Just before recessing for month of October, a bipartisan group of Senators unveiled the Bipartisan American Affordability and Jobs Act of 2026 (S. 5653). This bill proposes major changes to the National Environmental Policy Act (NEPA), the Endangered Species Act, Clean Water Act, and the National Historic Preservation Act (NHPA) with the goal of accelerating the permitting process for infrastructure projects. Title III of the Energy and Natural Resources portion deals with historic preservation. This bill constitutes the most significant changes to the National Historic Preservation Act and the Section 106 process in the law’s history. It would substantially weaken protections for historic places under Section 106 , curtailing consultation with State and Tribal Historic Preservation Offices, limiting what constitutes an undertaking, imposing rigid deadlines, and narrowing adverse effects. Preservation Action strongly opposes the provisions that weaken Section 106.
The bill’s text is available here.
The bill was introduced by Sen. Shelly Moore Capito (R-WV), Sen. Mike Lee (R-UT), Sen. Sheldon Whitehouse (D-RI), and Sen. Martin Heinrich (D-NM), the chairs and ranking members of the Senate Environment and Public Works Committee and Senate Energy and Natural Resources Committee. Following the bill’s introduction the Senate adjourned for the month of October. While action is expected immediately with the House and Senate out until after the midterm elections, the Senate is expected to move very quickly on this bill when they return on Nov. 9th. This bill was largely negotiated behind closed doors and Senators are looking to fast track the bill without a usual committee hearings process. Your voice will be critical over the next 5 weeks!
Here are some of the harmful changes that undermine the Section 106 process:
- The bill compresses and weakens the consultation process with State and Tribal Historic Preservation Offices, Tribal Nations, and local governments. The bill inserts rigid deadlines regardless of the projects complexity, would make consultation optional when determining an area of potential effect, and worse it effectively gives federal agencies the final word during disputes by deciding that other considerations outweigh historic preservation.
- The bill narrows what constitutes a federal undertaking, limiting which projects would even require review. The changes would exclude projects where the only federal involvement is federal financial assistance, like grants or loans. It would also exclude projects where the agency doesn’t exercise “substantial control” — a new, undefined threshold that could let agencies avoid review.
- The bill narrowly redefines what is considered an “adverse effect” on a historic property. The bill explicitly excludes many visual, atmospheric, and audible effects unless they “significantly” diminish the historic property, an undefined threshold. The bill would limit adverse effects to those that are “reasonably foreseeable”, defined as a “a reasonably close causal relationship” to the undertaking. This gives much more latitude to federal agencies to determine what is an adverse effect.
- The bill dramatically limits judicial review. The ability of project opponents would be severely limited, the bill would restrict who can file claims, and imposes a 150 day deadline to bring certain claims.
- The bill imposes harsh leverage over State and Tribal Historic Preservation Offices. The bill would increase evaluations by Interior of SHPOs to every two years, threatens to revoke federal funding if deadlines aren’t meant, and even includes the ability of the Interior Department to assume the role of the THPO.
The bill also includes some provisions that the historic preservation community has supported to improve the process like designating lead agencies and increased investments in the Historic Preservation Fund. The bill would reauthorize the HPF at $200 million annually through 2036 and provide $20 million for THPOs to develop a database for Tribal records.
Preservation Action continues to analyze the bill, including provisions in other sections that could impact historic preservation. We are also working to compare the changes included in the permitting bill to those proposed by the Advisory Council on Historic Preservation in July. Importantly, while changes proposed by the ACHP to Section 106 regulations could be litigated in court or undone by future administrations, changes made to statute like those in the permitting bill would be far more difficult to change.
Preservation Action is urging Congress to reject the provisions in the Senate permitting bill that weaken protections for historic resources. We also stand ready to work members of Congress on positive changes that strengthen Section 106 and actually improve efficiency. We will continue to need your voice as we fight back against these ongoing threats critical protections. Stay tuned for more!