance: “an identifiable geographic location or feature at which an event of continuing religious or cultural significance to a living community occurred, including any prehistoric or historic district, site, building, structure, or object, and any existing artifacts or material remains at that district, site, building, structure, or object.”
SHPO/THPO Evaluation and Suspension
The bill would increase the frequency of evaluations by the Interior Department of SHPOs from once every four years to once every two years. It further specifies that a SHPO would be considered out of compliance with the NHPA if it does not regularly comply with the timelines in the bill. Under current law, a SHPO found to be not in compliance with the NHPA can see their contracts and cooperative agreements with the Department suspended; the bill would also suspend any Historic Preservation Fund (HPF) monies that go to the SHPO.
In addition, the bill would require the Interior Department to assume the SHPO functions if it is out of compliance for two years until the SHPO can demonstrate it is in compliance.
Lastly, the bill adds similar provisions for THPOs, which are not in current law, including the ability of the Department to assume THPO functions.
Historic Preservation Fund
The bill would increase the annual authorization for the HPF from the current $150 million to $200 million and authorizes it for 10 years.
The bill also would establish a competitive Grant Program for Tribal Historic Preservation Officers to develop an online database to maintain “all records relating to the assumption by the applicable Indian tribe of the functions of the SHPO,” and “a comprehensive list of properties of traditional religious or cultural importance to the Indian tribe.”
Next Steps
The bill will not come up for a vote in Congress before the election, as both chambers have gone into recess. The bill could come up in a post-election lame duck session, but its prospects are uncertain as there is not a lot of time after the election to debate it and it is unclear if it would gain the support it needs to pass.
ACRA is continuing to analyze the bill, including sections covering NEPA and other laws, and will share resources for members to engage their members of Congress on the bill in the coming days.